Voters Can Defend Prop 8

[frankenstein]

It is interesting. The parties have just submitted supplemental briefs (for the proceedings which will happen today). Once again, the plaintiffs write that the Prop. 8 proponents do not have standing. It is getting a little ridiculous.

Simple legal strategy, no different than a guilty person pleading "not guilty" at arraignment. And that the plaintiffs have brought up the issue of standing to the 9th again, then that must mean "standing" is still a Federal question, which the 9th can properly hear, or at least consider the briefs. So nothing ridiculous. Its all part of the legal process guaranteed to our free society.

perhaps addressing the merits of the brief would be appropriate, here is a starter:

“tanding to sue in any Article III court is . . . a federal question which does not depend on the party‟s prior standing in state court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)

so the position of the plaintiffs seems to be that standing in STATE Court is not a guarantee to standing in FEDERAL Court.

and then there is this:

"Proponents would not suffer any personalized injury as a result of the invalidation of Proposition 8, and thus are unable to satisfy the requirements of Article III, even if their right under state law to represent the interests of the State is taken into account. Indeed, the district court found that Proponents “have failed to articulate even one specific harm they may suffer as a consequence of the injunction” against the enforcement of Proposition 8, ER 7, and Proponents have conceded in this Court that it is not their position “that any individual‟s existing marriage will be directly affected” by the “adoption of same-sex marriage.” Proponents‟ Reply Br., No. 11-16577, at 16 n.4.; see also ER 44 (Proponents‟ counsel responding “I don‟t know” when asked by the district court to identify what harms would be suffered by opposite-sex married couples if gay and lesbian couples could marry)"

so the proponents, though have standing in State Court, are unable based on Court records to articulate a injury in fact that would give them Art III standing in Federal Court. It would be a ineffective assistance of counsel and a violation of professional conduct for the plaintiffs attorneys not articulate the position that the proponents do not have standing in Federal Court (though I am not sure if Ed Whelan or others get into these kinds of details in their commentaries)

[Zeta-Flux]

What do you find that is so ridiculous?

In a federal case, no legal issue is final at this stage of the proceeding.

If they don't raise the issue, they won't be able to raise it at the next level.

A few things.

1. That they are still fighting standing, when in fact they *want* this trial to reach the Supreme Court.

2. The arguments they give against standing. Which brings me to frankenstein's post:

---------------------

frankenstein wrote:

perhaps addressing the merits of the brief would be appropriate

Okay, I'll try to do so.

“tanding to sue in any Article III court is . . . a federal question which does not depend on the party‟s prior standing in state court.” Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 804 (1985)

so the position of the plaintiffs seems to be that standing in STATE Court is not a guarantee to standing in FEDERAL Court.

Except the question signified to the California Supreme Court was not whether the official proponents of constitutional amendment have standing to sue in State court, nor even whether they have the right to sue at all. The question was whether they have standing to represent the people of California on issues relating to Prop. 8 when the elected officials decline to do so. According to California law, they do. The federal courts recognize that the states decide who represents them.

The plaintiffs try to annul this standing by saying that the proponents' arguments are contra California law. Even if we grant this questionable assertion, that would just make the proponents' arguments invalid, and not invalidate their standing-- just as if the governor made the same arguments it would not invalidate his standing.

Proponents would not suffer any personalized injury as a result of the invalidation of Proposition 8, and thus are unable to satisfy the requirements of Article III, even if their right under state law to represent the interests of the State is taken into account. Indeed, the district court found that Proponents “have failed to articulate even one specific harm they may suffer as a consequence of the injunction” against the enforcement of Proposition 8, ER 7, and Proponents have conceded in this Court that it is not their position “that any individual‟s existing marriage will be directly affected” by the “adoption of same-sex marriage.” Proponents‟ Reply Br., No. 11-16577, at 16 n.4.; see also ER 44 (Proponents‟ counsel responding “I don‟t know” when asked by the district court to identify what harms would be suffered by opposite-sex married couples if gay and lesbian couples could marry)

First, that response is taken out of context, and has been explained fully in other settings, so I'll leave that to the side for now. (The fact that the plaintiffs keep taking things out of context, even after they are explained, is telling however.)

