Why the Gay Marriage Trial Should be Public

There are many ways to frame the gay-marriage trial taking place this week in San Francisco: 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 framing casts it as a grand battle between elitist, antidemocratic courts on the one hand and ordinary Americans on the other. That storyline suffered a major hit when the anti-gay-marriage team waged an epic fight to prevent the trial from being broadcast.

Perry v. Schwarzenegger promises to be a sprawling exploration into every aspect of the fight over gay marriage. But beneath all the social science there lies a deep institutional anxiety about whether California voters or the federal courts should be the arbiters of what marriage means. Opponents of gay rights have argued against allowing unelected judges to substitute their values for those of the American people. As an argument, it has legs. It's populist. It's catchy. But it's awfully hard to be a populist when you've come out against broadcasting the trial.

The question for the federal court is whether Proposition 8—the California ballot initiative in November 2008 that limited marriage to one man and one woman (overturning the state Supreme Court in the process)—is unconstitutional. The inquiry is not a narrow or technical one. That's why Judge Vaughn Walker (a George H.W. Bush appointee, if you're apt to keep score) decided to broadcast the trial on a delayed basis on YouTube. Last week, minutes before the trial opened, the U.S. Supreme Court responded to an emergency request from proponents of the gay-marriage ban and blocked YouTube coverage for at least several days. On Wednesday, by a 5–4 vote, it extended the ban indefinitely. Asking the Supreme Court—which bans cameras in its own courtroom—to decide whether a federal court can broadcast the most important gay-rights trial of the decade is a bit like asking Tiger Woods to rule on whether adultery is bad. But the Supreme Court's fear of the public notwithstanding, it's now clear that Prop 8's supporters' anxiety about allowing the masses into their lawsuit betrays a deep ambivalence about the same American voter they purport to be defending.

Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, recently announced 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." While Justice Antonin Scalia argues that broadcasting trials would be "making entertainment out of other people's legal problems," proponents of cameras in the courts feel that you cannot ask citizens to participate meaningfully in a democracy if you suspect they aren't smart enough to watch court cases.

Yet when Judge Walker announced that he'd allow portions of Perry v. Schwarzenegger to be shown on YouTube, the fear of the marauding villagers was almost palpable. In opposing the move, for instance, Brian Brown, executive director of the National Organization for Marriage, argued that the decision to put cameras in the courtrooms was intended for "low profile" cases only. Can it possibly be true that the American citizenry is fit to watch only boring cases, not the big ones?

Then there's the equally condescending argument that broadcasting the gay-marriage trial allows the masses—whose own vote on the ballot initiative is at stake here—to terrorize and threaten the trial witnesses. Thus, Charles Cooper, lawyer for the pro–Prop 8 side in this case, has argued that although this is a civil, not criminal, trial, witnesses could suffer "hostilities and harms" at the hands of their opponents.

How can you argue both that the majority of California citizens wanted to ban gay marriage and should be respected, but also that gay-marriage opponents are a fragile oppressed minority who must testify only in dark rooms?

Opponents of gay marriage cannot have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, it's absurd to insist that John Q. Voter should be banned from witnessing the proceedings. If they believe that elitist jurists shouldn't be allowed to substitute their values for those of ordinary citizens, they cannot holler that ordinary citizens are thuggish bullies who scare witnesses. Both sides spent close to $74 million on competing ads to "educate" voters in the gay-marriage campaign in California. It's a little late to claim there's no place for TV cameras in this fight.

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