The latest skirmish in the legal battle over Proposition 8 was sparked when Vaughn Walker, the judge who struck down the law last year, decided to play a clip of the case during a lecture.
Walker had originally wanted the trial to be broadcast live, but the U.S. Supreme Court stepped in to block the broadcast. However, Walker still allowed the cameras to stay in the courtroom to record the proceedings for his notes. Then in February, Walker used a clip as part of his lecture, "Shooting the Messenger: How Cameras in the Courtoom Got a Bad Rap," at the University of Arizona.
In the clip, Attorney David Boies cross examines one of the witnesses supporting Proposition 8.
"Now, are you aware of any of what you call official discrimination against gays and lesbian in this country today other than the Don't Ask Don't Tell policy?" Boies asked.
The question was met with a very long silence, before the witness acknowledged that laws like Prop. 8 meet his own definition of government-sponsored discrimination.
Nearly two months later, the attorneys who defended Proposition 8 in court filed a motion with the Ninth Circuit Court of Appeals. They argue Walker used the tape illegally, in light of the U.S. Supreme Court's blocking the broadcast.
"So it's essentially a defiance of court orders, and we need the courts to follow their own rules," said attorney Andrew Pugno, who represented Prop. 8. "A judge going rogue with a copy of confidential records of the court and distributing them publicly throws the legitimacy of this case into question."
The legal team supporting Proposition 8, including Pugno, filed a motion asking for Walker turn over all of his tapes.
In a letter to the court, Walker defends his use of the recordings. He views them as part of his "personal papers."
But Stanford Law Professor Michael McConnell disagrees. "They can't be run over television, so why can they be used in a private speech?" McConnell asked.
Proposition 8 supporters had argued that cameras would intimidate witnesses, who feared retribution by supporters of same-sex marriage.
Theodore Boutrous, part of the legal team fighting Proposition 8, says that there was another reason: "Their witnesses could not explain in a rational away why same-sex couples in California, or anywhere else, be denied the right to marry. That's why they want to keep these tapes secret. That's why they fought against broadcasting the trial. That's really at the heart of this dispute."
Boutrous also points out that the trial was very public. Court transcripts of the entire proceedings were released, which were even used by actors in Los Angeles to perform the entire trial verbatim on YouTube.
"What would you rather have people learn how the court's functioning, would you rather have them listen to the Prop. 8 musical, a re-enactment or the real thing?" Walker noted in his speech in Arizona. Which in itself was broadcast on C-SPAN.
A coalition of media organizations -- including the Los Angeles Times and KQED -- filed a motion in support of making the tapes public, saying keeping them sealed is an infringement of their First Amendment rights.
U.C. Hastings Law Professor David Levine notes that there's still the problem of the U.S. Supreme Court who ruled the proceedings should not be broadcast though.
"Normally the First Amendment argument would be very strong here, would trump just about any other concern," Levine said. "But here we have the arbiter of the what the Fist Amendment says having already ruled in the other direction."
Walker was scheduled to use the video segment again at Gonzaga Law School in Washington State. But in deference to the legal controversy he used recordings from a different courtroom drama: the Nuremberg Trials of Nazi leaders after World War II.
