Nov. 22, 2008: Protest against the passage of Proposition 8 banning gay marriage. Karin Hildebrand Lau /

Judge decides to release Prop. 8 trial recording

Tapes to be released Sept. 30

By Lisa Leff

SAN FRANCISCO (AP)-- A federal judge decided Monday to unseal video recordings of last year's landmark trial on the constitutionality of California's same-sex marriage ban.

Chief U.S. District Judge James Ware agreed with lawyers for two same-sex couples who sued to overturn Proposition 8 and with a coalition of news outlets -- including The Associated Press -- that no compelling reasons exist to keep the recordings secret.

His order will take effect on Sept. 30 unless a higher court overrules him.

"Foremost among the aspects of the federal judicial system that foster public confidence in the fairness and integrity of the process are public access to trials and public access to the record of judicial proceedings," Ware wrote in his 14-page order.

The religious and conservative groups that sponsored the voter-approved ban known as Proposition 8 had opposed having the videos made public.

They argued that Ware's predecessor, former Chief Judge Vaughn Walker, had assured them the recordings would be made only for his private use. Walker decided to tape the proceedings after the U.S. Supreme Court ruled the trial could not be broadcast.

The ban's supporters and their lawyers did not immediately respond to email and telephone inquiries from The Associated Press.

Walker ultimately struck down Proposition 8, ruling that it violated the civil rights of gay and lesbian Californians. The constitutional implications, as well as the right of the ban's backers to challenge Walker's decision without the involvement of the state's attorney general, are under review by a federal appeals court.

In his order, Ware said the Supreme Court ruling addressed only the contemporaneous broadcasting of the trial, and that since it is long over, the videos were no different from written transcripts and other evidence that are routinely made public except in the most extreme circumstances.

Gay rights supporters already have used the written transcripts to recreate the full 13-day trial for online audiences. On Monday night, a star-studded cast in New York City was set to debut a play by Oscar-winning screenwriter Dustin Lance Black based on the trial.

The performance is a fundraiser for the American Foundation for Equal Rights, the group financing the effort to overturn Proposition 8.

"Unlike political campaigns, in a court of law, the truth and facts are all that matter," foundation president Chad Griffin said. "The public will soon see the extraordinarily weak case that the anti-marriage proponents presented in a desperate attempt to defend this discriminatory law."

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