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Video of landmark California same-sex marriage trial can be unsealed

The U.S. Supreme Court's decision not to take up the case clears the way for video recordings of the 2010 trial to be unsealed.

(CN) — The video recordings of the landmark 2010 trial that overturned a voter-approved ban on same-sex marriage in California can be made public after the U.S. Supreme Court declined to review a Ninth Circuit ruling that allowed the recordings to be unsealed.

The Supreme Court on Tuesday denied the request for a writ of certiorari by proponents of Proposition 8, who lost the 2010 trial as well as their appeal last year to keep the recordings under seal. The Ninth Circuit had stayed its ruling to unseal the recordings while the proponents asked the Supreme Court to take up the matter.

“After today’s ruling by the U.S. Supreme Court, the public will finally be able to watch the testimony that Judge Vaughn Walker considered in deciding that same-sex couples have the right to marry," Thomas R. Burke, the attorney for public radio station KQED, which had been litigating to unseal the recordings, said in a statement. "There’s no doubt that the video will become a valuable instrument to educate the public about this historic moment.”

Chuck Cooper, an attorney for the Proposition 8 proponents who petitioned the Supreme Court, called the denial "sad and lamentable."

"The Supreme Court’s decision to deny review in this case is a sad and lamentable one, for it lets stand a decision deliberately reneging on a federal district court judge’s solemn and unequivocal promise in open court and thus, in the words of dissenting Ninth Circuit Judge Ikuta, does harm to 'the integrity of the judicial process,'" Cooper, of the Washington firm Cooper & Kirk, said in an email.

In 2021, after more than a decade of litigation over the sealed videos of the historic bench trial, the Ninth Circuit in a split decision ruled they could be publicly released, rejecting the arguments of Proposition 8 defenders that they should stay sealed based on a federal judge’s promise to keep the records private.

Now-retired U.S. District Judge Vaughn Walker overturned California’s gay marriage ban 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 that expanded the right to marry to same-sex couples across the nation.

Initially, Walker planned to live-broadcast videos of the 2010 bench trial, but the U.S. Supreme Court blocked 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 to video recording.

"The root question in this case is whether a federal judge’s binding promise, made to litigants in open court and on the record, is worthy of trust," Proposition 8 supporters said in their request for the Supreme Court to take up the case. "The courts below, in different ways, both ultimately said the answer to that question is no, threatening grave and irreversible harm to the basic integrity of the federal judiciary. If that harm is to be prevented, this court must intervene."

In 2020, U.S. District Judge William Orrick III denied the Proposition 8 supporters’ motion to keep the videos sealed. He found Judge Walker’s promise does not supersede a 10-year expiration for sealed court records that was in place when the trial was recorded in 2010. The Ninth Circuit stayed that ruling pending appeal.

A divided three-judge Ninth Circuit panel later found the proponents lack standing because they failed to show they would suffer a concrete injury, such as threats or harassment, if the videos were made public.

“Appellants have provided no evidence showing harm or threat of harm to themselves from the release of the video recordings,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the majority in a 19-page opinion.

Fletcher and U.S. Circuit Judge Carlos Lucero, a Clinton appointee sitting on the panel by designation from the 10th Circuit, also rejected the proponents’ argument that unsealing the videos will harm “the sanctity of the judicial process” and “future litigants.” The majority deemed that claim a “generalized grievance” that is common to all of society and not a particularized injury that can give rise to Article III standing.

In a 19-page dissent, U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, said the videos should be kept hidden because Judge Walker’s promise was akin to a binding contract that gave the Proposition 8 proponents enforceable rights in court.

“Because Chief Judge Walker made a clear and unambiguous promise that resulted in reasonable, foreseeable, and detrimental reliance by the proponents and those who depended on them, a violation of that promise would be a violation of the proponents’ legal rights,” Ikuta wrote.

After broadcasting of the trial was banned in 2010, 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.

Kris Perry, one of the original plaintiffs along with her partner Sandy Stier, said in a statement Tuesday that release of the tapes was long overdue.

"Since the 2010 ruling striking down Proposition 8, we have fought to have the video record of our historic trial shared with the public," Perry said. "There is no more important time to expose the discriminatory rhetoric of proponents and the courage of the experts, attorneys and plaintiffs in standing up against hate. Even though it's been 12 years since our ruling, we know the fight for marriage equality and many other basic civil rights is still essential and this video shows the evidence for why."

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