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Today, the U.S. Court of Appeals for the Ninth Circuit heard oral arguments on two issues in Perry v. Brown, the federal court challenge to Proposition 8. In that case, two same-sex couples are challenging Prop 8, the 2008 ballot measure that stripped the right to marry from same-sex couples in California.  Following a historic trial that took place in January 2010, now-retired Chief District Judge Vaughn Walker ruled that Prop 8 is unconstitutional. That ruling has been on hold while the proponents of Prop 8 appeal Judge Walker’s ruling.

Since their devastating loss at trial, the proponents have tried their best to distract attention from the fact that Prop 8 is a blatantly unconstitutional measure that was passed through a campaign that relied on fear, deception and stereotyping of gay men and lesbians. Today’s arguments involved two of those diversionary tactics by the proponents of Prop 8.

First up was their never-ending campaign to prevent the public from viewing the official video recording of the trial. Earlier this year, the couples who are challenging Prop 8 filed a motion seeking to unseal the videos.  The City and County of San Francisco and media coalition members, including the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, and The Associated Press, joined the plaintiffs in asking the court to release the videos. In September, Chief Judge James Ware of the U.S. District Court in San Francisco ordered the public release of the videos, saying that public access to trials and court records are “[f]oremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process.”

The second half of today’s hearing concerned the proponents’ outrageous and offensive efforts to convince the courts to throw out Judge Walker’s decision striking down Prop 8 because he is gay and in a long-term relationship. Judge Ware, who was assigned the case after Judge Walker’s retirement, denied the proponents’ request in June, writing that “the presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.” The Prop 8 proponents appealed both of Judge Ware’s rulings to the Ninth Circuit.

Today’s arguments were heard by the same panel of judges that is presiding over the appeal from Chief Judge Walker’s decision striking down Prop 8, Ninth Circuit Judges Stephen Reinhardt, Michael Daly Hawkins, and N. Randy Smith.  In the first portion of the arguments, attorneys for the Prop 8 proponents argued that releasing the trial videos—a public record of a public trial—might result in their witnesses being threatened or intimidated. They persisted in these assertions even though the trial has been over for nearly two years, transcripts of the trial are freely available on the Internet, and the trial transcripts have even been used to stage a full-length video reenactment of the trial, which is also available on the Internet. The judges were dismissive of the proponents’ arguments, noting that one of the two experts supporting Prop 8 had specifically denied any fears of harassment and the other had testified about a technical legal point that was not likely to elicit strong feelings.

But the judges also seemed troubled by possibility that Judge Walker had assured the parties that the videotape would not be publicly released. Therese Stewart, who appeared on behalf of the City and County of San Francisco, urged that Judge Walker promised only that the videotape would not be broadcast while the trial was proceeding—not that it would be sealed for all time. Despite Stewart’s spirited defense, the judges continued to raise concerns that the Prop 8 proponents did not have fair notice that the videotape might eventually be made public.

In contrast, the judges appeared skeptical of the Prop 8 proponents’ argument that Judge Walker was biased and his decision should be invalidated because of his sexual orientation and relationship status.   Appearing for the plaintiff couples, David Boies challenged that argument aggressively, noting that the very same claims of bias were used to try to keep women and people of color from deciding discrimination claims. The judges also focused on the apparent contradiction in the Prop 8 proponents’ argument—if (as the proponents claim) a judge in a same-sex relationship has an improper direct interest in the outcome of a case about the right to marry, then a judge in a heterosexual marriage would have an improper direct interest as well, based on the proponents’ claim that permitting gay couples to marry devalues the marriages of heterosexual couples.

Based on today’s arguments, it is difficult to gauge how the Ninth Circuit will rule on releasing the videotape. The trial record in this case is an irreplaceable historical record of a pivotal moment in the movement for LGBTQ equality. It will be disappointing if the court keeps the trial video locked away from the public and out of the hands of historians, scholars and educators. In contrast, the court seems likely to uphold Judge Ware’s ruling that Judge Walker had no duty to recuse himself. The judges seemed persuaded that Judge Ware’s decision was entitled to deference and that there was no compelling reason for the appeals court to overturn it.

It’s no wonder that the Prop 8 proponents are doing everything they can to distract attention from the real issues in the Perry case and to hide the trial from public view. The proponents were given every opportunity to come forward at trial with any good reason to uphold Prop 8’s treatment of same-sex couples as second-class citizens. They came up empty, so they decided to change the subject. Today, the Ninth Circuit appeared to see through at least part of their smokescreen. Regardless of how they rule on releasing the trial video, the judges seem ready to move ahead and decide whether Judge Walker’s decision should be upheld on its merits. They did not seem at all inclined to throw out Judge Walker’s detailed and carefully reasoned opinion on the basis of unfounded personal attacks on the integrity of the judicial process.

Today’s arguments should be the last court hearing before the Ninth Circuit panel issues its written decision on the two matters it considered today. In addition, the court previously announced that no further arguments will be held before the panel decides the central issue in the case: whether to uphold Judge Walker’s ruling striking down Prop 8.  While there is no set time for the court to rule, it is likely to issue its decisions on all of these matters relatively soon, possibly as early as January.

Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.

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