KQED seeks videos’ release in Prop. 8 case

It’s time for the public to see and hear what went on at the historic San Francisco trial in 2010 that gave gay and lesbian couples the right to marry in California, public broadcaster KQED argued in a lawsuit Friday seeking release of longsealed courtroom videotapes.

While the case was covered extensively during the trial and later court proceedings, “there is no substitute for the insight and illumination that only the videotaped record of the trial can provide,” lawyers for KQED radio and television said in the U.S. District Court suit.

The trial, the first ever in federal court on same-sex marriage, involved a suit by lesbian and gay couples challenging Proposition 8, the November 2008 initiative that limited marriages in California to opposite-sex couples. After testimony from would-be newlyweds and from advocates on both sides, then-Chief U.S. District Judge Vaughn Walker struck down Prop. 8 as an unconstitutional act of discrimination.

Walker’s ruling became final after the U.S. Supreme Court ruled in 2013 that Prop. 8’s sponsors, who entered the case after state officials refused to defend the initiative, had no right to represent the state in an appeal. Two years later, the high court legalized same-sex marriage nationwide.

Walker had approved camera coverage of the 2010 trial, but Prop. 8’s backers persuaded the Supreme Court to prohibit televising the proceedings, saying their witnesses feared harassment and loss of privacy. The judge kept the tapes on file and told the opposing parties that they would not be broadcast “in the foreseeable future.” Under the court’s rules, they would remain sealed until at least 2020.

Prop. 8’s sponsors oppose making the videos public, attorney Charles Cooper said in a November email to KQED lawyers. But KQED argued that the rules keeping them sealed should be considered an unconstitutional restriction of the public’s right to view the records.

Since the trial, “the public discussion of gay rights has shifted substantially,” KQED said in Friday’s suit. Support for same-sex marriage in national polls has risen from 44 percent to 60 percent, the broadcaster said, and even one of Prop. 8’s two supporting trial witnesses, David Blankenhorn, has become a backer of same-sex couples’ marital rights.

“While the public interest in seeing the open work of government remains compelling, any privacy interests of those involved in the trial have disappeared almost entirely” seven years later, attorney Thomas Burke said in the court filing. “Any meaningful threat of harm from public broadcast has now fully dissipated.”

If the tapes are released, Burke said, KQED will use them in radio and television broadcasts and make excerpts available online.

One of the Prop. 8 plaintiffs, Kris Perry of Berkeley, who testified in the trial, said in a declaration accompanying Friday’s lawsuit that release of the videos would show viewers “how terrified I was ... how personal this was for me.” But they would also help to demonstrate that “if you fight back, you can win,” she said.

Cooper and other representatives of Prop. 8’s sponsors could not be reached for comment.