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NOM is LIVE in California for Prop8 Hearing

Posted on Thursday, December 08th at 2:00pm

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Welcome to NOM’s live coverage of today’s Prop 8 hearings. Follow along with minute-by-minute updates from Dr. Jennifer Roback Morse, who is on site in San Francisco.

Court is adjourned, and that concludes today's hearings! We'll wait for the final ruling following the oral arguments and, as always, keep you fully updated.

A big thank you to Dr. J for her attendance and updates from San Francisco!

And thanks to all Prop 8 supporters who followed today's events and contributed to the discussion throughout the duration of the proceedings.

5:11pm PT / 8:11pm ET - Conclusion: All in all, a good day! The judges clearly liked our side on the court video release issue. I'd say 50/50 on the recusal of Judge Walker based on his undisclosed same-sex relationship.

5:06pm PT / 8:06pm ET - Court adjourned

Chuck Cooper’s rebuttal: "If the judge has an interest in the outcome, he has an obligation to reveal. It was the plaintiffs who continually put forth evidence that 64% of gays in California — in committed long-term relationships — would want to get married. Hence, it is the fact that Walker was in a relationship, not the fact that he is gay, that merits disclosure at least, and possibly recusal."

Cooper goes on the offense with an AL case they've been talking about. He says,

"I'm glad you brought up the AL case. If the judge in that case had a child with an application pending at one of the institutions of higher education in AL, would it have been acceptable for him to sit on that case? We don’t say that Walker couldn’t have sat on Don't Ask, Don't Tell. We just say that he couldn’t sit on a case that would allow him to marry his own partner the day after his own ruling was affirmed. If this court upholds the standard the Plaintiffs are asking for, it will be a dark day in American jurisprudence."

5:02pm PT / 8:02pm ET - Therese Stewart plays the gay equivalent of the race card

Stewart: "Women of child-bearing years would have to disclose whether they have any interest in ever having an abortion or using contraception."

Stephen Reinhardt interrupts: "To say these cases are not on the brink of making the decision in a very particularized decision..."

Stewart: "Cooper's argument is the same as all the arguments prejudicial against gay conduct, not gay identity." Hawkins and Reinhardt are not buying that.

Stewart: "Cooper's argument is turning the presumption of impartiality on its head."

Reinhardt replies with Cooper's argument that they have to reveal private information.

Stewart tries the Noonan case: "He did not recuse himself on abortion, even though he is a sincere Catholic." Hawkins isn't buying that either.

Stewart: "This motion is creating a double standard. The proponents can't get it through their heads that ordinary rules don't apply to gay people, because they don't like gay people."

Hawkins: "Even if upholding Prop 8 meant that he could never get married?"

Stewart: "It is still unacceptable discrimination to say he has an interest in the matter and must recuse himself ... Every gay person wants to get married."

(That's odd: how come so few actually do get married when it becomes legal?)

Reinhardt: "But Walker is in the position of being on the verge of being able or wanting to use the right to get married."

I don't think the judges are buying the gay equivalent of the race card. And some of the folks on the other side of the aisle looked slightly embarrassed when Stewart was talking...

4:21pm PT / 7:21pm ET - Part II: Should Walker have recused himself?

Prop 8 attorney Chuck Cooper opens with the observation that the plaintiffs say that they are in long term committed relationships. Walker was in fact in the exact same situation as the plaintiffs: he was in a long-term committed relationship with another man. He declined to reveal these facts throughout the entire 2 years that he presided over the case, and till after his retirement.

Michael Hawkins: “So a married judge could never hear a divorce action?”

Cooper distinguishes his case: "If Walker had desired to marry his partner, he would have stood in the same shoes as the plaintiffs." Do we have evidence that Walker wanted to marry his partner?

Judge Smith wants to know the standard of review, and Cooper answers 'abuse of discretion.'

Judge Smith asks the correct legal rule that Judge Ware did not apply. Cooper says he did not apply the objective test, applying the facts that are known, as well as those that have not been applied. ...I cannot reasonably believe the judge is not impartial. Legal gobbledygook.

Judge Smith asks if Ware was illogical or implausible. Cooper says Ware did not act as a reasonable person in finding that Walker was not partial.

Stephen Reinhardt: "What would the reasonable person do if he knew all the facts?"

All the facts, except whether he had an actual interest in getting married. The key is that the judge did not disclose all the relevant facts. Judge Ware ruled that he didn’t have an obligation to disclose his relationship status, but who has the responsibility to determine it?

Reinhardt: "What if he didn’t have an interest in marrying his partner? If that is the case, then he didn’t have the obligation to reveal it."

Cooper: "Any and all facts known privately to the judge that the parties might consider relevant, then he is obligated to reveal it."

Hawkins: "What do we make of the fact that Walker did not get married during the interregnum?"

Cooper: "We make no more nor less of it than the fact that the Plaintiffs themselves did not seek to get married during that period." Judge Smith: "If he didn’t want to get married, did he have an obligation to disclose that he didn’t want to get married?"

