Ninth Circuit OKs unsealing videos from landmark gay marriage trial

SAN FRANCISCO (CN) — After more than a decade of litigation over sealed videos of a historic bench trial that overturned California’s same-sex marriage ban in 2010, the Ninth Circuit on Thursday paved the way for the contested videos to be publicly released.

“It’s not something that deserves secrecy,” said attorney Thomas Burke, who represents media groups fighting to unseal the records, in a phone interview Thursday. “It deserves to be public even a decade later so people who couldn’t attend the trial in person have a chance to know what went on in the trial.”

Supporters of Proposition 8, a 2008 voter-approved ballot measure that banned same-sex marriage in California, argued the videos should stay sealed based on a federal judge’s promise to keep the records private.

Now-retired U.S. District Judge Vaughn Walker overturned California’s gay marriage ban in August 2010 following a two-week bench trial in January that year. His ruling in Perry v. Schwarzenegger did not take effect until June 2013 when appeals in the case were resolved.

Walker’s decision preceded the U.S. Supreme Court’s June 2015 ruling that expanded the right to marry to same-sex couples across the nation.

Initially, Walker planned to live-broadcast videos of the 2010 bench trial, but the U.S. Supreme Court blocked the broadcast at the request of Proposition 8 supporters involved in the case. After Walker promised the videos would only be used for him to review testimony behind closed doors, Proposition 8 proponents dropped their objections to video recording.

Last year, U.S. District Judge William Orrick denied the Proposition 8 supporters’ motion to keep the videos sealed. He found Judge Walker’s promise does not supersede a 10-year expiration date for sealed court records that was in place when the trial was recorded in 2010.

The Ninth Circuit stayed that ruling pending appeal. In December 2020, a lawyer for Proposition 8 proponents argued the unsealing would undermine faith in the judicial system by nullifying a “solemn promise” made by a federal judge in open court.

On Thursday, a divided three-judge Ninth Circuit panel found the proponents lack standing because they failed to show they would suffer a concrete injury, such as threats or harassment, if the videos were made public.

“Appellants have provided no evidence showing harm or threat of harm to themselves from the release of the video recordings,” U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, wrote for the majority in a 19-page opinion.

Fletcher and U.S. Circuit Judge Carlos Lucero, a Clinton appointee sitting on the panel by designation from the 10th Circuit, also rejected the proponents’ argument that unsealing the videos will harm “the sanctity of the judicial process” and “future litigants.” The majority deemed that claim a “generalized grievance” that is common to all of society and not a particularized injury that can give rise to Article III standing.

In a 19-page dissent, U.S. Circuit Judge Sandra Ikuta, a George W. Bush appointee, said the videos should be kept hidden because Judge Walker’s promise was akin to a binding contract that gave the Proposition 8 proponents enforceable rights in court.

“Because Chief Judge Walker made a clear and unambiguous promise that resulted in reasonable, foreseeable, and detrimental reliance by the proponents and those who depended on them, a violation of that promise would be a violation of the proponents’ legal rights,” Ikuta wrote.

Ikuta spent several pages going over the long history of proponents fighting to keep videos off the air, including in prior trips to the Ninth Circuit in 2010, 2012 and 2019. She suggested that it's difficult to fathom, given that long history, that the Proposition 8 supporters don’t have a real stake in the outcome of this dispute.

“This is yet another sad chapter in the story of how the judiciary has been willing to bend or break its own rules and standards in order to publicize the proceedings of a single high-profile trial,” Ikuta wrote.

After broadcasting of the trial was banned in 2010, reenactments were made based on trial transcripts with actors playing the judge, lawyers and witnesses. The transcripts became the basis of a Broadway play in 2011, later aired on television and adapted for a radio play in Australia.

In a declaration filed in 2017, plaintiff Kristin Perry, who testified at trial about her desire to marry the woman she loves, Sandy Stier, said releasing the trial videos would benefit society and serve as a “cautionary tale” about discriminatory laws.

“I think this generation of politicians, community leaders and lawmakers should see the tapes, so they can see the pain and suffering they inflict when unjust laws are put on the books,” Perry stated in her testimony.

Burke, a Davis Wright Tremaine lawyer who represents the public radio station KQED, acknowledged that this opinion may not be the final chapter in the nearly 12-year legal saga over sealed trial videos. The Proposition 8 proponents could seek an en banc rehearing in the Ninth Circuit or appeal to the Supreme Court.

“The history for the last dozen years would suggest they will keep fighting, and we will as well,” Burke said.

Attorneys for the plaintiffs who opposed Proposition 8 and for proponents of the same-sex marriage ban who fought to keep trial videos under seal did not immediately respond to requests for comment Thursday.

The plaintiffs are represented by attorney Christopher Dusseault of Gibson Dunn & Crutcher in Los Angeles.

Attorney Charles Cooper of Cooper & Kirk in Washington represents Proposition 8 proponents who sought to keep the videos under seal.

Follow @NicholasIovino

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