Follow KQED's Prop. 8 Supreme Court Coverage on News Fix

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Keep up with KQED's latest Prop. 8 coverage on our news blog, News Fix.

Visitors an employees arrive at the US S

The U.S. Supreme Court. (Paul Richards/Getty Images)

On Tuesday, March 26, the U.S. Supreme Court will hear arguments in California's Prop. 8 case, Hollingsworth v. Perry. The next day, it will hear arguments on the constitutionality of the Defense of Marriage Act.

We're following the cases from beginning to end. KQED's Scott Shafer will be in the court both days, and our reporting team will be filing updates at News Fix and on Twitter at @KQEDnews.

Another Gay Marriage Foe Evolves

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Anyone who witnessed the Prop. 8 trial in 2010 (and sadly few did since the U.S. Supreme Court banned cameras in the courtroom at the last minute) remembers the testimony of David Blankenhorn as one of the highlights.

Blankenhorn, founder and president of the Institute for American Values, testified that allowing gays and lesbians to wed would undermine traditional marriage. That's when the fireworks began.

During hours of withering cross examination by Prop. 8 opponent David Boies, Blankenhorn bickered, argued and stonewalled -- often refusing to answer Boies' "yes or no" questions with a one word answer.  Speaking of marriage at one point Blankenhorn said, "If you change the definition of the 'thing', it is hard to imagine how it wouldn't have an impact on the 'thing'."

It left both men -- and Judge Vaughn Walker -- a little exasperated.

Boies also questioned Blankenhorn's appearance as an "expert witness." (Blankenhorn earned a masters degree in England, where he studied the history of labor unions.)

Under persistent questioning by Boies, Blankenhorn was forced to acknowledge that legalizing same sex marriage would most likely "improve the well being of gay and lesbian households and their children."

Blankenhorn also confirmed an earlier statement in a 2007 book that the U.S. would be "more American on the day we permit same-sex marriage than we we were on the day before."

A perfect witness for Prop. 8 Mr. Blankenhorn was not. And his ambivalence on the stand makes his conversion to same sex supporter less than surprising.

The question now is how far will he go? Will he file an amicus brief for the opponents of Prop. 8 if and when it reaches the U.S. Supreme Court? Where does his evolution end?

Appeals Court Upholds Walker's Decision

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Photo: Don Clyde/KQED

SAN FRANCISCO (AP) — A federal appeals court on Tuesday declared California's same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.

It was unclear when gay marriages might resume in California. Lawyers for Proposition 8 sponsors and for the two couples who successfully sued to overturn the ban have repeatedly said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling from the 9th Circuit.

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted," the ruling states.

Continue reading »

9th Circuit Smack Down: Keep Trial Tapes Secret

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The Chief Judge of California's Northern District Court last year ordered video tapes of the Prop. 8 trial released. But a 3-judge panel of the 9th Circuit Court of Appeals today disagreed -- and it wasn't close. In a 3-0 decision written by Stephen Reinhardt, the court ruled that Judge Ware "abused his discretion" in releasing the tapes, essentially breaking a promise made by Judge Vaughn Walker, who presided over the historic Prop. 8 trial in 2010.

After the US Supreme Court stopped the trial from being broadcast on YouTube, Judge Walker rejected a request from Prop. 8 backers to shut off the cameras ... promising the recordings would only be used in his chambers to help write his decision.

The judges today said "preserving sanctity of the judicial process" required reversing the lower court and keeping the tapes sealed.

A coalition of media organizations, including KQED, joined opponents of Prop. 8 in arguing for transparency and release of the video tapes. Prop. 8 plaintiffs argued that since opponents of same sex marriage also claim Judge Walker was biased and should have revealed he was in a same sex relationship with another man that releasing the trial tapes was even more essential so the public could decide for itself on whether the trial was conducted fairly.

But today's decision surprises no one. At oral arguments in January, the judges indicated their reluctance to essentially go back on Judge Walker's pledge when he kept the cameras rolling.

The 9th Circuit has been generally supportive of more transparency in the court, i.e. allowing cameras to record proceedings. Indeed, cameras were allowed during the oral arguments on this case. In their order today, the judges made plain they were not passing judgment on the larger question of cameras in the courtroom.

Prop. 8 junkies -- and insomniacs who've run out of sleep aides -- can always watch "dramatic re-enactments" of the Prop. 8 trial based on verbatim trial transcripts.

