By LISA LEFF, Associated Press
SAN FRANCISCO (AP) — 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.
"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,
The 9th Circuit still must resolve the more substantive issue of whether Walker correctly struck down Proposition 8 on federal constitutional grounds. The appeals court panel heard arguments on that issue 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 had petitioned to have the Proposition 8 trial recordings made public on First Amendment grounds.
Jack Stokes, a spokesman for the AP, said the news organization had no comment on the ruling.
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 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.
Gay rights advocates said they wanted to use the recordings to try to puncture political arguments used by opponents of same-sex marriage.
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 have its Los Angeles premiere next month.
"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.
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