After long legal fight, KQED begins to mine Prop 8 tapes

  • by Matthew S. Bajko, Assistant Editor
  • Thursday November 2, 2023
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Paul Katami, center left, a plaintiff in the landmark 2010 lawsuit that overturned California's ban on same-sex marriage, greets fellow plaintiffs Kris Perry, center right, Sandy Stier, right, and KQED politics editor Scott Shafer, left, ahead of an interview at the KQED offices in San Francisco on March 3, 2023. Katami, Perry, and Stier came to the studio to watch clips of their testimony in federal court, which KQED had fought to get unsealed, for the first time. Photo: Kori Suzuki/KQED
Paul Katami, center left, a plaintiff in the landmark 2010 lawsuit that overturned California's ban on same-sex marriage, greets fellow plaintiffs Kris Perry, center right, Sandy Stier, right, and KQED politics editor Scott Shafer, left, ahead of an interview at the KQED offices in San Francisco on March 3, 2023. Katami, Perry, and Stier came to the studio to watch clips of their testimony in federal court, which KQED had fought to get unsealed, for the first time. Photo: Kori Suzuki/KQED

Seated next to his husband, Paul Katami, in one of KQED's San Francisco studios, Jeff Zarrillo is seen watching for the first time video footage of his testimony as one of the plaintiffs in the 2010 federal lawsuit Hollingsworth v. Perry. Seeing the moment where he is asked by one of his attorneys to talk about meeting the man he would one day marry due to winning the case, Zarillo's eyes well up.

"I was just incredibly anxious, incredibly nervous, and wanted to make sure I articulated my story and our story. We had prepared for days for that moment," recalls Zarrillo, moments later adding, "I just always knew we were on the right side of the law."

Katami adds that the Los Angeles couple hadn't expected they would serve as witnesses when they agreed to be part of the lawsuit that won the right for same-sex couples to wed in California in June of 2013.

"Never did we, one at the start of this, did we think we would take the stand and have to testify," he says.

The men's comments are part of a 14-minute video the Bay Area public broadcaster is releasing online Thursday, November 2. A second 10-minute video it is posting that day features interviews with the other plaintiff couple in the case, Berkeley residents and wives Kris Perry and Sandy Stier, as they react to the footage of their testimony in the trial.

"It is very poignant to hear what the couples went through at the time and how getting married changed their lives, and what it meant to fight this fight and what it means today going through a cycle of LGBTQ hate in so many places," said Scott Shafer, a gay man who is KQED's senior editor for politics and government.

A year after KQED won a protracted legal fight to have the trial recordings be unsealed, it is releasing its first look at the footage. It is timed to mark the 15th anniversary this Saturday of the passage of Proposition 8, the ballot measure banning same-sex marriage in the Golden State that California voters narrowly adopted November 4, 2008.

Kris Perry, left, and Sandy Stier, two plaintiffs in the landmark 2010 lawsuit that overturned California's ban on same-sex marriage, share photographs from their wedding ceremony during an interview at the KQED offices. Photo: Kori Suzuki/KQED  

Federal lawsuit
After Prop 8's passage, lawyers filed the federal lawsuit against the constitutionality of the homophobic proposition on behalf of the two couples. Neither had married during the brief window that same-sex couples could wed in California between the summer and fall of 2008 prior to the adoption of the ballot measure. Both couples wanted to marry and agreed to become the face of the legal fight to get Prop 8 overturned.

At the start of the proceedings in early 2010, then-judge Vaughn Walker of the U.S. District Court in San Francisco wanted to record them and broadcast them live to several courthouses around the country. His desire to do so led to its own legal fight, with a divided U.S. Supreme Court ruling 5-4 against Walker's broadcasting the trial.

Nonetheless, Walker did tape the proceedings, saying at the time it would aid in his deliberations of the case and that it wasn't "for purposes of public broadcasting or televising." He would go on to rule that Prop 8 was unconstitutional, a decision allowed to stand by the U.S. Supreme Court, and afterward come out publicly as a gay man.

KQED sues for the tapes
In 2017, a coalition of media outlets led by KQED sought to have the Northern District of California unseal the trial tapes. Agreeing that the footage was of historical interest, the court decided the tapes should be released on August 12, 2020, a decade after the case had been closed.

Backers of Prop 8 appealed the decision to the 9th U.S. Circuit Court of Appeals, arguing the release of the tapes could lead to witnesses in the case being harassed. But the court denied the appeal based on the petitioners lacking standing to do so.

The Prop 8 proponents last year in March sought to have the U.S. Supreme Court block the release of the tapes but were rejected. The justices released their decision October 11, 2022, ironically on what is annually celebrated as National Coming Out Day.