Still to come: Decisions by this panel on whether Judge Walker's ruling striking down Prop. 8 should be set aside because Walker didn't reveal he was in a long-term relationship with another man ... and the Big Kahuna -- whether Prop. 8 itself is constitutional. Those decisions could come at any time. Today's ruling is no indication of how the panel will rule on those matters.

Ultimately of course the ultimate fate of Prop. 8 will likely be decided by the U.S. Supreme Court, possibly in 2013.

Clooney Lends Star Power to Prop 8 Play

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The West Coast premiere of "8", the stage play written by Academy Award-winner Dustin Lance Black ("Milk"), will star George Clooney. The American Foundation for Equal Rights (AFER), which is funding the legal team fighting Prop. 8, announced that Clooney will perform at a March 3 stage reading scheduled at the Wilshire Ebell Theatre in Los Angeles.

The play is based on the 2010 trial that ended with Prop. 8 being struck down (it's still the law of the land of course). The dialogue is based on the trial transcripts and interviews with the plaintiffs and their families.

AFER didn't say specifically who Clooney would play, only that he and other actors to be named later will portray members of the legal team, plaintiffs and witnesses from both sides.

A similar performance at the Eugene O'Neill Theatre in New York City in September featured a smorgasbord of A-Listers, including Morgan Freeman, who played attorney David Boies and John Lithgow as Ted Olson. AFER says that performance raised $1 million for the fight against Prop. 8.

George Clooney is having one helluva year. His performance as a distant father suddenly presiding over a family crisis in "The Descendants" has generated plenty of Oscar buzz. And "The Ides of March"  which he directed and plays liberal Pennsylvania Governor Mike Morris who's running for president.

If Clooney picks up another statue at the Feb. 26 Oscars, his appearance in "8" six days later should make for a very fun after party!

Ethics of Prop. 8 Judge Weighed in Federal Appeals Court

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Judge Vaughn Walker

Judicial ethics and rules of disclosure require judges to reveal whether they have a personal interest in the outcome of a case before them. Supporters of Prop. 8 argue for that reason Judge Vaughn Walker should have disclosed he was in a long term relationship with another man -- and whether he ever intended to marry him.

That issue is now in the hands of the 9th Circuit Court of Appeals. Continue reading »

Prop. 8's Long and Winding Road Continues

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It's been exactly a year since a panel of 9th Circuit Court judges heard oral arguments on an appeal of Judge Vaughn Walker's 2010 decision striking down Prop. 8 for violating the U.S. Constitution. No decision has been rendered on that appeal, and none is likely soon.

But Thursday that same panel will hear two somewhat ancillary issues:

1. An appeal of a District court order to release the Prop. 8 trial tapes. Plaintiff's attorney Theodore Olson will argue the case for releasing the digital videos. Attorney Charles Cooper will speak on behalf of overturning the lower court's decision and keeping the tapes sealed.

2. An appeal of a decision rejecting efforts to have Judge Walker's decision vacated because he had a conflict of interest as a gay man in a long term relationship. Mr. Cooper will argue for Prop. 8 proponents, while David Boies will present the oral arguments on behalf of the lower court decision striking down the motion to vacate.

Both decisions were made in the past year by federal Judge James Ware, Chief Judge of the Northern District of California. Regarding the tapes, Judge Ware wrote that unsealing and releasing them to the public was in the public interest and necessary to maintain transparency in a case of such fundamental importance. His decision is supported by a coalition of media organizations, that includes Fox News, the NY Times and KQED among others. An attorney representing that coalition will participate in Thursday's oral arguments.

In strongly rejecting the motion to vacate, Judge Ware said that were Judge Walker required to recuse himself under federal statutes, all minority judges would have to recuse themselves from any case involving civil rights, something he said Congress could not have intended in writing the recusal statute.

Neither of these issues go to the central legal merits of the constitutionality of Prop. 8. That is especially true in the video tapes question.

However, the oral arguments regarding Judge Walker's obligation to recuse himself because of his status as a gay man in a same sex relationship may reveal more about where the panel is heading.

How forcefully will the panel of judges suggest that gay and lesbian rights are of interest to all American judges who care about a society with equality under the law, not just LGBT judges? Will they draw parallels with civil rights cases and minority judges, an indication they see gay rights on par with issues like interracial marriage, segregation and racial discrimination?

