Bid to block release of landmark gay marriage trial video fails, again

by Reuters
Tuesday, 28 December 2021 19:15 GMT

The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California February 7, 2017. REUTERS/Noah Berger

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Plaintiffs backing marriage equality remain hopeful that a court order will mean "free and unfettered access" to a gay marriage trial video

(Reuters) - A federal appeals court on Tuesday said it would not reconsider its November decision upholding the release of rare federal court video from the 2010 landmark trial in California that struck down the state's ban on same-sex marriage.

The San Francisco-based 9th U.S. Circuit Court of Appeals order denied a petition urging the court to convene "en banc" and overturn the three-judge panel decision.

The trial court lawsuit successfully contested California's Proposition 8 ban on same-sex marriage. The ruling preceded the U.S. Supreme Court's 2015 opinion declaring same-sex marriage constitutionally protected.

Federal trial courts do not automatically permit video and audio recordings. Now-retired U.S. District Judge Vaughn Walker, who presided over the bench trial, said then he would use the recordings for court-related purposes and not for "public broadcasting or televising." A federal judge last year ordered the tapes to be released.

The panel decision "threatens profound injury to a value of the most exceptional importance: the public's faith in the integrity of this circuit's courts and of the nation's judicial system," Charles Cooper of the boutique Cooper & Kirk wrote in his Dec. 2 petition asking the appeals court to reconsider its order. The firm advocated for Prop 8 supporters.

Cooper on Tuesday did not immediately respond to a message seeking comment.

Gibson, Dunn & Crutcher partner Christopher Dusseault, who argued in the 9th Circuit for the disclosure of the video, said on Tuesday the plaintiffs "hope that this will finally allow the public to have free and unfettered access to this important historical record of the entirely public trial that led to marriage equality in California."

The 9th Circuit panel divided 2-1 in affirming the release of the video. The majority — 9th Circuit Judge William Fletcher, sitting with 10th Circuit Judge Carlos Lucero — held that the proponents of Prop 8 had failed to show how releasing the video tapes would cause any harm.

Judge Sandra Ikuta of the 9th Circuit voted in dissent. "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.

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