Court won’t release videos from Prop 8 trial

LISA LEFF | Associated Press

LOS ANGELES — A federal appeals court refused Thursday to unseal video recordings of a landmark trial on the constitutionality of California’s same-sex marriage ban but said it needed more time to decide if a lower court judge properly struck down the voter-approved ban.

Siding with the ban’s supporters, the 9th U.S. Circuit Court of Appeals in San Francisco ruled the public doesn’t have the right to see the footage that former Chief U.S. District Judge Vaughn Walker had produced with the caveat it would be used only by him to help him reach a verdict.

Chief Judge Walker “promised the litigants that the conditions under which the recording was maintained would not change — that there was no possibility that the recording would be broadcast to the public in the future,” a three-judge 9th Circuit panel said in a unanimous opinion.

The 2010 trial over which Walker presided lasted 13 days and was the first in a federal court to examine if prohibiting gay couples from marrying violates their constitutional rights.

It was open to the public and received widespread media coverage, so the recordings would not have revealed any new evidence or testimony.

Walker, who has since retired and revealed he is in a long-term relationship with another man, originally wanted to broadcast the trial in other federal courthouses and on YouTube.

The U.S. Supreme Court forbade him from moving forward with that plan after the ban’s sponsors argued that distributing trial footage could subject their witnesses to harassment.

At the time, the 9th Circuit did not allow the federal courts within its jurisdiction to televise trials. The appeals court since has adopted rules that would permit trials to be broadcast under limited conditions.

“The 9th Circuit correctly ruled that when a trial judge makes a solemn promise, as Judge Walker did by assuring the parties that the trial video would not be publicly released, the judiciary must not be allowed to renege on its pledge,” said Austin Nimocks, a lawyer for the coalition of religious conservative groups that sponsored Proposition 8,

“To rule otherwise would severely undermine the public’s confidence in the federal courts by breaching the bond of trust between the people and their justice system,” he said.

The 9th Circuit has said it wanted to resolve the public release of the trial videos before it addresses the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds.

The appeals court panel heard arguments about that a year ago, but does not face a deadline for making a decision.

A coalition of media organizations, including The Associated Press, and lawyers for the two couples who successfully sued to overturn Proposition 8 in Walker’s court have petitioned to have the Proposition 8 trial recordings made public on First Amendment grounds. The group maintained the ban’s backers have not proven their witnesses would be harmed if people got to see what they said under oath.

Walker’s successor as the chief U.S. district judge in Northern California, James Ware, agreed in September and planned to unseal the videos. In its Thursday ruling, the three-judge 9th Circuit panel said Ware had erred and ordered the recordings kept under seal.

“The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments,” the appeals court said.

The panel also refused to return to Walker a copy of the recordings that Ware gave his colleague upon his retirement last year. Walker had used snippets of footage in public talks about the value of broadcasting court proceedings, but gave it back while the skirmish over the videos played out.

Gay rights advocates said they wanted to use the recordings to try to puncture political arguments used by opponents of same-sex marriage, but that Thursday’s decision would not be an insurmountable obstacle to that goal.

Screenwriter Dustin Lance Black, who serves on the board of the group funding the effort to overturn Proposition 8 in court, has written a play called 8 based on the trial transcript and interviews from the 2010 court fight that will premiere in Los Angeles next month with a cast that includes George Clooney, Jamie Lee Curtis and Martin Sheen.

“The fact that (the marriage ban’s backers) have gone this distance to keep the tapes from the American public, what it has done and increasingly will do, is inspire efforts that we will help lead to make sure the public knows what happened in the courtroom,” said Chad Griffin, president of the American Foundation for Equal Rights.

—  John Wright

Is Greg Abbott going to sit idly by while a federal court throws out Texas’ gay marriage ban?

Greg Abbott

Ten states have submitted a brief opposing same-sex marriage to the federal appeals court that will decide whether California’s Proposition 8 violates the U.S. Constitution, The Associated Press reports. But guess what? Texas isn’t one of them.

Anti-gay Texas Attorney General Greg Abbott, who’s fought to prevent Texas courts from recognizing same-sex marriage even for the limited purpose of divorce, has failed to get involved in a case that could ultimately result in the state’s marriage ban being thrown out:

Former Utah Sen. Scott McCoy, the first openly gay state senator, said Saturday he is not surprised Utah signed on to the opposition brief. If the California ruling against Proposition 8 is upheld, it would follow that Utah’s Amendment 3, which defines marriage as a union exclusively between a man and a woman, is unconstitutional, he said.

Abbott’s failure to get involved is even more surprising given that the brief filed Friday specifically argues that states, and not federal courts, should determine whether to allow same-sex marriage. As you may know, Abbott is all about states’ rights and protecting us from Washington and the evil federal government. So what gives?

