by Melanie Nathan

SAN FRANCISCO; December 09, 2011;  Today was likely the last hearing before the Ninth Circuit issues a ruling on the U.S. District Court’s decision that struck down Prop. 8, the ballot measure that sought to ban same-sex marriage in California.

The Ninth Circuit Court of Appeals heard oral argument about whether the courts should publicly release the video of the historic trial to overturn Proposition 8, the measure that stripped same-sex couples of the right to marry in California. The court also heard oral argument on Prop 8 supporters’ outrageous request to throw out the court decision striking down the initiative.

Since suffering a devastating loss at the 2010 trial, Prop 8 supporters have tried to block release of the trial video and to invalidate the ruling by former Chief District Judge Vaughn Walker by claiming he should have refused to hear the case because he is in a long-term gay relationship.

Chief Judge James Ware of the U.S. District Court in San Francisco denied both of these requests earlier this year, rejecting the supporters’ continuing efforts to keep the public from seeing the historic videos and their offensive argument that Judge Walker could not rule fairly because of his sexual orientation. The Prop 8 proponents appealed both of Judge Ware’s rulings to the Ninth Circuit.

“Ted Olson argued that we have a strong tradition of openness in our country. In a case that affects the civil rights of millions of Americans, the public should not be denied their First Amendment right to see video of the historic Prop. 8 trial.  The anti-marriage proponents of Prop. 8 are trying to keep tapes of the 2010 trial locked away because they don’t want the world to see that government has no legitimate interest in discriminating against its gay and lesbian citizens.” Chad Griffin, Board President
American Foundation for Equal Rights, who was sitting in the front with the parties at today’s hearing.

David Boies addressed the motion by the anti-marriage forces to vacate the U.S. District Court’s decision that struck down Prop. 8. Unable to defend the discriminatory initiative on its merits, the Prop. 8 Proponents allege that the judge who heard our case was biased based on the sole fact that he is gay. It was hard to sit there today and hear the disgusting attack on Chief Judge Vaughn Walker.  And as one of the judges, Justice Hawkins of  the three judge panel  Judge said to attorney Cooper -  “are you saying that as a married Judge I should never hear a divorce case?”   The judge seemed visibly angry at the motion.

The court took the matter under submission and will issue a written decision. There is no set time limit for the court to rule. The court also had previously announced that no further oral arguments will be held before it issues its written decision on whether to uphold Judge Walker’s decision striking down Prop 8.

In a Statement by NCLR Executive Director Kate Kendell, Esq. “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.”

The court has adjourned, and I am sure a decision will come down soon. The preceding rally which had members of the public,  well  organized by MEUSA’s Bill Bradford was exciting with speakers, such as myself, angry that we had to be there at all. We all feel positive that our constitutional rights to equality will be preserved.

As Griffin says, “Our Constitution’s promise, the promise of liberty, is one that every generation must realize. The fight for marriage equality is the defining element of our generation’s search for greater freedom. Try as they might, the anti-marriage proponents of Prop. 8 cannot stop our Nation’s courts – and its honorable judges – from protecting truth and justice over prejudice and fear.”