Prop. 8: Video ruling due
Lyle Denniston Reporter
Posted Wed, February 1st, 2012 9:19 pm
The first ruling by the Ninth Circuit Court on California’s controversial ban on same-sex marriage — but not an ultimate ruling on the ban’s constitutionality — will be released Thursday morning, the Circuit Court announced Wednesday. Coming out at 1 p.m. Washington time (10 a.m. in San Francisco), this will be a decision on whether the courts will release, for public broadcast and public viewing in general, the videotapes made of the historic federal trial on the ban known as “Proposition 8.”
The ballot measure approved by California voters in November 2008 barred gay marriages in California, but the state Supreme Court later ruled that — while Proposition 8 did not violate the state constitution — marriages already performed among same-sex couples remained legal. The ban itself, however, was then challenged in a federal court case that unfolded in a three-week trial two years ago. A video recording was made of the entire trial and, although some limited excerpts of it have been played before selected audiences, the full tape remains under seal in federal court.
Last September, Chief U.S. District Judge James Ware of San Francisco ruled that the tape must be made public — a move that would make it available for broadcasting throughout the nation. The Ware ruling has been challenged in an appeal to the Ninth Circuit, by the sponsors of Proposition 8, and the Circuit Court’s announcement Wednesday showed that the three-judge panel is ready to rule.
The same panel has under review three other issues surrounding the constitutionality of Proposition 8, including whether the ban violates the federal Constitution’s equal protection and due process clauses. Now-retired U.S. District Judge Vaughn R. Walker ruled in August 2010 that the ban does violate both of those provisions. The sponsors have challenged that, too, in their appeal.
Before ruling on the constitutionality, the Circuit Court panel must decide two other, preliminary issues: did the sponsors of the ban have a legal right to appeal Judge Walker’s ruling, as a matter of federal constitutional law, and should Walker’s ruling be thrown out entirely on the theory that, as a gay man who has a long-term male partner, he would have a personal interest in the outcome of the trial over which he presided, and thus should have been barred from making any ruling on the ban?
If the Circuit Court were to rule that the backers of Proposition 8 did not have a right to appeal, that would be the end of the case, at the Circuit Court level, unless the en banc Circuit Court were to agree to step in. If the backers had that right, then the panel would move on to decide the challenge to Judge Walker. And, if it rejected that claim, the panel would then move on to the constitutional issue.
Wednesday’s announcement dealt only with the videotape release issue, and gave no indication when the panel would rule on any other issues. All procedural matters have concluded on all issues, so further rulings could come at any time, presumably after tomorrow.
Prop. 8: Video ruling due,
SCOTUSblog (Feb. 1, 2012, 9:19 PM),