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BREAKING NEWS: Ninth Circuit overturns ruling to unseal Proposition 8 trial tapes, preventing public viewings

SAN FRANCISCO -- The Ninth Circuit Court of Appeals this morning overturned a lower court ruling to release of Proposition 8 trial videotapes to the public.

San Diego Gay & Lesbian News will update this breaking news with public reaction.

"We conclude ... that the integrity of the judicial process is a compelling interest that in these circumstances would be harmed by the nullification of the trial judge’s express assurances, and that there are no alternatives to maintaining the recording under seal that would protect the compelling interest at issue. In short, the recording cannot be released without undermining the integrity of the judicial
system," the court ruled.

"... We reverse the order of the district court as an abuse of its discretion and remand with instructions to maintain the trial recording
under seal," the court ruled.

On Sept. 19, 2011, Chief District Judge James Ware granted a motion to temporarily unseal the video recordings in the Proposition 8 trial, refuting every single argument made by opponents of marriage equality.

However, Ware granted only a temporary unsealing of the trial video, allowing time for the losing side to appeal his decision. The decision was appealed, and the Ninth Circuit heard the case on Dec. 8, along with a second motion relating to the case.

Theodore J. Boutrous Jr., an attorney with the plaintiff American Foundation for Equal Rights (AFER), expressed disappointment in today's ruling.

“We think Chief Judge Ware had it right, but we are looking at the big picture and hoping for a ruling soon on the merits affirming the district court’s judgment that Proposition 8 is unconstitutional,” Boutrous said this morning.

“It speaks volumes that the proponents of Proposition 8 are so insistent about concealing the videotaped record of this historic trial. They know the videotape would expose their baseless campaign of fear and let the public see the powerful evidence we submitted showing that Proposition 8 flatly violates the United States Constitution. That’s why they fought so hard to keep the tapes secret.”

Ninth Circuit Judges Michael Daly Hawkins (a Clinton nominee), Stephen Reinhardt (a Carter nominee) and N. Randy Smith (a George W. Bush nominee) presided over the appeals court hearing.

The high-powered legal team led by Ted Olson and David Boies, representing AFER, had successfully argued in District Court that the Prop 8 trial video should be available for viewing by the public.

Also arguing that the tapes should be released is a media coalition comprised of The Associated Press, The New York Times, Los Angeles Times, FOX News, NBC News, the Hearst Corp., Dow Jones & Co., and others.

Marriage equality supporters and court observers say that the Yes on 8 attorneys want to prevent the public from seeing the Prop 8 trial video because they know that they had no defense for marriage discrimination and that the video will illustrate how flimsy their case was.

Attorney David Thompson, representing the Yes on 8 side, argued that release of the trial tape would subject their only two witnesses to intimidation and harassment, distort their testimony, misrepresent their opinions and cause systemic harm.

“The anti-marriage proponents of Proposition 8 will spend millions on a political campaign to publicize their views, yet they are doing everything they can to stop the public from seeing the weak case they put on at trial,” said Chad Griffin, AFER board president. “In a court of law, only the truth and facts matter. And the facts are that the Proponents have no case. AFER will do everything we can to make sure that the American people see what happened at trial.”

AFER and Broadway Impact teamed up to produce “8,” a new play chronicling the historic 12-day Perry trial. Written by Academy Award-winning screenwriter Dustin Lance Black, “8” had its much-heralded Broadway world premiere in September 2011. The production raised more than $1 million to support AFER’s efforts to achieve full federal marriage equality.

“8” will have its West Coast premiere at the Wilshire Ebell Theatre in Los Angeles on Saturday, March 3, for an exclusive, one-night-only fundraiser to benefit AFER. The production will feature George Clooney and an all-star cast, directed by acclaimed actor and director Rob Reiner.

“8” will be licensed to colleges and community theaters nationwide in order to spur action, dialogue and understanding. A production is tentatively scheduled at San Diego State University in the spring.

2012 02 02 CA9 Order Re Trial Video

The reaction

Rick Jacobs, chair and founder of the Courage Campaign:

"We are disappointed in the 9th Circuit’s decision to not release the videotapes from the historic Prop 8 hearing. In our minds, it never made sense that transcripts from the hearing could be easily accessed by anyone but not the videotapes. That just proves that our cowardly opponents knew they did a poor job defending their bigotry and homophobia in court. We sincerely hope this decision does not herald more bad news regarding the unconstitutionality of Prop 8. Lives are depending on it."

John Lewis, Marriage Equality USA’s legal director>/i>

“Two years ago, the district court conducted a 12-day trial where anyone and everyone had the opportunity to present evidence about Proposition 8. The court concluded in an extraordinarily detailed 136-page opinion that the opponents of marriage equality had produced not even a scintilla of evidence that could justify Prop. 8’s exclusion of loving, committed same-sex couples from marriage.

“And even though today’s court order prevents the public from seeing video of the compelling testimony presented at trial, the strength of that evidence gives us great hope that the Ninth Circuit will uphold the trial court’s ruling that denying same-sex couples the freedom to marry violates the Constitution. It’s really all about fairness.”

Stuart Gaffney, Marriage Equality USA’s media director

“The heart of the marriage equality movement is our coming out about our relationships and our families. It’s clear why marriage equality opponents don’t want the public to be able to see firsthand the trial testimony of lesbian and gay couples: public support for the freedom to marry is growing consistently across America -- from Washington State to New Jersey, from California to Maine -- because brave same-sex couples are standing up for their families and the truth of their lives. We will continue to do so, and I’m confident that the public will eventually get to see the videotapes of the Prop. 8 trial.”

Kate Kendell, executive director of the National Center for Lesbian Rights:

"The court's decision to keep the people from seeing this public record of one of the most important trials in American history is extremely disappointing. As those lucky enough to have watched the trial saw, the defenders of Prop 8 were unable to offer a shred of evidence to support it, while the plaintiffs presented a mountain of compelling reasons to strike down this unjust and damaging law. The public deserves the same chance to see the facts for themselves."