SAN FRANCISCO – Chief District Judge James Ware said today that he “won’t delay very long” before ruling on a motion to unseal the Proposition 8 video recordings.
The issue was the topic of a hearing in Ware’s federal courtroom on Monday morning in San Francisco, in which attorneys for Prop 8 supporters asked the judge to keep the videotape out of the public eye. Lawyers for the American Foundation for Equal Rights (AFER), which successfully argued in district court that Prop 8 is unconstitutional, urged the judge to let the American people see what happened during the historic 2010 trial.
David Thompson, an attorney for the Prop 8 supporters, contended that the release of the videotape would put their two star witnesses in harm’s way because their faces and voices would become publicly known. AFER attorneys argued that because the two witnesses are already publicly known because they have frequently testified for anti-gay groups in trials. Furthermore, the AFER attorneys noted that the two witnesses have not been “intimidated” in any way since the Prop 8 trial last year.
The Proposition 8 supporters mounted a massive ad campaign, powered by $45 million in donations, that narrowly persuaded California voters to overturn marriage equality in November 2008. After a three-week trial, then-Chief District Judge Vaughn Walker on Aug. 4, 2010, ruled that Prop 8 was unconstitutional.
Theodore “Ted” J. Boutrous, a prominent attorney who is on the AFER team, made a strong case for why the videotape should be released, saying that there is a strong presumption of public access to judicial records and the lack of any basis for why the videotape should be kept secret.
“We have a strong tradition of openness in this country and the First Amendment and common law make judicial records and proceedings presumptively open to the public. This presumption applies with full force to videotaped record of this historic trial,” Boutrous said.
“The proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans. The real reason that the proponents are fighting public release is that do not want the world to see the powerful evidence we submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.”
Also arguing for the videotape’s release were various news organizations, including The Associated Press, Fox News, NBC News, The New York Times and Los Angeles Times.
Ware may have tipped his hand during the hearing when he told the attorneys: "Sounds to me as though the real argument ... comes from the public's right."