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Gay marriage proponents decry ruling on Proposition 8 trial video

February 2, 2012 | 12:45 pm

Gay marriage proponents decry ruling on Proposition 8 trial video

Same-sex marriage proponents expressed disappointment Thursday in an appeals court decision to keep video recordings of the historic Proposition 8 trial sealed, saying the public is being denied an opportunity to bear witness to the “baseless foundation of fear” that opponents waged during the proceedings.

A three-judge panel of the U.S. 9th Circuit Court of Appeals said the tapes should not be made public because the trial judge promised the defenders of Proposition 8 that they would be used for internal court purposes only, a clear victory for opponents of same-sex marriage.

“The American people deserve a court system that upholds the integrity of the judicial process,” said Austin R. Nimocks, an attorney for ProtectMarriage, the sponsors of Proposition 8.


The ruling overturned a lower court decision in favor of making the video public, a position favored by the news media and gay rights groups. The same 9th Circuit panel is considering whether Proposition 8 is constitutional.

That decision, which could come any day, is expected to go to the U.S. Supreme Court.

Thursday’s ruling noted that retired Chief Judge U.S. District Judge Vaughn R. Walker, who presided over the Proposition 8 trial and ruled the measure unconstitutional, repeatedly told opponents of gay marriage that the trial video would not be broadcast.

Setting aside Walker’s commitments would “compromise the integrity of the judicial process,” the court said. “The interest in preserving respect for our system of justice is clearly a compelling reason for maintaining the seal on the recording.”

Theodore J. Boutrous Jr., an attorney for Proposition 8’s challengers, expressed disappointment but noted that the legal team was “looking at the big picture and hoping for a ruling soon” that strikes down the marriage ban.

“It speaks volumes that the proponents of Proposition 8 are so insistent about concealing the videotaped record of this historic trial,” Boutrous said. “They know the videotape would expose their baseless campaign of fear and let the public see the powerful evidence we submitted showing that Proposition 8 flatly violates the United States Constitution.”

The National Center for Lesbian Rights, calling the Proposition 8 trial “one of the most important trials in American history,” also expressed disappointment.

“As those lucky enough to have watched the trial saw, the defenders of Prop. 8 were unable to offer a shred of evidence to support it,” said Kate Kendell, the center’s executive director.

But attorneys for ProtectMarriage said the 9th Circuit simply affirmed that a judge’s “solemn promise” would be kept.

Andy Pugno, general counsel for ProtectMarriage, said the case was not about whether federal trials should be televised.

“Instead, this is about a judge who became so obsessed with striking down traditional marriage that he found himself disregarding the law and turning the trial proceedings into a sham,” Pugno said.

The 9th Circuit ruling also said that a copy of the trial video should not be returned to Walker for his legal records.

Walker infuriated ProtectMarriage last year when he showed a snippet of testimony from the trial in a lecture about a cameras in the courtroom. Walker had wanted to broadcast portions of the trial, but ProtectMarriage went to the U.S. Supreme Court and obtained a ruling preventing any broadcast during the trial.

Walker decided after the ruling to continue recording, but promised to limit the airing of the video to the court and the litigants.


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Photo: Opposing groups face off outside the Doubletree Hotel in Santa Ana in 2008 after Proposition 8 supporters met inside to discuss campaign tactics by Proposition 8 opponents. Credit: Don Bartletti / Los Angeles Times