Following up on its Monday interim order, the U.S. Supreme Court this afternoon issued an order barring the broadcasting of the trial against Proposition 8 in California by a vote of 5-4.
This comes as a relief to Proposition 8 advocates who believe that broadcasting the trial would turn this into a circus, with those testifying in behalf of traditional marriage subject to the same kind of public intimidation and retribution as they saw after the election in California.
In a rush apparently to broadcast this trial and with dubious fairness, the District Court in California had posted a call for public comment on a general plan to broadcast trials on New Year’s Eve and allowed only five business days for public comment, whereas the usual time would be at least 30 days.
The majority (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito) ruled
the broadcast order should be stayed “because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.”
They also noted that the broadcast would cause harm because confrontational phone calls and e-mail messages, people have been forced to resign their jobs after it became public that they had donated to groups supporting the amendment. They said that “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.”
Ed Whelan commented on National Review: Some of applicants’ witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment. These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country. Applicants may not be able to obtain adequate relief through an appeal. The trial will have already been broadcast. It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future.”
Count this as a victory today.
The Washington Post on Judge Walker
Eva Rodriguez criticized Judge Walker in a post on The Washington Post :
If I were a legislator, I’d vote to legalize same-sex marriage. And if it were up to me, I’d allow cameras in federal courts. So why am I having trouble with a federal judge’s decision to allow YouTube broadcasts of the trial challenging California’s gay marriage ban?
Maybe it’s because I think judges should be impeccably fair, adhere without agenda to the rule of law and be as transparent as possible, so that even those who disagree with their decisions may nevertheless respect those decisions. Judge Vaughn Walker, who is presiding over the gay marriage case, has failed on these counts.
Walker performed legal pirouettes worthy of “Dancing with the Stars” to ensure cameras in his courtroom for the same-sex marriage trial…. [R]ather than accept that the legal framework for trial broadcasts was not yet in place, Walker cut corners and rushed through proposed changes in the proverbial dead of night – on New Year’s Eve, no less…. And he gave short shrift to opponents of gay marriage, who argued that broadcasting the proceedings would subject them to increased harassment by gay marriage supporters….
Judge Walker didn’t allow sufficient time for those and other concerns to be raised and considered. If I can’t trust Judge Walker to be unflinchingly fair about something that simple, how can I trust him to be fair to both sides when deeply held beliefs and constitutional rights are at stake?
The Moral Liberal Contributing Editor, Maurine Proctor, is a graduate of Harvard University, Co-Founder and Editor in Chief of Meridian Magazine, and President of Family Leader Foundation. She has written and edited several books, worked for The Chicago Sun-Times and is an award-winning documentary writer and producer.