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Editorial: Unseal the Prop 8 videotapes

by BAR Editorial Board

Federal Judge William H. Orrick will hear a motion on the Prop 8 tapes June 17. Photo: Courtesy Wikipedia
Federal Judge William H. Orrick will hear a motion on the Prop 8 tapes June 17. Photo: Courtesy Wikipedia  

Back in 2010, a video recording was made of the San Francisco federal trial that decided the constitutionality of Proposition 8, the same-sex marriage ban approved by California voters in 2008. Then-federal Judge Vaughn Walker, who presided over the trial (and came out as a gay man after it concluded), determined that Prop 8 was unconstitutional. His ruling paved the way for the 2013 decision by the U.S. Supreme Court that restored marriage equality in the Golden State. The videotapes have been under seal ever since.

Now, as the 10-year anniversary of Walker's ruling approaches on August 4, Prop 8 opponents and media outlets want the videotapes unsealed — not surprisingly, proponents of Prop 8 want them to remain unseen. Federal Judge William H. Orrick is scheduled to hold a hearing on the matter next week. Two years ago, Orrick ruled the videotapes should remain under seal after August 12, 2020 only if "compelling reasons exist to continue to seal them."

We don't believe there is any compelling reason to prevent the public from viewing the trial and urge him to order the videotapes unsealed.

Prop 8 supporters fear that marriage equality supporters will harass them if the recording of the trial is made public. But 10 years later, advocates of same-sex marriage have moved on to other priorities, like a public health pandemic and police brutality against black people. Besides, over the years supporters of Prop 8 and donors to the Yes on 8 campaign have already been called out. Additionally, a trial transcript has been released so no new information will be revealed; but a visual record would allow more people to experience the trial.

The Reporters Committee for Freedom of the Press, which is headquartered in Washington, D.C., filed an amicus curiae brief May 13 stating that the videotapes should be released.

"The court's decision in Perry v. Schwarzenegger has already been the subject of a documentary, a Broadway play, and a network TV docuseries," the brief states. "The historical significance of the case ensures that it will continue to be studied, documented, adapted, and reported on for years to come — further underscoring the significant public interest in the recordings."

The trial transcript ended up being the basis for "8," a play by gay screenwriter Dustin Lance Black that featured A-list celebrities like George Clooney and Brad Pitt. A special recording of the production can be purchased for download through the L.A. Theatre Works Pride Collection.

Proponents of making the videotapes public have stated in legal filings that there is no new evidence that Prop 8 supporters would be harassed. Caitlin Vogus, an attorney with the Reporters Committee, told the Bay Area Reporter last month that there is no new information brought forward by the Proposition 8 proponents that would override the public interest. "They are arguing the recordings need to remain under seal but don't bring any new evidence," Vogus said of Prop 8 supporters. "They say there is a risk of harassment of the people who testified in favor of Proposition 8 but don't have any new evidence of this."

The position of the Prop 8 proponents, that same-sex marriage is detrimental to society, needs to be seen by everyone. Visual evidence of the trial will broaden the historical record and expose the poor arguments against marriage equality.

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