California Prop 8: Same-Sex Marriage, Lies, and Videotapes?

When a court battle over the release of a judge's personal collection of videotapes stirs a national debate, you expect the story to involve an entirely different kind of videotape. But today, we're not talking about an NSFW video; we're discussing court recordings from last year's California Prop 8 trial.

The Prop 8 video debate is heading back to court. The Ninth Circuit Court of Appeals will hear arguments regarding the release of trial videotapes on December 5.

Proposition 8 was a 2008 initiative that banned same-sex marriage in California. Opponents challenged the law on constitutional grounds. When the matter went to trial, the U.S. Supreme Court prohibited a telecast of the proceedings after California Prop 8 sponsors argued that video coverage could compromise their witnesses' safety.

Now-retired Judge Vaughn Walker, who presided over the trial, recorded the proceedings, and made the videos available to the attorneys. In compliance with the Supreme Court's order, he did not intend for the videos to be broadcast to the public, reports The San Francisco Chronicle.

At the conclusion of the two-week trial, which surveyed the history of marriage and the nature of sexual orientation, Judge Vaughn ruled that Prop 8 discriminated against same-sex couples.

Prop 8 opponents and the media argued after the trial that the tapes should be released. Judge James Ware, Judge Walker's successor, agreed, but a three-judge panel of the Ninth Circuit Court of Appeals blocked the videotape release pending a hearing.

We think there are similarities between this appeal and Doe v. Reed, the petition-signer anonymity case that the Ninth Circuit Court of Appeals heard on Monday. In 2010, the Supreme Court ruled in round one of Doe v. Reed that petition-signers did not have a right to anonymity.

Our guess for this California Prop 8 video appeal? The Ninth Circuit will extend that reasoning to expert witness identity, and find that a witness whose testifies in an attempt to frame public policy does not have a right to anonymity.

Related Resources:

• Order granting Emergency Motion for Stay, Perry v. Brown (Ninth Circuit Court of Appeals)
• Proposition 8: Stay Denied by Judge Vaughn Walker (FindLaw's Decided)
• 9th Circuit Court Grants Stay on Same Sex Marriage (FindLaw's Decided)