A three-judge federal appeals panel heard arguments on whether the judge who struck down the proposition should have recused himself because he was in a same-sex relationship.
The question was: Should a decision on the constitutionality of Proposition 8 be overruled because the judge is gay?
Those who oppose same-sex marriages argue there was a conflict-of-interest because the judge in the case, Vaughn Walker, did not disclose his sexual orientation and was in a long-term relationship with a man. They argued the judge, therefore, could not be impartial.
"When Judge Walker read the allegations of the complaint, he knew something that the litigants and the public did not know," argued Proposition 8 attorney Charles Cooper. "He knew that he, too, like the plaintiffs, was a gay resident of California who was involved in a long-term serious relationship with an individual of the same sex."
"If something is irrelevant, you don't have to disclose it," said anti-Proposition 8 attorney David Boies. "We believe the law is, even if he did have an interest in getting married, that's not a basis for disqualification. In either of those cases, there is no basis to require a disclosure of something that is not a basis for disqualification."
The second hearing focused on the release of videotape of the trial in Walker's courtroom. Walker said he was videotaping the trial so he could review the testimony in his chamber. Walker said the videotape would be sealed, and also said the potential for public broadcast had been eliminated.
Now, proponents of same-sex marriage say they want the videotape to be released. A federal judge agreed, ordering the release of the tapes, stating it would be in the best interest of the public.
The three judge panel that met on Thursday seemed to imply that if the tapes are released, it would harm the integrity of the court.
"I've tried cases for 25 years, and when a judge said 'A is not going to happen, and you can rely upon that,' A did not happen," said Superior Court Judge Michael Hawkins.
A decision will take some time. After one year, the Ninth Circuit Court of Appeals has still not rendered a decision on whether or not Proposition 8 violates the state's constitution.
