Fight to Block Gay Marriage Trial Video Hits Ninth Circuit

People gather in June 2015 to see the White House illuminated with rainbow colors in commemoration of the Supreme Court’s ruling to legalize same-sex marriage in Washington. (AP Photo/Pablo Martinez Monsivais, File)

SAN FRANCISCO (CN) — Fighting to block the release of video of a landmark trial that overturned California’s ban on same-sex marriage, a lawyer told the Ninth Circuit on Monday that a judge’s promise trumps the public’s interest in accessing court records.

An attorney for supporters of Proposition 8, a 2008 voter-backed ballot measure that banned gay marriage in California, urged a three-judge panel of the federal appeals court to uphold a judge’s decade-old promise not to air the video, even after the passing of a 10-year expiration date for sealed records.

“The judicial integrity interest and keeping faith with the solemn promises in open court is a compelling one that overrides any First Amendment right of access,” said attorney John Ohlendorf of Cooper & Kirk in Washington.

U.S. District Judge William Orrick III denied Proposition 8 supporters’ motion to maintain the seal in July, finding a judge’s promise does not supersede a 10-year expiration date for sealed court records. He also concluded Proposition 8 proponents offered no other valid reason for withholding the videos, such as a fear of retaliation or harassment that might result from the release.

In August, the Ninth Circuit stayed Orrick’s decision pending appeal. 

Now-retired U.S. District Judge Vaughn Walker overturned California’s ban on same-sex marriage in August 2010 following a two-week bench trial in January that year. His ruling in Perry v. Schwarzenegger did not take effect until June 2013 when appeals in the case were resolved.

Walker’s decision preceded the U.S. Supreme Court’s June 2015 ruling expanding the right to marry to same-sex couples across the nation. 

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

On Monday, a lawyer representing the two couples who challenged California’s same-sex marriage ban noted that these are records of an open court proceeding. After broadcasting of the trial was banned, reenactments were made based on trial transcripts with actors playing the judge, lawyers and witnesses. The transcripts became the basis of a Broadway play in 2011, later aired on television and adapted for a radio play in Australia.

“This may be the least confidential sealed document you will ever encounter in your career,” plaintiffs’ attorney Christopher Dusseault of Gibson Dunn & Crutcher argued.

Representing a media coalition led by KQED, attorney Thomas Burke of Davis Wright Tremaine insisted the concerns that existed in 2012 when the Ninth Circuit blocked an earlier attempt to release the videos are no longer relevant. One of those concerns was that the case might be retried, he said.

“Are you saying a judicial promise or commitment can get stale as times change and so it’s no longer binding?” U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, asked.

Burke said that the context in which the promise was made must be analyzed closely.

“It’s sort of like a marriage where you go, ‘til death do us part,’ but you’ve actually got your fingers crossed so it really means until we change our mind,” Ikuta replied. “Is that it?”

Burke answered that judicial integrity is important, but he believes releasing the videos will enhance, rather than hurt, the concept. 

“This is in our view a shining moment for the federal judiciary,” Burke said. “It’s nothing to be hidden away.”

U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, questioned whether Proposition 8 supporters actually want the recordings to remain under seal, given the fact that not one witness or Proposition 8 proponent involved in the case testified that the videos should stay sealed.

“I’m trying to figure out if they care,” Fletcher said. “Is there anybody you’re representing that cares, and where do I look in the record to find out that somebody you’re representing cares?”

Ohlendorf acknowledged that none of his clients testified in support of keeping the records sealed, but he cited an email from one of his colleagues stating that the clients were polled and a “critical mass” wanted to keep the trial video under wraps.

Fletcher also pressed Ohlendorf about the position taken by his colleague during oral arguments before the Ninth Circuit in 2011 regarding the same sealed recordings. In that hearing, the lawyer said Proposition 8 supporters understood the seal would expire after 10 years and that they would need to “make a good cause showing” to obtain an extension.

Ohlendorf said that position is completely in step with the stance they are taking now.

“We have consistently maintained in 2010, 2012 and today that the judicial integrity interest is a compelling reason,” he said.

“So your argument is you need to show good cause and you have done so?” Fletcher asked.

“That’s right, your honor,” Ohlendorf replied.

U.S. Circuit Judge Carlos Lucero, a Clinton appointee sitting by designation from the Tenth Circuit, joined Ikuta and Fletcher on the panel. 

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