LISA LEFF
SAN FRANCISCO – The legal sparring over California’s same-sex marriage ban returned to a federal courtroom with a judge hearing arguments on whether he should unseal video recordings of last year’s landmark trial on the constitutionality of the voter-approved measure.
Lawyers representing two same-sex couples, the city of San Francisco and a coalition of media groups that includes The Associated Press asked Chief U.S. District Judge James Ware on Monday to make the recordings public.
They maintained that allowing people to see the proceedings for themselves was necessary to demonstrate why Ware’s predecessor, former Chief Judge Vaughn Walker, ultimately struck down the ban, known as Proposition 8, and to counter any perceptions that Walker was biased against same-sex marriage opponents from the start.
“Releasing the video would allow everyone to review and make their own judgment about what happened,” Theodore Boutrous, the couples’ attorney, told the judge.
Ware did not rule at the end of Monday’s hearing but said he would issue a written ruling at a later date.
Attorneys for the ban’s backers want to keep the videos under wraps. They argued that disseminating oral and visual recordings of the 13-day trial would be a direct violation of the U.S. Supreme Court’s position on the issue.
As the trial got under way in January 2010, the high court, on a 5-4 vote, blocked cameras from covering the high-profile case so they could be streamed live to other federal courthouses and possibly posted on YouTube.
Walker, asked the court staff to keep shooting the proceedings, but sealed the videos with the understanding that they were being produced for his own review in reaching a verdict.
“We were entitled to rely on those unqualified assurances, and we did,” David Thompson, a lawyer for the religious and conservative groups that sponsored Proposition 8, said about the move by Walker.
In taking the matter under advisement, Ware said he was torn between the desire to preserve public access to court proceedings and upholding the integrity of the courts.
“The judicial process is affected when a judge takes the position of, “I will seal this and use it only for a limited purpose,’ and then that is changed by a different judge and unsealed and used for a different purpose,” the judge said.
Walker’s ruling from last August overturning Proposition 8 as an unconstitutional violation of the civil rights of gay Californians is currently on appeal. The recordings are part of the case record before the 9th U.S. Circuit Court of Appeals.
Also before the federal appeals court is the proponents’ challenge to Ware’s refusal in June to vacate Walker’s decision. The ban’s sponsors have argued that Walker should have revealed he was in a long-term gay relationship before he presided over the closely watched trial.
Boutrous said at Monday’s hearing that the move to challenge Walker’s impartiality made it more important for the public to see the videos first-hand.
“They tried to undermine the integrity of the court by attacking the proceeding,” he said.
Ware did not seem convinced. He noted that during his 24 years on the bench, “I’ve had lots of parties attack me” and that it was up to the appeals court, not the public, to decide if Walker had acted appropriately.
Gay rights supporters already have used the written transcripts to recreate the full 13-day trial for online audiences. Next month, Morgan Freeman, Marisa Tomei and other big-name actors are scheduled to perform a dramatic play about the trial that screenwriter Dustin Lance Black, who won an Academy Award for the film “Milk,” created from the written testimony.
To those who have not been following the Proposition 8 narrative closely, it therefore may not be immediately obvious why attorneys were spending their time and clients’ money fighting over the recordings as if they were the Nixon White House tapes.
Gay rights supporters claim the footage is their smoking gun, proof that arguments against same-sex marriage cannot hold up under rules of evidence sustained scrutiny and legal standards.
They want to use live segments, especially the cross-examinations to which the expert witnesses called by Proposition 8’s supporters were subjected, to nudge the American public further in its embrace of same-sex marriage, although it’s unclear what the vehicle for the snippets would be.
“There really is only one question–what do they have to hide?” said American Foundation for Equal Rights President Chad Griffin, whose group is funding the Proposition 8 case.
The Proposition 8 defense team, meanwhile, has argued that putting the trial recordings into the public realm could subject their witnesses to unwanted scrutiny in a way that written transcripts have not.
In persuading the Supreme Court to block the broadcasts, lawyers had argued that same-sex marriage opponents feared being harassed by gay rights supporters if their images were distributed widely.
