FORUM
Op-eds on legal news by law professors and JURIST special guests...

Keeping Same-Sex Marriage in the Dark

JURIST Contributing Editor Marjorie Cohn of Thomas Jefferson School of Law says in rejecting the broadcast of the Proposition 8 same-sex marriage trial, conservative justices of the United States Supreme Court are using procedural excuses to push a critical issue back into the closet ...


On Wednesday, a conservative majority of the Supreme Court overturned a ruling made by a federal trial judge that would have allowed limited television coverage of a trial that will decide the fate of California’s Proposition 8. The trial, which is currently proceeding in San Francisco, is one of the most significant civil rights cases of our time. The plaintiffs are seeking to overturn a ballot initiative that makes same-sex marriage illegal in California.

It was unusual that the Supreme Court even decided to hear this case. The high court takes very few cases. It generally decides issues about which the state or federal courts are in conflict or cases that raise important questions of federal law. Yet relying on the Supreme Court’s “supervisory power” over the lower courts, the five conservative justices – Roberts, Scalia, Thomas, Alito and Kennedy – joined in an unsigned 17-page decision and chided Chief Judge Vaughn Walker for seeking to broadcast the trial without a sufficient notice period for public comment.

Justice Breyer wrote in the dissent joined by Justices Stevens, Ginsburg and Sotomayor that he could find no other case in which the Supreme Court had intervened in the procedural aspects of local judicial administration. Indeed, Breyer cited a case in which Scalia wrote, “I do not see the basis for any direct authority to supervise lower courts.”

Moreover, in the comment period that Walker did allow, he received 138,574 comments, and all but 32 favored transmitting the proceedings.

The majority concluded that the same-sex marriage opponents would suffer “irreparable harm” if the trial were broadcast to five other federal courts around the country. But all the witnesses who allegedly might be intimidated by the camera were experts or Prop 8 advocates who had already appeared on television or the Internet during the campaign.

No one presented empirical data to establish that the mere presence of cameras would negatively impact the judicial process, Breyer wrote. He cited a book that I authored with veteran broadcast journalist David Dow, Cameras in the Courtroom: Television and the Pursuit of Justice. It describes studies that found no harm from the camera, and one which found that witnesses “who faced an obvious camera, provided answers that were more correct, lengthier and more detailed.”

The five justices who denied camera coverage noted at the outset that they would not express “any view on whether [federal] trials should be broadcast.” Toward the end of their decision, however, they stated that since the trial judge intended to broadcast witness testimony, “[t]his case is therefore not a good one for a pilot program.”

In my opinion, it is no accident that the five majority justices are the conservatives who, in all likelihood, oppose same-sex marriage. Why don’t those who oppose same-sex marriage want people to see this trial?

Perhaps they are mindful of the sympathy engendered by televised images of another civil rights struggle. “It was hard for people watching at home not to take sides,” David Halberstam wrote about Little Rock in The Fifties. “There they were, sitting in their living rooms in front of their own television sets watching orderly black children behaving with great dignity, trying to obtain nothing more than a decent education, the most elemental of American birthrights, yet being assaulted by a vicious mob of poor whites.”

The conservative justices may think that televising this trial will have the same effect on the public. Witnesses are describing their love for each other in deeply emotional terms. Religious fundamentalists who oppose them will testify about their interpretation of scripture. Gay marriage is one of the hot button issues of our time. Passions run high on both sides. This is not a jury trial in which jurors might be affected by the camera or a criminal case where the life or liberty of the defendant is at stake.

In spite of what the conservative majority claims, the professional witnesses are not likely to be cowed by the camera. Modern broadcast technology would allow the telecast without affecting the proceedings in the courtroom.

There is overwhelming public interest in this case. It will affect the daily lives of millions of people. The decision denying limited broadcast coverage at this point effectively eliminates any possibility that it will be allowed before the trial is over. The conservative judges are using procedural excuses to push this critical issue back into the closet.



Marjorie Cohn is a professor at Thomas Jefferson School of Law and co-author, with David Dow, of Cameras in the Courtroom: Television and the Pursuit of Justice.


January 15, 2010


Link | | e-mail op-ed | print | post comment | 2 comments | how to subscribe | © JURIST

Comments:

Sounds to me like, once again, the American public is being sheltered from that which "they" don't want us to see or know! The ruling on this would have a major impact on many lives and how they come to the decision should be made public. Who are they trying to protect? -- surely not the public! Why should this trial be any different?

January 16, 2010  

This article is poorly written and extremely onesided. You would hope that a forum for rational discussion of current legal issues would not use such a onesided rant as this one. Ms. Cohn wrote this like she was giving a big tobacco lawyer closing argument instead of presenting facts. She calls prop 8 proponents "professional witnesses" and equates them with 'a vicious mob' Very unprofessional and not very conducive to finding the truth or to rational discussion.

January 17, 2010  


LATEST OP-EDS

 Arizona Legalizes Racial Profiling
April 27, 2010

 The Iraqi High Court's Understated Rise to Legitimacy
April 23, 2010

 Is Health Care Reform Constitutional?
April 21, 2010

 Not Child's Play: Revisiting the Law of Child Soldiers
April 13, 2010

 click for more...

Get JURIST legal news on your intranet, website, blog or news reader!

SUBMISSIONS

E-mail Forum submissions (about 1000 words in length - no footnotes, please) to JURIST@pitt.edu.

SYNDICATION

Add Forum op-eds to your RSS reader or personalized portal:
  • Add to Google
  • Add to My Yahoo!
  • Subscribe with Bloglines
  • Add to My AOL

E-MAIL

Subscribe to Forum op-ed alerts via R|mail. Enter your e-mail address below. After subscribing and being returned to this page, please check your e-mail for a confirmation message.
MyBlogAlerts also e-mails alerts of new Forum op-eds. It's free and fast, but ad-based.

FORUM SEARCH

Search JURIST's op-ed archive...


Powered by Blogdigger badge

CONTACT

JURIST and our op-ed authors welcome comments and reaction from readers. E-mail us at JURIST@law.pitt.edu