The two men who testified in support of Proposition 8 during the 2010 federal trial were hardly fragile flowers or intensely private people. Kenneth P. Miller is an academic who has published extensively and is used to public speaking. David Blankenhorn is the founder and president of the Institute for American Values, a nonprofit organization that promotes traditional family life, and has written books on the subject. Both have appeared on television.
Obviously, neither man shrinks from the public light, yet on Monday, supporters of Proposition 8 will bring back the specious argument that videotapes of the 2010 trial should not be broadcast because these witnesses would otherwise face harassment from opponents of the proposition.
The U.S. Supreme Court accepted that argument just as the trial was getting under way, ruling that recordings of the trial could not be broadcast or distributed over the Internet during the proceedings because witnesses might feel so intimidated that they would refuse to appear before courts in the future. The court majority also faulted U.S. District Judge Vaughn R. Walker for last-minute changes to his broadcast plans and for his shifting explanations of the reasons. So in the end, the trial video was shown to people in an overflow viewing room in the courthouse; the recordings were also provided to the judge and attorneys for their use in the case. Left unclear, though, was what would happen to the recordings once the trial was over.
Attention was drawn to the issue again after Walker showed a clip of the trial at a February speech he gave in Arizona on cameras in the classroom. The clip showed Miller testifying. Proposition 8 supporters then took the matter to court, asking it to stop Walker from showing the video again. Opponents countered by asking for the recordings to be made public for broadcast.
Given the Supreme Court's ruling, Walker should not have shown the clip. Though a showing to a limited audience at a speech is a far cry from a viral video on YouTube, it was nonetheless an unauthorized use of material that previously had been contained to the use of the court. And in fact, Vaughn's speech, including the clip, is available online.
Still, the U.S. District Court should now allow the videos to be broadcast. There has never been any real evidence of potential danger to the witnesses. With the trial over, any procedural issues about last-minute changes are moot. California's ban on same-sex marriage is a matter of extraordinary public interest, and the discussion that took place during the trial would strengthen public understanding. People would see Blankenhorn, though an opponent of same-sex marriage, testify that the United States would be more American on the day such marriages became legal. They would see Miller, hired by supporters of Proposition 8, say that prejudice played a role in its passage. And whatever viewers chose as the take-home message from the trial, they would be more deeply informed about the debate.