The historic federal trial on the constitutionality of California's ban on same-sex marriage – a trial that the Supreme Court would not allow to be broadcast as it happened – may soon be appearing on television and on the Internet. A federal judge in San Francisco ruled Monday that a videotape recording made of the 13-day Proposition 8 trial early in 2010 must now be released, and thus available for public broadcast. U.S. District Judge James Ware, however, put his release order on hold for 11 days to allow those challenging the release to appeal to the Ninth Circuit Court. ""Once an item is placed in the record of judicial proceedings," Judge Ware wrote in his 14-page opnion, "there must be compelling reasons for keeping that item secret." He found no such reasons advanced by the backers of the voter-approved state ban on gay marriages. "No compelling reasons exist for continued sealing of the digital recording of the trial," Ware concluded. He delayed the effective date of his order until Sept. 30 so that the issue could be put before the Ninth Circuit. Since the Proposition 8 backers have pursued appeals following other losses in court, they are expected to do so with this order, too. Although Judge Ware insisted that his decision was quite narrow – he did not decide on the legality of TV broadcasting of trials, for example – the symbolic importance of the decision is beyond doubt. It strongly reinforced a right of access – based on the "common law" – to the records of federal trials in highly visible cases. The Proposition 8 trial had an extremely high profile as the first major constitutional assault on bans on same-sex marriage. It is widely expected that this case ultimately will go to the Supreme Court. The trial recording is in the form of MP 3 files. It was made on orders of the trial judge, now-retired U.S. District Judge Vaughn R. Walker, for his use and the use of the lawyers in the case during and after the trial. Originally, Walker had planned to allow the trial to be broadcast through video streaming from his San Francisco courtroom to several courthouses around the country – a release that would have led to public broadcast of the trial as it unfolded. But, two days into the trial in January 2010, the Supreme Court barred any release of the videtape beyond the San Francisco courthouse. After the trial, Judge Walker ordered the tape sealed, as part of the trial record. The two gay-couples who challenged Proposition 8, joined by media groups, urged its public release, but Proposition 8′s backers vigorously opposed that. In ordering the video file released, Judge Ware rejected an argument by the ban's supporters that he was contradicting the Supreme Court's Jan. 13, 2010, order against broadcasting the trial. The Supreme Court, the judge concluded, only dealt with the issue of whether the order allowing broadcast was in violation of local court rules. The Justices, he added, were dealing only with procedural issues, and did not rule upon the legality of broadcasting trials. The recording, Ware went on to rule, was made within the local court rules as they now exist, allowing some experiments in broadcasting. In any event, he said, the local rules do not alter the common law assumption in favor of public access to records of court proceedings. If the new order is in fact appealed to the Ninth Circuit, it will join two other cases already there in the running legal and constitutional controversy over Proposition 8. Already pending in the Circuit Court are two appeals growing out of Judge Walker's ruling striking down Proposition 8 as a violation of the federal Constitution. The proponents have filed an appeal of that ruling on the merits, and they have filed a separate appeal arguing that all of Judge Walker's August 2010 ruling should be wiped out because he had failed to disclose before or during the trial that he himself is gay and is in a long-term gay relationship and thus might be eligible to wed if the ban were struck down. Judge Ware rejected the unfairness claim earlier. It is unclear when the Circuit Court will decide any of those issues. A three-judge Circuit panel has held a hearing on the merits of Walker's ruling, but it has since asked the California Supreme Court to give it some advice on whether California state law allows the Proposition 8 backers to defend their measure in court, when state officials have refused to do so. The state Supreme Court held a hearing on that issue earlier this month, and is expected to issue a decision within 90 days. The merits case then returns to the Ninth Circuit. The appeal challenging Judge Walker's fairness in conducting the trial is now in its early stages in the Circuit Court. Although Judge Ware had previously rejected the claim of unfairness, he refused yesterday to base his ruling in releasing the videotape on an argument by the opponents of Proposition 8 – that they needed to be able to use that recording as they defended the fairness of the trial in the Circuit Court. That is up to the Ninth Circuit, the judge said. Presumably, the Circuit Court will act swiftly on any appeal of the video release order, since Ware has only allowed 11 days to pursue such an appeal. The Circuit Court, on its own, however, could delay the order for a further period if it wished. The two same-sex couples who have challenged Proposition 8 argued in favor of the video's release both on the common law right of access to judicial records, and on a claim of public access under the First Amendment. Judge Ware did not rule on the First Amendment claim, confining his decision solely to what the common law has had to say on such access. While the technical nature of the release decision made it quite limited, Judge Ware used sometimes soaring rhetoric to justify public access to the records of public trials. For example, he began his opinion this way: "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 the record of judicial proceedings." He also wrote: "While the political branches of the government can claim legitimacy by election, judges can only do so by way of their reasoning; thus, any step that withdraws an element of the judical process form public view makes the ensuing decision look more like fiat and requires rigorous justification….Therefore,… it is imperative that courts impede scrutiny of the exercise of that judgment only in the rarest of circumstances."
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