Second, the question must be asked whether the plaintiffs address any of the "personalized injuries" that the proponents cited in their reply brief. They do not. They pretend that the proponents have not explicitly stated why they meet this criteria, and fight a straw-man. They pretend that the only possible personalized injury would have to be specific injury to those already married. It doesn't. It can be (and most certainly will be held to be) something as simple as asserting the right to defend the constitution of the state of California, on behalf of the people of California.

so the proponents, though have standing in State Court, are unable based on Court records to articulate a injury in fact that would give them Art III standing in Federal Court.

This is demonstrably false. They have articulated them in their briefs.

It would be a ineffective assistance of counsel and a violation of professional conduct for the plaintiffs attorneys not articulate the position that the proponents do not have standing in Federal Court (though I am not sure if Ed Whelan or others get into these kinds of details in their commentaries)

Only if (A) that was really what they believed to be the case, and (B) it worked to the benefit of their clients. As the clients *want* this trial to reach the Supreme Court, it is hard to see how (B) is satisfied (even Judge Reinhardt expressed surprise on this point--I'm not parroting Ed Whelan here). As for (A), the weakness of their arguments, the fact they don't actually address what the proponents said on that issue, that they continue to take short snippets out of context, etc... are all telling. The most telling part is they fail to explain why their arguments would not invalidate the standing of any other representative of the people of California.

[frankenstein]

What brief do the defendants lay out their particularized interest and/or their injury in fact the 11/18 reply brief does not address particularized interest or injury in fact. That brief pretty much says "we dont have to show it because ca. Supreme court found we have standing." Not a strong legal argument but it seems to be what they are asserting. Is there a different brie where they make their standing arguemnet

Second, that a side may or may not want a higher court to hard a case is irrelevant to the issue of professional conduct and ineffective assurance of counsel. Candor to court is a duty, aswell as asserting the arguments in favor of ones client. Those duties are not supersededby legal strategy.

[Daniel2]

Here's a pro-equality brief video about today's upcoming hearing:

Prop 8: Back on the Fast Track: http://youtu.be/foL2OuuVvyY

You can listen to the proceedings, live, at this link:

http://blogs.kqed.or...x-relationship/ (Prop 8 Hearing on Trial Video, Judge Vaughn Walker's Same-Sex Relationship)

[Jaybear]

A few things.

1. That they are still fighting standing, when in fact they *want* this trial to reach the Supreme Court.

2. The arguments they give against standing. Which brings me to frankenstein's post:

Obviously they are raising the issue of standing because their desire to win exceeds their desire to take the case to the Supreme Court.

As for point two, don't care.

[Zeta-Flux]

What brief do the defendants lay out their particularized interest and/or their injury in fact the 11/18 reply brief does not address particularized interest or injury in fact.

Here is their opening brief, from about one year ago: http://www.ca9.uscourts.gov/datastore/general/2010/09/22/10-16696_openingbrief.pdf

Starting around page 40 of the pdf (page 22 of the brief) they go into those particularized interests. The follow-up briefs also deal with this issue.

Their *supplemental* brief (rather than the reply brief) doesn't re-raise these points.

That brief pretty much says "we dont have to show it because ca. Supreme court found we have standing." Not a strong legal argument but it seems to be what they are asserting. Is there a different brie where they make their standing arguemnet

Your reading is wrong. The supplemental brief is supposed to be very short, and doesn't need to re-raise the arguments raised earlier.

And yes, their initial brief, and at least one of the reply briefs, talks about these issues.

Second, that a side may or may not want a higher court to hard a case is irrelevant to the issue of professional conduct and ineffective assurance of counsel. Candor to court is a duty, aswell as asserting the arguments in favor of ones client. Those duties are not supersededby legal strategy.

I don't think I said any differently. *shrug*

[Zeta-Flux]

Daniel,

Thanks for the link. I got to listen to about 45 minutes of it (it was cutting in and out for most of the time before that). I was glad to hear the judges seemed to understand well both sides of the issues. I think they will rule well--although of course any ruling will be appealed by the losing side.

Cheers,

Zeta-Flux

[frankenstein]

Read the briefs but I do not find where the propopents spell out their injury in fact, unless they asserting that particularized interest is the same thing. The proponents argue standing without asserting how they satisfy tge standing test.

[Zeta-Flux]

Read the briefs but I do not find where the propopents spell out their injury in fact, unless they asserting that particularized interest is the same thing.

Bingo. Asserting the state's interest (i.e., the people of California's interest) in defending the constitutional amendment is a particularized interest they hold as the official sponsors of the amendment--as unanimously verified by the California Supreme Court (at least when other offices decline to do so). Denying standing would injure the state and people of California from defending the constitution.

