First Amendment Coalition » Prop 8

If hard-won court victory against Prop 8 is tossed out because of “standing” defect, you can thank Jerry Brown

Peter Scheer — Wed, 18 Aug 2010 18:31:34 +0000

BY PETER SCHEER—If I were Ted Olson, the former US solicitor general who is leading the legal battle against Prop 8, I would be unhappy with Jerry Brown right now.

Olson’s hard-won victory before federal district court judge Vaughn Walker was meant to be the first stage of a legal strategy culminating in a US Supreme Court decision establishing–for the entire country–a constitutional right of gay marriage. But Judge Walker’s decision striking down Prop 8 may never be considered by the federal court of appeals, much less the Supreme Court. Worse, the obstacle to appellate review could result in the voiding of Judge Walker’s decision altogether, thus restoring the gay marriage ban in California.

How does this scenario involve Jerry Brown? As California’s Attorney General, Brown has the job of defending the state, and its laws, in court. Like a private lawyer representing a client, he is supposed to defend California whether or not he thinks the state’s legal position is correct. This is so not only because the state deserves a defense, but also because our judicial system, in order to function, requires legal advocacy on behalf of both sides to a dispute. When a judge hears from one side only (the favored approach in countries that tend also to have only one political party), the judge is likely to make lots of mistakes.

With an eye on higher political office, Brown declined to defend Prop 8 in Judge Walker’s courtroom. Instead, the defense of Prop 8 was left to a group of citizen activists involved in the Prop 8 electoral campaign. Brown’s absence may have helped his own political fortunes, but, ironically, his strategy of non-participation ultimately may play into the hands of Prop 8’s supporters.

Although the defenders of Prop 8 were ably represented in Judge Walker’s courtroom by conservative litigator Charles Cooper, they may lack legal “standing”–a constitutional requirement in federal suits–to appeal Judge Walker’s decision to the federal court of appeals and, ultimately, to the US Supreme Court. Judge Walker highlighted this issue in a recent order, and the defendants, in their brief to the court of appeals, focused on it.

Without digging too deeply into the intricacies of the federal constitutional doctrine of standing, suffice it to say that the standing issue in the Prop 8 case is not trivial. Suffice it also to say that, if Jerry Brown had participated in the case and presented even a weak, half-hearted defense of Prop 8 at trial, standing would, at this juncture, pose no obstacle to appeal to the court of appeals and the Supreme Court.

But it gets worse. The problem is not limited to obtaining appellate review of Judge Walker’s decision. If it turns out that the Prop 8 supporters lack standing to appeal, it may also be the case that they lacked standing to represent the state’s interests in their defense of Prop 8 in the District Court. So says UC Davis Law School professor law Vikram Amar, who is no friend of Prop 8, in an interview with Time magazine.

While I disagree with Amar on this point (because I think states should not have the power, through their absence, to veto federal constitutional challenges to state laws), these are, at best, unchartered legal waters. If it turns out that none of the parties before Judge Walker was a constitutionally adequate defendant, the judge’s entire decision may fall—which is to say, gay marriages in California would once again be illegal.

Although Jerry Brown is no doubt sincere in his view that Prop 8 violates the Constitution, his role as Attorney General is not to advocate his own personal views or to take positions that please his political base. Rather, his job is to defend California in all cases except where the state’s actions are patently indefensible. (And while it may be terrible public policy, Prop 8 is unquestionably defensible under existing constitutional doctrine). This aspect of the attorney general job description is not spelled out in any law. Nonetheless, it is necessary for the functioning of the judicial system.

Ted Olson’s legal strategy is gay Californians’ last best hope for judicial affirmation of their right to marry. Ironically, Jerry Brown’s pursuit of short-term political advantage jeopardizes that strategy.
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Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. http://www.firstamendmentcoalition.org

Judge rules out TV for closing arguments in Prop. 8 hearing

donal brown — Thu, 10 Jun 2010 19:02:39 +0000

Federal Judge Vaughn Walker denied a media request to televise arguments in the California same-sex marriage trial without providing reasons for his decision. -db

San Francisco Chronicle
June 10, 2010
By Bob Egelko

SAN FRANCISCO — The only members of the public who will get to watch next week’s closing arguments in the trial over same-sex marriage in California will be the ones who make it to the courthouse.

Chief U.S. District Judge Vaughn Walker issued a brief order today denying a request by media organizations to televise the arguments, scheduled to last all day Wednesday in San Francisco. The organizations included Hearst Corp., which owns The Chronicle.

Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.

Walker, who heard 12 days of testimony in January, had proposed to televise the trial proceedings live to several federal courthouses around the nation and record them for a delayed Internet posting on YouTube.

But the U.S. Supreme Court pulled the plug, saying Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.

In their request to Walker last month to allow camera coverage of the closing arguments, the media organizations noted the high public interest in the trial and said televising a hearing that included only lawyers and the judge shouldn’t raise any concerns about intimidating witnesses.

But Prop. 8’s sponsors opposed a telecast, telling Walker that cameras have “negative effects on some judges and attorneys, including distraction, grandstanding and avoidance of unpopular decisions or positions.”

Walker did not spell out his reasons for denying the media request. The arguments will still be shown on closed-circuit TV, but only in an overflow courtroom at the San Francisco courthouse at 450 Golden Gate Ave.

Prop. 8 supporters oppose cameras in court for final arguments

donal brown — Tue, 25 May 2010 17:38:06 +0000

A lawyer for the Prop. 8 campaign committee sent a letter to the federal judge hearing the lawsuit challenging the proposition arguing that a broadcast of the closing arguments set for June 16 would have negative effects on the judge including making him avoid unpopular decisions. -db

San Francisco Chronicle
May 25, 2010
By Bob Egelko

Sponsors of California’s ban on same-sex marriage opposed televising next month’s final arguments in the Proposition 8 trial Monday and suggested that camera coverage might induce the judge to overturn the voter-approved measure.

In a letter to Chief U.S. District Judge Vaughn Walker in San Francisco, a lawyer for the Prop. 8 campaign committee said federal court officials have found that “public broadcast has negative effects on some judges and attorneys, including distraction, grandstanding and avoidance of unpopular decisions or positions.”

The lawyer, Charles Cooper, didn’t spell out what he meant by avoiding unpopular decisions. But he argued that camera coverage of the arguments would violate his clients’ right to a fair trial – indicating that he feared a telecast would increase the prospect of an unfavorable ruling.

Cooper also told Walker that allowing cameras to record lawyers’ closing arguments would violate the “letter and spirit” of the U.S. Supreme Court’s ruling in January that barred camera coverage of trial testimony.

The court said Walker had not allowed enough time for public comment before approving telecasts. The 5-4 majority also said cameras might intimidate witnesses and that a controversial, high-profile case was “not a good one for a pilot program” on cameras at federal trials.

Walker has scheduled closing arguments for June 16 in a lawsuit by same-sex couples and the city of San Francisco challenging Prop. 8, the November 2008 state constitutional amendment that defined marriage as the union of a man and a woman.

No federal trial in California has been shown on television or the Internet. After the federal appeals court in San Francisco authorized a pilot project in December allowing cameras at selected civil, nonjury trials, Walker approved closed-circuit telecasts of the Prop. 8 trial to a few other federal courthouses. He also ordered videotaping for Internet viewing in delayed uploads on YouTube.

After the Supreme Court intervened, the federal court in San Francisco allowed additional public comment before again authorizing camera coverage during trials, with the approval of the judge and the appeals court’s chief judge.

Last week, a group of media organizations including Hearst Corp., which owns The Chronicle, asked Walker to allow telecasting of the Prop. 8 case’s closing arguments. They noted that witness intimidation was not an issue because only lawyers would participate in the hearing, and said cameras would expand access to a case of intense public interest.

Prop. 8’s sponsors, a conservative religious coalition called Protect Marriage, have argued that camera coverage would distort the trial proceedings. Cooper’s letter Monday also said telecasting could endanger lawyers and judges.

Thomas Burke, lawyer for the media organizations, said Cooper’s concerns were based on unfounded speculation. In a case that has already drawn broad coverage, he said, the question is whether members of the public who are interested in the proceedings will have “a greater opportunity to see them firsthand.”

California: Federal panel refuses to reverse order forcing anti-prop 8 alliance to produce campaign materials

donal brown — Thu, 15 Apr 2010 17:01:54 +0000

Groups that campaigned against Prop 8, the California initiative that banned same-sex marriage, lost a court battle to block release of their campaign materials. -db

Courthouse News Service
April 14, 2010
By Elizabeth Banicki

(CN) – The 9th Circuit said it lacks jurisdiction to overturn a federal judge’s order forcing gay marriage advocacy groups to turn over their Proposition 8 campaign materials.