It may shed some light on where the panel is ultimately heading on the issue that is central to the appeal: Whether to uphold Judge Walker's decision striking down Prop. 8. That decision will likely come next year, but not before the panel also rules on whether Prop. 8 proponents have legal standing to file the appeal in the first case.

The wheels of justice do grind slowly!



9th Circuit: Don't release the trial tapes

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The 9th Circuit Court of Appeals isn't known for being cautious or conservative. But the three-judge panel hearing the appeal of Judge Vaughn Walker's decision striking down Prop. 8 issued an order stopping Friday's scheduled release of the trial video tapes.

Earlier this month Judge James Ware, Chief of the Northern District, rejected arguments from Prop. 8 backers that the protective seal on the tapes should be extended. Ware ordered the tapes released September 30th -- unless a higher court extends the protective order.

The 9th Circuit hasn't done that -- not yet -- but they do want to hear the case and set a relatively leisurely pace for briefings. Could it be they don't want to send this issue back to the U.S. Supreme Court, which put the kabosh on broadcasting the trial back in January of 2010?

At this rate the 9th Circuit Court could decide the legal merits of this case before they even get to video tapes issue. Or they could just be wanting to slow everything down in hopes of keeping it off the U.S. Supreme Court's docket during a presidential election.

Prop. 8 Videos Released -- Almost.

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Video tapes of the 12-day federal trial over the constitutionality of Prop. 8 may soon be available for viewing.

Federal Judge James Ware  Monday released a 16-page decision in which he found "no compelling reasons" to keep the tapes sealed now that the trial is over … writing that the videos are part of the official judicial record. Ware wrote that releasing them furthers transparency and public trust in the justice system.

Judge Ware also rejected arguments from Prop. 8 backers that unsealing the tapes would have a chilling effect on their witnesses, saying that was “unsupported hypothesis or conjecture.”

The ruling is the latest in a string of legal defeats for Prop. 8 supporters, who are currently appealing last year's decision by (now retired) Judge Vaughn Walker striking down the same sex marriage ban as a violation of the U.S. Constitution.

Like all decisions in this long and winding legal road, this one will surely be appealed. In fact, an attorney for Prop. 8, anticipating Monday's decision, asked for a stay during the oral arguments in late August. Judge Ware today granted that stay until September 30th. It will be lifted at that time unless a higher court (the 9th Circuit of the U.S. Supreme Court) grants a further stay.

Of course it's not like the composition of the tapes is secret. A written transcript of the proceedings exists, as does a verbatim re-enactment based on the those transcripts. And in case that's not enough, "8", a Broadway play by Academy Award winning writer Dustin Lance Black will have its first reading in NYC Tuesday. Among those participating are Morgan Freeman, Cheyenne Jackson and Marisa Tomei.

Trial Videos Squabble A Warm Up to Main Event

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At today's hearing on whether to release the Prop. 8 trial recordings, Federal Judge James Ware noted that on his way into the building this morning he saw a woman holding a sign that read "Free the Tapes."

That elicited giggles in the courtroom (the woman later showed up to a post-hearing press conference with her now-famous sign) but Judge Ware used it to underscore the legal question he's facing: Whether to lift the protective order trial court Judge Vaughn Walker placed on the trial tapes. LIfting it might make the public happy, he noted. But "I am concerned about the integrity of the court and the judicial process," he added.

Judge Ware said  "I generally think it's a good thing" to allow the media more access to the courts. But he also hesitated to lift another judge's order -- an order Yes on 8 Attorneys said was an "ironclad guarantee" that the trial tapes would never be broadcast.

"These are not state secrets," said No on 8 attorney Theodore Boutrous. "They are not radio active materials. It's just a record of what happened in this courtroom" and the public should get to see them.

Judge Ware promised to make a decision quickly. But Yes on 8 attorney David Thompson asked for an immediate stay on Ware's decision should he lift the protective order. Once again with this issue, the end is really just another beginning.

Next week is the main event: Tuesday the California Supreme Court -- presumably with newly sworn-in justice Goodwin Liu -- will hear oral arguments over whether Prop. 8 sponsors have legal standing to challenge the decision striking down their ballot measure.

If they lose that legal round, backers of Prop. 8 will be very nearly out of rabbits to pull out of the hat as the 9th Circuit will almost certainly let Judge Walker's decision stand.