The US Court of Appeals for the Ninth Circuit [official website] heard oral arguments Thursday on two consolidated issues [JURIST report] regarding Proposition 8 [text, PDF; JURIST news archive], California's same-sex marriage ban. The first was an appeal from a refusal [JURIST report] by the US District Court for the Northern District of California [official website] to vacate former US district court judge Vaughn Walker's decision striking down Proposition 8 because he failed to disclose his own homosexuality and 10-year same-sex relationship. Proponents of Propostion 8, which include Protect Marriage [advocacy website], argued in their brief [text, PDF] that they had no problem with Walker hearing the case so long as "a reasonable person ... would not have reason to believe that the judge has a current personal interest in marrying if Plaintiffs prevail." Opponents, including the American Foundation for Equal Rights [advocacy website], countered this statement by arguing [text, PDF] that the district court properly ruled that recusal was not required, and, even if it was, vacating the judgment would be a "drastic and inappropriate remedy resulting in injustice to the Plaintiffs in this case." The second issue was whether video recordings [JURIST report] of the 2010 trial should be released to the public. Proposition 8 supporters argued [text, PDF] against the release because it could lead to harassment of their witnesses and claimed that the First Amendment right of access has no application in this instance. Proposition 8 opponents argued [text, PDF] that there is no reason not to make the recordings public, and, in fact, it is in the public interest to do so.
In November, the California Supreme Court [official website] ruled that sponsors of Proposition 8 have standing [JURIST report] to defend the measure in court. The same-sex marriage ban was initially struck down last year [JURIST report], and then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report]. In March, the Ninth Circuit denied a motion to lift the stay order [JURIST reports] prohibiting gay couples from marrying while the appeal is pending. The Ninth Circuit heard oral arguments [video; JURIST report] on both the issue of standing and constitutionality last December but has not yet ruled.