Fannie's Room: Judge Orders Prop 8 Trial Recordings To Be Released

Thursday, September 22, 2011

Judge Orders Prop 8 Trial Recordings To Be Released

On Monday, I relayed how professional "marriage defenders" had successfully prevented the Prop 8 Trial (Perry v. Schwarzenegger) from being broadcast live for the world to see.

Although the key Prop 8 defense witness has admitted that he "never felt physically threatened" because of his testimony, the proponents of the discriminatory Prop 8 claimed that a live broadcast would have a chilling effect on their witnesses, who were allegedly scared they would be threatened or harassed by LGBT advocates.

Well, a federal judge has now ordered the recordings of the Prop 8 trial to be unsealed (PDF). The Court concluded that "no compelling reason" exists for keeping the trial recordings sealed. In reaching its conclusion, the Court recognized the "common law right of public access to records in civil proceedings," noting:

"Transparency 'is pivotal to public perception of the judiciary’s legitimacy and independence.' As the Second Circuit has explained, while the political branches of government can 'claim legitimacy by election,' judges can only do so by way of their reasoning; thus, '[a]ny step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification.' Therefore, because the Constitution 'grants the judiciary ‘neither force nor will, but merely judgment,' it is imperative that courts 'impede scrutiny of the exercise of that judgment only in the rarest of circumstances.'"

And, of course, that is exactly what happened with the Prop 8 trial, and what happens in any case in which a court makes pro-LGBT decisions. Before the opinion has even been read the immediate cry, often initiated by anti-LGBT groups like the National Organization for [Heterosexual] Marriage, is that the decision proves that the courts are somehow "rigged" with homosexualist judicial activists who impose LGBT rights on "the people" for no good reason at all. Many supporters of Prop 8 completely ignored Judge Walker's reasoning and went on to suggest, or explicitly claim, that "practitioners of the homosexual lifestyle" should be banned from deciding same-sex marriage cases.

With this sort of propaganda running rampant in many anti-equality ciricles, it's no surprise that those who are heavily invested in anti-equality activism want to keep records of pro-LGBT cases away from wider public scrutiny. Maybe just maybe there are good, legitimate, and sound legal reasons as to why same-sex couples should be allowed to marry. Maybe just maybe the "marriage defense" reasons aren't as good and "commonsensical" as some believe.

But, let's see how the "marriage defenders'" spun it in their brief. They claimed:

“public dissemination of the [digital recording] could have a chilling effect on . . . expert witnesses’ willingness ‘to cooperate in any future proceeding.’”

The Court rejected that claim as being "unsupported hypothesis or conjecture."

Indeed.

I want to again reiterate the fact that David Blankenhorn, who was the "marriage defense" side's key expert witness, recently admitted to me that he "never felt physically threatened" and that he wasn't even aware of Brian Brown's statements regarding how scared the Prop 8 witnesses supposedly were of LGBT activist harassment.

I want to again reiterate that Mr. Blankenhorn writes books about his opposition to marriage equality, writes blogs about it, and is already a public figure opposing marriage equality- making the "chilling effect" claim look like a disingenuous attempt to paint LGBT advocates as horrible, violent villains.

Anyway, the "marriage defenders" are expected to appeal this latest decision. Why? The latest narrative from one popular anti-equality commentator:

The order to release the tapes is "part and parcel of Walker’s broader course of misconduct in what deserves to be recognized as the most egregious performance ever by a federal district judge."