Federal Appeals Court Rules Prop. 8 Tapes Should Not Be Made Public
February 2, 2012 by Brian Moulton, Legal Director
Today, the U.S. Court of Appeals for the Ninth Circuit overturned a lower court’s ruling that videotapes of the trial in Perry v. Schwarzenegger (now Perry v. Brown), the federal case challenging the constitutionality of California’s Proposition 8, should be made public. Prior to the Prop. 8 trial, proponents of the amendment stripping gay and lesbian Californians of the freedom to marry successfully argued, all the way to the U.S. Supreme Court, that the proceedings should not be broadcast live, as Judge Vaughn Walker had requested. They argued that the broadcast of the trial would subject them to harassment and intimidation by supporters of marriage equality, despite the fact that the groups and their witnesses were all long-standing, public opponents of the rights of LGBT people. The Supreme Court’s decision notwithstanding, Walker was able to have the proceedings videotaped, and after his historic decision striking down Prop. 8 in August 2010, the Perry plaintiffs and a number of media companies petitioned the federal district court to make the tapes public. Judge James Ware ruled in September 2011 that they should be released, and his decision was appealed to the Ninth Circuit.
In a unanimous decision, the three-judge panel of the Ninth Circuit disagreed with Judge Ware and concluded that the videotapes should remain under seal. It is disappointing that the Ninth Circuit has prevented the American people from seeing, hearing –and judging– our opponents’ arguments straight from their source. But, thanks to the work of the American Foundation for Equal Rights (AFER), mainstream media, bloggers, advocacy groups, and many others, the details of the Prop. 8 trial – and the weakness of the arguments for denying loving, committed gay and lesbian couples the freedom to marry – are widely known across the country.
The plaintiffs may appeal appeal this decision to a full panel of the Ninth Circuit or the Supreme Court. The Ninth Circuit has not yet ruled on two other issues – (1) whether Judge Walker’s decision should be invalidated because, subsequent to his retirement last year, he acknowledged that he is gay and in a long-term relationship and, of course, (2) whether his historic decision overturning California’s constitutional ban on marriage equality should be upheld. Decisions on both of those issues are expected soon.
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