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Guest Post: Oral Argument in Proposition 8 Appeal Sets the Stage for Ninth Circuit Ruling

9th Circuit Court of Appeals Prop 8 trial

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.

40 Comments

  • 1. Alan_Eckert  |  December 8, 2011 at 7:29 pm

    It was fun listening to it with my family today. Hopefully they have a video that will be easier to watch tomorrow.

  • 2. Sagesse  |  December 8, 2011 at 7:32 pm

    @

  • 3. Zander1986  |  December 8, 2011 at 8:01 pm

    So much waiting… but hey, what's another few weeks? Hopefully we hear soon!!!

  • 4. Joey Elliot  |  December 8, 2011 at 8:11 pm

    Joey. I hit refresh a hundred times today on the live blog, and really appreciate the time those folks took to keep constant updates coming out of the courthouse today. I love it when Charles Cooper gets cornered and tha apparently happened more than once. Any idea when it will be on C-SPAN? (I ask because in the public notice at the 9th Circuit Court of Appeals, it states that it will be rebroadcast on C-SPAN). Again thanks to the folks who sat in and made sure to tweet and live blog all the good parts for thsoe of who just couldn't get away from work.

  • 5. Lawrence  |  December 8, 2011 at 9:01 pm

    I thought that the team seemed a little unprepared for the "but he said it would never be broadcast" line of questioning with only Therese attacking that directly saying he didn't say this – but she got cut short and redirected. I (obviously) have not recently scanned the whole record, but Judge Walker's off the cuff remark in an admonition about there being no more proponent witnesses is very ambiguous line if that's all he said. The meaning of "broadcast" in that context could quite reasonably only mean "being broadcast live right now as not allowed by the SCOTUS ruling on only that topic" as opposed to "never be available or playable ever". So what did he say? As Olson and Therese said – he then placed it into the record and that has implications that go against interpreting that one line as "no no never". So where else did Judge Walker comment on the status of the recording and imply to the proponents that it would never be seen?

    Boies as usual was awesome. You could almost here him thinking "god, they are just going to let me just keep talking – I need to fire even more ammunition" as he mellifluously decimated the poor argument in front of him!

  • 6. celdd  |  December 8, 2011 at 9:14 pm

    I loved listening to Boies! I was multitasking reading the tweets, liveblog, etc., and I just stopped, closed my eyes and listened. He has a very melodious way of speaking in addition to presenting logical, clear arguments. I couldn't believe they were just letting him present his argument with only a few interruptions. I wonder if that's a good thing or a bad thing?

  • 7. Rob in CA  |  December 8, 2011 at 9:17 pm

    Lawrence, I agree. I was in the courtroom today and I think our team could have hit a little harder on the context of Judge Walker's comment regarding broadcast of the recordings. Also, I was a little confused at the outset by Therese's arguments but after a couple of minutes and some pointed questioning from Judge Reinhardt she seemed to be back on track. The brief she presented on behalf of the city and county of San Francisco was awesome and I was glad that she reiterated those arguments in the press conference which followed the hearing.

    All in all it was an interesing day at the courthouse and I feel privileged to have had a seat.

  • 8. Bob  |  December 8, 2011 at 10:47 pm

    I'm thinking it's an interesting situation to figure out Judge Walkers exact intentions with regards to the release of the tapes,,, do his intentions change once they're on the record,,,, (court records having implications of their own, I'm gathering, would that give them presidence???

    I would think if his intention was to protect the proponents,, we have to give them that,,,,, especially since we're giving weight to his actual ruling on the case,,,,,,

  • 9. darrell  |  December 8, 2011 at 10:51 pm

    question??

    If we lose on releasing of the video are they going to take it to the united states supreme court to force it to be released???

    It does sound like they aren't going to throw out the case because the judge is gay, and sounds like they are going to rule that proposition 8 is against the law…. can't wait:):):)

  • 10. TomTallis  |  December 8, 2011 at 10:51 pm

    Don't they still need to rule on standing before they do anything else?

  • 11. darrell  |  December 8, 2011 at 10:53 pm

    why don't they ask judge walker to give a written statement about the video taping or ask the supreme court should the video be released….

    I think that would be fair:)

  • 12. Warner  |  December 8, 2011 at 11:23 pm

    i think the CA supreme court already ruled on standing.

  • 13. Jacob  |  December 8, 2011 at 11:37 pm

    Thanks!! Any odds on the chance of a ruling this calendar year? Would that be totally impossible?

  • 14. darrell  |  December 9, 2011 at 12:16 am

    lol… I loved how the lawyer for the other side said… gay marriages don’t threaten individual heterosexual marriages…… can we re-play that in some 2012 election ads.