Equality California, No on Proposition 8 and the Campaign for Marriage Equality appealed Chief U.S. District Judge Vaughn Walker’s order compelling them to produce internal campaign documents in the federal trial challenging Prop 8, California’s voter-approved ban on same-sex marriage.

The organizations argued that their materials are protected by a First Amendment privilege shielding internal campaign communications.

But the three-judge panel said the organizations can’t appeal Walker’s order until they have been held in contempt for failing to comply with it.

The groups argued, alternatively, that the 9th Circuit can force the district court to adopt its reasoning in a December 2009 ruling allowing Prop 8 proponents to keep their identities secret.

A writ of mandamus would not be appropriate, the 9th Circuit panel explained, because the groups “have not demonstrated that the district court’s ultimate conclusions were clearly erroneous as a matter of law.”

Judge Walker is presiding over the first federal trial involving a challenge to a state’s ban on same-sex marriage.

Judge orders Prop 8 opponents to release campaign documents

donal brown — Tue, 23 Mar 2010 20:56:22 +0000

The federal judge hearing the challenge to Prop. 8 ordered Prop. 8 opponents to give campaign records to the proponents of the initiative saying that the records were public rather than “private and internal.” -db

Courthouse News Service
March 23, 2010
By Maria Dinzeo

SAN FRANCISCO (CN) – A federal judge ordered groups that campaigned against California’s Proposition 8, the same-sex marriage ban, to deliver documents that were withheld from the other side.

In upholding a previous ruling by Magistrate Judge Joseph Spero, U.S. District Judge Vaughn Walker said gay marriage ban opponents Equality California and the American Civil Liberties Union must surrender the campaign materials, which include email exchanges between the groups.

Judge Walker disagreed with the groups’ assertion that the materials were protected by the First Amendment. He wrote, “The standard does not protect campaign communications that are not private and internal.”

Federal courts rule out broadcast of closing arguments in California same-sex marriage trial

donal brown — Wed, 10 Mar 2010 20:12:38 +0000

A federal court will not include California’s same-sex marriage trial in its pilot program to broadcast civil proceedings contrary to recent media reports. -db

The Reporters Committee for Freedom of the Press
March 9, 2010
By Curry Andrews

A federal court in San Francisco announced on Friday that it is not planning to broadcast closing arguments in the trial over California’s gay marriage ban, despite media reports to the contrary.

As of now, Judge Vaughn Walker has not asked that Perry v. Schwarzenegger be included in a pilot program that allows the broadcast of certain non-jury civil trials.

“Broadcasting closing arguments would require Chief Judge Walker to request that these arguments be included in the Ninth Circuit’s pilot program and approval of that request by Chief Judge Kozinski,” the press release said. “No such request has been made.”

Walker said in January that he would ask to broadcast the proceedings, citing the Judicial Council of the 9th Circuit’s decision that trial courts could begin experimenting with recording civil trials. He withdrew that request after the Supreme Court blocked the trial’s broadcast, finding the court had not properly followed policies that govern changes to court rules.

Prop. 8 trial could still find the airwaves

donal brown — Fri, 26 Feb 2010 16:51:12 +0000

San Francisco Bay Area federal judges are again floating a plan to allow cameras in federal courtrooms just weeks after the U.S. Supreme Court, in a rare intervention, rejected a similar plan. If approved this time, it is possible that the final arguments in the Prop. 8 could be telecast. -db

The San Francisco Chronicle
February 26, 2010
By Bob Egelko

SAN FRANCISCO — Despite a rebuff from the U.S. Supreme Court, the Bay Area’s federal judges are again proposing to allow cameras in their courtrooms, a plan that could lead to telecasting of closing arguments in a suit challenging California’s ban on same-sex marriage.

The U.S. District Court in San Francisco has posted a rule change on its Web site that would allow its judges to take part in a pilot program of airing selected nonjury civil trials. The public comment period began Feb. 4 and ends Thursday.

The proposal is the same one Chief U.S. District Judge Vaughn Walker adopted in January after a week of overwhelmingly favorable public comment. But the Supreme Court intervened when Walker approved camera coverage of the trial over Proposition 8, the November 2008 initiative that outlawed same-sex marriage.

In a 5-4 ruling, the court – which has refused to telecast its own proceedings – rebuked Walker for shortening the usual comment period.

The court said it was not deciding whether federal judges could televise trials. But the conservative majority did not cite any public benefit in trial broadcasts and said any such project should start with a more routine case.

