American Foundation for Equal Rights

Plaintiffs Challenging Proposition 8 Call for Transparency and Public Access to Trial Video

Anti-Marriage Proponents Unable
to Substantiate Claims for Keeping Video Sealed;
Continue with Desperate Motion to Vacate Judgment

**Ninth Circuit to Hear Oral Arguments
on Thursday, December 8 at 2:30pm PT**

San Francisco, CA – Plaintiffs in Perry v. Brown, the landmark federal constitutional challenge to California’s Proposition 8, will go before the U.S. Court of Appeals for the Ninth Circuit this week to present oral arguments explaining why the videotapes of the Proposition 8 trial should be publicly accessible and why Proponents’ motion to vacate judgment is meritless.

This will likely be the final hearing before the Ninth Circuit issues a ruling on the U.S. District Court’s August 2010 decision that struck down Proposition 8.  Oral arguments on Thursday will be broadcast live.

Earlier this year, Plaintiffs moved to unseal the trial video recording in the district court, citing the presumption of access to judicial records under the First Amendment and common law.  On September 19, 2011, U.S. District Chief Judge James Ware agreed with Plaintiffs, emphasizing that “Transparency is pivotal to public perception of the judiciary’s legitimacy and independence.”

Proponents immediately appealed Chief Judge Ware’s decision, claiming that one of their two witnesses “regretted” testifying, yet they did not give any reason for that regret. Their star witness, David Blankenhorn, has publicly stated that he never felt threatened.  Plaintiffs’ reply brief strongly refutes Proponents’ allegations (pp 15-16):

It has been almost two years since the Perry trial concluded, and after countless public reenactments, intense media attention, and publicly disseminated transcripts, Proponents still have offered no evidence whatsoever that their witnesses were in fact harmed as a result of their testimony in this case or would be harmed if the trial video were unsealed. Instead, they fall back on the same unsubstantiated claims of witness harassment and intimidation they have made before. But their purported “evidence” of harm to Proposition 8 supporters generally, cannot suffice to demonstrate their witnesses’ alleged fears. The witnesses themselves have never expressed any such fear or claimed to have suffered any actual harassment, even though their names, likenesses, and professional and educational affiliations have been publicly known all along. In fact, at least one of their two expert witnesses has publicly rejected Proponents’ claim that he “voiced ‘concerns for [his] own security’” as a result of his participation in the trial. Proponents assert another of their expert witnesses “regretted his decision” to testify, but nowhere explain the reason for this newfound regret. It seems far more likely he regrets his decision because of his ineffectual testimony on cross-examination than because of any illusory safety concerns. Moreover, the fact that a witness later “regrets” the testimony that he gave under oath does not in any way diminish the public’s right to access and scrutinize that regrettable testimony.

A coalition of media companies and organizations that includes the Los Angeles Times, CNN, The New York Times, FOX News, NBC News, Dow Jones & Co. and The Associated Press will participate in oral arguments on December 8 in support of Plaintiffs’ effort to release the trial tapes.

The Ninth Circuit will also hear oral arguments on Proponents’ baseless and offensive attempt to impugn the reputation of the U.S. District Chief Judge who struck down Proposition 8.

Unable to defend Proposition 8 on its merits, Proponents claim that the now-retired Chief Judge Vaughn R. Walker was disqualified from ruling on Proposition 8 because he is gay and in a same-sex relationship.  Since Chief Judge Walker did not recuse himself, Proponents argue that his historic decision should be vacated.  Their desperate attack on Chief Judge Walker was roundly rejected by Chief Judge Ware in June 2011, who observed that “we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right.” 

It is anticipated that the Ninth Circuit will issue a decision on the merits of the case soon after it has heard arguments on the trial tapes and motion to vacate appeals.

“The desperation of the anti-marriage forces shows how little they respect the Constitution,” said American Foundation for Equal Rights Board President Chad Griffin.  “Not content with relegating gay and lesbian Californians to second-class citizenship, the proponents of Proposition 8 now seek to deprive ALL Americans of their First Amendment right to see what happened at the historic trial.  Proponents’ shameful attacks on our Constitution and on Chief Judge Walker are an insult to all Americans who trust in the integrity of the federal judiciary and its commitment to the rule of law.” 

Plaintiffs’ lead co-counsel Theodore B. Olson will present the oral argument advocating for the release of the trial tapes at 2:30pm PT.  Plaintiffs’ lead co-counsel David Boies will present the oral argument regarding Proponents’ motion to vacate judgment at 3:30pm PT.

Elizabeth Riel 323.892.2081 or
Brandon Hersh 202.412.9766 or


About the American Foundation for Equal Rights

The American Foundation for Equal Rights is the sole sponsor of the Perry case. After bringing together Theodore B. Olson and David Boies to lead its legal team, AFER successfully advanced the Perry case through federal district court and is now leading it through the 9th Circuit Court of Appeals before the case is brought to the United States Supreme Court. The Foundation is committed to achieving full federal marriage equality.