Sealed Prop. 8 Records: Who Are The Real Victims?


On Monday, a panel of the U.S. Court of Appeals for the Ninth Circuit extended its decision to keep sealed the videos from Perry v. Schwarzenegger (the federal trial on California’s same-sex marriage initiative, Proposition 8).

Judge Vaughn Walker, the judge who presided over that trial, had recorded the trial for the purposes of facilitating arguments for both parties, and the U.S. Supreme Court at the time ruled that the recordings could not be broadcast in real-time because doing so would allegedly have exposed proponents of Proposition 8 to harassment. Though Judge Walker has since retired, his successor, Judge James Ware, ruled last month that the Supreme Court’s ruling applied only to a live broadcast of the recordings, and that they should be released due to the public’s interest in public trials. The Ninth Circuit disagreed and extended the stay pending appeal of the Proposition 8 case.

At issue is the balance between the public’s interest in having the videos publicly available, and the need to protect witnesses from likely threats to their safety. In my view, the Ninth Circuit erred in extending the stay for two primary reasons.

First, at issue was a voter-initiated ballot proposal. Both proponents and opponents of the initiative have a substantial interest not only in the outcome of the trial, but in the evidence presented on each side. That so many people want the videos to be released is, in itself, sufficient to show public interest. Thus the question becomes whether there is a sufficiently high risk of harm to the witnesses to outweigh the public’s interest.

To this second question, I would firmly answer “no.” The claim that the witnesses would be subject to harm is a transparent attempt by those with power to claim victimhood. Eyebrows should always raise when a group that has historically had ample political and social clout claims to be (or to be under the threat of being) a victim.

It is the pinnacle of irony that many of the people who served as witnesses for the proponents of Prop. 8 and who now supposedly fear for their own safety have no qualms about engaging in speech and behaviors that implicitly or explicitly condone violence against LGBT youth and adults around the country.