  • 15. darrell  |  December 9, 2011 at 12:18 am

    most likely will happen in early to late january…… most likely not going to happen this month with christmas and new years around the corner…… but we can always hope and pray:)

  • 16. Prop 8 Watch: Judge:1; Vi&hellip  |  December 9, 2011 at 1:14 am

    […] In a post-hearing commentary for Prop 8 Trial Tracker, Shannon Minter, Legal Director for the National Center for Lesbian Rights and Christopher Stoll, a Senior Staff Attorney for the National Center for Lesbian Rights write,”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.“ […]

  • 17. Str8Grandmother  |  December 9, 2011 at 2:33 am

    Well if they are not going to Free the Tapes, what they could do is seal it for 10 years or something. This is an important part of our history, they did this with the Nixon tapes.

  • 18. Str8Grandmother  |  December 9, 2011 at 2:34 am

    Darrell, great point! "the lawyer for the other side said… gay marriages don’t threaten individual heterosexual marriages…… can we re-play that in some 2012 election ads. "

  • 19. frisky1  |  December 9, 2011 at 5:24 am

    "We have, from the beginning of this case, disavowed any claim that an individual marriage would be harmed by a ruling that same sex marriage is a Constitutional right." – Charles Cooper – Its almost as good as "I don't know, I don't know"

    Its at about 26:17 in the audio file link above.

  • 20. Deeelaaach  |  December 9, 2011 at 5:42 am

    Our opponents have already stated that they think the tapes will be used to take things out of context, so they will likely make the same claim if we use that statement in a commercial, even if it is in context. Please note that I am not arguing that we shouldn't use it anyway. But I am wondering if it would be prudent or necessary, if it is used at all, to point to the original source to show that it was not taken out of context. I'm not sure how we'd do that, or if doing it is pointless in the first place. You can lead the horse to water but you can't make it drink, so is there any point in leading a horse that won't drink? Conversely, they can't drink if you don't lead them there, so is there a point to leading them there anyway in hopes they'll make the choice to drink? I'm not arguing that we should do this for those we know won't be swayed by any kind of logic because they're not thinking with their heads, but I'm wondering if it would make a difference to those who might be convinced to show them the source of the actual quote, from the court record. Maybe trying to do this is pointless, but if we even change one mind in doing so, is it worth it? I hope so.

  • 21. Tasty Salamanders  |  December 9, 2011 at 5:53 am

    No, because the motion to vacate and the tapes don't have the issue of standing.
    Basically with the main appeal the question of standing exists because they aren't the state defending it's own laws so they have to show a specified harm that could occur to them if the law is overthrown to show the court why they should be allowed to continue defending it.

    The issue of the tapes and the motion to vacate relate back to the original trial and thus them thus there is no issue of standing for those issues.

  • 22. Theresa  |  December 9, 2011 at 6:46 am

    Wow, doesn't that throw his whole case right out the window??

  • 23. Theresa  |  December 9, 2011 at 6:47 am

    If the 9th circuit rules in our favor, and the other side appeals to the Supreme Court can the ruling be stayed indefinitely until the Surpreme Court hears it?

  • 24. MightyAcorn  |  December 9, 2011 at 7:28 am

    Hate to be the bearer of bad news, butmyes…and it's likely, I think.

  • 25. Sheryl_Carver  |  December 9, 2011 at 7:33 am

    I agree with you, Lawrence, that it seemed like out team could have done a little better with the "never be broadcast" questioning. Of course, IANAL and the audio kept cutting out, so I might have missed some very important point(s).

    It seems to me that, if there are legal consequences of having the video placed into the trial record, that even if Judge Walker didn't specifically call attention to that, the attorneys for BOTH sides should have known what those consequences would mean for their clients AND Cooper should have objected or at least asked to confer with his clients & then objected. Isn't that why we have lawyers represent us in court?

  • 26. Lawrence  |  December 9, 2011 at 7:38 am

    I have to wonder why the court can't just ask Judge Walker what his stated commitment was – or is this obvious approach simply not allowed and they have to read tea-leaves instead? I don't want to see another "certified question" to anyone but perhaps Judge Walker could just send in a short note "I said and meant this" :).

  • 27. frisky1  |  December 9, 2011 at 7:46 am

    He goes on to say that its the institution of marriage as a whole that will be harmed. but not right away so that a straight married judge would be affected, sometime in the future.

    Pure genius!! /sarc off.

  • 28. Sagesse  |  December 9, 2011 at 8:08 am

    They say Cooper is a good lawyer… But on days like yesterday, you have to wonder.

  • 29. James Sweet  |  December 9, 2011 at 8:16 am

    By my interpretation of where the panel is going with this, that would be irrelevant. It's not what he meant, it's how a reasonable person would have interpreted what he said. The 9th Circuit is concerned (and as much as it pains me to say so, I think they have a point here) that if the D-Is had a reasonable belief that the tapes would never be released to the public, and that this is the only reason they did not object more strenuously to the taping, then it would reflect poorly on the judiciary to now release them — as if the D-Is had been bamboozled.

