Bloomberg News

Gay Marriage Trial Video Can’t Be Made Public, Court Rules

February 02, 2012

(Adds judge in second paragraph.)

Feb. 2 (Bloomberg) -- A video recording of the nation’s first federal trial over whether it’s legal to ban same-sex couples from marrying must remain secret, a U.S. appeals court said as it considers a challenge to California’s Proposition 8.

U.S. District Judge James Ware in San Francisco abused his discretion when he ruled the recording of the 2010 proceeding over the ballot measure’s constitutionality could be made public, the court ruled today.

The panel has yet to rule on whether Ware erred when he refused to throw out another judge’s decision overturning Proposition 8. Its supporters argued that U.S. District Judge Vaughn Walker, who disclosed after the trial that he was in a long-term relationship with a male partner, should have disqualified himself from the case. Walker retired a year ago.

Proposition 8 amended California’s constitution to say marriage is between one man and one woman. In August 2010, Walker ruled gay couples demonstrated by “overwhelming evidence” Proposition 8 violates equal protection rights. The ruling has been put on hold as litigation over the issue has proceeded through the courts.

In barring release of the video, the three-judge panel of the U.S. Court of Appeals in San Francisco said Walker had “unequivocally promised” the parties the recording wouldn’t be publicly broadcast. He allowed the trial to be videotaped saying he would use the recording in reaching a decision.

Ware had ruled the recording could be made public after Walker used parts of it in connection with his teaching and public speaking. Proposition 8 backers opposed unsealing the recording, saying it put witnesses at risk of being harassed.

“The trial judge’s representations to the parties were solemn commitments,” the panel said in the ruling.

The case is Perry v Brown, 11-17255, U.S. Court of Appeals for the Ninth Circuit (San Francisco).

--Editors: Peter Blumberg, David E. Rovella

To contact the reporter on this story: Karen Gullo in San Francisco federal court at

To contact the editor responsible for this story: Michael Hytha at

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