US Supreme Court declines to hear Prop 8 tapes case, clearing way for release

  • by Eric Burkett, Assistant Editor
  • Tuesday October 11, 2022
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Clergy members and supporters, totaling more than 200 people, marched to Civic Center on March 26, 2009, following a negative decision on Proposition 8 by the California Supreme Court. Photo: Rick Gerharter
Clergy members and supporters, totaling more than 200 people, marched to Civic Center on March 26, 2009, following a negative decision on Proposition 8 by the California Supreme Court. Photo: Rick Gerharter

Twelve years after the trial they were created to document, the video tape recordings of the 2010 federal trial over Proposition 8 will finally be made public. The United States Supreme Court declined to hear an appeal of lower court rulings ordering the release of those tapes.

The decision not to hear the appeal, released October 11, ends more than a decade of effort by public broadcaster, KQED, to release the tapes.

The root of the case over the tapes began in 2010. The constitutionality of Prop 8, passed by voters in 2008, was challenged in Hollingsworth v. Perry, a federal lawsuit that appeared in the court of District Court Judge Vaughn Walker.

The idea was floated about broadcasting the trial in other courthouses because of the public interest. The U.S. 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."

As the court-ordered embargo on the tapes neared its expiry 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.

In July 2020, a district court judge ruled that the tapes should be released, but the proponents appealed to the 9th U.S. Circuit Court of Appeals, which, as the B.A.R. reported, in 2021 twice ruled for the tapes' release but kept them sealed while it considered the case.

Scott Shafer, a gay man and KQED's senior editor for politics and government, said the final appeal had been a surprise.

"We honestly had no idea they would take it to the Supreme Court," he told the Bay Area Reporter in a phone interview Tuesday, which coincidentally is celebrated by the LGBTQ community as National Coming Out Day.

But with the Supreme Court declining to take up the appeal, KQED's long struggle to make the tapes publicly available has prevailed. KQED's attorney, Thomas Burke, was delighted.

"It was a very happy moment," he told the B.A.R. in a phone interview Tuesday.

There had been concern, as the case was kicked up to the Supreme Court, that as the proponents of Prop 8 didn't see the case the same way as its opponents, the case would have been heard very differently on the high court, said Burke, a straight ally.

"There was concern the court might have thought there was reason to get involved," he said. "We felt there was no need."

After what was essentially "a 12-year fight" as Burke described it, the tapes will soon make their way to KQED where scholars, historians, and others simply interested in the case will have access to them, but also where KQED staff will be able to use them for documentary purposes. Interestingly, for all the fighting over the tapes, they're not particularly high quality, Burke said.

Rather than using the film crew and expensive equipment Burke had arranged to record the proceedings, the judge insisted upon using the courtroom camera, he said.

Shafer said he had heard Walker describe the Prop 8 trial as an unusual one for a social issue, which included testimony on history, economics, and sociology. The tapes, Walker told him, would be used in law schools, as well as by people who will be tackling matters such as abortion in future trials.

Prop 8

Passed in 2008 by California voters, Prop 8 banned same-sex marriage in the state. In August 2010, following the trial, 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 about the legal proceedings.

Holly Kernan, KQED's chief content officer, called the U.S. Supreme Court's decision a victory for transparency.

"If our systems work behind closed doors, with no press or public access, we have no idea how decisions are made, nor what arguments are leading to these decisions," Kernan said in a story published on KQED's website. "KQED wants more sunlight on our legal system and we will fight on behalf of the public to get that access."

The work to make the tapes available publicly was led by KQED's Shafer, who covered the Prop 8 trial, as well as the subsequent fight over the tapes themselves.

"As someone who sat through the entire Prop 8 trial, I witnessed some very dramatic and moving testimony, as well as riveting cross-examinations," stated Shafer in a news release. "I'm glad others will now get to view this important part of the historical record."

Andrew Pugno, the lawyer representing Prop 8 proponents, did not return a message seeking comment.

Updated, 10/14/22: To view the tapes, click here.

Correction, 10/30/23: This article has been been corrected; it was the U.S. Supreme Court that issued a stay in the recording of the original trial.

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