Media to Court: Let the People View

More than a dozen media concerns joined together to file a motion for the release of video records of the federal trial on California's anti-gay 2008 ballot measure Proposition 8.

The case led to a verdict last year in which Chief U.S. Judge Vaughn Walker found that the ballot initiative--which stripped gay and lesbian families of their then-existing right to marry--violated guarantees set out in the U.S. Constitution.

Proponents of the anti-gay measure lambasted Walker, who was rumored to be gay. After his retirement from the federal bench, Walker, 67, came out and verified that he is gay, and said that he is in a long-term relationship with a physician. But, Walker said, he never thought it necessary to recuse himself from the case, as some anti-gay groups said he should have done.

"If you thought a judge's sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that's a very slippery slope," Walker said to the media on April 6. "I don't think it's relevant."

The case ended up on Walker's docket through random assignment. Walker noted that he was not approached directly about recusing himself. The now-retired judge added that he still believes he came to the right conclusion. He indicated that he expects any other judge would concur as long as the case is reviewed on its merits.

"Media organizations are joining lawyers for two-same-sex couples in urging a federal appeals court to release videotapes of a lower court trial on California's gay marriage ban," reported the Associated Press in an April 18 article.

"The 13 organizations, which include The Associated Press, argued in a motion filed Monday with the 9th U.S. Court of Appeals that the videos are court records that the First Amendment requires to be open to the public," the AP article added.

California GLBT equality advocacy group Courage Campaign circulated an email to its supporters that same day.

Prefaced by an epigram from U.S. Supreme Court Justice Louis Brandeis that read, "Sunshine is the best disinfectant," the email asked readers to add their voices to the demand for the release of the trial's video records.

At the start of the Proposition 8 trial, Walker had agreed to allow video coverage of the proceedings for broadcast on YouTube and to other federal courthouses via closed-circuit, but Proposition 8 proponents objected, saying that witnesses offering testimony against marriage equality would be more vulnerable to harassment and threats if their images were broadcast. They sought intervention from the U.S. Supreme Court, which blocked broadcast of the trial, splitting along partisan lines, the Washington Post reported on Jan. 14. The court's conservative majority said that the issue at hand was less about the principle of broadcasting the proceedings than whether proper procedures for setting out rules regarding the broadcast had been followed.

The minority opinion, written by Justice Stephen Breyer, said that the court's majority had "identifie[d] no real harm" that might arise from the broadcast, "let alone irreparable harm to justify its issuance of this stay." Moreover, Breyer noted, "All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a 'yes' vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse."

Marriage equality advocates decried the decision, saying that a televised record of the proceedings would be invaluable in educating the public about the issue. "Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved," said the American Foundation for Equal Rights board president, Chad Griffin. "Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide."

Groups determined to make some sort of video record available undertook word-by-word re-enactments of the trial, casting actors in the roles of Judge Walker, the lawyers, and the witnesses. California-based GLBT equality group the Courage Campaign launched an online "Prop 8 Trial Tracker" to help those interested stay informed of developments.

In the end, the anti-marriage equality side presented only two witnesses. The plaintiffs presented fifteen witnesses.

But the battle for full transparency in the case continued long after Walker's gavel came down on the side of gay and lesbian families. On April 15, lawyers Ted Olson and David Boies, who represented the plaintiffs in the case against Prop 8, filed a motion with the 9th Circuit Court to get the records released.

"What transpires in the courtroom is public property," the lawyers asserted in the motion.

The motion was "in response to Protect Marriage and the National Organization for Marriage's latest desperate attempt to bury the video recordings of the historic Prop 8 Trial," the Courage Campaign email said. "They still fear the truth."

Added the email message, "Fringe, right-wing groups like NOM and Protect Marriage seem more desperate than ever to bury the evidence of their discriminatory views. Now they seek to destroy the video transcripts of this trial, even though the written transcripts are in the public domain, and actors have already reenacted the trial. Why not let the real thing out?"

Reiterating the words of Justice Brandeis, the message continued, "Let the sun shine in. We have nothing to hide. The tiny secretive group at NOM and Protect Marriage most fear the truth, because the truth demolishes their relentless effort to repress minorities as a way to enhance their own power. We're done with that."

On Feb. 18, a week and a half before stepping down from the bench, Walker showed three minutes of video from the trial during a speech he gave at Arizona State University. The defendants in the Prop 8 trial accused Walker of having broken the rules laid down for the trial, including the Supreme Court's verdict in the question of broadcasting a video feed, the San Francisco Chronicle reported on April 16.

The subject of the talk was the issue of broadcasting trials.

Walker also used brief segments from the trial's video records in another speech and for a lecture he gave his students at Berkeley.

The anti-gay side wants the videos rounded up and confiscated. Walker has said that he would comply if an order to surrender the videos were issued.

The video records were used within the court for closing arguments. Boies and Olson argued that Walker had not violated the Supreme Court's ruling, because the injunction against broadcasting the video was limited to the twelve days of the trial's duration.

"Public trials are a cornerstone of our democracy," Olson asserted. "There was no reason to keep the video of this trial under the cover of darkness in the first place."

Proponents of releasing the videos accused the pro-Prop 8 side of trying to "forever conceal from the American people ... the actual compelling evidence which demonstrated the unconstitutionality" of the ballot initiative that put the existing rights of a minority to popular vote and then revoked those rights when a bare majority of voters supported the ballot measure.

The appeals process on Walker's verdict started last December. The Associated Press reported on Nov. 18, 2010, that the 9th U.S. Circuit Court of Appeal gave C-Span clearance to put cameras in the courtroom.