The justices cited statements by Prop. 8’s sponsors that telecasting outside the courthouse would intimidate their witnesses. Sponsors withdrew four of their six scheduled witnesses, all academic experts, when the trial started Jan. 11 and did not reinstate them after the court barred cameras.

No federal trial in California has ever been shown on television or the Internet. Walker had proposed live, closed-circuit telecasts of the Prop. 8 trial to a few other federal courthouses and a delayed posting on YouTube.

Testimony in the lawsuit by two same-sex couples and the city of San Francisco ended Jan. 27, but Walker postponed scheduling lawyers’ closing arguments until after a final round of briefs, due today.

If his court approves the new rule next week, Walker could allow camera coverage of the arguments along the lines of his previous order, subject to approval by Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals.

Telecasting lawyers’ arguments, without witness testimony, might pass muster with the Supreme Court, which hasn’t objected to televised hearings of arguments before the Ninth Circuit.

Prop. 8’s sponsors, who opposed telecasting the trial, won’t say whether they would challenge the airing of final arguments.

With no specific broadcast plan on the table, “we’re not going to speculate on how we would feel about that,” said Andrew Pugno, lawyer for Protect Marriage, the Prop. 8 campaign committee.

Prop. 8’s opponents supported Walker’s earlier video plans. They were also endorsed by a group of news organizations that included Hearst Corp., owner of The Chronicle.

The media group’s lawyer, Thomas Burke, said public interest in the Prop. 8 case remains high and that the upcoming arguments should be telecast.

The Supreme Court’s concerns about witness intimidation “are not present in closing arguments,” Burke said. “This is an issue of critical concern to a lot of people. … In our view, the more access, the better, regardless of which side you’re on.”

Supreme Court scuttles plan for televising Prop 8 trial

donal brown — Thu, 14 Jan 2010 17:15:08 +0000

In another 5-4 decision, the U.S. Supreme Court ruled that given the notoriety of the same-sex marriage trial and that the public had insufficient time to comment on the decision to televise the trial, there would be no live telecasts or delayed broadcasts on YouTube. The Court did not rule on whether any federal trial could be televised. -DB

San Francisco Chronicle

January 14, 2010

By Bob Egelko

SAN FRANCISCO — The U.S. Supreme Court pulled the plug Wednesday on plans for camera coverage of the same-sex marriage trial in San Francisco and said any televising of federal court proceedings should start with a more humdrum case.

The 5-4 majority said Chief U.S. District Judge Vaughn Walker, presiding over the trial on the constitutionality of California’s Proposition 8, had not given the public enough time to comment last week before he approved live telecasts to be shown in several courthouses around the country. Walker also approved videotaping for public Internet viewing, in delayed uploads on YouTube.

The ruling permanently bars a broadcast that the high court temporarily blocked just before the trial started Monday. Opponents of Prop. 8, the November 2008 initiative that prohibits same-sex marriage, are suing to overturn the measure as a denial of equal protection of the law.

The federal appeals court in San Francisco approved a pilot program last month allowing cameras at selected civil, nonjury trials, a project clearly designed for the Prop. 8 trial. Walker approved the telecast over the objections of the ballot measure’s sponsors, who said their witnesses could face harassment and might refuse to testify. The sponsors appealed to the Supreme Court.

No federal trial in California has ever been shown on TV or the Internet. The Supreme Court, which has refused to televise its own proceedings, said it was not ruling on whether any federal trials could be televised, but the majority justices made their discomfort clear.

The Prop. 8 trial, which involves “issues subject to intense debate in our society … is not a good one for a pilot program,” because the potential for harm is greater in a high-profile case, the court said.

The justices also said they were concerned about the effect on witnesses’ testimony, which “may be chilled if broadcast,” the court said.

Walker approved the telecast after only a week of public comment, rather than the 30 days that the San Francisco federal court normally requires when it changes its rules. Walker cited his authority to shorten the comment period when immediate needs arise, and said Monday he had received more than 138,000 comments from the public, all but 32 of them favorable.

But the Supreme Court said there was no immediate need to suspend the 30-day requirement because shutting off the cameras would harm neither side in the case.

Opponents of Prop. 8 had supported television coverage, as had news organizations, including Hearst Corp., which owns The Chronicle.

The ruling was issued by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy and Samuel Alito.

The dissenters were the court’s more liberal members, Justices Stephen Breyer, John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor.

