Judges bar viewing of gay marriage trial videos: what they’re protecting

A federal appeals court rejected the release of video recordings of a landmark gay marriage trial, saying the trial judge's order to keep them under wraps must be honored to preserve judicial integrity.

By , Staff writer

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    In this August 2010 file photo, Billy Bradford of Castro Valley, Calif., waves a pair of flags outside City Hall while same-sex couple line up to see if they can be married in San Francisco. A federal appeals court plans to announce Thursday, if it will unseal video recordings of the landmark trial on the constitutionality of California's same-sex marriage ban.
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A federal appeals court on Thursday refused to allow the public release of video recordings of a landmark gay marriage trial conducted two years ago in San Francisco, citing the trial judge’s order to keep the recordings under wraps.

In a case that had drawn in the US Supreme Court at an earlier phase, the Ninth US Circuit Court of Appeals reversed a federal judge’s ruling permitting the trial recordings to be made available for viewing by members of the public.

The tapes were created at the instruction of former Chief US District Judge Vaughn Walker as he presided over a high profile trial in which two same-sex couples challenged the constitutionality of California’s ban on gay marriage.

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The chief judge later ruled for the couples, declaring that California’s restrictions on marriage for gay and lesbian couples violated the US Constitution. (That ruling is also under appeal to the same Ninth Circuit panel that issued Thursday’s decision.)

Chief Judge Walker had initially allowed the simultaneous broadcast of the January 2010 trial proceedings to remote courthouses and on the Internet. But that order was reversed by the US Supreme Court, after supporters of the state’s Prop-8 same-sex marriage ban who had been called as witnesses expressed concern for their safety if their names and faces were broadcast across the country.

During the run-up to the ballot initiative on the issue, Prop-8 proponents complained that they had received threats and harassment from militant gay rights supporters.

The Supreme Court order effectively blocked any live broadcasts for the duration of the 12-day trial.

Despite the high court’s action, Chief Judge Walker announced that he would allow video recordings to continue to be made during the trial, but only for use by him in his judicial chambers while assessing the testimony and evidence. He later allowed the parties to obtain a copy of the videos.

After the trial, Judge Walker ordered that any copies of the trial recordings be maintained under seal, and thus unavailable for public viewing.

Following Judge Walker’s retirement from the bench, the Prop 8 case was taken over by the new chief judge, James Ware.

Last September, Chief Judge Ware granted a motion to allow the video recordings to be released, citing the public’s right to gain access to judicial records.

In reversing that decision, Appeals Court Judge Stephen Reinhardt said that Chief Judge Ware had abused his discretion by reversing a commitment made by the trial judge, Walker, that the tapes would remain private.

“The trial judge on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast,” Judge Reinhardt wrote.

“To revoke Chief Judge Walker’s assurances after proponents had reasonably relied on them would cause serious damage to the integrity of the judicial process,” Reinhardt said.

He added: “Litigants and the public must be able to trust the word of a judge if our justice system is to function properly.”

Rick Jacobs, chair of the gay rights group, Courage Campaign, said he hoped Judge Reinhardt’s decision does not “herald more bad news regarding the unconstitutionality of Prop 8.”

“We are disappointed in the Ninth Circuit’s decision to not release the videotapes from the historic Prop 8 hearing,” Mr. Jacobs said in a statement. “In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes.”

The case is Perry v. Brown (11-17255).

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