Federal Judge Considers Releasing Video Of Gay Marriage Trial

A federal judge on Monday hinted that he agrees with opponents of California's gay marriage ban, Proposition 8, who want video of last year's trial on the constitutionality of the measure made public.

For roughly 2 hours, Chief U.S. District Judge James Ware considered arguments in the legal skirmish, which was sparked in February when U.S. District Judge Vaughn R. Walker, now retired, used a clip from the 2010 trial he presided over during a speech he gave in Arizona.

Prop 8 proponents asked the court to stop Walker from showing the video again. Opponents volleyed back with a request to make the recordings public for broadcast.

At issue was whether release of the videotapes would put defense witnesses at risk of harassment from opponents of the constitutional amendment which overruled a 2008 California Supreme Court decision that legalized gay marriage in the state.

David Thompson, a lawyer for Protect Marriage, the coalition of mostly religious groups that sponsored Proposition 8, told Ware that his concern was with the video “being made public.”

He added that the Supreme Court had blocked Walker's plan to broadcast the trial. Walker kept the cameras rolling but sealed the videos.

“We were entitled to rely on those unqualified assurances, and we did,” Thompson said.

“The proponents have been utterly unable to explain why the public should be barred from seeing and hearing for themselves what happened in a public trial potentially affecting the rights of millions of Americans,” said Theodore J. Boutrous, an attorney for the two gay couples challenging the measure. “The real reason that the proponents are fighting public release is that they do not want the world to see the powerful evidence we submitted showing that Proposition 8 flatly violates the Constitution and the extraordinarily weak case that they put on trying to defend this discriminatory law.”

At times, Judge Ware appeared to side with Boutrous, saying that the record “should be open unless there are compelling reasons not to.”

But he later added: “It does seem to me that it is part of the record and I am bothered by the question of what to do with something that is made a part of the record by the judge's actions.”

Ware said he would issue his ruling shortly.