The proponents argue standing without asserting how they satisfy tge standing test.

I hope that the above helps you understand that they did in fact explain why they have standing.

[california boy]

The events show departure from norms of impartial behavior. An impartial judge does not try to break the rules of his own court, only to be stopped by the Supreme Court. An impartial judge does not break seals on evidence.

As I understand it, the length of time is emphasized because the proponents believe that is also the basis for which the plaintiffs brought their suite. If you read the plaintiffs' original brief, one of the important points they make is that their relationships have been long-term. This wording is also used in Walker's ruling.

So, as I understand it, the proponents argue this puts Walker in a nearly identical situation as the plaintiffs.

It looks like the Mormon judge disagreed with your assumptions. Wonder what your response to the Mormon judge would have been.

Yesterday, before the 9th U.S. Circuit Court of Appeals, an attorney for the marriage ban's backers again argued that Walker should have recused himself because he's gay.

"[Walker] knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term, serious relationship with an individual of the same sex," said the group's lawyer, Charles Cooper. "The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts.”

The appeals court was not impressed.

The Washington Post has details of what sounds like a true smack down:

Judge R. Randy Smith, who represents Idaho on the 9th Circuit, interrupted to forcefully ask why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage.

“So a married judge could never hear a divorce?” Smith asked.

“Your honor, I don’t see the difficulty with a married judge hearing a divorce action,” Cooper answered.

Smith replied: “Would he have to disclose, ‘Oh, I’ve been married, and we’ve been married for 24 years and we have a relationship that’s kind of difficult’? That’s what you are arguing here?”

[Daniel2]

It looks like the Mormon judge disagreed with your assumptions. Wonder what your response to the Mormon judge would have been.

Thanks for the link to the Washington Post article by the Associated Press, California Boy. It was a great summary, including the line of skeptical questioning by LDS Judge Smith (as you pointed out). I think it's worth posting in it's entirety:

Groups seek Calif. gay marriage ban appeal over judge’s sexual orientation, marriage views

By Associated Press, Published: December 8

SAN FRANCISCO — The sponsors of California’s gay marriage ban renewed their effort Thursday to disqualify a federal judge because of his same-sex relationship, but they met a skeptical audience in an appeals court panel.

It’s the first time an American jurist’s sexual orientation has been cited as grounds for overturning a court decision.

Lawyers for a coalition of religious conservative groups told a three-judge panel of the 9th U.S. Circuit Court of Appeals that Chief U.S. District Judge Vaughn Walker should have revealed he had a long-term male partner before he presided over a trial on the measure’s constitutionality. He also should have stated whether he had any interest in getting married, the lawyers said.

Because he did not, Walker’s impartiality stands in doubt and the decision he ultimately made to strike down Proposition 8 as a violation of Californians’ civil rights must be reversed, said Charles Cooper, an attorney for the ban’s backers.

“In May 2009, when Judge Walker read the allegations of the complaint, he knew something the litigants and the public did not know: He knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term, serious relationship with an individual of the same sex,” Cooper said. “The litigants did not have any knowledge of these facts, and it appears that Judge Walker made the deliberate decision not to disclose these facts.”

Judge R. Randy Smith, who represents Idaho on the 9th Circuit, interrupted to forcefully ask why a gay judge would be any more obligated to divulge his relationship status and views on matrimony than would a married straight judge who opposes same-sex marriage.

“So a married judge could never hear a divorce?” Smith asked.

“Your honor, I don’t see the difficulty with a married judge hearing a divorce action,” Cooper answered.

Smith replied: “Would he have to disclose, ‘Oh, I’ve been married, and we’ve been married for 24 years and we have a relationship that’s kind of difficult’? That’s what you are arguing here?”

Cooper said the hypothetical situation Smith described was different because if Walker, who is now retired, had “desired to marry his partner, he would have stood in exactly the same shoes as the plaintiffs in this case.”

David Boies, a lawyer representing the two same-sex couples who successfully sued to strike down Proposition 8 in Walker’s court, attacked Cooper’s reasoning, arguing that judicial ethics rules never have required judges to bow out of civil rights cases because they are members of the minority group whose constitutional rights are at issue.

Cooper’s “perverse logic is that only judges, gay or straight, who have no interest in marrying and the institution of marriage would be the only ones who could hear this case,” Boies said.

