Prop. 8 Backers Ask Court to Return Tapes of Trial

SAN FRANCISCO (CN) - Proponents of California's gay marriage ban claim the judge who declared it unconstitutional last summer illegally showed a trial tape to an audience at the University of Arizona where he gave a speech in February.

Proposition 8's sponsors asked the 9th Circuit to prohibit former Chief U.S. District Judge Vaughn Walker from disseminating the tape further. Walker had played a three-minute clip of the cross-examination of one of the sponsor's expert witnesses. The Feb. 18 speech was recorded and broadcast by C-SPAN several times.

"What's done is done. Judge Walker's speech, and C-SPAN's public dissemination of it, cannot be undone, and given that Judge Walker has recently retired from the federal bench, he cannot be disciplined," argued Chris Cooper, a lawyer for ProtectMarriage.com. "But he can be ordered to cease further unlawful and improper disclosures of the trial recordings, or any portion thereof, and to return to this court any copies of the trial recordings in his possession, custody, or control. We respectfully request that he be ordered to do so."

They added that Walker had lied when he said the recording of the trial would be for use in his chambers only. An expert witness for ProtectMarriage had only agreed to testify because of that assurance, according to the group's brief.

The two-week federal trial in January 2010 was the first in the nation to deal with a voter-sanctioned ban on same-sex marriage. Prop. 8 passed in November 2008 and amended the California Constitution to define marriage as the union of one man and one woman, which Walker found unconstitutionally discriminated against same-sex couples.

The trial recordings have remained under seal since Walker himself gave the order mid-trial, the proponents said. "The trial recordings were not the personal property of Judge Walker, for him to use as he pleased; he had access to them only by virtue of his role as the judicial officer presiding in this case. So, when he played a portion of the trial recordings during his February 18 speech he violated all of these prohibitions."

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