Judge Vaughn Walker's decision to allow video cameras in his courtroom for the federal challenge to California's Proposition 8 has been temporarily suspended pending a decision by the Supreme Court midweek. Proceedings from the trial, which began Monday, were to be broadcast on YouTube as part of an experimental program in the Ninth Circuit to allow cameras in non-jury civil trials. Prop. 8 proponents have claimed broadcasting the proceedings will lead to harassment of "Yes on 8" campaign staffers.
The debate is hardly new -- courts have wrestled with the question of media's visual access to courts since photography first emerged in the 1930s. But in the push to make government proceedings readily available to the public, federal courts have emerged as a conspicuous outlier. Most state-level courts allow cameras to be present in both civil and criminal courts at the judge's discretion. But federal courts are far more restrictive: Cameras are prohibited in criminal trials and while the rules for civil trials vary by circuit, most jurisdictions do not allow broadcasting of civil cases.
For civil trials with broad social implications, making court proceedings publicly available has the obvious advantage of making the judiciary more transparent, but there is reason to tread carefully. The main concern is that making proceedings widely available will affect the behavior of those in the courtroom. Witnesses may be less likely to testify fully and truthfully, victims -- especially rape and underage victims -- could be further dissuaded from bringing civil charges against their assailants and testifying, and jurors may hesitate to vote their conscience for fear of public reprisal.
However, none of these concerns applies to the challenge to Prop. 8, Perry v. Schwarzenegger. Not only are the proceedings of substantial public interest, the case does not involve a vulnerable defendant nor is it being heard by a jury. And the argument that Prop. 8's defenders have proffered is suspect: They say they fear harassment, but the organizers being put on the stand are public figures who appear regularly on network news shows and make public pronouncements against gay marriage. They have no problem making their case in other, more public venues, why is the court an issue?
The answer is that in court, it's a crime to lie -- and you don't get to set the agenda. While it's the constitutionality of Prop. 8 that's on trial, the court is also set to decide whether the anti-gay-marriage campaign was motivated by prejudice. Already, embarrassing "Yes on 8" campaign materials have come to light, including literature authored by Hak-Shing William Tam, a defense lawyer on the case who was one of Prop. 8's official sponsors. Tam wrote that if the ballot measure did not pass, "every child, when growing up, would fantasize marrying someone of the same sex. More children would become homosexuals." Last week, he withdrew from Perry v. Schwarzenegger, citing the harassment he had endured (in his case, negative comments on a YouTube video).
It might seem laughable that the leaders of the discriminatory "Yes on 8" campaign insist on portraying themselves as victims, but this has been anti-gay-marriage folks' modus operandi for some time. Whether in the ridiculous "gathering storm" video or in campaign literature, gay-marriage foes argue that marriage equality harms them. But in court, they have been unable to substantiate this; when Judge Walker asked lead defense counsel Chuck Cooper how gay marriage would harm society, he answered, "I don't know."
In the political discourse that plays out on television, on blogs, and in print, there is little accountability for statements made by opposing sides -- especially given journalism's artificial pro-con model of objectivity. But in the harsh light of the courtroom, with the legal profession's rules of evidence in play, you can't argue that allowing gay marriage means pastors will have to sanctify gay unions, one of the "Yes on 8" campaign's favorite lines. Or that if gay marriage is legal in California, other states will fall "one by one into the hands of Satan." Instead, bringing the gay marriage debate into the federal courtroom strips the issue of the histrionic rhetoric that's surrounded it and makes both sides argue on an even playing field. I can think of no better reason for allowing the proceedings from the Perry case -- or any other controversial constitutional challenge -- to be broadcast.
Given the broad impact of the case on millions of Americans, the Supreme Court should recognize the public's interest in openly and honestly airing the arguments on both sides. It's an opportunity gay-marriage opponents, who complain about getting the short shrift in public debate, should jump at. We're listening.
