A federal appeals court in San Francisco announced today it will rule Thursday on whether a videotape of a 2010 trial on the constitutionality of Proposition 8 should be made public.
The decision by the 9th U.S. Circuit Court of Appeals will concern only the videotape and not the larger question of whether Proposition 8, California’s ban on same-sex marriage, is constitutional.
The constitutional issue is also pending before the appeals court, but the panel has not said when it will rule on that question.
The 13-day nonjury trial was held before now-retired U.S. District Judge Vaughn Walker in San Francisco on a lawsuit in which two couples challenged Proposition 8, enacted by voters in 2008.
In August 2010, Walker ruled that the voter initiative violated the U.S. Constitution’s guarantees of equal treatment and due process.
The sponsors of the measure appealed that decision to the 9th Circuit, which now has that appeal under consideration.
The separate but related dispute over the videotape arose after Walker ordered the trial recorded for possible delayed broadcast on a government YouTube channel.
But the U.S. Supreme Court blocked that plan by a 5-4 vote, with the majority saying that the local federal court hadn’t allowed enough time for public comment on the proposed broadcasting.
Walker then allowed the videotaping to continue, saying that he might use it in his private review of the case but that “it’s not going to be for purposes of public broadcasting or televising.” He later made the tape available to lawyers in the case as well for use in preparing closing arguments in the trial.
Last year, the two same-sex couples who challenged Proposition 8 and a coalition of media organizations asked the court to unseal the tape, arguing that it is a public record of great public interest.
The sponsors of Proposition 8 opposed the bid, contending that trial witnesses might be harassed and that Walker had promised it would not be broadcast.
Last September, U.S. District Judge James Ware, the new trial judge assigned to the case, ruled that the tape should be unsealed.
The sponsors of Proposition 8 then appealed, and that appeal will be decided by a three-judge panel in Thursday’s ruling.
The panel’s decision can be appealed further to an 11-judge 9th Circuit panel and to the U.S. Supreme Court.
Although the videotape has been sealed to the public, written transcripts of the trial are public records and a re-enactment of the trial, based on those transcripts, has been posted on the Internet by same-sex marriage supporters.
Julia Cheever, Bay City News