Both sides in the lawsuit to overturn California’s gay marriage ban Proposition 8 went before Chief Judge James Ware on Monday to argue whether videotapes of the original trial proceedings should be unsealed.
During the Proposition 8 trial then-Judge Vaughn Walker recorded proceedings with the aim of broadcasting the historic case to the public. This was prevented from happening by the United States Supreme Court at the request of the defendant-intervenors, those who support Proposition 8, who argued that it would put their witnesses at risk of harm.
Lawyers arguing on behalf of the plaintiffs in this case suggested during Monday’s hearing that it was in the best interest of the judiciary to unseal the tapes because they would show unequivocally that the trial was not biased as had been claimed by defendant intervenors when they filed a motion to vacate Judge Walker’s ruling — a motion Judge Ware has already refused.
Plaintiffs went on to argue that unsealing the tapes is a First Amendment issue.
Because the trial tapes are now part of the District Court record and record on appeal, Plaintiffs contend that the First Amendment and the common law establish a strong presumption that these judicial records are open to the public. Moreover, Prop. 8 Proponents have offered no legitimate reason or factual evidence to keep the entire video recording of the trial secret.
“We have a strong tradition of openness in this country and the First Amendment and common law make judicial records and proceedings presumptively open to the public. This presumption applies with full force to videotaped record of this historic trial,” said AFER attorney Theodore J. Boutrous. “The Proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans. The real reason that the Proponents are fighting public release is that do not want the world to see the powerful evidence we submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.”
Judge Ware reportedly raised concerns over the fact that Judge Vaughn Walker had said only he would access the tapes during his deliberation. This was something that defendant-intervenors were reportedly keen to build on as a reason not to unseal the tapes.
“It does seem to me that it is part of the record, and I am bothered by the question of what to do with something that is made a part of the record by the judge’s actions,” said U.S. district judge James Ware, according to the foundation.
Ware will now have to decide whether to release the tape despite a promise from Walker that he would be the only one to see it. Walker had said he planned to use it as a reference while making his own decision.
David Thompson argued the other side, insisting that at least one of its witnesses had relied on the judge’s assurances the tape wouldn’t be seen. He also argued that some of the witnesses called during the trial would become targets for harassment if the video becomes public.
Ware indicated that although he felt no real urgency to deliver his decision he would not need much time to deliberate.
Prior to Monday’s hearing Ware gave notice that he may tape proceedings but then later decided against this move.
The next stage in the Proposition 8 case itself is scheduled for September 6 when when the Supreme Court of California will hear arguments on whether Prop. 8 supporters have legal standing under state law to appeal California’s gay marriage ban being overturned. The 9th Circuit Court of Appeals, with whom the case currently rests, asked the California supreme court to intervene when it became apparent that those defending Proposition 8 may lack standing under federal law. You can read more about that here.
Photo used under the Creative Commons Attribution License, with thanks to angela n.