gay_cityhall_gavel.jpgA federal judge in San Francisco said today he will decide “without much delay” whether to release a videotape of last year’s trial on the constitutionality of Proposition 8, California’s ban on same-sex marriage.

At the end of a two-hour hearing, U.S. District Judge James Ware did not reveal how he plans to rule, but said he felt a conflict between the goal of public access to trials and the circumstances of the case.

“I recognize that this is a matter of high public interest and the release of the tape might heighten public knowledge,” Ware said.

“We live in a world where the media has found its way into the courtroom and I generally think that’s good,” he said.

But earlier in the hearing, Ware said he was concerned that now-retired U.S. District Judge Vaughn Walker, who conducted the trial, had announced he was having the videotape made solely for his use in reviewing the evidence.

“The integrity of the judicial process is affected” when one judge says he will use a videotape for a limited purpose and another judge unseals it for a different purpose, Ware commented.

The unsealing of the videotape was requested by two same-sex couples who filed a 2009 lawsuit challenging Proposition 8, enacted by state voters in 2008. The city of San Francisco and a coalition of 13 media organizations joined in the request.

The tape’s release is opposed by the sponsors of Proposition 8, who are also seeking to appeal an August 2010 decision in which Walker declared the measure unconstitutional.

David Thompson, a lawyer for the Proposition 8 sponsors, said Walker “represented unequivocally that the video was being made solely for the purpose of his use in chambers.”

“We were entitled to rely on these ironclad assurances,” he argued.

The 12-day nonjury trial and one day of closing arguments before Walker were open to the public, and the written transcripts of the trial have been made public.

But Thompson contended there is a “qualitative difference” between printed transcripts and possible broadcast of a video in which “you know what the person looks like, what the person sounds like.”

He argued that broadcasting could result in harassment of the Proposition 8 sponsors’ two trial witnesses as well as intimidation of witnesses in other future trials.

Thompson also argued that the issue continues to be governed by a U.S. Supreme Court decision that blocked Walker’s plan for live streaming of the video to five other federal courthouses during the trial and possible delayed broadcasting on a YouTube government channel.

The high court said by a 5-4 vote that the federal court in San Francisco hadn’t allowed enough time for public comment on the broadcast plan, and that the Proposition 8 sponsors had demonstrated a threat of harm from broadcasting.

It was after that ruling, on the third day of the trial in January 2010, that Walker said the videotaping would continue but only for a limited purpose.

Theodore Boutrous, a lawyer for the two couples who challenged Proposition 8, argued that the Supreme Court’s decision no longer applied because the trial is over and the tape is now part of the court record.

“Once we’re talking about the judicial record, as opposed to live broadcasting, it’s a whole different set of legal principles,” said Boutrous, who argued public release was supported by the constitutional First Amendment and the common-law right of public trials.

Boutrous also said the Proposition 8 sponsors hadn’t produced evidence that their two trial witnesses, author David Blankenhorn and political science professor Kenneth Miller, would be harmed.

The suggestion they would be harassed or intimidated is the “flimsiest argument,” Boutrous said, because both men put themselves in the public eye.

“These are people who speak publicly. They’re engaged in public debate,” he said.

The plaintiffs’ 17 witnesses at the trial did not object to the videotape being made public, Boutrous said.

Proposition 8’s sponsors are seeking to appeal Walker’s ruling striking down the measure to the 9th U.S. Circuit Court of Appeals.

The case is on a legal detour to the California Supreme Court, which was asked by the federal appeals court to give an advisory opinion as to whether state law gives the sponsors a right to appeal when the governor and state attorney general have declined to do so.

The state high court will hear arguments on that issue in San Francisco on Sept. 6 and then will have three months to issue a written ruling.

Ware’s eventual ruling on whether to unseal the videotape can also be appealed, first to the 9th Circuit and then to the U.S. Supreme Court.

Julia Cheever, Bay City News

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