The Supreme Court just issued one of its most disturbing decisions since Bush v. Gore in Perry v. Schwarzenegger, the federal challenge to California’s Prop. 8. Ironically, the plaintiffs' lawyers in Perry, Ted Olson and David Boies, represented opposing sides in Bush v. Gore. Yesterday, the U.S. Supreme Court decided that video of the Perry trial could not be streamed live to courthouses in other cities.
What is most disturbing about this ruling is the way the Court got to its decision. The Court said essentially that it was acting because the District Court (where the Perry challenge to Prop. 8 is being tried in San Francisco), hadn’t followed the required process on how to change its rules to allow video recording. But the Supreme Court itself, as Justice Breyer pointed out in a dissent (for himself and Justices Ginsburg, Stevens and Sotomayor) failed to follow its own rules in deciding to consider the taping. Those rules would have pretty much precluded Supreme Court review of this kind of order at this stage of the case.
Reading between the lines, what emerges is a deep solicitude on the Supreme Court for those who proposed Prop. 8. The Court relies on unsubstantiated claims of threats to say that the proponents of Prop 8 and their experts would face a real possibility of harm if the trial were to be broadcast. Though both the proponents and their experts have publicly supported excluding same-sex couples from marriage, the Court says that there is a “qualitative difference” (whatever that means) between publicly advocating a position and having ones’ public advocacy broadcast throughout the nation on YouTube. But the rule that our courts have to be open to the public is as old as the Constitution.
One of the really great things about this trial was the Judge’s insistence that the supporters of Prop. 8 would have to prove their claims that marriage for same-sex couples would somehow hurt society. Whatever one may have thought about the wisdom of bringing the case from a legal standpoint, the case has powerful public education possibilities. I was eager to finally have America hear how the marriages of same-sex couples somehow “damage” the marriages of straight couples. That the answers to questions like that would be available on the web opened the possibility that we could get many more Americans to see how empty the opposition to same-sex marriage is.
While this Supreme Court order doesn’t eliminate the potential public education value of the trial, it certainly diminishes it. It’s hard not to regret the loss of that, and not to worry a bit about a Supreme Court so willing to overlook its own rules to protect the opponents of marriage. Memories of Bush v. Gore.