Prop 8 same-sex marriage ban back in court

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Elaine Thompson/AP file photo

In this photo taken Friday Nov. 19, 2010, Chief District Judge Vaughn R. Walker of the Northern District of California, speaks at a legal conference in Seattle.

Another episode in the long legal saga of California's same-sex marriage ban, Proposition 8, is scheduled to unfold in a San Francisco courtroom.

A federal appeals court hears oral arguments Thursday on whether a lower court judge who ultimately struck down voter-approved Proposition 8 should have recused himself because he was in a same-sex relationship.

The three-judge panel of the 9th U.S. Circuit Court of Appeals also will weigh if it should unseal video recordings of last year's landmark trial on the voter-approved ban's constitutionality.

The panel is not expected to rule immediately on either issue. But both topics need to be argued before the court can issue a decision either upholding or overturning the ban.

"Judges def. seem inclined to reverse earlier order to release trial video tapes," KQED's Scott Shafer tweeted at 3:15. "Concern: Judge promised not to release them. Integrity."

The "integrity" refers to the integrity of the court, which could be compromised if they go back on their earlier promise to withhold the tapes. The district court’s Local Rule 77-1-3 prohibits the broadcast or other transmission of trial proceedings beyond “the confines of the courthouse."

However, arguments have since been made that a video tape qualifies as a court transcript-- which is a part of the public record. This, combined with the lack of witness concern about personal safety, has convinced many advocates that the tapes should see the light of day.

Judge Vaughn Walker, who initially struck down the proposition, has said himself that video tapes should be a matter of public record. Earlier this year at an Arizona State forum, Walker showed a clip of viral video Prop 8: the Musical and asked, rhetorically:

“Well, what would you rather have people learn how the courts function? Would you rather have them listen to the Prop 8 Musical, a reenactment, or the real thing?"

The matter of Walker's sexuality, and whether he should have recused himself because of it, is in somewhat murkier water.

"Judge Hawkins: So a married judge could never hear a divorce case?" tweeted Shafer, quoted two of the judges on the appeals court. "Judge Smith: Would he have to disclose the strength of his own marriage?"

The trial has since been adjourned.

This story has been updated.

With contributions by Paige Osburn

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