Federal Judge Rules for Release of Prop. 8 Trial Tapes

A federal judge ruled on Sept. 19 that the video records of the trial leading to Proposition 8 being found unconstitutional should be released to the public.

The same judge, U.S. District Court Chief Judge James Ware, had also ruled that the verdict reached last year by Judge Vaughn Walker finding Proposition 8 unconstitutional would not be vacated following Walker's public disclosure that he is himself a gay man.

The Associated Press noted in a Sept. 19 article that the AP was among a number of news organizations had taken the stance that "no compelling reasons exist to keep the recordings secret." The AP reported that Ware agreed with this argument, which was used by lawyers arguing for the release of the records.

Marriage parity advocates hailed the verdict, which names Sept. 30 as the date when the records can be made available to the public.

"This is a critical victory: allowing the public to view this testimony will show that Prop 8 was based on prejudice, that ProtectMarriage.com had no credible defense and that Judge Walker was not at all biased," a email sent by marriage equality advocacy group Courage Campaign read.

"Foremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process are public access to trials and public access to the record of judicial proceedings," Ware's ruling noted. "Consequently, once an item is placed in the record of judicial proceedings, there must be compelling reasons for keeping that item secret.

"In the course of the non-jury trial of this case, at the direction of the presiding judge, court staff made a digital recording of the trial," Ware's ruling continued. "After the close of the evidence, the judge ordered the clerk of court to file that digital recording under seal. The trial record is closed and the case is currently on appeal to the Ninth Circuit."

Chad Griffin of the American Foundation for Equal Rights said in a Sept. 19 media release, "This is a significant victory for the American people, who will soon be able to see the evidence put forward by both sides in this historic federal trial.

"Unlike political campaigns, in a court of law, the truth and facts are all that matter. When witnesses take the stand, they are under oath and under penalty of perjury, and their statements are subjected to cross-examination and scrutiny.

"The public will soon see the extraordinarily weak case that the anti-marriage Proponents presented in a desperate attempt to defend this discriminatory law," added Griffin.

Proponents of marriage equality had long decried the Supreme Court directive that the trial not be broadcast on YouTube and via closed-circuit television to courthouses around the nation, as the federal judge in the case, Vaughn Walker, had initially agreed to do.

Opponents of marriage equality had argued that the proceedings should not be broadcast, claiming that to do would place their witnesses in jeopardy from thuggish gays. However, the Proposition 8 defense team only presented two witnesses at the trial, whereas the side arguing against the 2008 ballot measure, which deprived gay and lesbian families in California of their then-existing rights to marry, presented 18 witnesses.

The recordings had been in the possession of Judge Walker, who retired after arriving at his verdict. Walker used portions of the video records at lectures he gave, prompting marriage equality foes to head back to court to force Walker to return the recordings and to get the records sealed.

Marriage equality proponents criticized this move, insisting that the American public should be allowed to view the records and decide on the merits of the case for themselves.

When Walker publicly disclosed that he is homosexual, marriage equality foes sought to have his ruling invalidated on the grounds that he might have personally benefited from marriage equality, despite Walker not having married or given any indication of planning to marry. Judge Ware's court heard this case also, and ruled that Walker's verdict would stand.

Legal scholars had predicted the outcome, noting that previous challenges to minority judges hearing cases involving minority rights had not succeeded in the courts.

Supporters of marriage equality hailed Judge Ware's ruling, but warned that foes of family parity would appeal.

"If the Prop 8 proponents have their way, the public would never see video footage of the trial, including their own witness testifying under oath that same-sex marriage strengthens America and its families," the Courage Campaign message told readers.

"What if we could take the videotapes and turn them into a documentary? Or TV ads in states like Minnesota and North Carolina, where voters will consider constitutional amendments in 2012 to ban same-sex marriage?" the email continued. "The public could see that same-sex marriage isn't just the right thing to do -- it's a civil right."

Indeed, foes of equal marriage rights for gay and lesbian families immediately announced a plan to take the case into appeal.

"Today's decision is bizarre for many reasons, but mostly because it defies a direct order of the U.S. Supreme Court," a lawyer for anti-gay group Protect Marriage, Andy Pugno, declared. "We will appeal immediately to the Ninth Circuit and ask them to restore some sanity to this case."

Marriage equality proponents have made significant efforts to bring the story of the trial to the American public. A series of web broadcasts re-enacted the trial using actors and court record transcripts. Academy Award winning writer Dustin Lance Black also adapted court records into a dramatic work, distilling thousands of transcript pages into a play about the trial.

That play is headed for a Broadway premiere, with a Sept. 19 premiere scheduled at the Eugene O'Neil Theater in New York City. The play stars Ellen Barkin, Anthony Edwards, Morgan Freeman, Cheyenne Jackson, Christine Lahti, John Lithgow, Rob Reiner, Yeardley Smith and Bradley Whitford.

The premiere was to be a benefit for the American Foundation for Equal Rights.