Cooper: "The burden is on the Judge to disclose information known only to himself. If Walker had said, 'I’m in this relationship and I have no interest in getting married,' we would have accepted that. If he said he was interested in getting married, then that would have made him a judge in his own case and he should properly have recused himself. In either case, he should have revealed the fact of his relationship. He could have deferred the case to the next judge on the wheel."

I recall from reading the brief: Judge Walker, so far as we know, is the only federal judge who was in a long-term committed same-sex relationship. My common sense (very non-legal) opinion: If the Plaintiffs are so sure of the rightness of their case, why not let the next judge take the case and remove all appearance of partiality?

Isn't this issue significant enough — and controversial enough — that impartiality is essential to avoid unnecessary contention in society down the road?

3:59pm PT / 6:59pm ET - This next hour will cover the motion to dismiss Judge Vaughn Walker’s Prop 8 ruling, after he failed to disclose his long-term same-sex relationship with a man.

3:41pm PT / 6:41pm ET - The court is taking a 10 minute break.

3:40pm PT / 6:40pm ET - Therese Stewart and David Thompson's Rebuttal

Therese Stewart: "A seal order doesn’t preclude the parties from revisting the question of whether the seal should be opened." She seems to think that the Proponents shouldn’t have relied on this promise so seriously.

Reinhardt: "The potential for broadcast has been eliminated."

Stewart seems to say that rule only pertains to media coverage immediately of the court proceedings, basing this only on the letter by Judge Kozinski.

Judge Smith doesn’t think Judge Kozinski’s letter counts as precedent; but Stewart does.

Reinhardt says that he doesn’t think the SCOTUS agreed with Kozinski’s letter, while Stewart says SCOTUS didn’t rule on all the issues at stake here. Rhinehart isn’t buying it.

Thompson’s rebuttal:

Reinhardt asks: "What do you think is the impact of the fact that Walker entered the video into the record?"

Thompson says they didn’t think the fact that it was in the record would lead to its being made public. Thompson also refutes the other side's claim that there is no harm in releasing the tapes by alluding to the fact that they had convinced the SCOTUS on this point last January.

3:30pm PT / 6:30pm ET - Thomas Burke from Media Coaltion first brings up the claim that since Judge Walker's objectivity is in question, we should have access to the tapes.

Stephen Reinhardt stops him and urges him to stick to the point, which is the issue of the video tapes. The guy is in over his head.

Michael Hawkins wants to know whether lawyers can rely on the promises of a trial judge when he makes a promise. Mr. Burke doesn't seem to understand the question and keeps saying they had the right to object and didn't take it (but this issue had already been discussed exhaustively in Olson's arguments).

Hawkins is worried about what happens if the assurances given by a judge mean nothing:

"I have tried cases for 25 years. When a trial judge makes a promise that X will happen, then X will happen..."

Reinhardt is going after him:

"The word of the court is supposed to mean something."

Although this poor guy is having a difficult time with his point. He has an amalgamation of Olson's arguments, without Olson's ability to defend himself.

Judge Smith: "Walker said the potential for public broadcast had been eliminated. So why didn't the Proponents bring forward more witnesses?"

So, Judge Smith seems to say that Walker did welsch on his promises, and that this matters.

3:23pm PT / 6:23pm ET - Olson’s arguments

Judge Smith is going back at him. Ware tried to determine whether Walker abused his discretion, but he did not want to get into what the local rule actually said.

Olson: "Every lawyer knows that a sealing order may be unsealed."

Michael Hawkins: "Didn’t Walker know that the Proponents objected, and that the SCOTUS had stopped the taping?"

Hawkins is describing the assurances that Walker gave the Proponents, and the circumstances around it.

Stephen Reinhardt: "Suppose Walker had said 'I plan to continue taping for my purposes, then after the trial I will make it public.' What do you think would have happened?

Olson admits the Proponents would have objected, then tries to backpedal by saying that Walker intended to make it part of the judicial record, and that making it public is a logical consequence of making it part of the public record. Olson seems to be saying that Walker was not required to help the Proponents’ attorneys by explaining that the public access would be the consequence of his decision to enter it into the record.

Judge Smith wants to know how the video differs from the Judge's handwritten notes. Does the fact that Walker took this recording as part of his personal papers when he retired bear on the question of whether this is a public record or not? Judge Smith seems to think that if the video were a public record, then Walker had no right to take it with him, as part of his papers.

Olson wants the video to be the exact equivalent of a transcript, even better because of the facial inflections, tone of voice, body language, etc.

Olson closes by saying that no witnesses have experienced any harm from their testimony or the video.

3:05pm PT / 6:05 pm ET — Ted Olson begins arguments on releasing Prop 8 video recordings made by Judge Walker.

3:03pm PT / 6:03pm ET

Judge Hawkins asks: "Were your clients under the impression that the tapes would be sealed forever?"

David Thompson: "No. Only for 10 years, at which time an extension could be asked for, and possibly given."

Plaintiffs want to know, what are the harms?