Breyer, writing for the dissenters, said the public had ample opportunity to comment, there was no evidence that witnesses would be harmed, and those outside the courthouse were losing an opportunity to view a trial of “great public interest.”

Walker had ordered the trial telecast live to the regional appeals court’s headquarters at Seventh and Mission streets in San Francisco and courthouses in Pasadena, Seattle, Portland, Ore., and Brooklyn, N.Y.

Wednesday’s ruling means the only place people can watch the case on TV is in a 19th floor conference room at the Golden Gate Avenue courthouse that seats about 150. Thirty-six seats are available to the public for the trial itself in Walker’s courtroom on the 17th floor.

The case is Hollingsworth vs. Perry, 09A648. The ruling can be viewed at links.sfgate.com/ZJCL.

Prop 8 hearing: Strict enforcement of laws against assault needed rather than curtailing TV coverage

donal brown — Tue, 12 Jan 2010 22:41:07 +0000

A Citizen Media Law Project blogger argues that the Supreme Court should recognize that it is against California law to assault witnesses and that not televising the proceedings will not protect witnesses in what promises to be a widely publicized event. To allow the broadcast on YouTube would provide a boost to freedom of the press and greater access for millions of Americans who would then be able to see our justice system at work. -DB

Citizen Media Law Project
Opinion
January 12, 2010
By Justin Silverman

There are a couple of laws in California that the U.S. Supreme Court should consider before it announces tomorrow whether or not the Proposition 8 trial can be broadcast on YouTube: § 240 and§ 422. These two laws don’t address same-sex marriage, discrimination, or even access to courts, as you may have expected. Instead, these sections of the California Penal Code make it a crime to either assault or threaten to use violence against another person.

The Justices should take comfort in these laws. They are significant because the opportunity to view what could be a watershed case for gay rights is being prevented by a concern for the safety of witnesses. Ironically, those witnesses do not happen to be the persecuted homosexuals of bygone days, but instead those who now support a state measure to deny same-sex couples the right to marry. The trial began yesterday in San Francisco, and U.S. District Judge Vaughn Walker originally agreed to a delayed broadcast of each day’s proceedings on YouTube. But yesterday the Supreme Court issued an order (.pdf) temporarily stopping the broadcast at the request of Prop 8’s supporters.

“The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence,” according to the petitioner’s application for a stay (.pdf). “In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube.”

So, despite the Ninth Circuit Judicial Council’s decision (.pdf) last month to allow cameras in district courtrooms on an experimental basis, this already highly publicized case may not be viewed by the public—well, most of the public as there are, in the Court’s defense, a whopping 20 seats available. The rest of the world can either cram into other rooms of the courthouse to see real-time streaming of the trial or remain in the relative dark relying on text-only accounts.

Rather then spending time on the virtues of cameras in the courtroom, let me just say that my support for them is rooted in both a desire for transparency and the practical concern best worded by an old journalism professor of mine: What good is giving the press freedom if it is not allowed to use the tool of its trade? In this case, that tool is a video camera. Similarly, law enforcement has many tools of its trade, the most important being the law. In California, the law includes prohibiting the very acts Prop 8 supporters and—apparently—the Justices are so concerned about. Perhaps it’s too much to ask, but can we just let both journalists and police do their jobs?

By staying the broadcast of this trial—and impliedly finding that Prop 8 supporters will suffer “irreparable harm” absent a stay—the Supreme Court seems to be advocating curtailment of the press as a means of law enforcement. In a sense, there’s a backwards Heckler’s Veto at play: the Court is protecting the right of witnesses to speak by limiting the ways in which they will be heard and preventing retaliation by those who will not have heard them. Instead, those witnesses should take the stand knowing they will be given the largest forum possible in which to speak and the strongest protection against those who may retaliate when they do so.

And that retaliation is a big may. Among their reasons for requesting a stay, the petitioners say that “public broadcast can intimidate witnesses who might refuse to testify or alter their stories when they do testify if they fear retribution by someone who may be watching the broadcast.” Further, “all of the petitioners’ witnesses have expressed concern over the potential public broadcast of trial proceedings and some have stated that they will refuse to testify if the district court goes forward with its plan.”

In a controversial case such as this one, no doubt the unpopular speaker is a nervous one. But I’m skeptical that witnesses already committed to testifying will suddenly shy away because of the prospect of video dissemination. Do they not realize that, without a single camera, the San Jose Mercury News is reporting live accounts that include the names of those taking the stand? That special interest groups will be Twittering their testimony as they speak? That there are already websites identifying Prop 8 supporters and where they live? Banning a broadcast, I believe, will not change this. But to allow a broadcast, I’m certain, will further enlighten the debate over same-sex marriage, if not provide insight into our judicial system altogether.

