Prop. 8 Challenge of Gay Judge

WalkerVaughn
Judge Vaughn Walker

Whether the trial judge that struck down California’s ban on same-sex marriage should have been disqualified because he is gay will be the question on tap today at the 9th US Circuit Court of Appeals.

 The outcome could change the direction of the landmark case, which is currently pending before the same appeals court. 

A separate question that has got plenty of attention is whether the public will ever see video recordings of the trial in the case. Federal trials are not subject of TV broadcast or recordings, unlike some state court trials. But former Chief Judge Vaughn Walker allowed the recordings under an experimental rule change by the court.

He would have allowed live streaming of the trial to several law schools and the appeals court for wider public viewing. But the U.S. Supreme Court stepped in and barred the release of the video.

Walker continued to make the recordings, saying it was for “judicial in chambers” use and did not allow their public broadcast. The recordings have remained under seal while the case is on appeal. Ironically, the appeals court does not have the same broadcast restrictions. Under an pilot program, the appeals court will allow closed-circuit broadcast of the argument to three other federal courthouses in the west, Pasadena, Seattle and Portland.

California voters passed Proposition 8, which imposed a state constitutional ban on same-sex marriage, in 2009 after the California Supreme Court allowed same-sex marriages in the state.

A gay couple and a lesbian couple filed a civil rights lawsuit challenging Prop. 8 as a violation of equal protection of the law.  Walker struck down the law in 2010.

Shortly after his decision, Walker told reporters he had been in a same-sex relationship for nearly a decade.  This raised the issue of whether he should have stepped off the case, although it was not raised by either side prior to, or during the trial.

The appeals court will not discuss the merits of the law itself and whether same-sex marriages should be permitted. The arguments will also be posted online a day after the hearing.

The case is Perry v. Brown, No. 11-17255.

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