In what was likely the last hearing before a ruling is delivered on the constitutionality of Proposition 8, the Ninth Circuit Court of Appeals on Thursday appeared unconvinced that a previous ruling on the ban be tossed because the judge was in a longterm same-sex relationship.
Before the issue of whether former Chief District Judge Vaughn Walker should have recused himself from the 2010 case where he ruled Prop. 8 unconstitutional, the Ninth Circuit dealt with the release of videotapes of that trial. Prop. 8 proponents have been fighting for years to keep the tapes unavailable to the public, while gay rights advocates want the public to see them. Both David Thompson, arguing for the Prop. 8 proponents, and Ted Olson, arguing against Prop. 8 for the American Foundation for Equal Rights, were grilled by Ninth Circuit judges. Thompson made the case that witnesses would be harassed and intimidated should the tapes be made public; judges didn't seem convinced. Nontheless, they argued with Olson over whether tapes of the trial were necessary when transcripts were available.
Moving to the issue of Walker, it seemed the Prop. 8 proponents had a much bigger mountain to climb. Lawyer Charles Cooper tried to convince the judges that Walker had a stake in the Prop. 8 case, since he was in a longterm gay relationship. The judges questioned whether it was clear Walker wanted to marry, since he didn't during the brief period when same-sex marriage was legal in California.
AFER's David Boies rebutted Cooper's arguments, asking the Ninth Circuit panel whether a heterosexual judge committed to opposite-sex marriage would have to disclose that information or recuse himself or herself. Boies added that the Prop. 8 supporters are singling out minority judges and holding them to different standards. Therese Stewart with the City and County of San Francisco then argued against dismissal of Walker's decision, citing numerous examples of judges sharing interests with a large group and not being disqualified.
"This is not an argument that all gays should be recused because they're gays," Judge Stephen Reinhardt said to Stewart.
Stewart responded, "It's awfully close, your honor."
Kate Kendell, the executive director of the National Center for Lesbian Rights, released the following statement: "We expect and believe the Ninth Circuit will see these moves by the Prop 8 proponents for what they are: a desperate attempt to divert attention from their utter failure to offer any good reason to uphold this blatantly discriminatory ballot initiative. Judge Walker was scrupulously fair during the trial, giving the proponents every opportunity to present evidence justifying their position, but they had nothing to offer. For them to now claim that the judge could not have been fair because he is in a relationship with a man is not only outrageous and offensive, it is an attack on the integrity of judges everywhere."
A decision on all these matters, including the constitutionality of Prop. 8, could come at any time.