The two same-sex couples who won their case to strike down California’s ban on gay marriage urged a federal judge on Friday to release for public broadcast the full videotape of the trial in that case, arguing that the recording would show the fairness of the trial judge, who is gay.   The plea came as those couples opposed a motion by the backers of the Proposition 8 ban to wipe out that entire decision, on the theory that U.S. District Judge Vaughn R. Walker was biased against the measure because, as a partner in a long-term gay relationship, he could benefit personally from striking down the ban.

The brief opposing the ban can be read here.   Attached to it were a series of news reports showing that Judge Walker’s gay sexual identity was known long before he decided the case, and quoting lawyers who defended Proposition 8 as saying in response to those reports that there would be no challenge to him as the trial judge.

Judge Walker has since retired from the bench, and his decision nullifying Proposition 8 is now under review in the Ninth Circuit Court.  Even so, the supporters of Proposition 8 last month asked the successor to Judge Walker on the case — District Judge James Ware — to throw out the Walker ruling on the argument that he failed to disclose his ten-year gay relationship and that his alleged bias can explain a number of facets of his rulings during the trial against the ban.  Judge Ware is to hold a hearing June 13 on that issue, as well as on the question of public release of the videotape of the trial, which, for now, remains under seal.

The same-sex couples who filed the challenge argued vigorously in their opposition brief on Friday that there is no evidence whatsoever to support the claim that Judge Walker was biased or unfair, that there is thus no basis for him to have taken himself off of the case, and that, in any event, there is no legal basis for nullifying his ruling because of this belated new attempt to raise an issue. 

All of Judge Walker’s rulings in the case, the couples contended, “have been firmly grounded in the law and the evidence.”  The attempt to overturn his ruling based on the new challenge, the brief asserted, comes so late in the proceedings that it does not satisfy the requirement in federal law that challenges to a judge’s fairness must come promptly, as soon as knowledge exists of a claimed basis for such a challenge.   But, it argued, even if there were any basis for this particular challenge (arguing that there was not and could not be), the nullification of the entire decision against Proposition 8 would be too drastic a remedy, because that would require an entirely new trial, thus prolonging the bias against gays that they say Proposition 8 embraced.

Denouncing this challenge as a threat to the integrity of the federal judiciary as a whole, the couples’ new brief said that the Proposition 8 backers’ motion to vacate the decision “gives the court yet another reason to unseal the videotape of the trial.”

It made this further argument for such a release: “Ensuring public trust and confidence in the judicial system and the results it produces is the overywhelming rationale for the right of public access guaranteed by the First Amendment and longstanding common-law principles.  In light of the proponents’ unfounded attacks on the integrity of Judge Walker and the proceedings over which he presided, that purpose would be powerfully served by unsealing the trial video and permitting the public to reach their own conclusions about the fairness of the proceeding.”

As other defenders of Judge Walker’s ruling have argued in filings last week with Judge Ware on the motion to vacate issue, the couples argued that the Proposition 8 backers — despite claims to the contrary — are actually seeking to prevent any gay judge from deciding any federal case that has to do with the rights of gay and lesbian individuals.  That kind of attack has failed against women judges and judges of a racial minority, and should not now be allowed to prevail against gay judges, the couples’ brief argued.

Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Prop. 8: New plea to release video of trial, SCOTUSblog (May. 14, 2011, 9:38 PM),