Within days the district court in San Francisco had uploaded the trial tapes online to its YouTube channel. Wanting to use the footage in some manner, Shafer approached KQED's team of reporters who produce content across its various platforms.

"What do you do with 12 days of trial tapes? It is not like 'Perry Mason' or 'LA Law' or whatever legal show you want to describe or mention. Trials are not always riveting," said Shafer, who co-hosts the station's Thursday evening program "Political Breakdown."

It was why last December, normally a slow news month, Carlos Cabrera-Lomelí found himself watching the entirety of the trial footage. A community reporter and producer for KQED News, Cabrera-Lomelí was living in San Francisco and in the fifth grade when Prop 8 was passed.

He remembers seeing the different leaflets for and against it left on his doorstep.

"It did draw my attention, the question of should people marry ... same-sex marriages be legal. I grew up in a home where the answer was no," recalled Cabrera-Lomelí, 25, in a phone interview with the Bay Area Reporter.

At the time struggling with his own sexual orientation, as he would later come out as bisexual, Cabrera-Lomelí recalled seeing news coverage about the legal fight over Prop 8. He would read about the trial in the San Francisco Examiner newspaper while taking the bus to school.

"There weren't smartphones then," noted Cabrera-Lomelí, who wasn't thinking about getting married himself but was pleased to see same-sex marriage become a reality, first in California in 2013 with the Prop 8 decision and then nationwide in 2015 with the U.S. Supreme Court's ruling in Obergefell v. Hodges.

"I think, for a lot of young queer people my age, we have grown up with marriage equality as a given. Because we are standing on the shoulders of giants, we can now focus on other issues as well, like rights for trans people, and rights and protections for trans youth," said Cabrera-Lomelí. "But I think that fight happening while I was growing up shaped my thinking, and shaped a lot of people my age, especially here in the Bay Area."

Watching the Prop 8 tapes he realized the footage isn't very compelling visually. Formatted together are the feeds from three cameras — of the judge, witnesses, and lawyers — into one video screen. Altogether there are 65 individual videos that the court uploaded.

"The quality of the video is just bad," noted Cabrera-Lomelí of the Prop 8 tapes.

Most of the videos have only been watched a handful of times, according to the view counts. Two had been viewed more than 410 times as of Tuesday morning, with viewership for the rest dropping precipitously. Many have been watched less than 50 times.

"It was going to be a really tough sell to reclip this and put it out there," said Cabrera-Lomelí of the footage.

Jeff Zarrillo, left, and Paul Katami, plaintiffs in the landmark 2010 lawsuit that overturned California's ban on same-sex marriage, sit during an interview at the KQED offices in San Francisco on March 3, 2023. Photo: Kori Suzuki/KQED  

Humanizing the videos
What was needed, he thought, was a way to humanize the courtroom videos.

"As I was watching this, I thought we need to find the human element, the human story in all of this legal jargon. Even if you've never heard of Prop 8, you need to find somebody to root for, that was when I was watching the cross examination of Paul Katami come up," said Cabrera-Lomelí. "He is questioned so intensely about who he is, his orientation and his relationship with Jeffrey. I was like, 'wow.'"

As he contemplated what to do with the Prop 8 footage, Cabrera-Lomelí found inspiration in the videos created by magazines showing actors watching clips of their film work. He also thought about the videos the gay hookup app Grindr had created showing four older gay men react to current pop culture trends and content.

After learning that Perry and Stier continue to reside in the Bay Area, Cabrera-Lomelí pitched doing something similar to the other videos by having them come into a studio and react to clips of their testimony. The station also reached out to have Zarrillo and Katami fly up to do the same.

"We have this footage that is hard to work with and need contemporary footage. They are right here, let's bring them in," said Cabrera-Lomelí, who noted how unique such an opportunity would be. "It is rare queer people can look at their younger selves with love and affection."

As can be seen in the two segments the station produced, there was a technical glitch the KQED team didn't realize when they filmed the two couples. They had them seated together and looking at screens of the trial footage placed beside their partners.

Thus, when they went to splice the footage together, the couples are seen looking not at the trial footage but in the opposite direction off screen. Were their positioning to be reversed, it would have resulted in the trial footage hovering over their partners' faces in the edited segments.

"Visually, in a composition sense, it is a little tough," acknowledged Cabrera-Lomelí.

Nonetheless, the couples' reactions are very emotional and powerful footage. Despite the placement problem that arose later on in the editing room, Cabrera-Lomelí told the B.A.R. filming the spouses together was the right call.

"Having both of them together looking at it, I think is really beautiful," he said.

As well as "very poignant," said Shafer, "to hear what the couples went through at the time and how getting married changed their lives, what it meant to fight this fight, and what it means today going through a cycle of LGBTQ hate in so many places."

