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Hearing to Release Prop. 8 Trial Tapes Could Be a Game-Changer

Prop 8 trial Televising

A great piece from Karen discussing the AFER press call earlier this week -Adam

Cross-posted from

By Karen Ocamb

On Monday, Aug. 29, the American Foundation for Equal Rights, the group sponsoring the federal constitutional challenge to Prop. 8, goes before District Court Chief Judge James Ware in San Francisco to argue for the release of the video recordings of the entire Prop. 8 trial, now known as Perry v. Brown. Unfortunately, the hearing itself will not be recorded because, Ware said in a curt sentence, “the Defendant-Intervenors do not consent.”

This is not surprising. As AFER’s Board President and lead counsels Ted Olson and Ted Boutrous noted on an Aug. 25 conference call with reporters (full audio available below), the Defendant-Intervenors don’t want the public to know anything about their arguments, or tactics, their lack of supporting evidence or to have the truth about the motives behind Prop. 8 exposed.

AFER will argue that the public has a First Amendment right to know what happened in open court, especially since a full trial transcript is already public as are many pieces of evidence on the court’s own website. Additionally, Oscar-winning screenwriter Dustin Lance Black has penned a Broadway play simply called 8 which is having its Broadway premiere on Monday, Sept. 19 at the Eugene O’Neill Theatre in New York City with an all-star cast. The play is taken from the trial transcripts to better expose the public to what was actually said and took place in the courtroom—at the end of which Judge Walker declared Prop. 8 unconstitutional.

Griffin couldn’t comment on whether the release of the entire Prop. 8 trial video recordings might impact political efforts—such as the anti-gay campaign now underway to place a referendum on the 2012 ballot to overturn the California FAIR Education Act. But what could be more significant than an expert for the Prop. 8 proponents such as David Blankenhorn on the witness stand saying: “We would be more American on the day we permitted same sex marriage than we were on the day before.”

Or Prop. 8 proponent Ken Miller saying before the passage of Prop. 8 that the initiative was about “bypassing checks and balances at the expense of minorities” and that such measures “might indeed have been motivated by animus.”

This video from Religious Right extremists the Family Research Council’s Tony Perkins and Mile McPherson of the Rock Church in San Diego (both participated in Lou Engle’s anti-Prop. 8 rally TheCall) is already a part of the trial record and posted on the court’s website. Listen to how they talk about the supposed frightening “consequences” to children, something the anti-FAIR Act people are also warning:

Now surely some clever editor could splice together shots from the FRC tape with clips from the Prop. 8 trial to illustrate how the Religious Right lies in an explicit attempt to fool the public in the name of anti-gay bigotry. As AFER attorney Ted Boutrous says, let the public see expert witnesses on the stand testifying about “the consequences of discriminating against gay men and lesbians. And then the people can judge for themselves.” I think widely using the truth to brand the antigay bigots as liars makes suspect anything thing else they put forth—and could be a possible game-changer in the LGBT political arena.

The Courage Campaign has a petition drive going to try to get the court to release the full recordings of the trial. While some may question the effectiveness of petitions from the people, it is important to note that former District Court Judge Vaughn Walker noted during the Prop. 8 trial that he had received a petition with thousands of signatures. It does not go unnoticed.

AFER lead attorney Ted Olson summed up what the hearing will be about on Monday this way:

“The hearing is whether or not the American public will be able to see with their own eyes and listen with their own ears to the testimony that happened in a trial that effects the constitutional rights of hundreds of thousands of Californians and millions of Americans and people throughout the world. The proponents of Proposition 8 did not want a trial, they did not want testimony of witnesses under oath, they did not want experts testifying about the damage that’s done by discrimination against gay and lesbian individuals, they did not want evidence about the value of marriage and the importance of marriage as a fundamental right in this country, they did not want the public to see the truth. They did not want—and they do not want—the public to see a trial that took place a year and a half ago. They want to keep that in the dark. They want to influence public opinion about these issues through their advertising.”

Attorney Ted Boutrous, who will be arguing the case on Monday, told reporters:

“One of the great traditions we have in our country is that we have open courts and the public has, as a First Amendment Right, access to judicial records and to court proceedings. That’s’ really what’s at stake in hearings on Monday.”

Boutrous said that the U.S. Supreme Court and federal courts have held that right of access is really

“core to self-governance and our democracy because it allows the people to see and hear from themselves what’s happening in the courtrooms where juries and judges are deciding some of the most important issues of the day. This case, we believe, is the quintessential example of the type of case where the public should have maximum access and we have the best possible record—the video and audio of exactly what happened in the courtroom. There’s nothing secret about the materials—it all took place in open court.”

Boutrous said that in addition to exposing weaknesses in the case, the public would get to see experts testifying to

“the consequences of discriminating against gay men and lesbians. And then the people can judge for themselves.

