Prop. 8 Trial Recordings Cannot Be Released, Court Rules

Video recordings of the Proposition 8 trial cannot be made public, the Ninth Circuit Appeals Court has ruled.

In a 23-page ruling issued Thursday, a three-judge panel, which has yet to issue its decision on whether to uphold U.S. district judge Vaughn Walker's 2010 decision striking down Prop. 8, reversed a lower court ruling on the matter.

In reversing a September ruling by U.S. district judge James Ware, the appeals court wrote that Judge Walker "on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast," following a U.S. Supreme Court order. "Thus, his commitments were not merely broad assurances about the privacy of judicial records in the case; they could not have been more explicitly directed toward the particular recording at issue." (A PDF of the ruling is available here.)

The panel has not indicated when it will issue a ruling on the merits of the case.

Chad Griffin, board president for the American Foundation for Equal Rights, which spearheaded the lawsuit, said his legal team is studying the ruling and that no announcement will be made Thursday as to whether they will appeal.

"We're keeping our eyes on the prize: the ultimate ruling on the merits that we hope and anticipate will come very soon," Griffin told The Advocate. "What is so ironic is that the antimarriage proponents of Prop. 8 have been willing to spend tens of millions of dollars to spew their lies and bigotry, but when it came to a court of law, they have fought tooth and nail to hide from the American public."

At the very least, public release of the recordings could prove embarrassing for Prop. 8 proponents and the defense witnesses who testified.

Defense witnesses David Blankenhorn of the Institute for American Values and Claremont McKenna College professor Kenneth Miller faced withering cross-examination by David Boies, co-lead attorney for the plaintiffs challenging the 2008 ballot measure.

Exchanges between Boies and Blankenhorn were among the most dramatic moments of the two-week testimony phase of the trial, and put Blankenhorn on a bizarre testimonial path, where he admitted to writing that "we would be more American on the day we permitted same-sex marriage than we were on the day before." (Full transcripts of the trial available at the AFER website.)

Though Blankenhorn and Miller were presented to the court as "experts," Walker rejected their purported expert testimony.

In his September ruling, Judge Ware wrote that Walker did not limit the recordings to chambers use only. Furthermore, unsealing the videos would not interfere with a previous Supreme Court injunction prohibiting live broadcast of the trial, Ware had ruled.