But to help do that, the speaker, regardless of whether they are preaching in a town common or testifying in a trial, should be heard and, in this case, seen. When the petitioners argue that broadcasting the trial would “vastly increase the likelihood” that trial participants would face retaliation, the Supreme Court should acknowledge that this is an unfortunate price for press freedom, and the reason our police officers suit up each day.

Tomorrow is an opportunity for the Justices to do just that.

Justin Silverman is a CMLP Legal Intern.

Federal judge for same-sex marriage trial approves taping but limits live broadcast

donal brown — Thu, 07 Jan 2010 17:45:40 +0000

Chief Judge Vaugh Walker ruled that court personnel can tape the proceedings of the federal challenge to Prop 8, California’s ban on same-sex marriage, but maintained control by not allowing live broadcast except to federal courthouses in cities in other states. -DB

The Recorder
January 7, 2010
By Dan Levine

SAN FRANCISCO — Chief Judge Vaughn Walker made it clear Wednesday that he will forge ahead with televising the federal challenge to Prop 8.

But he also signaled he doesn’t want to be the next Lance Ito.

The trial, which begins on Monday, will be filmed by court personnel, Walker ruled, but it will not be broadcast live. Instead, the recording will be posted on a YouTube page at some point after the close of the day’s proceedings. Walker declined an offer from In Session (formerly Court TV) to broadcast live, with its own crew.

“I think in view of the nature of this proceeding, it is important for this process to be completely under the court’s control,” he said.

Lawyers representing the Yes on 8 campaign objected to any broadcast beyond an overflow room in the San Francisco federal building, arguing that witnesses would be intimidated, or change their testimony. But Walker was skeptical, pointing out that depositions have been widely videotaped for years.

Before Walker took the bench Wednesday, court personnel demonstrated how the camera facing the witness could be shut off, should the situation demand it. In the video sample shown to observers in the gallery, the cameras facing the judge and the attorney’s lectern remained active, resulting in a screen display split three ways.

“Our intent is to upload the entire thing,” said IT specialist Buz Rico.

While a live broadcast won’t be made available to the public at large, real-time viewing will be available at federal courthouses in other cities, Walker said. So far, that list includes Pasadena, Seattle, Portland, Ore., and Chicago. The Ninth Circuit will also set up a screen at its headquarters at Seventh and Mission streets in San Francisco.

Cameras have suddenly become a serious attention suck in what was already a high-profile trial. After a frenetic six months of pretrial litigation and discovery, a team of lawyers from Gibson, Dunn & Crutcher and Boies, Schiller & Flexner who represent same-sex couples will square off Monday against the Yes on 8 campaign in a bench trial.

Walker acknowledged in court Wednesday that the Ninth Circuit began formalizing its pilot program in October, with an eye toward the Prop 8 trial. The circuit’s judicial council OK’d the program last month for civil, non-jury trials selected by each district’s chief judge. Alex Kozinski, the circuit’s chief judge, must then grant his approval.

Gibson, Dunn partner Theodore Boutrous Jr. voiced strong support for broadcast in court Wednesday. Tossed a few softballs by Walker — including one about the “checkered history” of televised trials — Boutrous replied that this is a bench trial about constitutional issues, not a murder case.

“We think this is an ideal situation to use this pilot program,” Boutrous said.

Thomas Burke, a Davis Wright Tremaine partner representing a media coalition seeking live broadcast, noted that the court’s cameras are “consumer” quality, while the networks could provide broadcast-ready footage with no technical problems. But that didn’t sway Walker.

When Yes on 8 campaign lawyer Michael Kirk tried to cite U.S. Judicial Conference guidance against cameras, Walker asked whether that really applied more to criminal trials. The Prop 8 campaign raised lots of money and openly electioneered, Walker said.

“They assumed a public face, if you will,” he said.

Kirk, a Washington, D.C.-based partner at Cooper & Kirk, argued that blacking out a given witness’s video feed wouldn’t help. “That fact in and of itself will shine a spotlight on that person,” Kirk said.

In the end, Walker tried to voice a larger objective.

“I’ve always thought if the public could see how the judicial process works, they would take a somewhat different view of it,” he said, adding: “I think it’s worth trying in this case.”