American Foundation for Equal Rights

Ninth Circuit Decides Not To Release Proposition 8 Trial Tapes

San Francisco, CA – Today, the United States Court of Appeals for the Ninth Circuit issued a decision not to unseal the video record of the historic twelve-day public trial in Perry v. Schwarzenegger (now Perry v. Brown).  The Perry case is a federal constitutional challenge to Proposition 8, which stripped gay and lesbian Californians of the fundamental freedom to marry.  In a landmark August 2010 ruling, Proposition 8 was found unconstitutional by the Federal District Court.

Plaintiffs have steadfastly maintained that the trial videotapes should be unsealed based on the strong presumption of access to judicial records under the First Amendment and common law.

On September 19, 2011, United States District Chief Judge James Ware ruled that the tapes should be released, emphasizing that “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”  

The American Foundation for Equal Rights (AFER) is the sole sponsor of the Perry lawsuit.

“We think Chief Judge Ware had it right, but we are looking at the big picture and hoping for a ruling soon on the merits affirming the district court’s judgment that Proposition 8 is unconstitutional,” said Plaintiffs’ attorney Theodore J. Boutrous, Jr.    “It speaks volumes that the proponents of Proposition 8 are so insistent about concealing the videotaped record of this historic trial.  They know the videotape would expose their baseless campaign of fear and let the public see the powerful evidence we submitted showing that Proposition 8 flatly violates the United States Constitution.  That’s why they fought so hard to keep the tapes secret.”

A robust coalition of media companies and organizations that includes the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, Dow Jones & Co. and The Associated Press filed a brief in support of the plaintiffs’ effort to release the trial tapes. Their argument was elaborated in a Los Angeles Times op-ed by Lucy Dalglish, Executive Director of the Reporters Committee for Freedom of the Press.

“The anti-marriage proponents of Proposition 8 will spend millions on a political campaign to publicize their views, yet they are doing everything they can to stop the public from seeing the weak case they put on at trial,” said AFER Board President Chad Griffin.  “In a court of law, only the truth and facts matter.  And the facts are that the Proponents have no case. AFER will do everything we can to make sure that the American people see what happened at trial.”

In order to ensure that the public is able to experience what happened at trial, AFER has teamed up with Broadway Impact to produce “8,” a new play chronicling the historic twelve-day Perry trial.  Written by Academy Award-winning screenwriter AFER Founding Board Member Dustin Lance Black, “8” had its much-heralded Broadway world premiere in September 2011.  The production brought in over one million dollars to support AFER’s efforts to achieve full federal marriage equality.

“8” is set to have its West Coast premiere at the Wilshire Ebell Theatre in Los Angeles on Saturday, March 3, 2012, for an exclusive, one-night-only fundraiser to benefit AFER.  The production will feature Academy Award-winning actor, producer, screenwriter and director George Clooney along with an all-star cast, and be directed by acclaimed actor and director and AFER Founding Board Member Rob Reiner.

In addition to its Broadway and Los Angeles productions, AFER and Broadway Impact are licensing “8” to colleges and community theatres nationwide in order to spur action, dialogue and understanding.


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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.