Legal Commentary

Impromptu Supreme Court Opinion in Gay Marriage Case

By John Elwood

The Supreme Court, nearly an hour after its 4 pm deadline passed, just handed down a 17-page per curiam opinion enjoining broadcast of the gay marriage trial going on in the Northern District of California pending resolution of an anticipated cert petition or petition for mandamus.  Justice Breyer, joined by Justices Stevens, Ginsburg, and Sotomayor, dissented.

Most of the discussion concerns the Court?s concerns about the manner in which the rules were changed. The discussion of ?irreparable harm? is relatively brief, and focuses on conerns about harassment. See slip op. at 13.

I think a clue to the authorship of the per curiam can be found in the following three paragraphs:

The District Court here attempted to revise its rules in haste, contrary to federal statutes and the policy of the Judicial Conference of the United States. It did so to allow broadcasting of this high-profile trial without any considered standards or guidelines in place. The arguments in favor of developing procedures and rules to allow broadcast of certain cases have considerable merit, and reasonable minds can surely differ over the general and specific terms of rules and standards adopted for that purpose. Here, however, the order in question complied neither with existing rules or policies nor the required procedures for amending them.

By insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law?s own insistence on neutrality and fidelity to principle. Those systematic interests are all the more evident here, where the lack of a regular rule with proper standards to determine the guidelines for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments. These considerations, too, are part of the reasons leading to the decision to grant extraordinary relief.

* * * * *

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

Slip op. 13?14, 16?17. For more on this subject, see Ed Whelan?s comprehensive continuing coverage on the subject.

Full post as published by The Volokh Conspiracy on January 13, 2010 (boomark / email).