Supreme Court Decision to Keep Same-Sex Marriage in the Dark is Troubling

The ruling by the Supreme Court to disallow cameras in the courtroom raises deeper concerns then the this historic trial not being shown. What concerns me is the stark partisan nature of the ruling and if that is reflective of the conservative strategy to oppose everything that they feel can be favorable to the opposition party or President Obama… I feel that this may be the start of a tactic in which conservative forces fight to get everything incourt, work it up the line to the Supreme Court and come out victorious… maybe I’m wrong, but its something worth noting..

-Davey D- 

Keeping Same-Sex Marriage in the Dark

Friday 15 January 2010

by: Marjorie Cohn  |   Jurist

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.

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7 comments on “Supreme Court Decision to Keep Same-Sex Marriage in the Dark is Troubling

  1. Screw Obama and his LGBTgay marriage agenda. The people of california rejected it.

    These liberal communists will get gay marriage passed for everyone. They will go against the will of the people. Dont worry about that.

    At least Brown won in Mass to get that 41st no vote on Obamacare the health insurance industry bailout. LOL!!!!!!

    To me Obama and his whole agenda is an absolute JOKE.. A real bad joke. He is the friendly facsist. Its almost like Bush’s 3rd term. Hows that hope and change working out???? LOL

  2. To me people like Maranatha and their whole agenda is an absolute JOKE..A real bad joke that is no longer funny in this country.

    The liberal democrat versus conservative republican idea is for those with limited intelligence. Intelligent people are able to come together, analyze facts and resolve issues not take sides and bicker. Any time there is a chance to engage the democratic process for progress we are always faced with the foolishness of one party/ideology versus another.

    We are ALL Americans and should come together to make decisions that work for the benefit of the entire country. Not make decisions and takes sides because of political parties. If you come to a discussion having already taken a side, you are not of sound mind to make quality decisions or work towards compromise.
    As a result, the descision becomes one that is not based on the facts of the situation but based on some allegience to a particular point of view. This is the foolishness that has dominated our policy in this country for far too long.

    Intelligent people are able to consider ALL facts before coming to a conclusion. Idiots have their side and their p.o.v. and are closed to hearing anything different.

    Hope and change from a politician means nothing when the average citizen has not changed his understanding of the political process and has no hope of creating a dialogue because they don’t care enough about this country to work with their fellow citizens to improve it regardless of political party or ideology.

  3. As Gavin Newsome said, this is the first time in history we’ve actually taken rights away from one group of Americans. As ugly as our history is, at least its always headed in the direction of more rights when it comes to each individual demographic, race, religion, etc. This is why everyone should be concerned about this. For the first time, the pendulum is swinging the other way. As we’ve historically headed in a more libertarian direction we’re now heading in a fascist direction. That has to scare you a little.

  4. And as many predicted…this move toward fascism was spearheaded by the church. And the politicians went right in lockstep.

  5. @BX

    I knew someone would call that out. I’m about sure these same folks are just giddy about the recent SCOTUS decision RE: corporations. If folks want to vote against their self-interests, please keep it over there! The same folks lampooning “change” are the same folks who do little to nothing to invoke “change” and wait for someone else to serve it in a buffet line like Golden Corral.

    “At least Brown won in Mass to get that 41st no vote on Obamacare the health insurance industry bailout. LOL!!!!!!”
    If that’s the case, how come that same industry is against it? The 41st vote?! LMAO!!!

    RE: same-sex marriage
    I have no horse in this race, so it really doesn’t matter much to me. Just find a way to ease the confusion over the definition of marriage and move on.

  6. Rob Thomas,

    But do you have to have “a horse in the race” in order to recognize others right to enjoy the same rights that are available to you? I mean, isn’t it a little selfish to say their plight (as it relates to same-sex marriage) doesn’t matter to you because it doesn’t effect you personally (i.e. no horse in the race)?

    Personally, I have no horse in that race either, nor do I have a horse in the race on a lot of issues. However, a person who TRULY values Equality, Liberty, and Justice SHOULD value it for everyone and not just for their own personal interests. In fact, it is that value of personal interest that keeps us in the situation that we are in now.

    But I certainly agree with your points on “change”. :o)


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