SAN FRANCISCO – A three-judge panel at the Ninth Circuit Court of Appeals grilled lawyers on both sides Thursday afternoon on two motions under appeal.
Judges Michael Daly Hawkins (a Clinton nominee), Stephen Reinhardt (a Carter nominee) and N. Randy Smith (a George W. Bush nominee) presided over the appeals court hearing.
The first hour of the hearing focused on the appeal by anti-gay groups who disagree with Chief District Judge James Ware’s ruling earlier this year to release video from the historic Proposition 8 trial that led to then-Chief District Judge Vaughn Walker’s ruling that the state law banning marriage equality was unconstitutional.
Representing the American Foundation for Equal Rights (AFER), the high-powered legal team led by Ted Olson and David Boies had successfully argued in District Court that the Prop 8 trial video should be available for viewing by the public.
Also arguing that the tapes should be released is a media coalition comprised of The Associated Press, The New York Times, Los Angeles Times, FOX News, NBC News, the Hearst Corp., Dow Jones & Co., and others.
Marriage equality supporters and court observers say that the Yes on 8 attorneys want to prevent the public from seeing the Prop 8 trial video because they know that they had no defense for marriage discrimination.
Attorney David Thompson, representing the Yes on 8 side, argued that release of the trial tape would subject their two witnesses to intimidation and harassment, distort their testimony, misrepresent their opinions and cause systemic harm. Reinhardt and Hawkins seemed somewhat skeptical of that argument, while Smith sounded sympathetic.
Thompson cited the 77.3 protective order, saying it pre-empts common law. Olson, during his oral arguments, disputed that and said the video was already in the public record and should be released for viewing. Olson pointed out that there was no evidence of harassment or intimidation of the two witnesses.
Terry Steward, attorney for San Francisco, argued that the District Court record does not indicate any limited use of any recordings, and that while Judge Walker may have used the videotape for deliberation, "that doesn't mean it's sealed for all time."
Rick Jacobs of the Courage Campaign tweeted that he thinks the judges are learning toward keeping the video under seal.
Hearing on second motion on judge's recusal
The second hour of the hearing focused on the Yes on 8 motion to vacate Judge Walker’s Prop. 8 decision because he never disclosed to the public that he is gay and in a long-term relationship. The anti-marriage attorneys argued that Judge Walker was impartial because of his sexual orientation.
Although this was not brought up at today's hearing, it should be noted that many news organizations, including SDGLN, had reported that Judge Walker is gay before the trial began. That fact inspired Kate Kendell, executive director of the National Center for Lesbian Rights, to tweet: "This is such utter crap. The anti gay guys knew Walker was gay, they only got undies in a bunch after they lost."
Attorney Charles Cooper argued that Judge Walker never disclosed his sexual orientation and long-term partner until after he retired. Judge Smith, the lone conservative on the panel, seemed miffed at the question of Judge Walker's impartiality and jumped all over Cooper's points. And Judge Hawkins retorted: "So a married judge could never heard a divorce case?"
When Cooper suggested that Judge Walker may wish to marry his partner, hence his ruling, Judge Hawkins pointed out that Walker could have married in 2008 when same-sex marriage was legal in California, but did not choose to do so. That effectively shot down that argument.
Judge Smith continued to hammer Cooper. He asked: Would a married straight judge who opposes marriage equality would have to disclose that?
Cooper admitted to the panel that no individual marriage would be harmed by marriage equality ... just the institution of marriage would be negatively affected. Judge Reinhardt shot back, saying if the institution of marriage is harmed, wouldn't individual marriages harmed, either now or in the future. The piling on began taking its toll on Cooper, who was flustered and not making much sense.
Bois, representing AFER, said the proponents cannot cite any case where recusal was required and that Cooper was trying to create a new rule to apply to gay judges. "The fact that the judge may benefit from a favorable ruling is not sufficient to recuse," Bois argued.
Turning the tables on Cooper, Bois said that to apply Cooper's "standards" to recuse, it would be difficult to find any judge qualified to hear almost any case.
The three-judge panel did not appear to buy into Cooper's arguments on recusal. At one point, Judge Reinhardt said: "Mr. Cooper is trying to make an argument ... and I don't know how successfully."
The Ninth Circuit panel is expected to rule on both motions early next year.
Video of first hour of hearing
Video of second hour of hearing