The Madeleine Brand Show for August 29, 2011

Should California release video of the Prop 8 trial?

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Justin Sullivan/Getty Images

While some video from the Prop 8 trial, like this Ninth Circuit Court of Appeals hearing in 2010 has been broadcast, footage of the original case, where lawyers and witnesses argued the logic of allowing or banning gay marriage, has not been released.

On Monday a federal judge in San Francisco heard arguments on whether to release a videotape recording of last year’s trial on Proposition 8, which ended with a judge striking down California’s voter-approved ban on gay marriage as “unconstitutional.” Prop 8’s defenders oppose any public release of the trial video. The judge said he will need time to review the arguments and would issue a ruling at a later date. The judge reported he's torn between needing to preserve public access to court proceedings and upholding the integrity of the courts. You can listen to a snippet of a videotape from last year's trial that led federal judge Vaughn Walker to rule that Proposition 8 discriminates against gay couples on C-Span's website. Walker, who’s now retired, played the excerpt at the University of Arizona during a Feb. 18 speech on cameras in the courtroom. C-SPAN broadcast the speech. In the excerpt, attorney David Boies, representing two gay couples challenging Prop 8, cross-examines Claremont McKenna political science professor Kenneth Miller. He ask Miller if the Prop 8 ban on same-sex marriage fit Miller's definition of “official discrimination.”
David Boies: That’s what you refer to as officially discrimination? Kenneth Miller: It’s legally enforced rules that have an effect on gays and lesbians, which is different than, than, heterosexual people, yes. Boies: That’s what you refer to as official discrimination? Is that true? I’m just trying to get your word. Miller: Well yeah, I’m, I’m, maybe “legal” is a better word…
Before the Prop 8 trial began, Judge Walker got special permission from an appeals court for a closed circuit broadcast to other federal courtrooms. He also got permission to post video of proceedings on YouTube. Neither happened. “The US Supreme Court by a 5-4 vote stepped into this case and banned the broadcast, at least of certain proceedings, early on,” says Vik Amar, the dean of Academic Affairs at UC Davis Law School. Prop 8 defenders had asked the Supreme Court to halt the video broadcasts to protect their witnesses. “Prop 8 was passed by a small majority of the voters and I certainly wouldn’t attribute to Prop 8 proponents a fear of democracy.” Says Amar “What they say they fear are some extreme reprisals and I think we probably have to take them at their word.” Judge Walker still videotaped the Prop 8 trial for the judicial record. He and the attorneys were the only people to have access to that videotape until Walker played a two-minute clip during the Arizona speech. C-SPAN was there, so C-SPAN got it, too.

After the C-SPAN broadcast of Walker’s speech, Prop 8 attorneys demanded that the retired judge return his videotape to the court. He did voluntarily. They also asked the new judge in the case to order Boies and co-counsel Ted Olson to give back their videotapes. But federal judge James Ware turned that down. Boies and Olson then filed a motion to release the videotape to the public.

Ted Olson says it’s pretty obvious why Prop 8 supporters don’t want the video shown. “They do not want American people to see the evidence that supported the overturning of Proposition 8,” Olson said on a conference call with reporters last Friday. “They don’t want the American public to see the absence of evidence to support of Proposition 8, and they don’t want the public to see first hand the weakness of the arguments, the non-existence of the arguments to support Proposition 8.” Proposition 8 attorney David Thompson did not return calls for comment – but he did issue a statement: “Consistent with our position throughout this litigation,” Thompson writes, we, “object to televising these proceedings.” Today in federal court in San Francisco, prop 8 attorneys will explain those objections in detail. This report was updated with content from the Associated Press.

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