American Foundation for Equal Rights

New Filing Defends Judicial Transparency in Prop. 8 Case

Plaintiffs’ Brief: “Proponents … simultaneously crying foul and suppressing the truth.”

San Francisco, CA – Last night, plaintiffs in Perry v. Brown, the landmark federal constitutional challenge to California’s Proposition 8, filed a brief defending the public’s right to see the video recording of the historic public trial in this case.

The brief urges the U.S. Court of Appeals for the Ninth Circuit to affirm the district court’s decision granting plaintiffs’ motion to unseal the digital recording of the trial.

In January 2010, the U.S. District Court held a 12-day public trial on the constitutionality of California’s Proposition 8, which stripped gay men and lesbians of the fundamental right to marry.  The video recording of the trial is now part of the case record.  Earlier this year, plaintiffs moved the district court to unseal the recording, citing the presumption of access to judicial records under the First Amendment and common law.

On September 19, 2011, U.S. District Chief Judge James Ware agreed with plaintiffs, emphasizing that “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”  Chief Judge Ware further explained, “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.”

Plaintiffs’ brief filed last night illustrates the abject failure of the proponents of Proposition 8 to offer any reason sufficient to overcome the public’s right to access the trial recording, explaining: “Proponents have provided no justification—compelling or otherwise—for continued concealment of the trial recording, which truly and accurately depicts the events that took place in the district court in full public view.  The First Amendment and settled common law principles guarantee the public the right to watch the trial video in this case and to evaluate the evidence, arguments and outcome for itself.”

Following an expedited briefing schedule, the Ninth Circuit will hear oral arguments on December 8, 2011, in San Francisco.  A coalition of media companies and organizations that includes the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, Dow Jones & Co., The Associated Press, The Reporters Committee for Freedom of the Press and others has intervened in support of plaintiffs.

“Not content with relegating gay and lesbian Californians to second-class citizenship, the proponents of Proposition 8 now seek to deprive ALL Americans of their First Amendment right to see what happened at trial and judge for themselves,” said American Foundation for Equal Rights Board President Chad Griffin.  “Democracy requires civic courage.  Proponents’ actions amount to nothing less than civic cowardice.”


Elizabeth Riel 213.785.5352 or
Brandon Hersh 202.412.9766 or

About the American Foundation for Equal Rights

The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through federal district court and is now leading it through the 9th Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.