Prop 8 proponents appeal tape release to US Supreme Court

  • by John Ferrannini, Assistant Editor
  • Tuesday April 5, 2022
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Proponents for Proposition 8, California's same-sex marriage ban that was ruled unconstitutional, have appealed release of the tapes in the federal trial to the U.S. Supreme Court.
Proponents for Proposition 8, California's same-sex marriage ban that was ruled unconstitutional, have appealed release of the tapes in the federal trial to the U.S. Supreme Court.

Proponents of the overturned Proposition 8 have appealed a decision to release tapes of the 2010 San Francisco federal trial that first struck down California's same-sex marriage ban to the U.S. Supreme Court.

The appeal was filed March 30.

As the Bay Area Reporter previously reported, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in a 2-1 decision November 18 that the tapes could be released to the public.

KQED-TV, the Bay Area affiliate of the Public Broadcasting System, has been fighting for access to the tapes for documentary purposes.

Thomas Burke, an attorney for KQED-TV, stated to the B.A.R. that "one hopes that this second trip to the U.S. Supreme Court is the final stop in this odyssey. After over a decade of sealing, it is long overdue for the video recordings of this historic federal trial to be public."

The Prop 8 case, known as Hollingsworth v. Perry, first went to the high court back in 2012 after proponents appealed federal Judge Vaughn Walker's ruling that the initiative was unconstitutional. The 9th Circuit upheld Walker's ruling. The justices let Walker's ruling stand, ushering in same-sex marriage in the Golden State in 2013.

Charles J. Cooper, the attorney for the proponents, did not respond to a request for comment as of press time.

The saga over the tapes has lasted longer than the court fights over Prop 8 — the same-sex marriage ban approved by Golden State voters in 2008 — itself.

Judge William A. Fletcher of the 9th Circuit ruled in November that proponents of Prop 8, who'd wanted the tapes to remain under seal, failed to show sufficient injury. They had appealed a July 9, 2020 decision by Judge William H. Orrick of the U.S. District Court for the Northern District of California ordering the release of the tapes.

The 9th Circuit found that the Prop 8 proponents hadn't proved they'd be victims of harassment or intimidation, and that Walker's statements shouldn't be read as a perpetual promise.

The root of the saga over the tapes began in 2010. The constitutionality of Prop 8 was challenged in Hollingsworth v. Perry, the federal lawsuit that appeared in Walker's court.

The idea was floated about televising the trial, which attracted national public interest, in other courthouses. The California Supreme Court issued a stay of the proposed broadcast, but Walker continued to tape the proceedings in case the stay was lifted. Subsequently, Walker stated that the tapes were being made in order to aid in his consideration of the testimony and evidence during the trial, saying at the time "it's not going to be for purposes of public broadcasting or televising."

Walker, a federal judge appointed by former President George H.W. Bush, ruled that Prop 8 was indeed unconstitutional. The U.S. Supreme Court ruled in 2013 that Walker's ruling could go into effect, two years before the nation's highest court legalized same-sex marriage in all 50 states in the case of Obergefell v. Hodges. Walker came out as gay after his ruling and retired from the bench in 2012.

The Northern District of California placed the tapes under a 10-year seal in accordance with its rules. Trial transcripts, however, formed the basis of both a stage production and a network television docuseries.

That seal expired in 2020. Prop 8 proponents sued to stop the release of the tapes, alleging that they may be subject to harassment or intimidation as a result, and that releasing the tapes ever would be a violation of Walker's statement they'd not be used for broadcast. Last summer, Orrick ruled that the tapes should be released, but the proponents appealed to the 9th Circuit, which kept the tapes sealed while it could consider the case.

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