The Supreme Court, by a 5-4 vote, has stayed the broadcast of the big gay marriage trial taking place in San Francisco. The Court’s opinion starkly sets forth the thuggery that advocates of the proposition have faced in public, like:
Proposition 8 was passed by California voters in November 2008. It was a ballot proposition designed to overturn a ruling by the California Supreme Court that had given same-sex couples a right to marry. Proposition 8 was and is the subject of public debate throughout the State and, indeed, nationwide. Its advocates claim that they have been subject to harassment as a result of public disclosure of their support. . . . For example, donors to groups supporting Proposition 8 “have received death threats and envelopes containing a powdery white substance.” Stone, Prop 8 Donor Web Site Shows Disclosure is a 2-Edged Sword, N.Y. Times, Feb. 8, 2009. Some advocates claim that they have received confrontational phone calls and e-mail messages from opponents of Proposition 8, ibid., and others have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment . . . Opponents of Proposition 8 also are alleged to have compiled “Internet blacklists” of pro-Proposition 8 businesses and urged others to boycott those businesses in retaliation for supporting the ballot measure. Carlton, Gay Activists Boycott Backers of Prop 8, Wall Street Journal, Dec. 27, 2008. And numerous instances of vandalism and physical violence have been reported against those who have been identified as Proposition 8 supporters.
This is disgusting.
Ultimately, the Court issued the stay based on a very technical issue: the rules were changed without an adequate period for public comment. Yet the split of Justices (the conservatives plus Kennedy voting for the stay, and the four liberals dissenting) indicates that there is something more going on than a mere technical issue of procedure. My guess is that Scalia & Co. think the case is nonsense, and don’t want the defendants to be harassed as described above.
I understand their thinking. I’m a Proposition 8 opponent, but I agree that this case is nonsense. Laws like this should not be invalidated by judges. And the law’s supporters should not be intimidated. When televised broadcasts lead to campaigns of intimidation, that’s not good for the process.
Yet I still tend to think the trial should be public.
I think Judge Kozinski’s letter to the Judicial Conference of the United States makes a nice case for the concept of opening up the process to public scrutiny.
Kozinski argues: “While the Judicial Conference has not formally considered this matter [since 1996], a great deal has happened in the world since then, notably the advent of affordable video systems and the proliferation of the internet. Technology has changed the way trials are conducted and reported. The public, too, demands far more transparency from its public institutions today than it did in 1996.” Kozinski notes that his Ninth Circuit makes digital audio recordings of oral arguments available, and video records and broadcasts a substantial number of arguments. “Even the Supreme Court is now releasing audio recordings — sometimes in near-realtime.”
I still remember watching the oral argument regarding the timing of the recall election in California, and I think broadcasting that proceeding contributed to the public’s understanding of the Ninth Circuit’s role in the process (in one of the few cases they got right). Broadcasting there was the right thing to do.
And my concerns go deeper than Kozinski’s general enthusiasm for openness. If a federal court is potentially going to invalidate laws against gay marriage based on a trial, don’t you think the trial should be open to public scrutiny? I felt the same way about an obscure trial in Nebraska that led to a ban on laws against partial-birth abortion. The sweeping powers that the federal judiciary have arrogated to itself demand scrutiny — and in the Internet age, we’re not content for the scrutiny to be filtered though the lens of a liberal media.
On balance, I vote for openness — and for coming down hard on those who use intimidation as a weapon. Which I guess sets me against my favorite Justices, and Justice Kennedy.
But it’s not an easy question to answer. I’m willing to be persuaded otherwise, if someone can make a compelling argument.