In January 2010, in advance of the historic trial to determine the constitutionality of California's ban on same-sex marriage, the U.S. Supreme Court stepped into the proceeding. The San Francisco federal judge overseeing the trial, Chief Judge Vaughn Walker, had obtained permission from the U.S. Court of Appeals for the Ninth Circuit to have video of the trial streamed live over the Internet. Gay marriage opponents filed an emergency appeal at the Supreme Court, arguing that the broadcast would create a media frenzy and intimidate expert witnesses testifying in favor of California's ban. The high court ducked that question but barred the broadcast on narrow procedural grounds.
Judge Walker nevertheless had the trial videotaped. He told lawyers on both sides that he'd use the tape in his chambers to help him decide the case. As the trial concluded in May 2010, the judge also said the two sides could use video in closing arguments. He provided copies of the videotape to the parties under a protective order.
As everyone knows, in August 2010 Judge Walker struck down California's ban in a landmark ruling that concluded same-sex couples have a constitutional right to marriage. After the judge retired in February 2011, he disclosed that he is gay and has been in a long-term relationship. Gay marriage opponents subsequently argued, to no avail (and to considerable scorn), that Judge Walker should have recused himself.
Judge Walker, meanwhile, began a post-retirement speaking tour. As he explained in an April 14 letter to the Ninth Circuit, he lectures on "the subject of cameras in the courtroom," arguing that "videos of films of actual trials are more interesting, informative, compelling, and , of course, realistic, than re-enactments or fictionalized accounts in portraying trial proceedings." In at least three of those talks, the judge played a three-minute video clip from the gay marriage trial.
Gay marriage opponents ran to the Ninth Circuit to demand that Judge Walker return tape of the trial to the court. It was quite a remarkable brief. Opponents' lawyers from Cooper and Kirk and the Law Office of Andrew P. Pugno asserted that Judge Walker had defied the Supreme Court and violated "his own solemn commitment" to use the video only to help him reach findings of fact. One of their expert witnesses, the brief said, only testified because Judge Walker promised the video wouldn't be aired. "Given that Judge Walker has recently retired from the federal bench he cannot be disciplined," gay marriage opponents argued. "But he can be ordered to cease further unlawful and improper disclosures of the trial recordings, or any portion thereof, and return to this court any copies of the trial recordings in his possession, custody, or control. We respectfully request that he be ordered to do so."
Gay marriage supporters figured the videotape flap gave them an opening. Lawyers from Gibson, Dunn & Crutcher and Boies, Schiller & Flexner filed a brief that not only opposed any attempt to force Judge Walker to return the videos, but also argued for lifting the seal on the videos so they can be aired publicly. "The only interest [gay marriage opponents] claim in their campaign to keep the entire video recording of this trial secret is their speculative fear that 'dissemination of the trial recordings could have a chilling effect' on witnesses' participation in trials," the brief said. "But [they] have offered no evidence whatsoever of such harm.As this court and the Supreme Court have made clear, such unsupported speculation is insufficient to overcome the strong presumptive right of public access to judicial records and proceedings." (Besides, the brief noted, everyone knows who the expert witnesses are: The trial was open to the public, the entire transcript is publicly available, and re-enactments of trial testimony are on YouTube.)
The Ninth Circuit sent the whole ball of wax down to San Francisco federal judge James Ware, who took over the case from Judge Walker. In June, Judge Ware denied the motion to order the return of the videos to the court. He also said he was giving Judge Walker his videos back, and ordered an August 29 hearing on whether to lift the protective order on the tapes. (Cooper and Kirk then filed a supplemental brief asking, once again, that Judge Walker be barred from playing the video publicly.)
Theodore Boutrous Jr. of Gibson Dunn, who represents gay marriage supporters, called me after Monday's hearing. Boutrous said the proceeding "seemed to go really well," although Judge Ware didn't rule from the bench. Boutrous said David Thompson of Cooper and Kirk, arguing for gay marriage opponents, stuck to the assertion that his side's experts could be subject to threats and intimidation if the videotapes are released; written transcripts, Thompson said, don't show what the experts look like. Boutrous told me he countered that the two expert witnesses who testified in support of the gay marriage ban-David Blankenhorn and Kenneth Miller-are already well-known opponents of same-sex marriage. Anyone who wants to know what they look like could already find out in five minutes on the Internet, Boutrous said. According to Boutrous, he tried to play a tape of a Blankenship speech that aired on C-SPAN to make that point to Judge Ware, but Thompson objected.
"I really thought they'd have more evidence," Boutrous said. "There was nothing new today."
Charles Cooper of Cooper and Kirk didn't respond to my e-mail or phone call. Judge Walker declined comment. .
(Reporting by Alison Frankel)