California Prop. 8 Bench Trial Video Will Remain Sealed

SAN FRANCISCO (CN) – Video of the historic bench trial that led to the overturning of California’s ban on same-sex marriage will remain sealed for years to come, a federal judge ruled.

U.S. District Judge William Orrick III found on Wednesday that because court rules in 2010 required sealed records to remain hidden from the public for 10 years after a case is closed, the videos must remain sealed until August 2020.

“Overall, it’s a win for transparency in that the records of this incredibly historic trial will ultimately become public,” said attorney Linda Lye of the American Civil Liberties Union of Northern California in an interview. “It is disappointing, however, that the public has to wait another two years for that to happen.”

The ACLU filed an amicus brief supporting public broadcasting station KQED’s motion to unseal videos of the trial. KQED argued the educational benefits of releasing the videos, along with the public’s right to government records, should override the court’s “arbitrary” 10-year sealing requirement.

The video recordings were made at the request of now-retired U.S. District Judge Vaughn Walker, who oversaw the Perry v. Schwarzenegger bench trial in January 2010.

In Perry v. Schwarzenegger, same-sex couples that were denied marriage licenses challenged California’s Proposition 8, a 2008 voter-approved ballot measure that banned same-sex marriage. In August 2010, Walker ruled the state’s ban unconstitutional, but his ruling did not take effect until June 2013 when appeals in the case were resolved. In June 2015, the U.S. Supreme Court expanded the right to marry for same-sex couples across the nation.

Walker initially planned to broadcast videos of the bench trial in 2010, but the U.S. Supreme Court barred the broadcasting at the request of Proposition 8 supporters involved in the case. After Walker promised the videos would only be used to review testimony behind closed doors, Prop 8 proponents dropped their objections to video recording the trial.

In 2012, the Ninth Circuit rejected another bid to make the videos public, finding same-sex marriage opponents “reasonably relied” on Judge Walker’s assurances “that the recording would not be broadcast to the public, at least in the foreseeable future.”

Orrick found that while some circumstances have changed since 2012, “judicial integrity” still demands that the videos remain under seal for 10 years after the case was closed.

Representing KQED, attorney Thomas Burke of Davis Wright Tremaine in San Francisco, said in an interview he was disappointed with the ruling but encouraged that the videos will eventually be released.

“The one upside or bright side of the order is that it eliminates the prospect of a permanent sealing and sets a date certain for when it will be unsealed,” Burke said.

Proposition 8 supporters that opposed the unsealing stood by their argument that doing so would contradict higher court opinions and assurances by Judge Walker that the videos would remain sealed. They did not contend that making the videos public would lead to any threats or harm for them personally.

Two non-profits that advocate for lesbian, gay, bisexual and transgender (LGBT) rights argued in declarations that unsealing the videos would further the public’s understanding of the “profound social and legal issues that were publicly tried in this court and ultimately affirmed by the U.S. Supreme Court.”

Plaintiffs who testified at trial also said releasing the videos would help the public appreciate the sacrifices they made to fight for their rights.

“They wanted to show how vulnerable they felt testifying about their very private lives and doing it in such a public manner,” Burke said. “The only way you can actually see that is to see the video or have been in the courtroom. That was powerful testimony.”

The videos will be unsealed on Aug. 12, 2020, unless Orrick grants a motion extending the sealing.

Lye said even if such a motion were filed, she doesn’t expect the judge will keep the videos private beyond the 10-year expiration date.

“The parties’ reasonable expectations at the time would not have led them to believe that the records would be sealed beyond 10 years,” she said.

Charles Cooper, an attorney for Proposition 8 proponents who opposed unsealing the videos, did not return a phone call seeking comment Thursday morning. Cooper is with Cooper & Kirk in Washington, D.C.

 

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