Friday, February 3, 2012

9th Circuit: Prop 8 Tapes To Remain Sealed

The Prop 8 saga continues!

Yesterday, the US Court of Appeals for the 9th Circuit held (PDF) that a lower court abused its discretion in ordering the unsealing of tapes of the Prop 8 trial.

I'm not happy with the decision, but I agree with it. Here's why:

If you remember, the legal defenders of Prop 8 opposed plans to broadcast the trial live. In a pre-trial brief, they claimed:

"The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence. In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube."

The issue of broadcasting the trial went all the way to the Supreme Court. There, without explanation, the Court disallowed the trial to be broadcast.

The judge in the Prop 8 trial, Judge Walker, then continued to allow the trial to be recorded because, as the 9th Circuit opinion cites, Judge Walker asserted that the recordings would only be used for purposes of helping him reach a decision and would not be publicly broadcast. Later, "a different federal judge ordered that the recordings be unsealed because "no compelling reason" existed for keeping them from the public.

And so we come to the 9th Circuit opinion.

Let's talk here about what the opinion is definitely not saying. What this opinion says, if you read it, is not that the recordings must remain sealed because the witnesses in support of Prop 8 are so very scared of same-sex marriage supporters.

Indeed, as key Prop 8 witness David Blankenhorn admitted to me in conversation at Family Scholars Blog, he "never felt physically threatened" because of his testimony and he didn't even seem to be aware that the Prop 8 legal team was putting forth the narrative that witnesses like him were Too Scared To Testify. (Fun Fact: Check out Page 18 of The American Foundation for Equal Rights' brief! (PDF) I love that part of a blog conversation that I provoked is part of the official Prop 8 record! #bragging).

What the 9th Circuit opinion says, if you read it, is that Judge Walker said that he was only going to use the recordings in his own chambers and that he should therefore be held to that. To not hold Judge Walker to his assurance would, in fact, harm the integrity of the judiciary.

What do I think?

I think the tapes should have never been sealed in the first place, and that the US Supreme Court erred in saying that the trial could not be broadcast live, because I strongly question the accuracy and truthfulness of the claim that the broadcast had to be hidden from the public in order to somehow protect the Prop 8 witnesses, who were already relatively-public figures in the anti-SSM movement. I also think many professional opponents of same-sex marriage are petrified of the recordings going viral, mostly because their arguments, witnesses, and substantive points were pretty well walloped by the pro-equality attorneys and experts.

However, given that Judge Walker stated that the recordings would only be used in his chambers, and would not be broadcast to the public, I also think the 9th Circuit makes a compelling argument that it would harm the integrity of the judiciary to not hold Walker to his word regarding the release of the recordings.

The 9th Circuit will soon be issuing a ruling on the merits of the Prop 8 decision. I'm far more interested in that outcome, quite honestly.

[Cross-posted: Alas]

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