- The Washington Times - Monday, August 29, 2011

A federal judge said Monday he would decide soon on whether to unseal videotape recordings from the 2010 trial on Proposition 8, California’s voter-approved initiative affirming one man, one woman marriage.

U.S. District Judge James Ware allowed that he was generally in favor of allowing cameras in the courtroom, but also said he was concerned about the precedent of having one judge break the agreement made by another judge.

The U.S. Supreme Court banned cameras from covering the high-profile case after attorneys for Proposition 8 argued that the public exposure could intimidate witnesses. The presiding judge, the now-retired Vaughn Walker, had his staff record the trial for what he said was his personal use.

After he struck down Proposition 8 in August 2010, supporters of gay marriage argued that the videotapes should be unsealed in order to allow Americans to see the proceedings of the landmark trial.

The issue has become something of a rallying cry for same-sex-marriage advocates. A throng of protesters outside the San Francisco courtroom held signs with messages such as “Free the Tapes.”

Attorney Theodore Boutrous, representing the American Foundation for Equal Rights, argued that there was no reason to leave the videotapes sealed, given that the Proposition 8 legal team called only two witnesses — both experts already known for their views — and neither has been harassed since the decision.

“The proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans,” said Mr. Boutrous in a statement Monday. “The real reason that the proponents are fighting public release is that [they] do not want the world to see the powerful evidence we submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.”

An attorney for the Media Coalition added that the public’s right to know should trump the witnesses’ right to confidentiality, according to a blog transcript produced by the Courage Campaign.

What happened during the trial is no secret: A 13-volume written transcript of the 12-day trial is already available to the public, which has served as the basis of theatrical re-enactments. A Broadway play chronicling the trial is scheduled to premiere as a one-night fundraiser in September.

Releasing the tapes would also give Mr. Walker an opportunity to clear his reputation in the face of accusations of judicial bias, said Mr. Boutrous. Backers of Proposition 8 sought to overturn the decision by arguing that Mr. Walker should have recused himself from the case, given that he was involved in an undisclosed same-sex relationship during the 2010 trial.

David Thompson, attorney for ProtectMarriage.com, which placed Proposition 8 on the ballot, pointed out that the defense’s experts relied on “ironclad assurances” that their testimony would not be broadcast. Unsealing the videotapes would diminish the judicial process by discouraging witnesses from testifying in the future.

He pointed to evidence showing that people are more easily moved to action by video broadcasts than the printed word. That nobody has threatened the two witnesses could be interpreted as proof that sealing the videotapes has worked.

“The fact that our witnesses have not been harassed since the trial shows that not releasing the tapes to the public has done its job,” said Andrew Pugno, general counsel for ProtectMarriage.com, who spoke after the hearing. “The fact that there has been no harassment or intimidation is no reason to remove the seal.”

He noted that the defense originally planned to call six witnesses, but that four of them backed out when they learned Mr. Walker planned to videotape the trial.

“Four of our witnesses were just not convinced that the tape would be kept confidential, and they were right,” said Mr. Pugno. “The judge took the tapes with him when he retired, and then they began to turn up on the Internet.”

In February, Mr. Walker gave a speech in Arizona at which he played footage from the trial, which was broadcast by C-SPAN and can now be viewed online. “The fears the witnesses had came to fruition,” said Mr. Pugno.

Fears for witness safety were rooted in the backlash against Proposition 8 campaign contributors in the aftermath of the November 2008 vote. Using information taken from the state’s campaign databases, gay-marriage activists boycotted businesses and threatened individuals, causing at least one to lose his job. The Church of Jesus Christ of Latter-day Saints was targeted for protests and received envelopes in the mail containing white powder, which was later found to be harmless.

Both the Los Angeles Times and the New York Times published editorials last weekend in favor of releasing the videotapes.

“The proposition’s backers will not be hurt in any way if the footage is released,” said the New York Times in its Aug. 26 editorial. “The American public, on the other hand, stands to lose something very valuable if it is denied the chance to see and hear what happened in a critically important case on marriage equality.”

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