Ted Olson

There was some drama in the courtroom as attorneys litigating Proposition 8 in a San Francisco federal appeals court Thursday took their last swings.

The normally staid somewhat flustered Charles Cooper, lead attorney for the Yes on 8 team, delivered an unusually passionate plea in his final minutes before the 9th Circuit U.S. Court of Appeals panel.

Cooper was trying to convince the panel to vacate the landmark ruling by U.S. District Court Chief Judge Vaughn Walker—a ruling in which Walker declared California’s ban on same-sex marriage to be in violation of the federal constitution. According to Cooper, Walker should have revealed to attorneys and the public that he had been in a relationship with a man for ten years and given attorneys a chance to challenge his fitness to preside over the case.

“There would be no problem for Judge Walker to sit on a case about Don’t Ask, Don’t Tell even though he’s gay. He would have no interest in the outcome of the case,” said Cooper, his voice gaining in volume and swelling with emotion. “But if Judge Walker was ruling that he has a constitutional right to get married to his ten-year-long partner — as soon as that ruling is affirmed…this will be a signal and dark day in American jurisprudence.”

Attorneys often get more passionate as the clock ticks down their last seconds. And Thursday’s argument was two hours –twice as long as most appeals arguments. Cooper had taken a beating, too, from the three-judge panel. The judges –who seemed to warm up to of the Yes on 8 team’s arguments for keeping a videotape of the Proposition 8 trial sealed— bombarded Cooper with a relentless stream of doubts about his arguments to vacate Judge Walker’s decision.

Cooper said Walker “was obligated to disclose whether he wanted to marry” his same-sex partner before the start of the trial because “a reasonable person” would question his ability to be impartial in that trial, Perry v. Schwarzenegger (now known as Perry v. Brown).

At the same time Cooper tried to argue that Judge Walker’s personal intentions concerning marriage were critical to his ability to render an impartial decision in the Perry case, he said the ability of same-sex couples to marry does not threaten heterosexual marriages. It was a head-spinning performance of footwork in the judicial ring, but the judges’ questions landed hard punches.

What, they asked, should be made of the fact that Judge Walker and his partner did not marry during the six-month period in which same-sex couples could marry in California, in 2008? What if a gay judge was not in a relationship. Should he or she have to disclose his or her intentions to marry? Would a straight judge have to reveal his or her intentions for marriage? Would a married judge have to recuse himself from presiding over a divorce case? What if a straight judge had a desire to maintain the definition of marriage as one man-one woman, would he or she have to disclose that?

When Cooper said gay marriages don’t threaten individual heterosexual marriages but do threaten the “institution of marriage,” one judge remarked, “I have a hard time understanding: If the institution of marriage is affected, doesn’t that affect the people who are married?”

The question of whether to vacate Judge Walker’s ruling was one of two issues before the panel December 8. The other –a much less consequential procedural issue—was whether the court should release to the public a videotape of the Perry trial proceeding from January 2010.

In that trial, Walker presided over three weeks of historic and widely publicized testimony. The lawsuit, organized by the American Foundation for Equal Rights, challenged Proposition 8, California’s same-sex marriage ban, on behalf of two same-sex couples, including plaintiff Kristin Perry.

Judge Walker ruled that the initiative violates the guarantee of the U.S. Constitution to equal protection under the law, but supporters of the initiative immediately filed their appeal of that decision to the 9^th Circuit.

A few months after issuing that decision and two months after retiring from the bench, Walker played an excerpt from the videotape in a public lecture and, in a separate setting and time, acknowledged to a group of reporters that he has been in a relationship with a man for the past 10 years.

Yes on 8 attorneys moved to have the videotape sequestered, noting that the U.S. Supreme Court had ordered Walker not to “broadcast” the trial. And they filed a motion to vacate Walker’s ruling, saying that he presided over a case in which he had the potential to secure a gain for himself –the right to marry.

Concerning the videotape, Yes on 8 attorney David Thompson claimed there were four potential injuries to allowing the videotape to be “broadcast” to the public today. (He contends that even posting the videotape on the court’s website constitutes “broadcast.”) The only argument the judges seemed interested in was one claiming that release of the videotapes would diminish judicial credibility. Walker, said Thompson, assured Yes on 8 attorneys he was videotaping the trial for his own use in chamber in preparing his decision. Releasing the tapes to the public contradicts that assurance.

But Ted Olson, the high-profile conservative attorney who helped stage the challenge to Proposition 8, argued that Walker also told attorneys he would include the videotapes in the trial record –a public record—and that Yes on 8 attorneys did not object.

Olson’s partner in leading the team challenging Proposition 8, high-profile liberal attorney David Boies, argued against the motion to vacate. Boies said a judge’s intentions concerning marriage are irrelevant and “if something is irrelevant, you don’t have to disclose it.” Suggesting that a gay judge would have to reveal his intention or “non-intention” to get married, said Boies, “creates a double-standard for a minority judge.”

The panel Thursday included the same three judges who heard arguments last December on Yes on 8’s appeal of Judge Walker’s decision: Stephen Reinhardt, Randy Smith, and Michael Daly Hawkins.

Enrique Monagas, an openly gay attorney serving on the Olson-Boies legal team, said the panel has moved “very fast” on the case since November, when the California Supreme Court issued its opinion that Yes on 8 has the right to represent voters in an appeal of Walker’s decision in the federal appeals court. (State officials had declined to make the appeal.)

“We think it went well. We’re optimistic for a favorable ruling,” said Monagas. He noted that all arguments and briefs have been submitted now on all issues in the case –the question of constitutionality, standing, and the motion to vacate, as well as the release of the trial videotape. Monagas said the court would likely handle the first three –and major—issues in one ruling, and the videotape ruling separately.

Concerning Thursday’s arguments, Lambda Legal attorney Peter Renn said, “The Court raked the lawyer for Prop 8’s proponents over the coals for their argument that gay judges alone have special obligations to prove their impartiality that no other judge must bear.”

Kate Kendell, executive director of the National Center for Lesbian Rights, said, “We expect and believe the Ninth Circuit will see these moves by the Prop 8 proponents for what they are: a desperate attempt to divert attention from their utter failure to offer any good reason to uphold this blatantly discriminatory ballot initiative. Judge Walker was scrupulously fair during the trial, giving the proponents every opportunity to present evidence justifying their position, but they had nothing to offer. For them to now claim that the judge could not have been fair because he is in a relationship with a man is not only outrageous and offensive, it is an attack on the integrity of judges everywhere.”

Whatever the court’s decision on any of these issues, the losing legal team is expected to appeal –either to the full 9^th Circuit or directly to the U.S. Supreme Court.