Judge Stephen Reinhardt, of California, asked if the presumption that Walker could be unbiased in a same-sex marriage case would be valid even if the judge had disclosed at the start of the trial that he planned to get married once the case were over and he legally could.

“Mr. Cooper’s point is the absence of that information raises an obligation on the part of the judge to disclose whether he wants to get married or not,” Reinhardt said. “He says it’s relevant because it allows the public to determine whether there is a reason for recusal, and that applies not only to ‘Yes, I do intend to get married,’ but, ‘No, I do not intend to get married.”

Boies answered that Walker had no obligation to reveal his personal thoughts on marriage either way, but that expecting him to have spoken up to disavow any interest in marrying his partner was “an intolerable double standard” for gay and lesbian judges.

“A heterosexual judge may feel passionately about preserving the institution of marriage. Does that judge have an obligation to volunteer, to come forward, to tell the parties what his views of marriage are and his views of the institution of marriage?” Boies asked.

The appeals court did not immediately rule on the matter.

In June, Walker’s successor, Chief Judge James Ware, rejected the same arguments from the ban’s backers that Walker’s ruling should be overturned because he might personally benefit from declaring Proposition 8 unconstitutional. The hearing Thursday was over an appeal of Ware’s decision.

The 9th Circuit panel also heard arguments on whether it should unseal video recordings Walker made of the January 2010 trial.

After the U.S. Supreme Court barred the trial’s video broadcast beyond Walker’s courtroom, the judge had his staff record the proceedings but said they would only be viewed by him in his chambers to refresh his memory while he was preparing his opinion.

Lawyers for the two couples and a coalition of media organizations that includes The Associated Press are asking the appeals court to make the recordings public.

The 9th Circuit has said it needed to hear arguments on both the significance of Walker’s relationship and the public release of the trial videos before it can address the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.

The appeals court panel heard arguments about that in January but does not face a deadline for making a decision.

Copyright 2011 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

It seems clear that Prop 8 is definitely well on the way of being overturned. Ironically, all those who helped pass it may have become the catalyst that brings full marriage equality to the entire United States of America, once SCOTUS rules.

Daniel2

[Zeta-Flux]

It looks like the Mormon judge disagreed with your assumptions. Wonder what your response to the Mormon judge would have been.

Sadly, the article you cite significantly misrepresents what happened, again making the false claim that the proponents want Walker to have recused because he was gay. The judges *initially* thought that Cooper's position was something like this, but as they continued to question Cooper, they came to understand his argument. At the end, when the representative of San Francisco tried to characterize Cooper's argument this way, Judge Reinhardt correctly characterized Cooper's argument.

[frankenstein]

Notice how the proponents did not address the question from Judge Smith

Smith: “So a married judge could never hear a divorce?” Smith asked.

Cooper: “Your honor, I don’t see the difficulty with a married judge hearing a divorce action,” Cooper answered.

Smith: “Would he have to disclose, ‘Oh, I’ve been married, and we’ve been married for 24 years and we have a relationship that’s kind of difficult’? That’s what you are arguing here?”

Cooper: Cooper said the hypothetical situation Smith described was different because if Walker, who is now retired, had “desired to marry his partner, he would have stood in exactly the same shoes as the plaintiffs in this case.”

the proponents do address the glaring error in their position. The hypo presented by Judge Smith is exactly what the proponents argue against walker, Judge Smith Hypo - had a judge who is a rocky marriage and is ruling on a divorce case which for hypo sake affects divorce as a whole; Walker is a homosexual ruling on a case that affects whether a ban on ssm is legal.

The proponents assert that if Walker ever desired to marry he is not qualified.

The proponents refused to answer that if a judge on a divorce case ever, desired divorce is not qualified to hear the case.

[Daniel2]

Sadly, the article you cite significantly misrepresents what happened, again making the false claim that the proponents want Walker to have recused because he was gay. The judges *initially* thought that Cooper's position was something like this, but as they continued to question Cooper, they came to understand his argument. At the end, when the representative of San Francisco tried to characterize Cooper's argument this way, Judge Reinhardt correctly characterized Cooper's argument.

