The Supreme Court, by a 5-4 margin on January 13, voted to make permanent Justice Anthony Kennedy’s temporary injunction two days earlier barring the televising of proceedings in the federal lawsuit challenging the constitutionality of Proposition 8, a 2008 voter initiative in California that bans marriage by same-sex couples.
The trial began on January 11 in San Francisco, and presiding US District Judge Vaughn R. Walker ruled the previous week that the proceedings would be narrowcast in certain federal court buildings throughout the West Coast’s Ninth Circuit and one in New York City as well.
Walker had also originally planned to make the daily video feed available the following day for rebroadcast on YouTube, but his courtroom staff had not been able to resolve technical difficulties in making that happen, so the proposal that went to the full Ninth Circuit for its approval did not include provisions for such wider distribution.
The full Ninth Circuit approved Walker’s plan for narrowcasting to the other courthouses.
Federal courts have only rarely allowed cameras to tape and broadcast trials, and the high court, split along familiar ideological lines, found that the Ninth Circuit had not yet established clear guidelines on when trials could be broadcast.
Kennedy was joined in the majority by Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, and Samuel Alioto. Justice Stephen Breyer, who had dissented from Kennedy’s emergency injunction, was joined by John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor.
The unsigned majority opinion went into considerable detail about procedures for amending federal trial rules, but at its crux was also the willingness to give credence to claims by supporters of Proposition 8 — who have been allowed to intervene in defense of the constitutional amendment, since neither Governor Arnold Schwarzenegger nor Attorney General Jerry Brown are mounting a case — that broadcasting the trial would expose witnesses for their side to harassment. The credibility that the court majority lent to such claims resulted in its conclusion that without a stay, Prop 8 supporters would face “irreparable harm,” a critical ingredient for the high court blocking Walker’s narrowcasting order.
In a 48-page filing, the Prop 8 supporters’ attorney, Andrew Pugno, argued, “All proponents’ witnesses have expressed concern over the potential public broadcast of trial proceedings, and some have stated that they will refuse to testify.” Prop 8’s defenders cite the public pressure faced by those who endorsed and/ or contributed money to the anti-gay measure, approved by California voters in November 2008, just six months after the State Supreme Court ruled that there is a right to same-sex marriage under the State Constitution.
Edwin Meese III, President Ronald Reagan’s attorney general who is now a fellow at the conservative Heritage Foundation, writing in the New York Times on January 11, parroted the Prop 8 supporters’ claims, arguing that allowing cameras in the courtroom, for the first time in the Ninth Circuit, “will expose supporters of Proposition 8 who appear in the courtroom to the type of vandalism, harassment, and bullying attacks already used by some of those who oppose the proposition.”
The Supreme Court majority co-signed the arguments made by Pugno and Meese, writing “applicants have demonstrated that irreparable harm would likely result” from Walker’s videocast plan.
“Without a stay, the District Court will broadcast the trial,” the majority wrote. “It would be difficult — if not impossible — to reverse the harm from those broadcasts.” Citing witnesses prepared to testify — including, curiously, same-sex couples, who have voiced no objection to Walker’s plan — the opinion continued, “This Court has recognized that witness testimony may be chilled if broadcast.” Then, taking on face value the Prop 8 supporters’ claims of being hounded for their views, the court wrote, “Witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings… While applicants have demonstrated the threat of harm they face if the trial is broadcast, respondents have not alleged any harm if the trial is not broadcast.”
Breyer, in his dissent on behalf of the court’s minority, took issue with every step of the majority opinion, insisting that the Ninth Circuit’s decisions regarding the narrowcasting were well within its discretion. He showed particular impatience with the Prop 8 supporters’ claims of irreparable harm.
“The applicants also claim that the transmission will irreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are,” Breyer wrote. “And they claim that some members of the public might also harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order.”
That, Breyer argued, “is not surprising. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a ‘yes’ vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.”
That last point, in the minority’s view, was significant. The Supreme Court was not weighing whether the trial could be rebroadcast on YouTube — but merely whether its audience could be expanded from one courtroom to six.
For some marriage equality advocates, the Supreme Court’s finding was more than a ruling on the arcane question of rebroadcasting the San Francisco trial; it was a discouraging first skirmish on the underlying question now at issue in the federal courts.
“Reading between the lines, what emerges is a deep solicitude on the Supreme Court for those who proposed Prop 8,” Matt Coles, director of the LGBT Project at the American Civil Liberties Union, wrote on the Huffington Post. “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.” Coles concluded, “It’s hard not to… worry a bit about a Supreme Court so willing to overlook its own rules to protect the opponents of marriage.”