There are lots of interesting ways to frame the gay-marriage trial taking place this week in San Francisco: It's either too early or too late. It's either a piece of Vegas-style showboating by former Bush v. Gore adversaries David Boies and Theodore Olson or a noble quest for marital equality in America. But perhaps the most potent frame casts it as a grand battle between elitist, anti-democratic judges on the one hand and the will of ordinary Americans on the other. That whole story line suffered a major hit this week when the anti-gay-marriage forces waged an epic fight to prevent the trial from being broadcast to ordinary Americans.
Perry v. Schwarzenegger promises to be a sprawling exploration of every aspect of the fight over gay marriage. But beneath all of the social-science testimony and constitutional nitpicking lies a deep institutional anxiety about whether California's voters or unelected federal judges should be the arbiters of what marriage means. Opponents of liberal jurisprudence, and their pushy push to legalize gay marriage, have long argued against allowing unelected, sherry-sipping judges to substitute their values for those of the American people. As an argument, this has legs. It's populist. It's catchy. But it's hard to take it seriously when the same people making it also come out strongly against letting the people watch trials.
The legal question for the court is whether Proposition 8—the California ballot initiative, passed in November 2008, that limited marriage to one man and one woman (overturning the state Supreme Court in the process)—is unconstitutional. As testimony has proven, this inquiry is not a narrow or technical one. That's why Judge Vaughn Walker (a George H.W. Bush appointee, for those keeping score) decided to broadcast the trial in several courthouses around the country and on a delayed basis on YouTube. On Monday, just minutes before the trial opened, the U.S. Supreme Court responded to an appeal from proponents of the gay-marriage ban and stopped any broadcasting for at least several days while they mulled the problem.
Then, on Wednesday night, in an unsigned per curiam order, the high court voted 5-4 (conservatives-liberals) to stay the trial broadcast, finding that "the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting." Now, asking the U.S. Supreme Court—which bans cameras in its own courtroom—to make a ruling on broadcasting trials is a bit like asking Tiger Woods to opine on adultery. But even beyond the Escher-staircase-to-oblivion logic of the opinion itself, everything about the Supreme Court's decision to stay the broadcast (and the Proposition 8 camp's request to black out the trial in the first place) betrays a deep ambivalence about the same humble American voter whose very rights the court purports to be defending.
Alex Kozinski, chief judge of the United States Court of Appeals for the 9th Circuit, had announced in December the decision to allow some TV coverage of civil trials, describing the policy as an "experiment" to "find the right balance between the public's right to access to the courts and the parties' right to a fair and dignified proceeding." Broadcasting legal proceedings presents a tricky problem, especially in criminal trials. But this isn't about outing gang members.
Justice Antonin Scalia, for example, argues that the broadcasting of trials is "making entertainment out of other people's legal problems." Yet proponents of cameras in the courts might contend that you can't really ask citizens to participate meaningfully in deciding critical matters of law if you secretly suspect they aren't smart enough to watch and understand legal proceedings in the first place.