Court OKs Broadcast of Marriage Rights Trial

A federal court has cleared the way for the appeal of the Proposition 8 trial to be broadcast.

The Associated Press reported on Nov. 18 that the 9th U.S. Circuit Court of Appeal gave C-Span clearance to put cameras in the courtroom when the appeal to Chief U.S. District Judge Vaughn Walker's ruling on Proposition 8 commences Dec. 6.

Walker ruled on Aug. 4 that the 2008 ballot initiative, which rescinded then-existing marriage rights for gay and lesbian families in California, violated the Due Process Clause of the 14 Amendment. Walker also said in his 136-page opinion that, "The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples." Proponents of the ban on marriage equality had not shown that there was "any rational basis in singling out gay men and lesbians for the denial of a marriage license," Walker wrote.

Opponents of marriage equality promptly appealed the decision.

At the start of the Proposition 8 trial, Walker had agreed to allow video coverage of the proceedings for broadcast on YouTube and to other federal courthouses via closed-circuit, but Proposition 8 proponents objected, saying that witnesses offering testimony against marriage equality would be more vulnerable to harassment and threats if their images were broadcast. They sought intervention from the U.S. Supreme Court, which blocked broadcast of the trial, splitting along partisan lines, the Washington Post reported on Jan. 14. The court's conservative majority said that the issue at hand was less about the principle of broadcasting the proceedings than whether proper procedures for setting out rules regarding the broadcast had been followed.

The minority opinion, written by Justice Stephen Breyer, said that the court's majority had "identifie[d] no real harm" that might arise from the broadcast, "let alone irreparable harm to justify its issuance of this stay." Moreover, Breyer noted, "All of the witnesses supporting the applicants are already publicly identified with their cause. They 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, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse."

Marriage equality advocates decried the decision, saying that a televised record of the proceedings would be invaluable in educating the public about the issue. "Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved," said the American Foundation for Equal Rights board president, Chad Griffin. "Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide."

Groups determined to make some sort of video record available undertook word-by-word re-enactments of the trial, casting actors in the roles of Judge Walker, the lawyers, and the witnesses. California-based GLBT equality group the Courage Campaign launched an online "Prop 8 Trial Tracker" to help those interested stay informed of developments.

In the end, the anti-marriage equality side presented only two witnesses. The plaintiffs presented fifteen witnesses.

Attorneys Ted Olson and David Boies represented the plaintiffs, who opposed Proposition 8 and favored marriage equality for gay and lesbian families. Olson, a conservative, and Boies, a liberal, had famously faced off before the U.S. Supreme Court in the 2000 court case Bush v. Gore. Olson and Boies' case was predicted on the argument that putting the existing marriage rights of same-sex families to a popular vote violated Constitutional guarantees, and was motivated by anti-gay sentiment.

The defendants, who supported Proposition 8 and opposed marriage equality, argued that heterosexual unions would be discouraged if gays and lesbians were permitted to marry. Lawyer Charles Cooper, representing the defendants, claimed that allowing same-sex couples access to marriage was a dangerous social experiment that could threaten the traditional family. No mechanism for this threat was ever described to the court, and as the trial wound down a witness who took the stand for the defendants, David Blankenhorn, offered the opinion that, "We would be more American the day we allow same-sex marriage."

Prior to arriving at his verdict, Judge Walker asked both sides to answer a series of twelve questions, including one query that went to the heart of an oft-repeated claim advanced by those who oppose full legal equality for gay Americans and their families. "What does it mean to have a 'choice' in one's sexual orientation?" Walker asked.

Gays and lesbians say that they do not "choose" to be sexually and romantically attracted to persons of the same gender. Science has also indicated that homosexuality, like heterosexuality, is an innate characteristic. The court's findings of fact agreed on this point, and added that sexual orientation is not liable to change through so-called "reparative therapy," which claims to enable gays to be "cured" or to "convert" to heterosexuality, but which mental health experts warn can be damaging to those to undergo it. Another finding of fact by the court was that marriage is a civil, and not a religious, right.

In striking down Proposition 8, Judge Walker wrote, "The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters' determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view.

"The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval," Walker's opinion continued. "As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives."

Following the verdict, a stay was placed on the resumption of marriage rights for gay and lesbian families in California pending appeal. Legal observers expect the case eventually to reach the U.S. Supreme Court.