American Foundation for Equal Rights

Plaintiffs Challenging Proposition 8 Call for Transparency and Public Access to Trial Videotape

Anti-Marriage Proponents Still Trying to Keep Video Sealed from Public; Continuing with Desperate Motion to Vacate Judgment

San Francisco, CA – Today, plaintiffs in Perry v. Brown, the landmark federal constitutional challenge to California’s Proposition 8, presented oral arguments before the U.S. Court of Appeals for the Ninth Circuit explaining why videotapes of the Proposition 8 trial should be publicly accessible and why Proponents’ motion to vacate judgment is meritless.

This will likely be the final hearing before the Ninth Circuit issues a ruling on the U.S. District Court’s August 2010 decision that struck down Proposition 8.

Earlier this year, Plaintiffs moved to unseal the trial video recording in the district court, 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.” 

A coalition of media companies and organizations that includes the Los Angeles Times, The New York Times, CNN, FOX News, NBC News, Dow Jones & Co. and The Associated Press presented oral argument today in support of Plaintiffs’ effort to release the trial tapes.

“The video recording of the trial truly and accurately shows the powerful evidence we submitted showing that Proposition 8 flatly violates the Constitution,” said plaintiffs’ lead co-counsel Theodore B. Olson.  “Proponents have offered no legitimate or compelling justification for keeping the trial videotape concealed from the public.  We are anxious for the American people to see the evidence and testimony the district court had before it.”

The Ninth Circuit also heard oral arguments on Proponents’ baseless and offensive attempt to impugn the reputation of the U.S. District Chief Judge who struck down Proposition 8.

Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 because he is gay and in a same-sex relationship.  Since Chief Judge Walker did not recuse himself, Proponents argue that his historic decision should be vacated.  Their desperate attack on Chief Judge Walker was roundly rejected by Chief Judge Ware in June 2011, who observed that “we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.”

“What Proponents insist on today is nothing short of a double standard within the federal judiciary; one that applies to gay judges but not to their straight colleagues,” said plaintiffs’ lead co-counsel David Boies.  “Nothing in our law – not one case – supports this regrettable attack on Chief Judge Walker.”

Indeed, Proponents’ attorney Charles J. Cooper admitted in court today that no individual’s existing marriage will be directly affected if gay and lesbian couples are permitted to marry.

In Monday’s Wall Street Journal, Michael B. Mukasey, a retired federal judge who served as United States Attorney General under President George W. Bush, addressed the impropriety of using a judge’s personal characteristic to challenge his or her impartiality.  “Challenges based on such factors, which engage biases far deeper than any purported rooting interest in a case, have been swatted down so often that a law clerk of even middling competence could prepare an opinion in less than half a day for a judge facing such a challenge,” Mukasey wrote.

It is anticipated that the Ninth Circuit will issue a decision on the merits of the case soon after it has heard arguments on the trial tapes and motion to vacate appeals.

“Our Constitution’s promise, the promise of liberty, is one that every generation must realize.  The fight to secure marriage equality is the defining element of our generation’s search for greater freedom,” said AFER Board President Chad Griffin.  “Try as they might, the anti-marriage proponents of Proposition 8 cannot stop our Nation’s courts – and its honorable judges – from protecting truth and justice over prejudice and fear.”

Griffin also mourned the death of Ed Watson, who passed away last night after a long battle with Alzheimer’s Disease.  Because of Proposition 8, Ed was never able to marry his partner of over forty years, Derence Kernek. “Ed and Derence represent the true human cost of discrimination,” said Griffin.  “It is stories like theirs that show without doubt that laws like Proposition 8 serve only to oppress.  My thoughts and prayers go out Derence and their family, friends and loved ones.”


Press Contacts

Elizabeth Riel 323.892.2081 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.