For now, the videos will be posted to KQED's YouTube channel for its news division. Thomas R. Burke, the local attorney KQED hired to bring forward its lawsuit, told the B.A.R. he suggested the station use them during its pledge drives.

"I think it was a huge commitment of time and resources and money by KQED," said Burke, who estimated the station's legal costs were in the hundreds of thousands of dollars.

A KQED spokesperson told the B.A.R. they weren't sure what the total cost of the lawsuit was. The station ended up being the lone media outlet to fully pursue the case.

"It started out as a coalition of media, with CNN, Fox, NBC," said Burke. "In later years it was just KQED alone. I think it is really a testament to KQED's commitment to its audience and commitment to this incredibly important issue, not only to the Bay Area but to the whole world."

KQED politics editor Scott Shafer, right, and his husband John Ignacio Kennedy, got married for a second time in 2014 after Prop 8 was overturned. Photo: Courtesy Scott Shafer  

A witness to history
With the annulment by state courts of their marriage in 2004, when San Francisco officials wed same-sex couples in defiance of state law, Shafer and his husband, John Ignacio Kennedy, married a second time in 2014 once Prop 8 was overturned.

Shafer had covered the Prop 8 trial for KQED and told the B.A.R. doing so was "a privilege" as he was a witness to history. He is grateful that the station was willing to wage the legal fight over the trial tapes.

"I am really proud that KQED invested the time and effort to get these tapes released. Not every media outlet would have done that," said Shafer. "To see it come full circle and help other people see it in a way that is digestible, and also historic, I think it definitely brings it full circle."

Attorney Burke and his wife live in Albany, and their daughter attended the same high school as Stier and Perry's twin sons. The two families were already acquaintances, he said, when he first was hired by the Prop 8 plaintiffs' legal team to press the case with Walker for broadcasting the trial.

He recalled suggesting that Walker embed a CNN crew in the courtroom who could share its footage with other media. They would bring in high tech equipment for doing so and could blend into the background of the proceedings, Burke had noted to the judge.

"He looked at me and said, 'I appreciate the offer, but this is my deal. I am just going to use my own camera.' Literally, they were cameras bought at Radio Shack," said Burke.

Rereading the U.S. Supreme Court's ruling against televising the trial back in 2010, Burke remains convinced it made a mistake. The issues examined in Walker's court were of utmost public importance then and remain controversial today, said Burke, pointing to newly elected House Speaker Mike Johnson (R-Louisiana) having to answer to his vocal opposition in the past to marriage equality.

"This was, I think, a shining moment for the federal judiciary to try a very controversial issue of the day with the federal rules of evidence, and I think it is extremely disappointing it took more than 10 years later for the videos to become unsealed," said Burke. "Not only because this was a historic trial, but because it was a trial of same-sex marriage with experts and evidence and testimony. There was absolutely no reason, whether in favor of it or against it, for you and the public to not understand this was given a fair shot in a federal trial and that is just so critical."

2024 Prop 8 repeal
With voters being asked on the November 2024 ballot to remove Prop 8's language that is still embedded in the California Constitution, as LGBTQ advocates fear it could become law again should the conservative-led Supreme Court annul its earlier rulings in favor of marriage equality, Burke told the B.A.R. he hopes having the Prop 8 trial footage available helps the repeal campaign next year.

"As you recall, it was a poorly worded and perhaps intentionally deceptive proposition the last time. That cost a lot of votes," said Burke. "Elections matter; votes matter."

Burke, 61, grew up in a small Nebraska town with an older sister who would come out as gay. She died unexpectedly at the age of 46 several years ago.

Poignantly for Burke, he was at home when he argued the Prop 8 tapes case before the Ninth Circuit because the court was meeting virtually due to COVID. Behind him was a photo of his sister and her partner.

"I think what is really remarkable when you look back over the dozen years or more than that when this all started, there was a different feeling about same-sex marriage across the country," noted Burke. "Having a recording of a federal trial that took the whole issue seriously and asked what is wrong with same-sex marriage, will it pose an issue, all of that is remarkable. It was a brilliant move by the judge to have that be an evidence based, what is called a bench trial."

As for how the footage is used going forward, Burke told the B.A.R. he can't envision many people sitting at home and watching the courtroom videos on their own. Rather, he sees them being utilized in educational settings such as middle or high school civics classes and at law schools.

"I don't think anybody is going to ever rush to watch these, quite honestly. Just because it is already history, and most people are not big fans of history or too busy for it," he said. "I would be surprised if there aren't law clinics that will want to have law school students watch these to teach about the historic nature of the case."

And he expects to see the footage be utilized by documentarians in their films.

"They should," said Burke. "It is a very rare, very rare collection of footage of a federal trial, if not one of the most important to ever occur in San Francisco."

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