    So even if Walker meant that they wouldn't be broadcast live but might be released later, if it was reasonable for the D-Is to conclude otherwise, that doesn't by itself undermine the panel's reasoning.

  • 30. bjasonecf  |  December 9, 2011 at 8:17 am

    I'd go so far as to say:

    They say Cooper is a good lawyer… But on cases like any and all of these Perry cases, you have to wonder.

  • 31. James Sweet  |  December 9, 2011 at 8:21 am

    Yeah, probably better than 90% chance that this is exactly how it goes down. The next most likely alternative — though it's a verrry distant second — is that the 9th circuit reverses Walker's ruling, and then it gets appealed to SCOTUS. Either way, no marriage equality.

    Sorry to say, but the odds of this resulting in marriage equality for Californians without going all the way up to SCOTUS are vanishingly slim. SCOTUS will definitely issue an emergency stay if the 9th circuit doesn't, and there's no way the D-Is choose not to appeal, since they've got a decent shot at winning at SCOTUS (it will undoubtedly be a 5-4 decision, and it could go either way)

  • 32. James Sweet  |  December 9, 2011 at 8:23 am

    That was supposed to be in reply to Theresa, but I guess I typed in the wrong spot.

  • 33. Ed Cortes  |  December 9, 2011 at 8:27 am

    Couldn't they just watch the video of the trial and get exactly what he said? ;-) LOL

  • 34. James Sweet  |  December 9, 2011 at 8:27 am

    I can't comment on how good or bad of a lawyer he is, but he is being asked to argue an impossible case, so that doesn't help.

    I do think that in regard to the Bad Guys' true intentions with the questioning of Walker's impartiality, he played it very well. Did he endear himself to the judges? Hell no! But he wasn't going to with that argument, no matter how it was presented. (As I've mentioned on other comments, judges don't tend to take kindly when you question other judges' impartiality… go figure, right?) But he managed to get some soundbite material in at the end, which will be useful in bunching the underwear of the Bad Guys' donor support base.

  • 35. Bob Barnes  |  December 9, 2011 at 8:45 am

    Kate, NOM always spins the facts to the cheap seats.

    Think about it, if NOMers really accepted facts, we wouldn't be in court at all.

  • 36. Lymis  |  December 9, 2011 at 8:48 am

    Not quite.

    Normally, a citizen acting as a citizen has to show personal, particular harm in order to have a case in a federal court. That's the most common situation, and it's pretty clear that under those rules, they don't have much to go on.

    But other people who happen to be citizens, like state governors and attorney generals, also can present cases in federal court acting not as citizens, but acting in an official capacity speaking for the citizens of that state as a whole. In that case, they, as individuals, don't need to show that they are personally harmed.

    The question isn't so much whether the Prop 8 supporters can be in federal court as citizens, but whether under California law, they are empowered to speak for the whole state because of their relationship to the initiative that the voters passed. And if so, whether the federal court has an obligation to recognize that same empowerment for federal purposes.

    The interesting twist that got raised in one of the Friend of the Court briefings is whether, if they ARE allowed to speak for the state, whether the same constraints about needing to show legitimate state interest would apply to them as they would to the governor or AG. Because while they are claiming to speak as state actors, all their arguments are framed as applying to citizens, not to the state. Can they make a case that the state has a legitimate interest in depriving any citizen of a right that their State Supreme Court has declared to be fundamental? Doesn't look like it. So, in some ways, if they do get standing, it further destroys the substance of their own case.

  • 37. MJFargo  |  December 9, 2011 at 8:55 am

    The case was initially put together as a Constitutional challenge, and it was the intent of the plaintiffs (as well as the proponents) that this should reach the Supreme Court. Whether SCOTUS is eager to get into the Prop 8 conflict with its odd set of characters and the complicated issue of standing, remains to be seen. But absent that, I think they'd have welcomed it.

  • 38. Lymis  |  December 9, 2011 at 8:56 am

    No, because they are looking at it from a different viewpoint.

    You are asking "which side made a better case?"

    They are asking "how can we make money off this?" The truth has always been entirely optional, and largely inconvenient to them.

  • 39. Richard Cortijo  |  December 9, 2011 at 9:43 am

    I was glued to the blog yesterday, refreshing constantly…it was like I was there!! Thank you Prop 8 Trial Tracker Team!!! xoxo

  • 40. Chris in Lathrop  |  December 9, 2011 at 3:28 pm

    I'm "clearly embarrassed" to be classified the same species as the officers of NOM.

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