Interesting. I haven't often heard "the Associated Press" (who I believe is widely regarded to be rather objective in their reporting) described as "significantly misrespresenting what happened" in their articles:

The Associated Press (“AP”) is the essential global news network, delivering fast, unbiased news from every corner of the world to all media platforms and formats. On any given day, more than half the world’s population sees news from the AP. Founded in 1846, the AP today is one of the largest and most trusted sources of independent newsgathering. The AP considers itself to be the backbone of the world’s information system, serving thousands of daily newspaper, radio, television, and online customers with coverage in text, photos, graphics, audio and video.

Headquartered in New York, the AP’s mission is to be the essential global news network, providing distinctive news services of the highest quality, reliability, and objectivity with reports that are accurate, balanced and informed. About 3,700 employees – two-thirds of them newsgatherers – work in more than 300 locations worldwide.

The AP supplies a steady stream of news around the clock to its domestic members, international subscribers, and commercial customers. It has the industry’s most sophisticated digital photo network, a 24-hour continuously updated online news service, a state-of-the-art television news service and one of the largest radio networks in the United States. It also has a commercial digital photo archive that is one of the world's largest collections of historical and contemporary imagery.

The AP has received 49 Pulitzer Prizes, more than any other news organization in the categories for which it can compete. It also has 30 photo Pulitzers, the most of any news organization.

Neither privately owned nor government-funded, the AP is a not-for-profit news cooperative, owned by its American newspaper and broadcast members. They elect a board of directors that directs the cooperative.

Daniel2

[california boy]

Sadly, the article you cite significantly misrepresents what happened, again making the false claim that the proponents want Walker to have recused because he was gay. The judges *initially* thought that Cooper's position was something like this, but as they continued to question Cooper, they came to understand his argument. At the end, when the representative of San Francisco tried to characterize Cooper's argument this way, Judge Reinhardt correctly characterized Cooper's argument.

I find it surprising that you think a district federal judge would not understand exactly the arguments presented to him. You have to remember they have had the legal briefs for months. It is ironic that the Mormon judge brings up this issue. Hard to claim activist judge on this one. Not that you did, but some would have.

Perhaps you can quote the compelling arguement presented by the prop 8 defenders that you think might have changed the judges mind. Or do you even think the judge changed his mind?

[Zeta-Flux]

Daniel2,

Interesting. I haven't often heard "the Associated Press" (who I believe is widely regarded to be rather objective in their reporting) described as "significantly misrespresenting what happened" in their articles:

On the issue I mentioned they got it wrong. They misrepresent the position-which once again was disavowed by Cooper, they don't mention this fact, and they don't give the full context of what happened in the trial. (As a side-note: I also reject the argument that just because a news organization is objective that means they are universally accurate. The AP prints corrections all the time. In this case, the inaccuracy is significant.)

If you don't believe me, listen to the last 45 minutes, when the lady lawyer representing San Fran starts trying to make those claims, and Justice Reinhardt corrects her.

For example, the article says "It’s the first time an American jurist’s sexual orientation has been cited as grounds for overturning a court decision." This is a factually false statement. If you wish to prove me wrong, all you have to do is find a place where the proponents cite Walker's sexual orientation as the grounds for overturning his decision. (Hint: You won't find it, but you will find him explicitly disavowing said claim.)

[Addendum: I just read the full article you posted. It is much better than the short blurb posted by california boy, and is, in my opinion, for the most part accurate and fair. The only issue I really have is that single sentence above.]

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california boy,

I find it surprising that you think a district federal judge would not understand exactly the arguments presented to him.

I never said that exactly. What I did say is that the questions the judges ask of the lawyers are designed so the lawyers can explain their positions more clearly, so there won't be misunderstanding. What the judges initially thought Cooper was arguing changed as Cooper answered their questions. They came to understand that his recusal rule would just as easily ask for the recusal of a heterosexual judge as a homosexual one. And Smith's questions clarified Coopers understanding of present, particularized interests.

You have to remember they have had the legal briefs for months. It is ironic that the Mormon judge brings up this issue. Hard to claim activist judge on this one. Not that you did, but some would have.

It isn't hard at all to understand this question. Smith was asking what, in Cooper's argument, differentiated a married judge sitting on a divorce case from Walker's case. Not surprising at all. Maybe Smith doesn't buy Cooper's argument that Walker is any more involved in his case than a married man would be on a divorce case.

But this has nothing to do with anyone trying to disqualify gay men from serving as judges.

Perhaps you can quote the compelling arguement presented by the prop 8 defenders that you think might have changed the judges mind. Or do you even think the judge changed his mind?

