Litigation

Hints of Future in Prop. 8 Video Decision?

By Peter Hardin

Does the Supreme Court’s 5-4 decision barring cameras in the Proposition 8 trial courtroom shed light on how it might ultimately rule on  the constitutionality of a gay marriage ban? Some analysts think so.

The high court has blocked broadcasting of the trial that began this week over a challenge to California’s same-sex marriage ban, which was enacted as a result of 2008 popular vote on Proposition 8. The Supreme Court’s 5-4 split reflected its ideological divide (see earlier Gavel Grab posts.)

Commenting in The Nation, Linda Hirshman wrote that although the high court majority focused on procedure rather than the merits of broadcasting, its decision offered a “tantalizing glimpse” of how it might rule when gay marriage comes before it. She was reminded of  the court’s Bush v. Gore decision deciding the 2000 presidential election recount:

“The case is wildly political, the issue looks deceptively procedural, the Court intervened in a way they almost never intervene and the justices lined up exactly as their political histories would predict. It is impossible to ignore the signals that this procedural decision sends about how the Court is going to divide when the issue of same sex marriage reaches them directly.”

The Washington Post had an article that placed the broadcasting decision “under the microscope” and got multiple critiques, including  one by Dale Carpenter, a constitutional law professor at the University of Minnesota. He declared a “strategic victory” for opponents of same-sex marriage. Carpenter, in the Volokh Conspiracy blog, wrote:

“As an advocate, you’d rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath.”

Carpenter depicted the court as accepting the argument of Proposition 8 backers that they would face harassment for their testimony and that broadcasting would cause “irreparable harm.” Developing the biblical story theme further was an article in Newsweek entitled, “‘David and Goliath:’ In California’s gay-marriage trial, it’s the defenders of the status quo who say they are the underdogs.”

Lest the instant analysis about cameras in the courtroom drown out the historic courtroom proceedings, the New York Times provided a useful precis of the first week’s battle lines, simply headlined “Arguments at Court.” Here is a sample:

From the opening of plaintiffs’ lawyer Theodore B. Olson: ?Proposition 8, and the irrational pattern of California?s regulation of marriage which it promulgates, advances no legitimate state interest. All it does is label gay and lesbian persons as different, inferior, unequal and disfavored.?

From the opening of lead defense lawyer Charles J. Cooper, “?This is not ill will nor animosity for gays and lesbians, but special regard for this venerable institution.?

Among the lead plaintiffs in the lawsuit, Perry v. Schwarzenegger, are Kristin Perry and Sandra Stier (in photo.) They have four sons together.

Full post as published by The Gavel on January 15, 2010 (boomark / email).