The case has generated enormous interest among both supporters and opponents of gay marriage. At issue in the two-week trial is whether California’s Proposition 8 ballot initiative banning gay marriage violates US constitutional protections of due process and equal protection. The case, legal analysts say, could work its way through the appeals process to the Supreme Court itself.
Wednesday’s ruling did not address the merits of that dispute. Instead, it focused on whether the trial court acted properly in adopting a new policy allowing remote broadcasts and potentially broadcasts of the trial on the Internet.
“The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow the broadcasting of this high-profile trial without any considered standards or guidelines in place,” the court majority wrote in an unsigned opinion.
The trial judge, the Supreme Court justices said, attempted at the 11th hour to change the federal rules that restrict broadcasts of trials. The effort meant that he was treating the Prop. 8 trial differently from other trials in the same courthouse, said the justices.
“If courts are to require that others follow regular procedures, courts must do so as well,” the majority justices said.
Although the decision was unsigned, it was supported by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito.
Justice Stephen Breyer wrote a dissent, suggesting he would have allowed the trial judge to proceed with his plan.
“This legal question is not the kind of legal question that this court would normally ... consider,” Justice Breyer wrote. “There is no conflict among the state or federal courts regarding the procedures by which a district court changes its local rules.
”According to Breyer, 42 states and two federal district courts currently give judges the discretion to allow the broadcast of civil nonjury trials like the Prop. 8 trial.
Breyer’s dissent was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor.
The broadcast issue arose in recent weeks after Chief US District Judge Vaughn Walker announced a policy change permitting remote broadcasts of the Prop. 8 trial.
Under Judge Walker’s proposal, those interested in watching the trial could view a real-time broadcast relayed to courtrooms in Pasadena, Calif.; Seattle; Portland, Ore.; Brooklyn, N,Y.; and San Francisco. In addition, there were possible plans to broadcast on YouTube.
Those challenging the constitutionality of Prop. 8 favored the remote broadcasts. But some of the supporters of the gay-marriage ban opposed broadcasting the trial, expressing concern that it might exacerbate harassment and threats they’d received because of their position.
The Supreme Court’s majority opinion notes that some individuals had received death threats, envelopes containing a powdery white substance, confrontational phone calls, threatened boycotts, and vandalism. Some witnesses said they would not testify if the trial were broadcast, the justices noted.
In contrast, the majority said, the other side in the Prop. 8 lawsuit had not alleged any harm if the trial were not broadcast.
Breyer countered in his dissent: “All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts.”
He added, “Literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of the witnesses.”
The majority's play-by-the-rules piety ignores two points. One, the federal courts have had about six decades to experiment and pilot various arrangements for letting the public view judicial proceedings on their television screens, and for all their progress—or even interest in progressing—you would think the 1935 Lindbergh kidnapping trial was only last week.
Two, the rules are not as binding on the lower federal courts as the majority would have the public believe. Senior Ninth Circuit Judge Alex Kozinski was scolded in recent days by the Judicial Conference for tolerating Judge Walker's order, but gave as good as he got.