A federal judge appears unconvinced that a video recording of the 2010 trial that rendered a 2008 ballot initiative prohibiting same-sex marriage in California unconstitutional should remain sealed. 

In a Zoom videoconference Wednesday, U.S. District Judge William Orrick III of the Northern District of California once again weighed in on Perry v. Schwarzenegger. In 2018, Orrick ruled that the video could be unsealed Aug. 12, a decade after the decision per local court rules, unless proponents could offer a compelling reason for it to remain confidential. 

On behalf of the proponents of the Proposition 8 ballot measure, attorneys from Cooper & Kirk in Washington, D.C., argued during the hearing Wednesday that judicial integrity requires the recording to stay under wraps. "Open promises a federal judge makes in court and in writing depends on enforcing those promises as they were made," said Cooper & Kirk's John Ohlendorf.

But Orrick had heard that all before. 

"I get your argument—it's the same one you made in 2018, and it plays to something that matters hugely to the court, obviously," the judge said. "But I view it differently."

The U.S. Supreme Court barred former U.S. District Chief Judge Vaughn Walker of the Northern District of California, who presided over the trial, to publicly broadcast the proceedings. Instead, he recorded them for the purpose of use in chambers, and sealed the video sua sponte. 

Ohlendorf had argued that if Walker had really tied his promise to a 10-year period, it would be a very different case. 

"If he had made clear his promise was good for 10 years only, we would have immediately taken action to appeal to the [U.S. Court of Appeals for the] Ninth Circuit," he said. "The video would not have been made and there would not have been a possibility for disclosure after 10 years."

Ohlendorf said that's how the Ninth Circuit also interpreted Walker's promises. 

"If they understood Judge Walker's decision in that way, this case would not be back before me," Orrick said. The appeals court did not grant a "forever imprimatur," he said.

Christopher Dusseault of Gibson, Dunn & Crutcher in Los Angeles, who argued on behalf of the plaintiffs said that judicial integrity is an extremely important factor, but that the specific concerns the Ninth Circuit focused on are no longer a concern given the 10 years that have passed. 

"Let people see what Walker did—the length of time he let them probe to poke holes," Dusseault said. "Judicial integrity is well served by unsealing the trial video."