Prop 8 is back! In the news at least. The drama of the tapes and a homophobic Trump nominee

Prop 8 is back in the news.

First, the LGBT Bar of NY joined a letter to the Senate opposing the confirmation of Trump’s judicial nominee to the district court in Utah, Howard Nielson. It was Mr. Nielson who launched a despicable attack on openly gay Judge Vaughn Walker after his ruling, which struck down California’s discriminatory Prop 8 as unconstitutional. Mr. Nielson had the audacity to suggest that a gay judge could not be fair and impartial in a marriage discrimination case.

Then there is the ongoing drama of the Prop 8 tapes!

U.S. District Judge William Orrick (N.D. Cal.) in San Francisco has ruled that he would not grant a motion to unseal video recordings of the 2010 U.S. District Court trial that found California’s discriminatory marriage ban, Proposition 8, unconstitutional. The balancing of interests at stake, namely judicial integrity versus the public’s right of access, as Judge Orrick aptly describes in his decision, “presents a conundrum.”

On one side of the v. is media intervenor KQED, Inc. requesting that the video recordings be unsealed. KQED’s effort is supported by the original plaintiffs and the City of San Francisco. And naturally they want the tapes released. After all, as anyone who has read or seen the dramatization of the Prop 8 trial will know, the plaintiffs presented a moving case, supported by testimony from their families and from leading experts. On the other side, the Proponents of Proposition 8 oppose the request to unseal — presumably because they would rightly be embarrassed by their witnesses and experts who lacked any evidence to support their claims that wasn’t based on junk science and homophobia.

Faithful readers of Law Notes may recall the eight-year saga that led up to this latest ruling. Back in 2010, to satisfy the public interest in the case, U.S. District Court Chief Vaughn Walker, scheduled the entire trial to be broadcast live as part of the court’s pilot program for public access to the court process. On the first day of trial, the U.S. Supreme Court put a temporary stop to everything after proponents objected to the livestreaming. Hollingsworth v. Perry%, 558 U.S. 183 (2010) (per curiam). Judge Walker allowed the video recording to move forward over the first two days, in case the stay was lifted. Unfortunately, the Supreme Court later entered a further stay, ruling that the trial court did not follow proper procedures before allowing the live video.

The entire trial and closing arguments were videotaped however, but only after Proponents dropped their objection. The reason for their doing so, rested on assurances from Judge Walker that the video would be “quite helpful” for his chamber use in “preparing the findings of fact,” but not for the “purposes of public broadcasting.” In August of 2010, Judge Walker issued his historic ruling finding Proposition 8 unconstitutional. Proponents appealed, Judge Walker retired, and the Ninth Circuit affirmed his ruling.

After retirement, Judge Walker “displayed” excerpts from the video recordings at a handful of public appearances. Proponents asked for the recordings to be returned to the court’s possession, and the plaintiffs asked the video to be unsealed.

In 2011, U.S. District Court Judge James Ware initially denied the request that the video be returned and held that the common-law right of public access warranted granting the motion to release the tapes. Proponents again appealed, and this time the Ninth Circuit agreed with them and reversed, after finding that Proponents reasonably relied on Judge Walker’s assurances “that the recording would not be broadcast to the public, at least in the foreseeable future.” With this ruling, the Ninth Circuit agreed that this was indeed a “judicial integrity” issue and warranted keeping the recordings under seal — at least until the ten-year mark when a local district court rule presumptively allows sealed documents from a trial to become public.

Seven years later, KQED, the plaintiffs, the ACLU and others once again sought to unseal the tapes, offering up strong arguments in favor of access. As Kate Kendall, executive director of the National Center for Lesbian Rights, stated in a declaration to the court, the release of the videos “will meaningfully contribute to the public’s understanding of the evidence that was presented by the parties during this contested federal trial, evidence that continues to have relevance and resonance today.”

At a June 2017 hearing, Judge Orrick previewed his latest ruling during his opening remarks, in which he noted that he did not believe the Ninth Circuit intended to keep the trial recordings permanently sealed, and suggested that a motion to unseal them could be reconsidered in 2021–10 years after the appeal.

True to his word (but with slight revision), in the January 2018 ruling Judge Orrick concluded that the compelling interest in judicial integrity precluded release, but that that the common-law right to public access applied to the video recordings, and that unless compelling reasons somehow surfaced, the recordings would be released in August 2020, the 10th anniversary of the district court’s original merits ruling in the case. Thus, there is every reason to expect that the court will ensure that future generations have access to this historic trial, and can watch the Proponents’ hateful arguments unravel under the weight of judicial scrutiny, a few more years patience will be required.



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Eric Lesh

Executive Director, LeGaL @lgbtbarny. Attorney promoting justice in & through the legal profession for the #LGBT community. 40 Best LGBT Lawyers Under 40.