California's Same-Sex Marriage Foes Press to Keep Trial Video Under Wraps
"The Supreme Court's settling of a legal issue does not eliminate the passions surrounding a controversial social issue," Charles Cooper of Washington's Cooper & Kirk argued in a new filing in California federal district court.
April 01, 2020 at 07:25 PM
5 minute read
The attorneys who defended Proposition 8, the ill-fated 2008 ballot initiative that barred same-sex marriage in California, are pressing a federal court to block the public release of the video recording of the landmark 2010 trial that concluded the ban was unconstitutional.
Charles Cooper, founding member of the Washington litigation boutique Cooper & Kirk, argued in a motion filed Wednesday in the U.S. District Court for the Northern District of California that then- U.S. District Chief Judge Vaughn Walker assured attorneys during the trial that he was only allowing a video of the proceedings so he could review them in chambers while he crafted a decision.
In 2018, U.S. District Judge William Orrick of the Northern District of California ordered the recordings to remain sealed until Aug. 12, a decade after Walker declared the same-sex marriage initiative unconstitutional, unless the defenders of the ban could offer "compelling reasons" for the video to stay private.
"This court should continue to keep faith with Judge Walker's word, and the seal should remain in place," Cooper wrote in Wednesday's filing.
The federal trial courts have long been camera-shy, shunning or restricting videotaped proceedings and electronic devices more broadly. The Proposition 8 video dispute in the Northern District of California is unfolding as the federal judiciary has moved to embrace video conference proceedings on an emergency basis amid the coronavirus outbreak.
"In order to address health and safety concerns in federal courthouses and courtrooms, the Judicial Conference of the United States has temporarily approved the use of video and teleconferencing for certain criminal proceedings and access via teleconferencing for civil proceedings during the COVID-19 national emergency," the Administrative Office of the U.S. Courts said Tuesday.
The administrative office said it is evaluating the possible use of videoconference and teleconference technology to provide access to the media and the public during the national emergency. The office said it planned to issue additional guidance in the near future.
Media organizations and advocates for same-sex marriage contend "the interests to the public in unsealing the videotapes now far outweigh the privacy or other interests of judicial administration."
Cooper, joined in Wednesday's filing by Proposition 8 defender Andrew Pugno of Fair Oaks, said that media outlets and other parties who want access to the trial tapes have no common law right of access in the face of a Northern District rule of court that bars dissemination of video recordings.
The attorneys also argue that releasing the videos would hurt the integrity of the judiciary by "put[ting] future litigants and witnesses on notice that judicial promises cannot be trusted."
In 2013, a divided U.S. Supreme Court left in place the district court's injunction blocking Proposition 8, effectively opening a door to same-sex marriage in California. The 5-4 court held that Proposition 8′s defenders lacked standing to appeal a district judge's ruling that the ballot measure violated the U.S. constitution.
The Supreme Court in 2015 ruled in support of same-sex marriage in the case Obergefell v. Hodges.
Cooper's filing Wednesday disputed that the Supreme Court's 2015 decision backing same-sex marriage was a "changed circumstance" that "lessened the hazards of publicly disseminating the video recordings."
"The Supreme Court's settling of a legal issue does not eliminate the passions surrounding a controversial social issue," Cooper wrote.
A hearing on the attorneys' motion to maintain the seal is scheduled to be heard by Orrick on June 17.
Walker, an advocate of cameras in federal courtrooms, retired from the bench in 2011. In 2016, he teamed up with litigation funder Bentham IMF as a member of its two investment committees.
Cooper, a widely known Washington-based lawyer, has represented Jeff Sessions, the Trump administration's first U.S. attorney general, and John Bolton, the former Trump national security adviser whose memoir on his service in the White House has caused a First Amendment flap in Washington.
Prop 8 Ruling Vindicates Olson's and Boies' Risky Strategy
|Mike Scarcella contributed reporting from Washington.
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