We’ve contacted spokesman Jerry Strickland to find out why the Texas AG’s office has chosen to sit this one out, but thus far no response. Stay tuned.

—  John Wright

A platform of ideas — bad ideas

Even conservative LGBTs shouldn’t drink the Texas GOP Kool-Aid

Hardy Haberman Flagging Left

The Texas Republican Party just had their state convention here in Dallas, and it is worth noting that they passed a new platform as well. For LGBT citizens it is a very important document.

The GOP of Texas passed a platform that is more parody that politics. The vehement rhetoric contained in this document should send a clear message to the folks claiming to be LGBT Republicans that they are not listened to and not wanted in the GOP.

I am speaking of the Log Cabin crowd and the even stranger GOProud group. I ask point blank: How can you support a party who writes this into their platform?

“Homosexuality — Homosexual behavior is contrary to the fundamental, unchanging truths that have been ordained by God, recognized by our country’s founders, and shared by the majority of Texans. Homosexuality must not be presented as an acceptable ‘alternative’ lifestyle in our public education and policy, nor should ‘family’ be redefined to include homosexual ‘couples.’

“We are opposed to any granting of special legal entitlements, refuse to recognize, or grant special privileges including, but not limited to: marriage between persons of the same sex (regardless of state of origin), custody of children by homosexuals, homosexual partner insurance or retirement benefits. We oppose any criminal or civil penalties against those who oppose homosexuality out of faith, conviction, or belief in traditional values.

“Texas Sodomy Statutes — We oppose the legalization of sodomy. We demand that Congress exercise its authority granted by the U.S. Constitution to withhold jurisdiction from the federal courts from cases involving sodomy.”

For all the talk of changing the GOP from the inside that the Log Cabin Republicans use as their excuse for supporting that party, I fail to see how they have had any effect. This latest platform seems even worse than before. A giant step backwards — but I guess that is no surprise for the GOP.

As far as ENDA, well the Texas GOP made it pretty clear they don’t want any of them new-fangled equal rights laws: “ENDA — We oppose this act through which the federal government would coerce religious business owners and employees to violate their own beliefs and principles by affirming what they consider to be sinful and sexually immoral behavior.”

How about hate crimes? Well, the Texas Republicans have something to say about that as well and they wrap it in a paragraph cynically entitled “Equality of All Citizens”: “We urge immediate repeal of the Hate Crimes Law. Until the Hate Crimes Law is totally repealed, we urge the Legislature to immediately remove the education curriculum mandate and the sexual orientation category in said Law.”

Now lest you think this platform is damaging only to LGBT Texans, take heart. Anyone who works for a living is fair game as well. These two single-sentence planks made me shiver: “Workers’ Compensation — We urge the Legislature to resist making Workers’ Compensation mandatory for all Texas employers.”

And: “Minimum Wage — We believe the Minimum Wage Law should be repealed.”

Needless to say there are extensive planks about immigration and border security, and they include this little nugget, “The repeal of the birthright citizenship”: “Birthright Citizenship — We call on the Legislative, Executive and Judicial branches of these United States to clarify Section 1 of the 14th amendment to limit citizenship by birth to those born to a citizen of the United States: with no exceptions.”

This platform has something for everyone, or should I say against everyone. The politically astute will note that most of these changes seem to be a bow to the “tea baggers” and are simply appeasements that were never intended to be written into law. I suppose those professing to be LGBT Republicans would take this approach to reading this hate-filled document, but I think it is far more serious than that.

Writing off the party platform as inconsequential might work if you live with the cognitive dissonance that some people do. But the platform is the basis of decisions that will be made by legislators who are elected and it will be held up as a litmus test for any GOP candidate during an election.

So what is this all about? Well it’s about waking up and looking at the reality of the GOP in Texas.

The party has swung so far right it looks more like a fringe group than the mainstream. It’s time LGBT voters stopped deceiving themselves and realize the Republican Party has anything but your best interests at heart.

You can be fiscally conservative and still not drink this Kool Aid.

In fairness, I am a Democrat, and though the Democratic leadership has been disappointing in its movement forward on all LGBT issues, at least there has been some movement. Yes it’s not as fast as I would like, and yes, I criticize both my party and my president. But at least they do not believe I am somehow tearing at the moral fabric of the country by my mere existence.

So to my LGBT Republican brothers and sisters, I have to paraphrase a question from everyone’s favorite moose hunter, Sarah Palin: “How’s that whole change from the inside thing going for you?”

Hardy Haberman is a longtime local LGBT activist and a member of Stonewall Democrats of Dallas. His blog is at http://dungeondiary.blogspot.com.

This article appeared in the Dallas Voice print edition June 25, 2010.

—  Dallasvoice