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Online Extra: Gays Across America: Station wants Prop 8 videos unsealed

by Seth Hemmelgarn

Retired U.S. District Judge Vaughn Walker oversaw the<br>Prop 8 trial. Photo: Rick Gerharter.
Retired U.S. District Judge Vaughn Walker oversaw the
Prop 8 trial. Photo: Rick Gerharter.  

KQED, San Francisco's leading public television and radio station, is asking a federal judge to unseal videotapes of the Proposition 8 trial.

The trial, which took place in 2010 in San Francisco and is formally known as Perry v. Schwarzenegger, ended with U.S. District Judge Vaughn Walker, now retired, ruling that California's Prop 8 same-sex marriage ban was unconstitutional. The case eventually made its way to the U.S. Supreme Court, which ruled in 2013 that the ban's backers didn't have standing to defend it.

The high court's decision essentially killed the prohibition, and in 2015, the justices ruled 5-4 that same-sex marriages should be allowed nationwide.

"The sealing of the video of the Prop 8 trial proceedings can no longer be justified by any compelling interest," wrote Thomas Burke, an attorney for KQED, in a motion filed April 28 with the U.S. District Court for Northern California. "Rather, the interests to the public in unsealing the videotapes now far outweigh the privacy or other interests of judicial administration. While the public interest in seeing the open work of government remains compelling, any privacy interests of those involved in the trial have disappeared almost entirely, because the trial is no longer ongoing and the appeal has been decided."

Burke added, "Unsealing the records now would not undermine the trial court judge's specific assurances to the proponents seven years ago that the videotapes would not be broadcast for the 'foreseeable future.'... The question is not if the videotapes should be unsealed, but when - and right now is the appropriate time."

Walker, who later came out as gay, initially said that the trial should be broadcast live, but the U.S. Supreme Court ruled 5-4 that local rules in effect at the time of the trial prohibited such broadcast.

The plaintiffs in the case, two same-sex couples one male and the other female, "believe that the emotional impact of their live, in-person testimony was a critical part of their case that has so far not been able to enter the public discussion," wrote Burke.

For example, he said, plaintiff Paul Katami said in his declaration that "those in the courtroom who watched him testify could 'judge for themselves [his] commitment' to his now-husband Jeff and 'hear the way [his] voice quivers when [he] talk[s] about what Jeff means to [him]."

After the trial concluded, Academy Award-winner Marisa Tomei and other actors re-enacted scenes from the trial. Burke noted that an episode of the recent ABC miniseries "When We Rise" included a recreation of the trial.

"As a public broadcaster, KQED is uniquely situated to asses the desire its viewers, listeners, and readers have to view the unsealed videotapes of the historic Prop 8 trial," Burke wrote. "... San Francisco was not only the site of the Prop 8 trial; it also has a large gay and lesbian population, and the advocacy history of its residents - by both those who are LGBT" and others "makes it one of the most important cities in the history of the gay rights movement."

Charles Cooper, the attorney for Prop 8's backers, didn't respond to the Bay Area Reporter's requests for comment Monday, but in an email to Burke included with Burke's court filing, he wrote, "I have counseled with my clients, and they would not be willing to unseal the trial video, or any portion of it."

Shannon Minter, the legal director for the National Center for Lesbian Rights, which represented plaintiffs in the Prop 8 trial, said in an emailed statement, "These trial videos are an essential part of our nation's story and our LGBTQ community's history. These deserve to be seen and heard."

NCLR especially wants people to "see and hear the devastating testimony from Ryan Kendall, a survivor of conversion therapy, about the harms inflicted on Ryan and his family by the dangerous and completely discredited belief that a person's sexual orientation can be changed," Minter said. "Judge Walker cited Ryan's testimony in his decision striking down Prop 8, and it is one of the most important moments of the trial."


Senators want LGBT questions added back to surveys


Several U.S. senators are calling on the federal Department of Health and Human Services to restore survey questions meant to gauge whether specific programs meet the needs of LGBTs who are older or living with disabilities.

The Health and Human Services' Administration for Community Living took out a question related to sexual orientation from the National Survey of Older Americans Act Participants. The removal is the only update to the annual survey, which is geared at people who receive services under the Older Americans Act.

Through the survey, data is collected on service gaps and performance outcomes, and the survey helps determine spending on programs for seniors, including Meals on Wheels and other services.

Questions on sexual orientation and gender identity have also been deleted from the Center for Independent Living Annual Program Performance Report.

In an April 27 letter to HHS Secretary Dr. Tom Price, Senator Susan Collins (R-Maine), who chairs the Senate Special Committee on Aging, and ranking member Bob Casey (D-Pennsylvania), wrote, "Older LGBT individuals, as well as LGBT persons with disabilities, face many challenges, including financial insecurity, social isolation, discrimination, and barriers to access for aging and accessibility services. We are concerned that removing sexual orientation and gender identity questions from these surveys will limit HHS' ability to address these issues."

The lawmakers added that, "Sexual orientation and gender identity questions on these surveys were designed to ensure that vital services were reaching vulnerable LGBT Americans. By rolling back data collection, it is possible that the needs of millions of Americans will go unmet."

The letter, which was also signed by Senator Dianne Feinstein (D-California) and lesbian Senator Tammy Baldwin (D-Wisconsin), requests a staff briefing on HHS' decision to omit the sexual orientation and gender identity questions by May 5.

In a statement emailed to the B.A.R., Casey said, "The elimination of sexual orientation and gender identity questions on these important surveys is yet another attack by the Trump Administration on LGBT Americans. I am pleased to be joined by advocates in Pennsylvania and across the country in calling on the Trump administration to restore these questions to the surveys so that we have the data to ensure that programs respond to the needs of older Americans and people with disabilities in the LGBT community."

An HHS spokesman, in response to emailed questions from the B.A.R., replied, "Under the Paperwork Reduction Act, making a survey longer or requesting highly personal information can only be justified if the data the additional questions will generate are required by law or can be expected to help us conduct necessary oversight for the program."

He added, "Because extremely few people identified themselves as LGBT, there were not enough respondents for the data to be statistically reliable or reportable," and "given that the questions weren't generating reliable data, they did not meet" the standard to justify the questions being asked.

"Consequently, the questions are not included in the proposed 2017 surveys, which are currently published in the Federal Register for public comment," said the spokesman, who didn't want to be named.

Casey was critical of the HHS response.

"This is an excuse that only ensures that the needs of LGBT elders won't be met if they are not represented," he replied to the B.A.R. via email. "HHS should continue their efforts to get more reliable data on this population. Removing the questions is a step in the wrong direction."

Gays Across America is a column addressing LGBTQ issues nationwide. It runs most Tuesdays. Please submit comments or column ideas to Seth Hemmelgarn at (415) 875-9986 or



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