Legal sparring over Prop 8 videos continues

(San Francisco) The legal sparring over California’s same-sex marriage ban returned to a San Francisco courtroom Monday with a federal judge hearing arguments on whether he should unseal video recordings of last year’s landmark trial on the constitutionality of the voter-approved measure.

Lawyers representing two same-sex couples, the city of San Francisco and a coalition of media groups that includes The Associated Press asked Chief U.S. District Judge James Ware to make the recordings public. They maintained that allowing people to see the proceedings for themselves was necessary to demonstrate why Ware’s predecessor, former Chief Judge Vaughn Walker, ultimately struck down the ban, known as Proposition 8, and to counter any perceptions that Walker was biased against same-sex marriage opponents from the start.

“Releasing the video would allow everyone to review and make their own judgment about what happened,” Theodore Boutrous, the couples’ attorney, told the judge.

Attorneys for the ban’s backers want to keep the videos under wraps. They argued that videos of the 13-day trial would be a direct violation of the U.S. Supreme Court’s position on the issue.

As the trial got under way in January 2010, the high court, on a 5-4 vote, blocked cameras from covering the high-profile case so they could be streamed live to other federal courthouses and possibly posted on YouTube.

Walker, asked the court staff to keep shooting the proceedings, but sealed the videos with the understanding that they were being produced for his own review in reaching a verdict.

“We were entitled to rely on those unqualified assurances, and we did,” David Thompson, a lawyer for the religious and conservative groups that sponsored Proposition 8, said.

After the end of Monday’s hearing, Judge Ware said he needed time to review the arguments and would issue a written ruling at a later date. The judge said he was torn between needing to preserve public access to court proceedings and upholding the integrity of the courts.

“The judicial process is affected when a judge takes the position of, “I will seal this and use it only for a limited purpose,’ and then that is changed by a different judge and unsealed and used for a different process,” Ware said.

Walker’s ruling from last August overturning Proposition 8 as an unconstitutional violation of the civil rights of gay Californians is currently on appeal. The recordings are part of the case record before the 9th U.S. Circuit Court of Appeals.

Gay rights supporters already have used the written transcripts to recreate the full 13-day trial for online audiences. Next month, Morgan Freeman, Marisa Tomei and other big-name actors are scheduled to perform a dramatic play about the trial that screenwriter Dustin Lance Black, who won an Academy Award for the film “Milk,” created from the written testimony.