- The Washington Times - Monday, September 19, 2011

A federal judge Monday ordered the unsealing of the video recordings in the Proposition 8 trial, handing gay-rights supporters another legal victory in their quest to legalize same-sex marriage in California.

U.S. District Court Chief Judge James Ware ruled that public interest in having the videotapes released outweighed the U.S. Supreme Court’s injunction preventing the broadcast of the 2010 trial, as well as any potential “chilling effect” on witnesses in future court proceedings.

“Foremost among the aspects of the federal judicial system that fosters public confidence in the fairness and integrity of the process are public access to trials and public access to the record of judicial proceedings,” said Judge Ware in his 16-page opinion.

“The court concludes that no compelling reason exists for the continued sealing of the digital record of the trial.”

At the same time, the judge placed a hold on his order until Sept. 30 to allow time for an appeal.

California voters approved Proposition 8, which states that marriage is an institution between one man and one woman, by a margin of 52 percent to 48 percent in November 2008. Former U.S. District Court Chief Judge Vaughn Walker ruled the measure unconstitutional in August 2010.

Chad Griffin, board president of the American Foundation for Equal Rights (AFER), which brought the lawsuit to unseal the tapes, said the videotapes would illustrate what he described as the lackluster argument against same-sex marriage.

“The public will soon see the extraordinarily weak case that the anti-marriage proponents presented in a desperate attempt to defend this discriminatory law,” he said in a statement.

Attorneys for ProtectMarriage.com, which urged the court to keep the videotapes sealed, could not be reached for comment Monday. A post on the National Organization for Marriage blog Monday characterized the ruling as a case of legal bait and switch.

“We personally don’t have a dog in this fight, but given the Supreme Court personally intervening to prevent Judge Walker from videotaping the trial - and then he did so promising the litigants that it would be only for his personal use - this is not justice for the litigants,” said the post.

Mr. Walker originally agreed to a live audio and video feed of the trial as part of a pilot program, but the U.S. Supreme Court issued an injunction to stop the broadcast. Afterward, Mr. Walker, who retired shortly after the trial, ordered his staff to make digital recordings of the three-week proceeding.

Mr. Walker said at the time that the tapes were “for use in chambers,” and later offered to make copies for the trial attorneys. After the trial, he ordered the tapes sealed, but then played snippets of the video during a February speech at the University of Arizona.

The Proposition 8 campaign sued to stop Mr. Walker from airing the video, while the legal team fighting the measure counter-sued to have the videotapes unsealed and released to the public.

Attorneys for Proposition 8 argued that releasing the videotapes would violate the Supreme Court’s injunction and break faith with the witnesses who had relied on that injunction. Public dissemination of the tapes would also discourage future testimony in related trials, said attorneys.

After the Proposition 8 vote, some campaign contributors said they received threatening phone calls and emails from gay-marriage activists who gained access to their contact information through state elections databases available to the public.

Some businesses were targeted for boycotts, while the Church of Jesus Christ of Latter-day Saints, which backed Proposition 8, was hit by protests and vandalism.

As a result, Proposition 8 attorneys said it was difficult for them to persuade witnesses to testify on the measure’s behalf. The defense originally planned to call six witnesses, but four backed out when they learned that the judge planned to tape the trial, said ProtectMarriage.com attorney Andrew Pugno.

The trial’s written record has been long available to the public. A play based on the court transcript, entitled “8,” was scheduled for a premiere Monday at the Eugene O’Neill Theatre on Broadway in New York City.

The show, featuring an all-star cast that includes Ellen Barkin, Morgan Freeman and John Lithgow, was slated to show for one night as a fundraiser, and then be restaged at regional and college theaters nationwide, according to AFER.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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