American Foundation for Equal Rights

Ninth Circuit to Rule on Proposition 8 Trial Tapes

Ruling on Thursday, February 2 at 10 a.m. PST

San Francisco, CA – Tomorrow, the United States Court of Appeals for the Ninth Circuit will release a decision on whether or 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.

Although a FULL decision on the merits is expected soon, tomorrow’s opinion WILL NOT address the constitutionality of Proposition 8.

Plaintiffs in the case—Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo—have steadfastly maintained that the trial videotapes should be publicly accessible based on the 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 anti-marriage proponents of Proposition 8 immediately appealed Chief Judge Ware’s decision, claiming that one of their two witnesses “regretted” testifying, yet they did not give any reason for that regret. Indeed, their star witness, David Blankenhorn, has publicly stated that he never felt threatened.

Plaintiffs filed a brief rebutting the unsubstantiated allegation of witness intimindation and arguing:

It has been almost two years since the Perry trial concluded, and after countless public reenactments, intense media attention, and publicly disseminated transcripts, Proponents still have offered no evidence whatsoever that their witnesses were in fact harmed as a result of their testimony in this case or would be harmed if the trial video were unsealed.

In addition, 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 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.


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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.