I *am* claiming that the judges' understanding of the arguments changed after the oral arguments. I am not necessarily claiming that this changed their minds about whether the argument is valid, etc...

Frankly, I do not understand your request. The point of the oral arguments is to help the judges understand the arguments and point of possible flaws they see. If they could just rely on the briefs, they would do so. Or do you see some other reason for the oral arguments that I'm not seeing?

Best,

Zeta-Flux

[Zeta-Flux]

the proponents do address the glaring error in their position. The hypo presented by Judge Smith is exactly what the proponents argue against walker, Judge Smith Hypo - had a judge who is a rocky marriage and is ruling on a divorce case which for hypo sake affects divorce as a whole; Walker is a homosexual ruling on a case that affects whether a ban on ssm is legal.

The proponents assert that if Walker ever desired to marry he is not qualified.

The proponents refused to answer that if a judge on a divorce case ever, desired divorce is not qualified to hear the case.

You are missing an essential piece of the argument, as Cooper explained (and does appear in the article). Namely, the judge with the rocky marriage is not ruling on his own divorce case. If he were, then Cooper's answer would be he would need to recuse himself.

[california boy]

Daniel2,

On the issue I mentioned they got it wrong. They misrepresent the position-which once again was disavowed by Cooper, they don't mention this fact, and they don't give the full context of what happened in the trial. (As a side-note: I also reject the argument that just because a news organization is objective that means they are universally accurate. The AP prints corrections all the time. In this case, the inaccuracy is significant.)

If you don't believe me, listen to the last 45 minutes, when the lady lawyer representing San Fran starts trying to make those claims, and Justice Reinhardt corrects her.

For example, the article says "It’s the first time an American jurist’s sexual orientation has been cited as grounds for overturning a court decision." This is a factually false statement. If you wish to prove me wrong, all you have to do is find a place where the proponents cite Walker's sexual orientation as the grounds for overturning his decision. (Hint: You won't find it, but you will find him explicitly disavowing said claim.)

[Addendum: I just read the full article you posted. It is much better than the short blurb posted by california boy, and is, in my opinion, for the most part accurate and fair. The only issue I really have is that single sentence above.]

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california boy,

I never said that exactly. What I did say is that the questions the judges ask of the lawyers are designed so the lawyers can explain their positions more clearly, so there won't be misunderstanding. What the judges initially thought Cooper was arguing changed as Cooper answered their questions. They came to understand that his recusal rule would just as easily ask for the recusal of a heterosexual judge as a homosexual one. And Smith's questions clarified Coopers understanding of present, particularized interests.

It isn't hard at all to understand this question. Smith was asking what, in Cooper's argument, differentiated a married judge sitting on a divorce case from Walker's case. Not surprising at all. Maybe Smith doesn't buy Cooper's argument that Walker is any more involved in his case than a married man would be on a divorce case.

But this has nothing to do with anyone trying to disqualify gay men from serving as judges.

I *am* claiming that the judges' understanding of the arguments changed after the oral arguments. I am not necessarily claiming that this changed their minds about whether the argument is valid, etc...

Frankly, I do not understand your request. The point of the oral arguments is to help the judges understand the arguments and point of possible flaws they see. If they could just rely on the briefs, they would do so. Or do you see some other reason for the oral arguments that I'm not seeing?

Best,

Zeta-Flux

As you know, I am very interested in your views on the prop 8 proceedings. I am just wondering if you have any part of the oral argument that you could quote that demonstrates your position. I my view, Judge Smith completely understood the legal argument that the defenders of prop 8 were making. He did understand that the objection was not just that he was gay but also that he was unmarried. I think that is clearly why Judge Smith asked about a heterosexual judge that might one day find himself divorced. You seem to think that the question was onoy about Walker being gay and the judge got the position wrong. I disagree. I feel the question addressed Judge Walkers relational/marital status.

Am I missing something from you here? That is why if you quoted something from the hearing that better illustrates your position, it would help me understand what you are driving at.

thanks

[california boy]

You are missing an essential piece of the argument, as Cooper explained (and does appear in the article). Namely, the judge with the rocky marriage is not ruling on his own divorce case. If he were, then Cooper's answer would be he would need to recuse himself.

Perhaps you can explain the difference between a heterosexual judge ruling on divorce and a homosexual judge ruling on marriage. Neither one of them are ruling on their own specific case in my view, and I might add in Judge Smiths view. Marriage for judge Walker is just a possibility. Divorce for the straight judge is just a possibility in terms of precidence and law on divorce.

