The Beginning of the End

This afternoon marked the final hearings in the flurry of appeals related to the Perry v. Schwarzenegger case. A decision on the constitutionality of California’s one man-one woman marriage definition could be issued at any time, whenever the three-judge appellate panel is ready to sign off on the decision. Court watchers are hoping for an early Christmas or New Year’s present in the form of a neatly packaged set of historical decisions (which will likely be appealed to the U.S. Supreme Court).

Today’s hearings addressed a motion to vacate Judge Walker’s decision and an appeal of Judge Ware’s decision to release videotapes made of the trial in Walker’s courtroom.

Just one year ago, on December 6, 2010, the 9th District heard oral arguments regarding the validity of Prop 8. Traditional marriage proponents, unhappy with Judge Vaughn Walker’s ruling that California’s constitutional amendment violated the U.S. Constitution, appealed that decision, but there was some question as to whether they had the right (the “standing“) to file that appeal. To keep the wheels of justice moving, the district court heard two sets of arguments last December: One which addressed the ability of Prop 8 supporters to bring the appeal and one which addressed the merits of the case.

Before the district court could issue a ruling on either argument, it needed to know what rights California initiative supporters have in bringing appeals within the state. You see, there is already a U.S. Supreme Court decision on another 9th District case (from Arizona) which said initiative supporters don’t have the right to bring appeals merely because they got initiatives on the ballot. But California law is different than Arizona law, and voters have more power in California than they do in Arizona. Since there was no existing case law from California that the Federal court could rely on, they asked California’s highest court to give them some advice.

It took nine months of calendar time, but California’s Supreme Court finally heard arguments and issued an advisory opinion stating that the Protect Marriage folks did have the right to bring an appeal.

In the mean time, attorneys had challenged a couple of other aspects of Judge Walker’s original case: First, that he’d heard the case at all and second, that videos of the Walker trial were being made available to the public.

Today, the District Court heard oral arguments for both of these aspects of the trial.

Protect Marriage proponents argued that Walker, a gay man in a long-term (eight year) relationship should have disclosed the fact that he was gay and in a relationship and that he should have recused himself from hearing the case at all (since he appeared to have a personal stake in the outcome of the decision if he wanted to marry his partner), and that since he didn’t do that, his opinion should be vacated.

Same-sex marriage proponents argued that the motion to vacate was untimely (since it came only after the adverse decision had been made) and that there is no evidence that Walker wanted to marry in the first place. Finally, they argued it is a “violation of the Equal Protection Clause, to question a judge‘s impartiality simply because he is a member of a minority group whose rights are implicated in a case before the court, regardless how the minority group is defined.”

On the issue of releasing trial videotapes, same-sex marriage proponents argued that both the First Amendment and Common Law compel access to the trial recording and that the defendant-intervenors who want to keep the videos under seal have not met their burden of presenting compelling reasons for maintaining a seal on the videotapes. They argue that “More than 13 million Californians cast a vote for or against Proposition 8. Those voters, along with the rest of the public, deserve access to the recording so they can better understand and appreciate what transpired in this historic trial. Proponents say this benefit is ‘marginal, at most,’ because the transcript of the trial is already public. Prop. Br. 44 (internal quotation marks omitted). But unsealing the recording will allow the public to witness the trial firsthand, to hear from the parties’ experts, to see the parties’ exhibits, and to better evaluate the arguments each side advanced so they can determine their agreement or disagreement with the district court’s decision.”

The district court will issue decisions on any of these matters when it is ready, but the court has acknowledged the need for expediting things. Many rulings by the court in this matter have come within 30 days of hearings. Same-sex marriage proponents are hoping that the District Court will lift the stay on Judge Walker’s ruling during the anticipated U.S. Supreme Court appeals process and that the plaintiffs in these cases, as well as other same-sex couples in the state, will be able to marry once again.

9 Responses to “The Beginning of the End”
  1. Wendy says:

    Thank you Laura for always keeping us so informed here. I am hoping it is a quick ruling–of course IMO, there is nothing to debate. Equal Rights for all.

  2. Brad Carmack says:

    I’m so excited for the outcome of this case I can hardly stay in my seat! I listened in on the oral arguments on Thursday, and I’m glad that the oral arguments on standing and the merits are already complete. A holiday package of historic decisions would be awesome. In the nine months to wait on the California Supreme Court, they could easily have written an opinion on the merits, as well as multiple opinions on the standing issue (depending on the California court’s advisory opinion).

    By the way Laura, are you going to post on Taylor Petrey’s “Toward a Post-Heterosexual Mormon Theology”? (in Vol. 44 No. 4, Winter 2011)

    BCC has a 9 Dec guest post on it (, and it presents a robust analysis.

  3. Sheri says:

    I was listening to NPR driving to work today and heard that Dustin Lance Black wrote a stage play titled “8″ which has already been in New York, and they are now bringing it to L.A. for one night in March 2012. It will be starring George Clooney among others and is based on the Prop 8 hearings. Rob Ryner, who produced it, stated since the court testimony was not released to the public, they thought this would be a good way to recreate what happened in the courtroom. Just thought you all might like to know (if you didn’t already:-)

  4. Sheryl says:

    What a shame, the tapes will remain sealed.


  5. fiona64 says:

    Ruling on standing and constitutionality will be released tomorrow morning at 10 AM.

  6. fiona64 says:

    Not sure where else to put this. California’s AB 1172 would make it illegal for “psychologists” to practice “conversion therapy” on teens and would require adults to sign a release that says they are aware of the risks thereof.

    Notably, the widely discredited NARTH is trying to pretend that this is an assault on religious liberty …

  7. fiona64 says: – 9th Circuit denied request for en banc hearing in re: Prop 8.