Thompson says there are 4 harms to releasing the video tapes:

  • Witness intimidation and harassment: SCOTUS agreed with that in 2010. Hawkins and Reinhardt argue with him, that this harm is not relevant because these particular witnesses have not been harassed. Thompson is doing a good job coming back to the main point: that the federal judiciary itself had been testing whether broadcasting can lead to witness intimidation and inhibition. Rhinehart says Miller didn’t say anything that would lead to him being harassed because he gave objective evidence on the political power of gays and lesbians. But Rhinehart seems to think that Frank Schubert could have been harassed. (So I’m wondering: whether this particular person is likely to be harassed is that actually the issue.

  • Scalia testified that video testimony can be diced and sliced to distort the actual testimony. Reinhardt asks, “Is that expert testimony?" as if Scalia doesn’t count. A catty comment by Reinhardt, in my opinion.

  • Witnesses will be less likely to cooperate in the future.

  • Systemic harm to the integrity of the judicial process, if Walker gave solemn assurances and then violated those assurances.

Judge Smith: "Does the Northern district’ rule rule out what took place in this case? Walker can create the tape for his purposes, and he can enter it into the record."

Thompson: "It can be entered into the record only under seal."

Judge Smith: "The law doesn’t say that it can’t be unsealed."

2:51 pm PT / 5:51pm ET

David Thompson: "The common law of access is preempted by statutory law, therefore we don't have to release the tape. Walker and the Plaintiff himself said that these proceedings would not be broadcast."

Judge Smith: "Did anyone ever appeal or object at the time? Because Walker had already assured them that it would be under seal, and that was not in violation. Therefore, there was nothing to appeal. Under what standard of review, should I review Judge Ware's decision?"

Thompson: "These questions are de novo."

Judge Smith: "Can I go under abuse of discretion?"

Thompson: "What is the threshold question? Does the common law apply? If so, there is no common law case in which the video recording is covered under the common law of access. Only exception, when a video tape of Clinton's deposition was played for the jury, but that tape was NOT found to be covered by the common law right of access."

Hawkins: "Were your clients under the impression that the tapes would be sealed forever?"

Thompson: "No, only for 10 years, at which time, an extension could be asked for, and possibly given."

2:41pm PT / 5:41pm ET - The proceedings still haven't begun.

First up will be the question of whether the video tapes from the original Prop 8 trial should be made public. On our side, David Thompson will be arguing, with Ted Olson, Thomas Burke of the Media Coalition (a non-party intervenor) and Therese Stewart of the City of San Francisco arguing for SSM. Three against one.

The second hour will focus on the question of whether Judge Walker should have recused himself from the Prop 8 trial, because he is and has been in a long-term same-sex relationship which he did not reveal until he retired. On our side, Chuck Cooper will argue. On the other side will be David Boies and Therese Stewart.

What I bring to the party: Ok, so full disclosure: I am not now, nor have I ever been, an attorney. I can’t give you legal analysis. I am a well-informed citizen and that is the perspective I offer you: the perspective of a pretty ordinary, intensely interested citizen. Perhaps that is your perspective too...

2:16pm PT / 5:16pm ET - Sitting here in the federal court building at the corner of Mission and 7th in Down town San Francisco. Things are much calmer, both inside and outside the court, compared to other times I’ve been to these hearings. Only a handful of people were outside at the Pre-Game warm-up Equality rally. They have the same signs they had a year ago but, from the looks of it, fewer people holding them.

Even with SSM advocates' home field advantage here in San Francisco, the courtroom is not completely filled. For our side, I am seeing some old friends: Bill May of Catholics for the Common Good, Ron Prentice from the CA Family Council, Carol Hogan from the California Catholic Conference in Sacramento, Andy Pugno of the Protect Marriage campaign just walked in, along with Mr. Mark Janssen, who is one of the official Proponents.

On the other side, Rob Reiner is here. I don’t recognize most of the others, except Olsen and Boies of course, and the Plaintiffs.

2:09pm PT / 5:09pm ET - I just got in the courtroom. We're sitting in the hallway next to Prop 8 lawyer Chuck Cooper, Mrs. Cooper and their daughter. Chuck Cooper is putting on his game face: very intense.

2:04pm PT / 5:04pm ET – Dr. Jenny Roback Morse of NOM’s Ruth Institute is live on site for today’s hearings. She will be providing minute-by-minute details and updates of what’s happening in California over the next two hours. Stick around...

12:00pm PT / 3:00pm ET - NOM is LIVE in California, preparing for the start of today's hearings on Proposition 8. With just a few hours to go, here's what we'll be looking for during today's proceedings:

  • There has had a long-standing prohibition against photos and recordings within the courtroom. Will everyone obey this instruction, in order to respect the dignity of the hearings? After all, SSM advocates have been vocal about wanting video of the entire Prop 8 trial to be made public...

  • Rob Reiner (formerly known as "Meathead") should be making an appearance today, as he is one of the principle financiers of the lawsuit against voters in California. We'll keep you updated.

The hearings begin at 2:30pm PT / 5:30pm ET. Stay tuned.


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