[frankenstein]

You are missing an essential piece of the argument, as Cooper explained (and does appear in the article). Namely, the judge with the rocky marriage is not ruling on his own divorce case. If he were, then Cooper's answer would be he would need to recuse himself.

I don't have it wrong. Cooper did not answer the question question because directly answering the question regardless of the answer would have made his position on walker ridiculous

[frankenstein]

Perhaps you can explain the difference between a heterosexual judge ruling on divorce and a homosexual judge ruling on marriage. Neither one of them are ruling on their own specific case in my view, and I might add in Judge Smiths view. Marriage for judge Walker is just a possibility. Divorce for the straight judge is just a possibility in terms of precidence and law on divorce.

Exactly

[california boy]

Perhaps this comment will help. Notice that this guy does not say it was because Judge Walker was gay, but because he was in a long term relationship.

In short, the Prop 8 proponents' rabidly anti-gay argument that Judge Vaughn Walker's decision should be thrown out because he was, at the time of the Perry trial, in a long-term relationship with another man, and thus could be not be impartial on the issue of same-sex marriage, strikes at the very heart of the independent judiciary. It presumes that judges' personal views necessarily infect their professional conduct, which not only flies in the face of reason, but contradicts a tenet of Anglo-American law since the Norman invasion. It also is blatantly discriminatory: if Judge Walker had to recuse himself from a gay marriage case because he could have possibly wanted to marry a man in the future, would all heterosexuals have to recuse themselves from divorce proceedings? Would all African-Americans have to recuse themselves from civil rights cases? The Prop 8 proponents would either have to say YES and be laughed at, or say NO, and admit that they just hate gays

.

[Zeta-Flux]

As you know, I am very interested in your views on the prop 8 proceedings. I am just wondering if you have any part of the oral argument that you could quote that demonstrates your position. I my view, Judge Smith completely understood the legal argument that the defenders of prop 8 were making. He did understand that the objection was not just that he was gay but also that he was unmarried. I think that is clearly why Judge Smith asked about a heterosexual judge that might one day find himself divorced. You seem to think that the question was onoy about Walker being gay and the judge got the position wrong. I disagree. I feel the question addressed Judge Walkers relational/marital status.

No, I thought that the short blurb you posted was trying to tie Smith's question into Walker's homosexuality. I disagreed with that interpretation. Since that time I've read the full article, which gave me a different impression.

I basically agree with what you say here.

Am I missing something from you here? That is why if you quoted something from the hearing that better illustrates your position, it would help me understand what you are driving at.

I think that what I said above should clear things up.

Perhaps you can explain the difference between a heterosexual judge ruling on divorce and a homosexual judge ruling on marriage.

There is no difference, as such.

Further, if a heterosexual judge is ruling on his/her *own* divorce, the recusal rule would apply just as for a judge ruling on his/her own marriage rights (if she wanted to presently exercise them).

Neither one of them are ruling on their own specific case in my view, and I might add in Judge Smiths view.

Perhaps that will be how he rules.

Marriage for judge Walker is just a possibility. Divorce for the straight judge is just a possibility in terms of precidence and law on divorce.

But if a judge (whether straight or not is irrelevant) is ruling on divorce laws (and not someone else's specific divorce) *AND* the judge presently wants to get a divorce, *AND* the ruling he yields will apply to his present situation, then (and only then) does Cooper's argument apply.

I agree with your implicit argument that the ruling may hinge on the speculative nature of Walker's desire to marry.

[Zeta-Flux]

Perhaps this comment will help. Notice that this guy does not say it was because Judge Walker was gay, but because he was in a long term relationship.

You need to read more closely. Almost the first sentence calls the argument "rabidly anti-gay."

At any rate, the argument misses Cooper's point (which was summarized well by Reinhardt, as quoted in the article posted by Daniel2). The argument isn't about a future desire--it is about a present desire. There is speculation about that only because Walker failed to disclose. If Walker had positively disclosed he did *not* want to currently marry, there would be no argument from Cooper, et. al.

