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Judge Unseals Videotapes of Historic Same-Sex Marriage Trial

A decade after Proposition 8 was struck down, the public may soon be able to see videotapes of the federal trial.
Scott Shafer
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)

Nearly a decade after a federal judge in San Francisco struck down Proposition 8, the ballot measure banning same-sex marriage in California, videotapes of the trial may finally be available, despite the objections of Prop. 8 supporters.

Federal District Court Judge William Orrick Thursday rejected a motion by Prop. 8 proponents to permanently seal the videotapes, saying the motion contained "no justification, much less a compelling one, to keep the trial recordings under seal any longer." He ordered the recordings to become public next month.

"It's incredibly important to have it be open, not only for the historical record, but so the people can see this particular trial video," said Thomas R. Burke the attorney representing KQED. "It's one of the only federal trial videos of its kind ever in the United States," he said.

Burke added that it would be unusual for a judge to permanently prevent the public from getting access to a trial that was open to the public in the first place.

"That is a rare circumstance. But it's particularly troubling in this case where what is being sealed is a record of an admitted historic trial that ultimately allowed in and found in favor of same-sex marriage," Burke said.

KQED's Chief Content Officer Holly Kernan said it is a "victory for transparency and accountability."

As the trial began in 2010, District Court Judge Vaughn Walker announced he would allow courtroom cameras to both videotape the proceedings and make the images available in real time to those who wanted to see the trial on a closed circuit system in federal courthouses around the country.

Prop. 8 proponents objected, and ultimately the U.S. Supreme Court intervened to block televising the trial. Despite the objections of attorneys on behalf of Prop. 8, Judge Walker continued recording the trial, promising that he would only use them privately to help in writing his opinion after the trial.

The current case has had a lengthy history. Over ten years ago, in 2008 California voters passed Prop. 8 by 52-48%. After the California Supreme Court upheld the measure, opponents sued in federal court, which led to the trial presided over by Judge Walker. In 2010, Walker struck down the law saying it violated the Due Process and Equal Protection clauses of the 14th Amendment to the U.S. Constitution. In 2013 the U.S. Supreme Court let Walker's decision stand, allowing same-sex marriages to resume in California.

In 2017, KQED, supported by other media organizations including the New York Times, AP and CNN, submitted a motion to have the tapes made available to the public. The following year, in 2018, Judge Orrick said that "compelling justification of judicial integrity" outweighed the public's right to see the tapes at that time. He based that on Judge Walker's promise to keep the tapes private. But he never suggested they should be sealed indefinitely.

Attorneys for Prop. 8 claimed releasing the tapes at any point would risk harm to witnesses who testified their opposition to same-sex marriage. However, as Judge Orrick noted, they "did not submit evidence" to support that claim which justified sealing the tapes forever.

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"We are deeply disappointed by Judge Orrick’s ruling that 'the compelling justification of judicial integrity' no longer requires the court to honor Judge Walker’s solemn, on the record, commitment that the video tapes of the trial would be used solely for his own in-chambers purposes in rendering his judgment in the case," said attorney John Ohlendorf in an email. "We do not agree that there is a ten-year statute of limitations on judicial integrity, and we are preparing our appeal."

However attorney Thomas Burke said it's never been clear to him why the measure's proponents felt so strongly about preventing the public from seeing the tapes.

"It begs the question: What are they trying to hide? Because if they had legitimate concerns about risks to witnesses, they could have put in a declaration. They've never done that," Burke said.

Burke says it's past time to allow the public to see the trial which led to the historic decision.

"The trial's over. No more witnesses are happening. The law has been changed," Burke said.

Unless a higher court intervenes, the videotapes will be made public August 12, 2020.

Note: At the request of KQED's attorney, the author submitted a declaration to the court describing potential editorial uses of the videotapes if they were released.

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