Jeremy Kryn


Prop. 8 trial videos to remain sealed after court stays previous decision

Jeremy Kryn

SAN FRANCISCO, CA, September 30, 2011 ( – The videos of last year’s Proposition 8 trial will remain sealed while a federal appeals court considers arguments by sponsors of Proposition 8, California’s constitutional amendment defining marriage as being between a man and a woman.

While Chief U.S. District Judge James Ware ruled September 19 that the videos of the 13-day trial would be released September 30, the 9th Circuit Court of Appeals in San Francisco issued a temporary stay on September 26, which is likely to be renewed while the appeals court and the U.S. Supreme Court review the dispute.

Ware’s ruling “threatens deep and lasting harm to the integrity and credibility of the federal judiciary,” the lawyer for Proposition 8 sponsors, Charles Cooper, said in asking for the emergency stay, according to the San Francisco Chronicle. Unsealing the videos would expose Proposition 8 sponsors to “a serious and well-substantiated risk of harassment or worse,” he said.

Ware’s ruling to release tapes of the Proposition 8 trial proceedings that the U.S. Supreme Court forbade from being televised last year outraged marriage defenders in California. The Supreme Court in January 2010 issued an emergency order overturning now-retired Proposition 8 Judge Vaughn Walker’s decision to broadcast the trial. At the time, the high court criticized Walker for “attempt[ing] to change its rules at the 11th hour to treat this case differently than other trials in the district.”

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Walker, who ordered the trial be recorded for public viewing and the proceedings posted on YouTube, was taking advantage of a pilot program developed by the 9th U.S. Circuit Court of Appeals to allow cameras into the courtrooms of federal non-jury civil trials. The Associated Press reported that Chief Judge Alex Kozinski of the 9th Circuit had the Prop. 8 trial in view when he announced the pilot program.

Marriage defenders argue that making the recordings public would endanger witnesses and damage the “credibility and integrity of the federal judiciary.” While the question of broadcasting the trials was still pending before the Supreme Court, San Francisco resident Hak-Shing William Tam pleaded to be dropped from among the five interveners supporting Prop 8, citing threats made against himself and his family based on his marriage views.

Congressional testimony in 2007 by the U.S. Judicial Conference, the body charged with ensuring fair and effective administration of the federal courts, said that televised proceedings “could jeopardize . . . the safety of trial participants” and “produce intimidating effects on litigants, witnesses, and jurors.”

The appeals court already is considering whether Walker erred in 2010 when he struck down Proposition 8, an initiative approved by state voters in 2008, as unconstitutional. Should the court rule that Proposition 8 is unconstitutional, it could ultimately lead to the overthrow of dozens of state amendments and laws passed defending traditional marriage and to the erasure of years of effort by traditional marriage activists.

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