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Supreme Court Clears Way for Release of Footage From Landmark Trial That Legalized Same-Sex Marriage in California

Scott Shafer
Tuesday's decision is the culmination of a 12-year legal effort that began in 2009 when a media coalition led by KQED sought to have the Proposition 8 trial broadcast.
A man with a white t-shirt is seen from behind waving a Pride flag next to another Pride flag being waved with the Castro Theatre in the background.
Larry Pascua from San Francisco waves a flag in front of the iconic Castro Theater to celebrate the Supreme Court rules on Prop. 8 and DOMA. (Courtesy of Darlene Bouchard)

KQED scored a historic legal victory Tuesday when the U.S. Supreme Court declined to consider an effort to block the release of videotapes from the 2010 federal trial in San Francisco that ultimately led to the legalization of same-sex marriage in California.

Tuesday's decision is the culmination of a 12-year legal effort that began in 2009 when a media coalition led by KQED sought to have the trial broadcast. In 2017 KQED asked the Northern District of California to unseal the trial tapes, arguing that the recordings were a vital part of the public record in a historic legal case. While the court did not agree to immediately release the tapes, it ordered them to be unsealed on Aug. 12, 2020 — 10 years after the case closed. In declining to hear an appeal of lower court rulings, the Supreme Court effectively cleared the way for the tapes to be released.

“After today’s ruling by the U.S. Supreme Court, the public will finally be able to watch the testimony that Judge Vaughn Walker considered in deciding that same-sex couples have the right to marry," said Thomas R. Burke, KQED's attorney. "There’s no doubt that the video will become a valuable instrument to educate the public about this historic moment.”

"Great news! Love wins again and now, so does transparency," said Jeff Zarillo, one of the original plaintiffs in the case.

Holly Kernan, KQED's chief content officer, agreed. "If our systems work behind closed doors, with no press or public access, we have no idea how decisions are made, nor what arguments are leading to these decisions," she said. "KQED wants more sunlight on our legal system and we will fight on behalf of the public to get that access."

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Supporters of Proposition 8 – a California ballot proposition passed by voters in 2008 that would have banned same-sex marriage in the state – previously appealed to the 9th Circuit Court of Appeals, seeking to have the tapes sealed permanently.

That court dismissed that request, saying the petitioners lacked legal standing for their appeal. The court also batted away the contention that unsealing the tapes would lead to harm or harassment of anyone directly involved in the trial and confirmed the lower court’s decision to unseal the tapes.

In a last-ditch effort to keep the tapes sealed, Proposition 8 proponents asked the Supreme Court to take up the case. In their March 28, 2022 petition, attorneys for Proposition 8 said the court's intervention was needed to "prevent a grievous injury" to the ballot measure's backers and to "the integrity of the federal judiciary."

This entire issue began over 12 years ago, when Judge Vaughn R. Walker, the federal court judge who presided over the 2010 Perry v. Schwarzenegger trial, announced that he wanted the entire proceeding to be broadcast live via closed-circuit television with viewing in federal courthouses in San Francisco, Pasadena, Seattle and Portland, Oregon.

That would have made Perry v. Schwarzenegger the first federal trial to be broadcast and recorded, with videotapes to be made available for later viewing on YouTube.

But the Proposition 8 defense team objected as the bench trial was starting and the Supreme Court intervened, stopping the live broadcast before it began. The court said Walker failed to go through the appropriate process for getting approval for such a broadcast.

Over objections from Proposition 8 attorneys, Walker said he would videotape the trial anyway for personal use in his chambers to help him write the decision, which ultimately struck down Proposition 8.

Responding to the Supreme Court's refusal to take up the case and allow the lower court rulings to stand, Walker, who is now retired from the bench, said the justices did the right thing.

"With everything else going on in the world, not weighing in on this issue was an easy decision," said Walker. He added that the format of the Prop. 8 trial, with its expert witnesses providing testimony about the history, economics, sociology and psychology of gender roles and same-sex marriage could be a blueprint for judges in other controversial issues, including abortion.

"It was testimony by people who understood the whole panoply which gender plays in our society and in personal relationships," Walker said. "Trials reveal things that simply cannot come out when you're scratching through old dusty books and records of the long past. And I think there are going to be many enactments affecting the abortion rights in the various states in the wake of the Dobbs decision."

In seeking to block release of the videotapes, attorneys for the ballot measure's proponents argued to the Supreme Court that Walker "solemnly promised" in court that the tapes would not be made public, and that doing so now would undermine public faith in the courts.

In a response brief (PDF), attorneys for KQED argued that there was never a promise to keep the trial tapes sealed beyond 10 years and that Proposition 8 supporters failed to demonstrate any concrete injury that would come from releasing them.

Kris Perry, one of the original plaintiffs along with her partner Sandy Stier, said release of the tapes was long overdue.

"Since the 2010 ruling striking down Proposition 8, we have fought to have the video record of our historic trial shared with the public," Perry said. "There is no more important time to expose the discriminatory rhetoric of proponents and the courage of the experts, attorneys and plaintiffs in standing up against hate. Even though it's been 12 years since our ruling, we know the fight for marriage equality and many other basic civil rights is still essential and this video shows the evidence for why."

The 2009 lawsuit filed by supporters of same-sex marriage against Proposition 8 was considered risky by some progressive legal groups, which worried that a setback in federal court could take decades to undo.

The trial gained national attention, in part because the legal team seeking to have Proposition 8 struck down was led by conservative Theodore Olson and liberal David Boies, who were on opposite sides of the infamous Bush v. Gore case following the disputed 2000 presidential election.

The three-week trial in 2010 considered a wide range of issues, including the history of marriage, the political power of the LGBTQ+ community, the social and psychological harm of so-called "conversion therapy" and how the plaintiffs and their children were personally affected by being denied the right to marry.

Judge Walker's decision in August 2010 struck down Proposition 8 on the basis that it violated the due process and equal protection clauses of the 14th Amendment, saying California had no rational interest in denying marriage licenses to gay and lesbian couples. The decision was later upheld in a 2-1 decision by the Ninth Circuit Court of Appeals. In 2013, the Supreme Court declined to take up the case, ruling narrowly that Proposition 8 supporters lacked legal standing to appeal the lower court decisions, which opened the way for same-sex marriages to resume in California after a five-year hiatus.

Hollingsworth v. Perry et al was one of dozens of cases "denied certiorari" or denied review by the court today.

When asked before Tuesday's decision when the trial tapes would be made available, a spokesperson for the courts said "we will work with the judge in the underlying case to make them available promptly. They'll be posted on a publicly available site." No additional details were given.

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