Photo: Don Clyde/KQED

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.

The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his decision that he was gay and in a long-term relationship with another man.

The ruling came more than a year after the appeals court heard arguments in the case.

For complete coverage visit KQED's News Fix blog.

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.

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!

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.

Charles Cooper, an attorney for ProtectMarriage.com, told an Appeals Court panel Thursday that a reasonable person could conclude that Judge Walker had a conflict of interest. But several judges questioned that notion.

"A married judge would never be able to hear a divorce?" asked Judge Michael Hawkins.

Arguing for opponents of Prop. 8, attorney David Boies said the disclosure standard promoted by the other side would require any minority judge to reveal whether he or she might take advantage of a pro-civil rights ruling.

Besides the issue of disclosure, the panel took up another question: whether the Prop. 8 trial tapes be unsealed and made public.

Both of these issues will likely be settled before this same panel rules on the fundamental question -- whether Proposition. 8 violates the U.S. Constitution.

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 cental 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!

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.

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.

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.

And befitting Black's reputation, 8 has attracted several luminaries from television and film -- including Sir Morgan Freeman, hunky Cheyenne Jackson ("Glee" and "30 Rock") and Marisa "My Cousin Vinny" Tomei. Tony-Award-winner Joe Mantello will direct.

They and the rest of the cast will be at the Eugene O'Neill Theatre in NYC September 19th for a one-night reading -- a fundraiser for the American Foundation for Equal Rights (AFER).

It's an artistic echo of Prop 8: The Musical starring Jack Black as Jesus.  There was also a much, much more earnest (and not at all funny or entertaining) verbatim re-enactment of the Prop. 8 trial, based on actual court transcripts.

You may recall the trial was set to be televised live until the U.S. Supreme Court stepped in as the trial was getting underway to pull the plug. Except, the plug wasn't pulled -- and over objections of Prop. 8 backers courtroom cameras recorded the entire trial.

After retired Judge Vaughn Walker used an excerpt of the tapes in a college lecture that aired on C-Span, Prop. 8 proponents sued to force Walker (and everyone else who has copies) to turn over the tapes.

Prop. 8 opponents filed a cross motion, asking federal Judge James Ware to lift the protective order and release the tapes -- arguing legal attacks on Judge Walker's integrity (Ware rejected efforts to have Walker's Prop 8 decision overturned because Walker is gay).

Oral arguments on that motion will be heard August 29th in San Francisco.

The 9th Circuit panel hearing the appeal of Judge Vaughn Walker's decision striking down Proposition 8 is awaiting the State Supreme Court's decision on standing before it returns to the merits of this appeal.

UC Davis Law Professor Vikram Amar says the legal question is complicated and is not easily categorized in liberal versus conservative terms.

“On the one hand you could say conservatives should not want cases to be brought in court very easily because they don’t want the courts meddling with what the Legislature does,” says Amar. “So conservatives should generally like a standing doctrine that limits access to federal courts to reduce litigation and reduce lawsuits.”

On the other hand, says Amar, “a conservative may want standing doctrine to be a little more generous to Prop. 8 backers to make sure initiatives like Prop. 8 aren’t killed by liberal elected politicians, like attorneys general and governors. So standing and issues like it sometimes invert political instincts because these doctrines are easy enough to manipulate so that you can often use them to reach a particular result in a particular dispute without binding yourself in other bind cases down the road … where your result inclinations may be different.”

If the court advises the 9^th Circuit that California law does not give initiative proponents legal standing, it’s nearly certain the Prop. 8 appeal will die. And, Amar says, the chances the U.S. Supreme Court would take up an appeal of that are "infinitesimally small."

Amar adds, “the U.S. Supreme Court I think has no burning desire to weigh in on gay marriage, especially since this is only a question about California.”

One other thing: In choosing September 6th, Chief Justice Tani-Cantil Sakauye signals what we all assume: Governor Brown's nominee Goodwin Liu will be confirmed when the Commission on Judicial Appointments meets on August 31st. In addition to Cantil-Sakauye who chairs that panel, the other members are Attorney General Kamala Harris and Presiding Justice Joan Dempsey Klein, of the Court of Appeal, Second Appellate District, Division Three (Los Angeles), senior presiding justice of the state Courts of Appeal. The Chief Justice is a Republican. Harris and Klein are Democrats (Klein was appointed to the bench in 1978 by Jerry Brown in his first term as governor).

This case will give us the first glimpse of how the new Chief Justice and presumably the junior member of the court, Justice-to-be-Liu, will deal with the question of same sex marriage, although the underlying issue here is standing.

You can find all the briefs filed in this case here.

For the complete interview with Vikrim Amar, click here.