You don't have to believe in cameras in the courtroom to be troubled by the U.S. Supreme Court's decision this week forbidding cameras from recording the constitutional challenge to California's Proposition 8.
Proponents of marriage equality are suing in a San Francisco federal court, arguing that the state ballot measure deprives gay couples of rights guaranteed by the U.S. Constitution's equal-protection clause. The federal trial court planned to stream its proceedings live to several other courtrooms and to post a nightly video record on its website.
Proposition 8's defenders asked the Supreme Court to intervene, and a deeply divided court barred the cameras. The ruling has attracted much outcry from advocates of greater openness by the judiciary, but what's troubling about this opinion has less to do with what it tells us concerning the Supreme Court's thinking on public access than what it signals about the majority's attitude toward marriage equality and the social milieu surrounding this painfully contentious issue.
Twice in the course of its 17-page opinion, the five-justice majority went out of its way to declare it was not ruling on the propriety of cameras in the courtroom. In another instance, the opinion digressed to recall that, when the trial of the Oklahoma City bombers was moved to Denver, Congress acted to ensure that the survivors and victims' families unable to go to Colorado would be able to watch the proceedings on closed-circuit TV.
"Reasonable minds," the majority wrote, can differ over televised court proceedings. Fair enough, but some significant number of them also will be troubled by the five justices' blanket adoption of the assertion that televising the testimony of expert witnesses called to defend Proposition 8 -- including those being paid -- would create "irreparable harm" by exposing them to embarrassment and "harassment." If you accept that, you're on a path whose logical conclusion is secret testimony. It's easy enough to excerpt trial transcripts and post them on the Web. Doesn't that "expose" witnesses in any socially or politically divisive case to potential harassment? Television may accelerate the process, but the way text and photographs ricochet around the Internet these days, it's just a matter of degree -- and a rapidly diminishing one at that.
Moreover, as Justice Stephen G. Breyer pointed out in a 10-page dissent, in this particular case the witnesses "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." What is there about these proceedings that will make them more vulnerable to reprisals than they already are?
That brings us squarely to the majority's troubling subtextual suggestion that there is something uniquely threatening -- even sinister -- about the activities of gays and lesbians advocating marriage equality. It's true that a tiny handful of activists on the movement's fringe have behaved outrageously toward opponents of same-sex marriage, but that criticism can't be made against the plaintiffs in this case. They've simply sought vindication of their rights through the courts, the very definition of law-abiding.
The five justices, however, went out of their way to incorporate into their ruling citations from newspaper accounts of dubious and abusive behavior associated with the marriage-equality fringe -- from "confrontational phone calls and messages" to business boycotts to "vandalism and physical violence" and even "death threats." As this column has argued on several occasions, no such conduct can or should be tolerated. Can it really be the case, though, that expert witnesses testifying against marriage equality are at greater risk of retribution than, say, a doctor testifying against Big Pharma in a multibillion-dollar drug liability case?
Finally, everyone knows that the trial now in progress is the first round in a struggle over marriage equality that almost certainly will be resolved by this same court. Given what the majority of justices now have signaled concerning their view of the plaintiffs and at least some of their supporters, that's a daunting prospect. This is a court deeply divided along ideological lines, and, when push comes to shove, the majority has demonstrated its willingness to strain to a result in accord with its predilections.
So long as the current majority holds, it seems likely that gays and lesbians who wish to marry will be denied the 14th Amendment protections to which they're entitled. That makes this trial in some ways more important as a forum for public elucidation than as one likely to establish legal precedent. The more the pity, then, that this week's action by the court will deny that opportunity.