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Prop 8: Backers of same-sex marriage ban argue to keep trial video sealed

December 8, 2011 |  4:15 pm

Opponents and supporters of the 2008 voter initiative banning same-sex marriage in California squared off in federal appeals court Thursday over whether a videotape should be made public of the trial that deemed Proposition 8 unconstitutional.

After the U.S. Supreme Court stopped a San Francisco federal judge from allowing live broadcast of the January 2010 trial, the video recording was made part of the trial record but placed under seal.

David Thompson, an attorney for ProtectMarriage.com, which sponsored the voter initiative, told the U.S. 9th Court of Appeals that release of the video would intimidate witnesses from testifying in future trials on divisive issues.

He said the trial judge, U.S. District Judge Vaughn R. Walker, had assured the trial parties that the recording was for his own use in reviewing the proceedings. Thompson insisted the video should be restricted from public access for at least 10 years.

An attorney for two same-sex couples whose lawsuit led to Walker's landmark ruling that Proposition 8 violated their constitutional rights said public access to the record was paramount and that courts often revisit decisions to seal content.

The 9th Circuit judges -- Stephen Reinhardt, Michael Daly Hawkins and N. Randy Smith -- seemed concerned that release of the video might undermine the court's credibility, if Walker made assurances that trial participants were safe from widespread exposure.

The dispute over release of the video is likely to be decided together with the Proposition 8 backers' main case -- appeal of Walker's ruling that the same-sex marriage ban violates the couples' constitutional rights to due process and equal protection under the law. A third Proposition 8 case before the same three-judge panel challenges Walker's fitness to preside over the trial because he has been in a same-sex relationship for years.

The 9th Circuit panel has "fast-tracked" the Proposition 8 cases and rulings on all three matters are expected in the coming weeks.


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--Carol J. Williams