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Reaction to yesterday’s Perry hearings at the 9th Circuit

9th Circuit Court of Appeals Prop 8 trial

By Jacob Combs

Yesterday was quite the day at the 9th Circuit.  Despite a late start, an old courtroom and a less-than-reliable live stream (we’re still very grateful to KQED for making the live stream happen at all!), it was a good day for our side.  Here’s a roundup of the reaction to the trial in the news and across the blogosphere, with a little of our own analysis thrown into the mix.

  • First up in yesterday’s hearings was the issue of releasing the tapes.  The good news is that all three judges seemed quite skeptical of the Prop 8 side’s argument that releasing the recordings would result in any harm or harassment to the witnesses who testified.  The bad news is that they also seemed hesitant to release the tapes because Judge Walker informed both parties in the case that he was making the recordings for his own private use.  While the lawyers on our side argued that the recordings had been entered into the record without an objection by both sides, and that they don’t differ from any other recording of the trial such as a transcript, the panel seemed wary of making the tapes public when Walker said they were for his own use.  This panel certainly likes to play devil’s advocate with both sides, so this one could come down either way.  Don’t be surprised, though, if the tapes remain sealed.
  • On the second count regarding the motion to dismiss Judge Walker’s ruling, yesterday’s hearings could not have been more revealing.  Judge Smith (the only Republican appointee on the panel) grilled the proponents’ lawyer, Charles Cooper, ripping apart the argument that Judge Walker should have recused himself because of his sexuality and relationship status.  The judges had some questions for our side, but for the most part they let David Boies talk freely and eloquently about the rights of minority judges, and the importance of assuming a judge’s impartiality as opposed to making assumptions that ascribe some specific bias.  You can find the recordings of the hearings on the 9th Circuit’s website (audio is here and here), and Boies’ speech is definitely a part worth experiencing.
  • Towleroad has an interesting roundup of yesterday’s hearings, including a story in the Washington Post describing Judge Smith’s smack down of Charles Cooper as well as an opinion piece by Ruth Marcus arguing that it’s time for Obama to finish ‘evolving’ on marriage equality:

In a memorandum to Democratic consultants and campaign managers, gay rights advocates argue that backing same-sex marriage is not the political poison it was in years past. Indeed, they contend, it could be a political boon — not only with Democrats but with independent voters, some 56 percent of whom approve of same-sex marriage.

Their data? Analysis by Joel Benenson, Obama’s pollster, and Jan van Lohuizen, who served that role for George W. Bush.

  • The Los Angeles Times has an article analyzing yesterday’s hearings, as well as another about the passing of Ed Watson, which Adam wrote about earlier.  The New York Times also has coverage of the trial, as does the San Jose Mercury News.
  • The Huffington Post has an eloquent piece about Ed by Jamie McGonnigal titled “He Died Waiting to Get Married.”
The general consensus is that the motion to vacate will be rejected and the tapes will probably remain under seal.  With these arguments out of the way, the panel can now make its rulings on the merits.  Now, of course, the waiting game continues.  The panel could release its decision at any point in time, and given that it has had a year to consider the constitutional arguments in the case, we hope it won’t take too long to come to a decision.


  • 1. peterplumber  |  December 9, 2011 at 9:06 am

    I would gladly trade my ability to view the tapes for my ability to marry my long term partner.

  • 2. Sagesse  |  December 9, 2011 at 9:14 am


  • 3. Alan_Eckert  |  December 9, 2011 at 9:18 am


  • 4. TomTallis  |  December 9, 2011 at 9:16 am

    I believe that they also need to formally rule on the standing issue before they can procede to the merits, unless I've missed something.

    Everyone seems to think that it's a foregone conclusion, but is it really?

  • 5. Jacob Combs  |  December 9, 2011 at 9:38 am

    I don't think it's a foregone conclusion, but I don't think they would necessarily have to issue a separate ruling regarding standing. In other words, they could just have the one ruling, which would start out with the decision and reasoning on standing, and if it found they did have standing, would then go on to address the constitutional merits.

  • 6. Jamie Ward  |  December 9, 2011 at 10:04 am

    I don't think it's a foregone conclusion. I think it will be very difficult for the 9th Circuit to come up with anything that supports proponents having standing under federal jurisdiction, and even harder to come up with something that the Supreme Court is likely to buy.

