Video of landmark gay marriage trial can be released: 9th Circuit

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People march in the San Francisco gay pride parade, two days after the U.S. Supreme Court's landmark decision that legalized same-sex marriage throughout the country in San Francisco, California June 28, 2015. REUTERS/Elijah Nouvelage

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  • Panel in 2-1 ruling said no harm shown in releasing tapes
  • Dissenting judge criticized judiciary as "willing to bend or break its own rules"
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A federal appeals court on Thursday said it would not block an order requiring public disclosure of video recordings from the trial in the landmark case that struck down California's ban on same-sex marriage in 2010.

The 9th U.S. Circuit Court of Appeals in San Francisco said in its 2-1 ruling that advocates who had backed the gay marriage ban had not shown how publicly releasing the tapes would cause harm. The panel concluded that the proponents of maintaining a court seal on the video recordings did not have legal standing to support their position.

Federal trial courts do not automatically permit video and audio recordings, even in the pandemic era that opened up the ability to watch and listen to hearings and trials remotely.

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Now-retired U.S. District Judge Vaughn Walker, who presided over the bench trial challenging California's Proposition 8 ban on same-sex marriage, said at the time the recordings were for his court-related purposes and not for "public broadcasting or televising." A federal trial judge in August 2020 ordered the tapes to be released to the public.

Writing for the appeals court majority, 9th Circuit Judge William Fletcher said "the entire trial has been publicly available in transcript form since 2010, and there is no evidence in the record that appellants, their witnesses, or indeed any Proposition 8 supporter, have been harassed during the period since the release of the transcript."

Fletcher was joined by 10th Circuit Judge Carlos Lucero, sitting by designation. Judge Sandra Ikuta of the 9th Circuit dissented.

"This is yet another sad chapter in the story of how the judiciary has been willing to bend or break its own rules and standards in order to publicize the proceedings of a single high-profile trial," Ikuta wrote.

John Ohlendorf of Cooper & Kirk, who argued to keep the tapes under seal, said in an email on Thursday that releasing the video will be a "breach of Judge Walker's promise that they would never be made public." He said he planned to seek further review.

Gibson, Dunn & Crutcher partner Christopher Dusseault, who argued for disclosure of the tapes, told Reuters that "we look forward to people being able to see for themselves the testimony and arguments that led to this important victory for love and marriage."

Walker's California gay marriage ruling preceded the June 2015 U.S. Supreme Court 5-4 decision that declared same-sex marriage constitutionally protected.

The case is Kristin Perry, et al. v. Dennis Hollingsworth, et al., 9th U.S. Circuit Court of Appeals, No. 20-16375.

For same-sex marriage plaintiffs: Theodore Olson, Theodore Boutrous Jr and Christopher Dusseault of Gibson Dunn, and David Boies of Boies Schiller Flexner

For Prop 8 proponents: Charles Cooper and John Ohlendorf of Cooper & Kirk

Update: This article was updated to include comment from an attorney who argued for the video's release.

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