December 8, 2011
Please welcome Shannon Minter and Christopher Stoll back to Prop8TrialTracker.com for a guest post analyzing today’s hearings and likely outcomes. 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. -Adam
By Shannon Minter and Chris Stoll
Predicting how a court will rule is a risky business. But based on today’s arguments, it seems likely that the Ninth Circuit may be poised to split the baby on the two issues before it. On the question of whether to uphold Judge Ware’s ruling that the trial video must be publicly released, the three-judge panel was skeptical that releasing the video would put any witnesses at risk of harassment or intimidation. As the panel noted, one of the experts who testified in favor of Prop 8 specifically said he had no concerns about being harassed, and the only other pro-8 expert testified about a relatively dry legal issue that is not likely to provoke strong reactions. Nonetheless, the panel seemed troubled by the argument that Judge Walker assured the Prop 8 proponents that the trial video would not be made public. San Francisco Chief Deputy Attorney General Therese Stewart responded to that argument forcefully, noting that Judge Walker promised only that the video would not be broadcast during the trial — not that it would be sealed for all time. Stewart (as usual) was powerful, but the judges did not seem mollified and continued to voice concerns that the Prop 8 proponents may not have had fair notice that the video might someday become public. It will be deeply disappointing — and a terrible loss to history and to the transparence of the judicial process — if the Ninth Circuit keeps the video under seal.
On the question of whether to uphold Judge Ware’s ruling that Judge Walker had no duty to recuse himself simply because he is in a long-term same-sex relationship, the panel seemed less ambivalent and more inclined to agree with Judge Ware. Appearing for the plaintiffs, David Boies demolished the proponents’ attempts to question Judge Walker’s fairness, likening them to discredited arguments used to attack female, African American, and Catholic judges in the past. On the other side, Charles Cooper was unusually dramatic in his rebuttal, claiming that it would be “a dark day for American jurisprudence” if the court allows Judge Walker’s ruling to stand. Judge Reinhart responded humorously—perhaps signaling again that the court was not swayed by attempts to cast doubt on Judge Walker’s integrity.
The court has indicated that it will not hear any further arguments before issuing its ruling on the main issue in the underlying case — which is whether to uphold Judge Walker’s ruling that Prop 8 violates the federal Constitution. The court may rule first on the two related issues it heard today, or it may wait to issue all three decisions on the same day. The court does not have to rule in any particular time frame, but it is likely it will move quickly since it previously chose to put this case on a fast track. It is even possible we may see a ruling as early as January.