We’re going to be arguing on Monday there is absolutely no judicial basis to keep this record secret: it happened in a public courtroom; the arguments about the witnesses being afraid are completely baseless—the proponents never brought any evidence forward; and of course, the testimony that occurred, some of it is posted on the court’s website from experts from the proponents. It’s a complete distraction. It was the only argument the proponents could come up with—to try to explain why they wanted the trial proceedings to be kept secret once they were videotaped. So we think we have extremely powerful arguments for the release of the video tapes.”

Griffin also argued that the hearing will expose the Prop. 8 proponents—of the same anti-gay ilk as those trying to overturn the California FAIR Education Act—are liars:

“There is a difference between fact and fiction and we all need to focus on that difference as we all enter into Monday’s hearing. Throughout the trial and since, the anti-marriage proponents of Proposition 8 have consistently argued that the two witnesses and those that did not come to trial feared intimidation. …

These are witnesses who are incredibly outspoken public figures: they teach college classes, they get paid to speak, they have done debates around the world on these issues, they have sought incredible publicity as they have published their books, their articles, their newsletters, and have done a whole host of media appearances, television, print, radio….

What’s clear is that these are individuals who have sought their entire careers, publicity. The one difference in this trial was that the witnesses were going to be under oath and penalty of perjury and they were to be cross-examined. And that was what was unique in this trial…. So it’s very clear why the anti-marriage proponents of Prop 8 don’t want these tapes released.”

On the call, Chad Griffin, Ted Boutrous and Ted Olson referenced a few key documents available here.


  • 1. DaveP  |  August 27, 2011 at 8:37 am

    Ok, Ok, you've convinced me : )

    I'll be there Monday.

    See you guys there!

  • 2. Ann S.  |  August 27, 2011 at 11:32 am

    Yay, see you there!

  • 3. Sheryl, Mormon Mom  |  August 27, 2011 at 12:57 pm

    Will be good to see you again.

  • 4. Alan_Eckert  |  August 27, 2011 at 9:35 am

    #1 argument: "But they'll make fun of our expert witness, the highly credible Blankenhorn!"

  • 5. AnonyGrl  |  August 27, 2011 at 9:43 am

    And indeed, they would be right! We ARE going to make fun of their expert witless… errr… witness. So?

    This is fun! What have we got for argument #2?

  • 6. Ronnie  |  August 27, 2011 at 11:38 am

    Argument #2: We don't need no stinkin' argument #2 or evidence…………. ; ) …Ronnie

  • 7. Elizabeth_Oakes  |  August 27, 2011 at 12:31 pm

    Argument #2 will be that the Plaintiffs will manipulate the footage for political reasons, and this case is controversial so releasing the tapes would be inflammatory. Argument #3 will be that the transcripts are already public and dramatizations based on them exist, so there's no need to release the tapes before SCOTUS hears any final appeal.

    Argument #4 will be that the tapes are prejudicial (an ironic acknowledgment of how badly they screwed up, though they'll claim the prejudice is animus against religionists or something.) Argument #5 will be some vague blustering about how they are being threatened and harassed and they're the real victims here and are skeeeered of The Gathering Storm of gay animus against them. The only question will be at what point Judge Ware hollers "SHUT UP WITH THE WHINING ALREADY!"

  • 8. Elizabeth_Oakes  |  August 27, 2011 at 12:33 pm

    ( and I hope he says it in the fuzzy owl's voice.)

  • 9. _BK_  |  August 27, 2011 at 11:10 pm

    Ooh, Elizabeth… Arguments #2 and #3 could easily convince many of the half-wits out there. Scary.

  • 10. Sagesse  |  August 27, 2011 at 9:49 am

    Click the link at the very bottom of the post to see the documents posted on the AFER site. They were referred to in the press conference, but weren't up at the time.

  • 11. Elizabeth_Oakes  |  August 27, 2011 at 10:00 am

    I wish I could get my hopes up here. I think we're going to get a mixed ruling, something along the lines of, "the tapes can be released to the public after the final appeals are heard at SCOTUS." It's true that we would gain a major political advantage having the tapes available, and I'm going to guess that the notion of "trying this case in the court of public opinion" will be raised as an argument against releasing the tapes before a final determination is reached.

    Still, I'm glad this issue was raised, and if anyone can argue well for it, Ted 'n' Ted can. All nervous about Monday, though.

  • 12. Steven  |  August 27, 2011 at 2:26 pm

    There ARE NO guarantees that SCOTUS will hear Prop 8 case, especially if there is no standing for Prop 8 supporters. Most of legal experts say CA Supreme Court will say there is no standing.. I don't know. We might know what CA Supreme Court's decision will be within 20 mins of oral arguments based on their questions that they will be asking the attorneys.

  • 13. Elizabeth_Oakes  |  August 27, 2011 at 5:43 pm

    SCOTUS will most certainly receive an appeal on either standing or merits, and they may deny the appeals or refuse to grant cert, but this final determination in this case WILL be made by SCOTUS one way or the other.

    As for the CA Supremes, my understanding is that their ruling will be taken into consideration by the Ninth Circuit, but the CA court is not making the final ruling on the standing issue.

