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Prop 8 Video Decision Due Tomorrow

| February 1, 2012
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From the 9th Circuit Court of Appeals:

The Court anticipates filing an opinion tomorrow (Thursday, February 2) by 10 a.m. regarding the public release of videotapes made of the civil bench trial in Perry v. Hollingsworth, the Proposition 8 case. Note that this is not the main appeal regarding the constitutionality question.

This particular legal issue in the Prop 8 saga has to do with the video of the 2010 Proposition 8 trial, in which Judge Vaughn Walker ruled that Prop 8, California’s same-sex marriage ban, was unconstitutional. Prop 8 proponents want to keep the video sealed, but opponents of the ban want it released. The issue first arose after Judge Walker showed clips from the trial during an academic legal seminar. The court seemed to indicate during oral arguments that it would overturn a lower court’s ruling and keep the video sealed.

If you want to see part of that presentation, in which you can hear some of the arguments for and against Prop 8 during the trial, CSPAN still has it up:

After tomorrow’s ruling, there is another ancillary issue still before the court: whether Judge Walker had a conflict of interest because he was a gay man in a long-term relationship. The court seemed very skeptical of that assertion during oral arguments.

The court must also rule on the issue of standing — whether the proponents of the Prop 8 initiative have a right to defend it in court when the governor and attorney general have declined to do so. The 9th Circuit turned to California’s Supreme Court for guidance on state law concerning that rather arcane issue, and the state court issued an opinion that backers of an initiative do, indeed, have standing in such a case. The federal court, however, will have to apply federal standards in making its ruling on this issue.

The big enchilada, of course, is whether the court will uphold Vaughn Walker’s ruling that Proposition 8 — and by extension a ban on same-sex marriage — violates the U.S. Constitution. After that ruling, either way, the case is almost surely headed to the Supreme Court.

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