[california boy]

<p>And for those who would like a summary of the releasing the video question. Here is a legal analysis. It seems like a pretty fair analysis of both sides of the argument.</p>

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1. <span style="text-decoration: underline; ">Is witness safety a legitimate concern?</span>

<p> </p>

<p>No. If you recall, one of Mr. Cooper's main arguments against releasing the videotapes of the trial is a concern for witness safety; that is, if anyone could hear what his anti-gay witnesses had to say, pro-gay activists would picket, harass, and bully them. While that says much about the potential offensiveness of witnesses' anti-gay testimony, it failed to persuade the judges that the potential for harassment merits secrecy.</p>

<p>It is not as if keeping the videotapes under seal has created a media blackout of the Prop 8 trial. Far from it. Newspaper, radio, television, and blog accounts of what was said at trial inundate the media. If the witnesses -- who, by the way, have already admitted they are not concerned about harassment -- have not been endangered yet, why would release of the videotapes make things any worse?</p>

<p>Note that question's implication: By equating the newspaper account with the videotapes, the judge was subtly knocking my <em>transcript plus</em> argument. The videotapes could not provide much more danger, he argued, because everything in the video was already published in the media. The world is not so simple, though. Let's return to this in a moment.</p>

<p>2. <span style="text-decoration: underline; ">Would releasing the videotapes harm the public's respect for judicial integrity, given that Judge Walker promised that the tapes would be for his personal use in chambers?</span></p>

<p>Yes. The judges seemed most concerned with the fact that Judge Walker explicitly stated that the videotapes were for him to use in chambers when he was reviewing testimony to write his decision. He promised that they would not be for public consumption. To release the videotapes now, the argument goes, would ignore that oath.</p>

<p>Our system relies on judicial integrity. In fact, our respect for a judge's honesty -- not our love of gay people -- is what makes the motion to vacate so ridiculous: it challenges the notion that judges can do their work with integrity by raising the old stereotype of a selfish gay man. It is the former that judges are likely to find endemically offensive, not the latter. Therefore, any blow to honesty, truth, and impartiality is viewed with deep suspicion.</p>

<p>Again, as a matter of policy, this is no reason to deny the public a new norm of trial publicity; however, it may be a reason to deny release of the videotapes in this case.</p>

<p>3. <span style="text-decoration: underline; ">Is a video more than the trial transcript?</span></p>

<p>Yes and no. The judges did not tip their collective hats on this question, but asked the right questions. I argue that if the videos are <em>transcript plus</em>, AFER should be the one's justifying release with special circumstances. The panel did not explicitly go that far, but the judges did ask for an apt comparison: Are the videotapes more like the trial transcript or more like a judge's notes? If the former, they get released; if the latter, they do not.</p>

<p>This is the central question of the motion to release the videotapes: Given the circumstances of this case, are the videotapes more like the stuff we normally publicize, like transcripts? Or, are they more like the stuff we always keep secret, like personal notes?</p>

<p>Notably, neither side of this case can claim intellectual integrity on this argument. Both twist the role of the videotapes to suit their own needs. For example, Mr. Cooper and the Prop 8 proponents want to keep the videotapes under seal, so they argue that release would have great impact. To Mr. Cooper, the videotapes are much more like notes, capable of blowing up the public's view of the judicial system. And, yet, when he argued that the reason to deny release is because Judge Walker promised, he expressly denied any reliance on the future impact of release, making the videos much more like transcripts where the judge has agreed to keep them under seal for some special reason. Similarly, AFER's team argues that releasing the videotapes is nothing more than releasing a transcript; but, if it were, why the big push? AFER's press releases admit that letting the public see the videos would show the emptiness and desperation of anti-gay forces because "seeing is believing." You can read transcripts until you are red in the eyes, but seeing Mr. Cooper's experts call gays bad parents and seeing no other evidence offered is more impactful. That is why AFER produced the play, "8," and it is why we all want these tapes released.</p>

<p>For this reason, I argue that it is impossible to avoid the conclusion that the videotapes constitute something more than just the transcript, or <em>transcript plus</em>, thus requiring AFER to argue special reasons why we should depart from the norm of only releasing transcripts in this case. Notably, the Ninth Circuit panel never explicitly stated that it should be Mr. Boies job to explain himself better; in fact, it assumed that was Mr. Cooper's role by checking off his list of reasons <em>not</em> to release the tapes. So, I may be wrong. But, given the tone of the hearing on Thursday, it is unlikely that the tapes will be released.</p>

<p>And, when the panel upholds Judge Walker's ruling on its merits, we may forget all about this.</p>

<p>***<br />

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<em>Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.</em>

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