    That said, the issue of initiative proponents having standing to defend has been bouncing around the courts like a legal hot potato for some time now, and I doubt the CA Supremes are happy it landed in their lap. Their ruling will have national impact as a result, so I doubt they'll be hasty about it.

  • 14. Steven  |  August 27, 2011 at 6:44 pm

    RE: SCOTUS will most certainly receive an appeal on either standing or merits, and they may deny the appeals or refuse to grant cert, but this final determination in this case WILL be made by SCOTUS one way or the other——
    There are 3 possible outcome of an appeal:

    1- If CSC says no standing and 9th Circuit agrees 90% chance that SCOTUS will deny an appeal based on STANDING ISSUE. So 9th Circuit will have last word
    or they accept the appeal- unlikely ON STANDING ISSUE!!
    2-if CSC says standing and 9th Circuit agrees they will go forward to rule on merits and it CAN be appeal to SCOTUS on merits. there ARE NO GUARANTEES that they will accept the appeal. Look at Washington DC marriage equality lawsuit. They denied the stay and reject the appeal.. that speaks volumes for marriage equality arguments. They only need 4 justices to accept an appeal..
    3- SCOTUS WILL hear the case on standing issue and merits..
    Most likely, 9th Circuit will follow CSC's recommendation. They will have a decision by December 1st.

  • 15. Elizabeth_Oakes  |  August 27, 2011 at 8:50 pm

    I guess we disagree on terminology, Steven, though we mean the same thing. Per all your possibilities, it is SCOTUS that has the last word no matter what, because they decide whether what the Ninth rules will stand, no matter whether it's on merits or standing. And I'm not entirely convinced they wouldn't accept an appeal re: standing–the issue is a complex one and they may want to have their say on it before putting it to bed.

  • 16. Ann S.  |  August 27, 2011 at 9:01 pm

    Elizabeth, one can never predict with any certainty what the SCOTUS will do, of course, but I agree with Steven that it is unlikely they would accept the appeal if standing is denied by the 9th.

  • 17. Elizabeth_Oakes  |  August 27, 2011 at 9:44 pm

    I agree that it does seem most likely they won't review a ruling that denies standing, and that's also what most people are saying, but as we know…a lot of people saying something doesn't make it a fact. ALL I'M SAYING is I wouldn't be surprised if they decided to grant cert on an appeal re: standing so they can have their say on the matter. It seems to me (recalling the dicta in Arizonans) they have an opinion and might choose to take this opportunity to universalize that opinion. But IANAL, so I can't project the odds as well as some others might.

    I think we all agree that, no matter what the Ninth decides, that decision will be appealed to SCOTUS. It won't be over until SCOTUS sings, be it by granting cert or refusing it. I am in the camp that prefers the shortest appeals timeline, even if that means a more localized ruling, and most seem to think the fastest way is a denial of standing by the Ninth with a refusal to hear further appeal on standing by Scotus. That's fine with me, but one thing I've learned following this from the original CA Supreme Court ruling granting marriage equality through Prop 8 through Horton through Walker's ruling to now: prepare to be surprised.

  • 18. Ann S.  |  August 27, 2011 at 9:52 pm

    The SCOTUS could surprise us all and take the case, no doubt.

  • 19. Sagesse  |  August 28, 2011 at 5:36 am

    Elizabeth, IANAL either, but I am with you when it comes to standing. This is an important issue and the legal process deserves whatever clarity is to be had so it can move on. So I believe SCOTUS would hear an an appeal on standing. But whatever SCOTUS might have to say about 'standing' has everything to do with what they think about 'standing', and not so much to do with the merits of marriage equality. Just as the ruling on broadcasting the trial had everything to do with what they thought about cameras in the courtroom, and not so much to do with marriage equality.

  • 20. Bob  |  August 27, 2011 at 11:41 am

    In response to video from religiious right,,,,, I'm attempting a link to the most comprehensive letter from a preacher, explaining why they're wrong,,,, hope this works,,, it's LtoLou_R2fm titled a Letter to Louise,,,, oh doesn't look like link worked but google LtoLou_R2fm great letter

  • 21. Sarah  |  August 27, 2011 at 12:22 pm

    That can be found at It is certainly a wonderful and detailed letter that I have used to help explain to others how I came to know that God still loves me.

  • 22. Ann S.  |  August 27, 2011 at 2:03 pm

    Thanks, Sarah, I passed that link along to someone I'm having a conversation with on another forum — she seems to be open-minded and found much to think about at, so there may be hope for her.

  • 23. Bob  |  August 27, 2011 at 3:46 pm

    thanks so much Sarah,,,, I think that is such a great letter,,,, to counter the lies,,,, thanks for the help with my utter fail at linking,,,, and I'm going to check out your link thanks AnnS

  • 24. Sheryl, Mormon Mom  |  August 27, 2011 at 12:58 pm

    Is there going to be a rally before the hearing?

  • 25. Ann S.  |  August 27, 2011 at 2:03 pm

    Sheryl, I imagine there will — but I don't have any specifics. If I find out more I'll post it.

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