KQED Seeks to Unseal Prop. 8 Trial Tapes

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Protesters on both sides of the same-sex marriage issue gathered outside the 9th U.S. Circuit Court of Appeals in San Francisco in 2010. (Justin Sullivan/Getty Images)

KQED today filed a motion in the United States District Court of Northern California requesting that videotapes from the 2010 trial over the constitutionality of California's ban on same-sex marriage be released to the public.

As the San Francisco trial began in January 2010, Judge Vaughn Walker was set to broadcast the entire trial via closed circuit. But supporters of Proposition 8 objected, taking the matter up to the U.S. Supreme Court, which ruled 5-4 that trial should not be broadcast. However, the proceedings were still recorded and kept under seal.

Later that year Judge Walker issued a decision striking down Proposition 8 as a violation of the U.S. Constitution's guarantees of equal protection and due process. It was the nation's first court decision overturning a same sex marriage ban on federal constitution grounds. Walker's decision was later upheld by the 9th Circuit Court of Appeals. The U.S. Supreme Court let the trial court decision stand, saying the backers of Proposition 8 lacked legal standing to challenge it.

Today's motion, which is supported by the two same-sex couples that challenged Proposition 8 in federal court as well as the National Center for Lesbian Rights and other LGBT groups, asserts that there is no longer a compelling reason to prevent people from seeing the tapes.

"Unsealing is appropriate because so much has changed since the Ninth Circuit ordered that the tapes remain sealed over five years ago," KQED attorney Thomas R. Burke wrote in the motion.


He notes that since the Proposition 8 trial, the U.S. Supreme Court let stand that lower court decision striking it down in 2013.

The justices also struck down parts of the Defense of Marriage Act, and ultimately in 2015 in Obergefell v. Hodges made same-sex marriage legal in all 50 states and the District of Columbia.

"In other words," Burke wrote, "the legal issue at the core of the case has now moved from the category of hotly litigated controversies to settled law."

"The sealing of the video of the Prop. 8 trial proceedings can no longer be justified by any compelling interest," the motion reads. "Rather, the interests to the public in unsealing the videotapes now far outweigh the privacy or other interests of judicial administration."

The Proposition 8 trial included emotional testimony from the four plaintiffs and others, including a young man who had been forced by his parents to undergo discredited "conversion therapy" to make him straight.

Supporters of Proposition 8 are expected to oppose this motion to unseal the tapes. At the time their attorneys argued that broadcasting the trial could threaten the safety and privacy of its witnesses. One of those witnesses has since publicly stated that his position changed, and that he now supports the right of same-sex couples to marry.

The case has not yet been assigned to a judge, nor has a hearing date been set.