Judge un­seals tapes of Cal­i­for­nia same-sex mar­riage trial

The Washington Times Weekly - - National - BY VA­LERIE RICHARD­SON

A fed­eral judge on Sept. 19 or­dered the un­seal­ing of the video record­ings in the Propo­si­tion 8 trial, hand­ing ho­mo­sex­ual-rights sup­port­ers an­other le­gal vic­tory in their quest to le­gal­ize same­sex mar­riage in Cal­i­for­nia.

U.S. District Court Chief Judge James Ware ruled that pub­lic in­ter­est in hav­ing the video­tapes re­leased out­weighed the U.S. Supreme Court’s in­junc­tion pre­vent­ing the broad­cast of the 2010 trial, as well as any po­ten­tial “chill­ing ef­fect” on wit­nesses in fu­ture court pro­ceed­ings.

“Fore­most among the aspects of the fed­eral ju­di­cial sys­tem that fosters pub­lic con­fi­dence in the fair­ness and in­tegrity of the process are pub­lic ac­cess to tri­als and pub­lic ac­cess to the record of ju­di­cial pro­ceed­ings,” Judge Ware said in his 16-page opinion.

“[T]he court con­cludes that no com­pelling rea­son ex­ists for the con­tin­ued seal­ing of the dig­i­tal record of the trial.”

At the same time, the judge placed a hold on his or­der un­til Sept. 30 to al­low time for an ap­peal.

Cal­i­for­nia vot­ers ap­proved Propo­si­tion 8, which states that mar­riage is an in­sti­tu­tion be­tween one man and one wo­man, by a mar­gin of 52 per­cent to 48 per­cent in Novem­ber 2008. Former U.S. District Court Chief Judge Vaughn Walker ruled the mea­sure un­con­sti­tu­tional in Au­gust 2010.

Chad Grif­fin, board pres­i­dent of the Amer­i­can Foun­da­tion for Equal Rights, which brought the law­suit to un­seal the tapes, said the video­tapes would il­lus­trate what he de­scribed as the lack­lus­ter ar­gu­ment against same-sex mar­riage.

“The pub­lic will soon see the ex­traor­di­nar­ily weak case that the anti-mar­riage pro­po­nents pre­sented in a des­per­ate at­tempt to de­fend this dis­crim­i­na­tory law,” he said in a state­ment.

At­tor­neys for Pro­tect­Mar­riage.com, which urged the court to keep the video­tapes sealed, could not be reached for com­ment on Sept. 19. A post on the National Or­ga­ni­za­tion for Mar­riage blog char­ac­ter­ized the rul­ing as a case of le­gal bai­tand-switch.

“We per­son­ally don’t have a dog in this fight, but given the Supreme Court per­son­ally in­ter­ven­ing to pre­vent Judge Walker from video­tap­ing the trial, and then he did so promis­ing the lit­i­gants that it would be only for his per­sonal use, this is not jus­tice for the lit­i­gants,” said the post.

Judge Walker orig­i­nally agreed to a live au­dio and video feed of the trial as part of a pi­lot pro­gram, but the U.S. Supreme Court is­sued an in­junc­tion to stop the broad­cast. Af­ter­ward, Judge Walker, who re­tired shortly af­ter the trial, or­dered his staff to make dig­i­tal record­ings of the three­week pro­ceed­ing.

Judge Walker said at the time that the tapes were “for use in cham­bers,” and later of­fered to make copies for the trial at­tor- neys. Af­ter the trial, he or­dered the tapes sealed, but then played snip­pets of the video dur­ing a Fe­bru­ary speech at the Univer­sity of Ari­zona.

The Propo­si­tion 8 cam­paign sued to stop Judge Walker from air­ing the video, while the le­gal team fight­ing the mea­sure counter-sued to have the video­tapes un­sealed and re­leased to the pub­lic.

At­tor­neys for Propo­si­tion 8 ar­gued that re­leas­ing the video­tapes would vi­o­late the Supreme Court’s in­junc­tion and break faith with the wit­nesses who had re­lied on that in­junc­tion. Pub­lic dis­sem­i­na­tion of the tapes would also dis­cour­age fu­ture tes­ti­mony in re­lated tri­als, at­tor­neys said.

Af­ter the Propo­si­tion 8 vote, some cam­paign con­trib­u­tors said they re­ceived threat­en­ing phone calls and emails from ho­mo­sex­ual-mar­riage ac­tivists who gained ac­cess to their con­tact in­for­ma­tion through state elec­tions data­bases avail­able to the pub­lic.

Some busi­nesses were tar- geted for boy­cotts, while the Church of Je­sus Christ of Lat­ter­day Saints, which backed Propo­si­tion 8, was hit by protests and van­dal­ism.

As a re­sult, Propo­si­tion 8 at­tor­neys said it was dif­fi­cult for them to per­suade wit­nesses to tes­tify on the mea­sure’s be­half. The de­fense orig­i­nally planned to call six wit­nesses, but four backed out when they learned that the judge planned to tape the trial, Pro­tect­Mar­riage.com at­tor­ney An­drew Pugno said.

The trial’s writ­ten record has been long avail­able to the pub­lic. A play based on the court tran­script, en­ti­tled “8,” pre­miered Sept. 19 at the Eu­gene O’Neill The­atre on Broad­way in New York City.

The show, fea­tur­ing an all-star cast that in­cludes Ellen Barkin, Mor­gan Free­man and John Lith­gow, was slated to show for one night as a fundraiser, and then be restaged at re­gional and col­lege the­aters na­tion­wide, the Amer­i­can Foun­da­tion for Equal Rights said.

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