  • 7. Straight Dave  |  December 9, 2011 at 10:31 am

    However, I believe the 9th really desperately is dying to rule on the merits and will somehow find a way. I think they will try to exploit the loophole left by SCOTUS in Arizonans where they said something like "we are unaware of any Arizona state law that authorizes initiative proponents to appeal". The 9th now has the CASC ruling to point to and claim is good enough, and if SCOTUS wants to go ahead and overrule them, so be it. It's not like the 9th is shy about getting shot down – happens all the time.

    If SCOTUS wants to jump in with both feet and affirm this decision on the merits, they certainly have a good case with lots of evidence to back them up. But if they don't quite have the balls for it this time around, they have the easy out of the proponents not suffering any particularized harm. I'd bet money they bail out on standing rather than kill this case on the merits.

    At least we''re finally getting somewhere with this thing, but I can't imaging before January.

  • 8. Alex  |  December 9, 2011 at 6:18 pm

    CASC actually doesn't cite any law. Their standing on ruling only seems to be based on "fairness".

  • 9. Alex  |  December 9, 2011 at 6:19 pm

    Their ruling on standing*

  • 10. Prop 8 OVERTURNED: Gay Ma&hellip  |  December 9, 2011 at 11:27 am

    […] sounds like except on the videotape issue, the court was very skeptical of the Prop h8 proponents: Prop 8 Trial Tracker Reaction to yesterday’s Perry hearings at the 9th Circuit Judges Seem Skeptical of Bias by Walker in Prop. 8 Hearing | News | The Advocate Prop 8 Trial […]

  • 11. Str8Grandmother  |  December 9, 2011 at 11:27 am

    The Videos are now available on line of the arguments before the Cout of Appeals. I would suggest a seperate article so it is easy for people to find this

  • 12. DaveP  |  December 9, 2011 at 12:33 pm

    Thanks! I'm watching them now on my lunch break…..

  • 13. Fr. Bill  |  December 9, 2011 at 11:52 am

    I thought for a stay to be justified in Federal practice the requesting party need to show probable judgment in its favor and immediate significant harm, I doubt if they can show prpbablility of winning on the merits and yesterday conceded that no one's marriage is harmed by letting same gender marriage take place. So what would be the 9thCircuit's justification for keeping the stay in place? If anything, Ed Watson's death shows the irreparable harm done by keeping a stay in place.

    Ed will be remembered at services next Sunday here n Maui.

  • 14. johnfromco  |  December 9, 2011 at 1:11 pm

    Wow, watching Cooper try arguing that the law was applied wrong by Judge Ware. Pretty amazing – even I know that an appeal typically doesn't question determination of fact, just application of law. Yet Cooper's argument seems to be "I disagree with Ware's determination of fact." I'm embarrassed for Mr. Cooper. It almost makes me want to help him out. That's just sad.

    And, "[We have] no direct evidence" is the best quote so far. If that doesn't sum everything up…

    Of course this is all the side-show. The real issue is whether or not people can marry? I wish they would get on with it!

  • 15. Keith  |  December 9, 2011 at 2:18 pm

    It will be another year before they will rule and then they will stay their ruling until it's appealed to the SCOTUS and that will take another 5 years. This whole process is a joke. I thought our justice system was supposed to be swift? How long do those being harmed have to wait for justice?

  • 16. Keith  |  December 9, 2011 at 2:13 pm

    I think they're hoping for us to all die off before they are forced to rule. Waiting so long is a complete lack of justice for everyone that's harmed by Prop 8. I have no faith in our justice system.

  • 17. Prop 8 Trial Tracker &raq&hellip  |  December 9, 2011 at 3:02 pm

    […] to Stra8Grandmother in the comments from my earlier piece for pointing out that the video of yesterday’s hearings is now available on the 9th […]

  • 18. Jamie  |  December 9, 2011 at 3:25 pm

    me neither

  • 19. fighting sascha!  |  December 9, 2011 at 3:39 pm

    Justice?system?where? the US justice lives behind the moon!!!no equality ,people being stoped to be happy,is it our fault to love who ever we want?why do we get punished for that?i see my girlfriend 5-6 months(binational couple) a year because of the slow working justice in this weird organized country…geez
    what a shame….

  • 20. Prop 8 Trial Tracker &raq&hellip  |  February 6, 2012 at 6:45 pm

    […] 8 hearing on the motion to overturn Judge Walker’s decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker’s ruling should be thrown out because of his orientation and relationship […]

  • 21. Prop 8 Trial Tracker &raq&hellip  |  February 7, 2012 at 10:07 am

    […] 8 hearing on the motion to overturn Judge Walker’s decision, the 9th Circuit panel seemed deeply skeptical that Judge Walker’s ruling should be thrown out because of his orientation and relationship […]

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