Landmark Gay Marriage Trial Video Ordered Unsealed

SAN FRANCISCO (CN) — Video of a historic bench trial that led to the overturning of California’s ban on same-sex marriage must be unsealed next month, a federal judge ruled Thursday, after finding no good reasons support keeping them hidden from public view.

“On the undisputed record before me, there is no justification, much less a compelling one, to keep the trial recordings under seal any longer,” U.S. District Judge William Orrick III wrote in a 5-page ruling.

Supporters of Proposition 8, a 2008 voter-approved ballot measure that banned same-sex marriage, argued the videos should stay sealed based on the now-retired federal judge’s promise to keep the records private.

Orrick found that promise does not supersede a 10-year expiration date for sealed court records. He said the Proposition 8 proponents failed to offer any other valid reason for withholding the videos, such as a fear of retaliation or harassment that would result from a release.

No declarations were submitted by individual Proposition 8 supporters or trial witnesses saying they fear retribution or believe now-retired U.S. District Judge Vaughn Walker’s promise to keep the videos private meant they would stay sealed forever.

Despite that lack of evidence, the proponents insisted the records should stay sealed to honor the principle of “judicial integrity” based on Judge Walker’s decade-old promise.

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 for same-sex couples across the nation.

Walker initially planned to broadcast videos of the 2010 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, Proposition 8 proponents dropped their objections to recording the trial.

Walker retired a year later and attracted the ire of Proposition 8 proponents when he played a clip of the trial during a February 2011 lecture at the University of Arizona. Proposition backers sued, but U.S. District Judge James Ware lifted that seal that year, finding no compelling reason to keep the recordings private in light of the right to public access.

The Ninth Circuit disagreed in a 2012 ruling, 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 took over the case after Ware’s retirement.

With the backing of 36 media organizations, KQED moved to unseal the recordings in 2017, arguing that the educational benefits of releasing the videos, along with the public’s right to government records, should override the court’s 10-year sealing requirement.

Orrick denied their request at that time, finding that because court rules in 2010 required sealed records remain hidden from the public for 10 years after a case is closed, the videos must remain sealed until August 2020.

On April 1, Proposition 8 proponents filed a new motion seeking to maintain the seal on trial recordings. During a hearing in June, Orrick signaled that he would likely deny the motion because the sealing of recordings was not expected to be permanent.

On Thursday, Orrick rejected the motion and denied a request to stay his decision pending appeal. He found the proponents have adequate time to seek a stay from the Ninth Circuit before the video recording are unsealed on Aug. 12.

Representing supporters of the gay marriage ban, attorney Charles Cooper of Cooper & Kirk in Washington, said his clients are “deeply disappointed” that Orrick found “the compelling justification of judicial integrity” no longer requires the recordings stay sealed, despite Walker’s promise.

“We do not agree that there is a 10-year statute of limitations on judicial integrity, and we are preparing our appeal,” Cooper said via email.

Representing a coalition of media outlets that sought to unseal the record, attorney Thomas Burke of Davis Wright Tremaine said Orrick made the right call in recognizing that the public should get to see video of the historic trial.

“Judge Orrick has again carefully interpreted the Ninth Circuit’s earlier ruling — and its concerns about judicial integrity,” Burke said via email. “One wonders why the proponents of Prop. 8 continue to insist on keeping secret the video of this historic public trial.”

Representing the same-sex couples who challenged California’s gay marriage ban, attorney Chris Dusseault of Gibson Dunn & Crutcher said his clients are “gratified that the court has once again found that the public has a right to access the video recording of this historically significant civil rights trial.”

The state of California also submitted a brief in May endorsing the release of the 10-year-old trial video.

On Aug. 11, the Ninth Circuit temporarily halted Orrick’s decision to release the trial video pending appeal.

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