Keeping Same-Sex Marriage in the Dark

On
Wednesday, a conservative majority of the Supreme Court overturned a
ruling made by a federal trial judge that would have allowed limited
television coverage of a trial that will decide the fate of
California's Proposition 8. The trial, which is currently proceeding in
San Francisco, is one of the most significant civil rights cases of our
time. The plaintiffs are seeking to overturn a ballot initiative that
makes same-sex marriage illegal in California.

It was unusual
that the Supreme Court even decided to hear this case. The high court
takes very few cases. It generally decides issues about which the state
or federal courts are in conflict or cases that raise important
questions of federal law. Yet relying on the Supreme Court's
"supervisory power" over the lower courts, the five conservative
justices - Roberts, Scalia, Thomas, Alito and Kennedy - joined in an
unsigned 17-page decision and chided Chief Judge Vaughn Walker for
seeking to broadcast the trial without a sufficient notice period for
public comment.

Justice Breyer wrote in the dissent joined by
Justices Stevens, Ginsburg and Sotomayor that he could find no other
case in which the Supreme Court had intervened in the procedural
aspects of local judicial administration. Indeed, Breyer cited a case
in which Scalia wrote, "I do not see the basis for any direct authority
to supervise lower courts."

Moreover, in the comment period that
Walker did allow, he received 138,574 comments, and all but 32 favored
transmitting the proceedings.

The majority concluded that the
same-sex marriage opponents would suffer "irreparable harm" if the
trial were broadcast to five other federal courts around the country.
But all the witnesses who allegedly might be intimidated by the camera
were experts or Prop 8 advocates who had already appeared on television
or the Internet during the campaign.

No one presented empirical
data to establish that the mere presence of cameras would negatively
impact the judicial process, Breyer wrote. He cited a book that I
authored with veteran broadcast journalist David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice.
It describes studies that found no harm from the camera, and one which
found that witnesses "who faced an obvious camera, provided answers
that were more correct, lengthier and more detailed."

The five
justices who denied camera coverage noted at the outset that they would
not express "any view on whether [federal] trials should be broadcast."
Toward the end of their decision, however, they stated that since the
trial judge intended to broadcast witness testimony, "[t]his case is
therefore not a good one for a pilot program."

In my opinion, it
is no accident that the five majority justices are the conservatives
who, in all likelihood, oppose same-sex marriage. Why don't those who
oppose same-sex marriage want people to see this trial?

Perhaps
they are mindful of the sympathy engendered by televised images of
another civil rights struggle. "It was hard for people watching at home
not to take sides," David Halberstam wrote about Little Rock in The Fifties.
"There they were, sitting in their living rooms in front of their own
television sets watching orderly black children behaving with great
dignity, trying to obtain nothing more than a decent education, the
most elemental of American birthrights, yet being assaulted by a
vicious mob of poor whites."

The conservative justices may think
that televising this trial will have the same effect on the public.
Witnesses are describing their love for each other in deeply emotional
terms. Religious fundamentalists who oppose them will testify about
their interpretation of scripture. Gay marriage is one of the hot
button issues of our time. Passions run high on both sides. This is not
a jury trial in which jurors might be affected by the camera or a
criminal case where the life or liberty of the defendant is at stake.

In
spite of what the conservative majority claims, the professional
witnesses are not likely to be cowed by the camera. Modern broadcast
technology would allow the telecast without affecting the proceedings
in the courtroom.

There is overwhelming public interest in
this case. It will affect the daily lives of millions of people. The
decision denying limited broadcast coverage at this point effectively
eliminates any possibility that it will be allowed before the trial is
over. The conservative judges are using procedural excuses to push this
critical issue back into the closet.