The first question posed to the lawyers from Idaho’s gay marriage case was about the atmosphere in the courtroom at the 9th Circuit Court of Appeals when the judges heard arguments in Idaho’s case earlier this month. Deborah Ferguson said the arguments were in the San Francisco courtroom that’s normally used for en banc arguments, when larger panels are convened. “It’s a very beautiful courtroom of marble and mosaics,” she said. “The building predates the great earthquake in San Francisco.” She added, “It’s the first time I’ve ever seen access to the courtroom so tightly controlled, and every seat was spoken for.”
The arguments were streamed live on YouTube, she noted. “Personally, I’d rather not be videotaped, although you forget about that very quickly as they start asking you questions, the judges, that is.”
Craig Durham said, “I had the unfortunate revelation afterward that I was on YouTube sitting behind whoever was speaking.” Tom Perry said, “I share Craig’s perspective – you would turn on your phone and you’ve got 300 texts, ‘Hey, I see you,’ as you’re pawing through your briefs trying to respond to an argument.”
Asked to rate the 9th Circuit judges’ questions compared to those from other circuits, the attorneys declined. Durham said he was a bit surprised that the 9th Circuit judges didn’t ask the lawyers any questions about Baker vs. Nelson, an early 1970s case that’s been a topic of questions at arguments in some other circuits.
Perry noted, “A lot of times, judges take you to places that really aren’t the principle thrust of your case.” He added said, “For degree of toughness, I really thought Judge (Candy) Dale, on both sides, she was really pretty tough on both of us.” Dale is the U.S. magistrate judge who overturned Idaho’s ban after hearing arguments this spring in Boise.