Two couples who challenged California’s ban on same-sex marriage asked a federal appeals court in San Francisco today to unseal a videotape made of last year’s trial on their lawsuit.
The couples argued in court papers that the trial was a public proceeding and that release of the tape is warranted by “this nation’s constitutional commitment to public and open judicial process.”
“The recording is a quintessential judicial record of the utmost public importance,” the couples’ lawyers wrote in a brief submitted to the 9th U.S. Circuit Court of Appeals.
Sponsors of the gay marriage ban, meanwhile, have asked the appeals court to order the tape sealed and to require now-retired U.S. District Judge Vaughn Walker and the plaintiffs to return their copies to the court.
They argued in a brief filed Wednesday that Walker violated an order he issued at the trial and a court rule by playing a three-minute excerpt of the tape during a speech in Phoenix in February.
“The video recordings of the trial in this case may not lawfully be shown publicly beyond the confines of the Northern District of California courthouse” in San Francisco, the sponsors’ lawyers wrote.
The ban, enacted by state voters as Proposition 8 in 2008, provides that “only marriage between a man and a woman is valid or recognized in California.”
It was challenged in a federal civil rights lawsuit by couples Kristin Perry and Sandra Stier, of Berkeley, and Paul Katami and Jeffrey Zarrillo, of Burbank.
After holding a 12-day nonjury trial in San Francisco in January 2010, Walker in August struck down the measure, saying that it violated the U.S. Constitution’s guarantees of equal treatment and due process.
The Proposition 8 sponsors are now seeking to appeal that ruling to the 9th Circuit. The case has taken a legal detour while the California Supreme Court decides whether an initiative’s sponsors have the right to defend it on appeal when state officials have refused to do so. In the meantime, Proposition 8 remains in effect.
Before the trial, Walker developed a plan to have the trial taped for a live closed-circuit feed to other five federal courthouses in four states and eventually for delayed broadcast on a government channel on YouTube.
But the U.S. Supreme Court by a 5-4 vote blocked the plan, saying that the district court in San Francisco hadn’t allowed enough time for public comment on the proposal.
Walker then withdrew the plan, but ordered the tape continued, saying that he might use it in preparing his ruling but that “it’s not going to be for purposes of public broadcasting or televising.”
Later, Walker gave attorneys on both sides permission to use excerpts of the tape during closing arguments in June, and lawyers for the plaintiffs chose to do so.
In a letter to the appeals court on Thursday, Walker said he received a copy of the tape on a disk drive containing his judicial papers and believed that it would be “permissible and appropriate” to use the brief excerpt in his Feb. 18 speech at Arizona State University on the topic of cameras in the courtroom.
Walker, 67, retired from the court on Feb. 28 and is now in private practice.
He noted in the letter that the case “involved a public trial,” but he said he will abide by any directive the appeals court gives.
The court has no deadline for acting on the motions filed this week.
Late today, the city of San Francisco filed a brief supporting the plaintiffs’ bid for public release of the videotape.
Chief Deputy City Attorney Therese Stewart wrote, “Particularly in a civil trial of nationwide importance, the public has the strongest constitutional interest in observing it.”
Julia Cheever, Bay City News