The Supreme Court just issued one of its most disturbing decisions since in , the federal challenge to California鈥檚 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 . 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鈥檛 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 鈥渜ualitative difference鈥� (whatever that means) between publicly advocating a position and having ones鈥� 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鈥檚 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 鈥渄amage鈥� 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鈥檛 eliminate the potential public education value of the trial, it certainly diminishes it. It鈥檚 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.
