The U.S. Court of Appeals for the Ninth Circuit on Feb. 2 decided not to unseal the video record of the trial in Perry v. Schwarzenegger (now Perry v. Brown).
The Perry case is a federal constitutional challenge to Proposition 8, the voter-approved amendment that banned same-sex marriage in California. In a landmark August 2010 ruling, a U.S. District Court ruled that Prop 8 is unconstitutional.
The ruling is on appeal.
Meanwhile, the Ninth Circuit has issued a ruling on the question of whether video from the trial should be unsealed.
The American Foundation for Equal Rights, filers of the Perry case, argued that the tapes should be public under First Amendment and common law.
Proponents of Prop 8, the defendants in the case, argued for secrecy, claiming that public viewing might expose their witnesses to harassment.
Last September, U.S. District Chief Judge James Ware agreed with AFER’s argument, ruling for the release of the tapes and emphasizing, “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”
“We think Chief Judge Ware had it right, but we are looking at the big picture and hoping for a ruling soon on the merits affirming the district court’s judgment that Proposition 8 is unconstitutional,” said AFER attorney Theodore J. Boutrous Jr.
A coalition of media companies – Los Angeles Times, CNN, The New York Times, FOX News, NBC News, Dow Jones & Co. and The Associated Press – joined the call for unsealing the tapes.
A number of civil rights groups also sought a release.
“In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes,” said Rick Jacobs of the Courage Campaign. “That just proves that our cowardly opponents knew they did a poor job defending their bigotry and homophobia in court. We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it.”