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Editorial: SCOTUS order in Proposition 8 trial chills

Editorial Indiana Lawyer
January 20, 2010
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Indiana Lawyer Editorial


It sounded too good be true, so we weren't surprised when we found out it was not to be.

We were intrigued and excited at the prospect of actually witnessing the Proposition 8 trial, Kristin M. Perry v. Arnold Schwarzenegger, even on a time-delayed, YouTube basis. Some of us on staff are familiar with the entertainment Web site, youtube.com, while others of us admit to only watching an occasional and quite silly video at the insistence of one of our children. The prospect of witnessing something of historic importance on this Web site had us and countless others who wanted a chance to see the trial full of hope.

It appears the YouTube broadcasting was dropped in favor of trying to preserve the ability to stream video of the trial to other federal courthouses.

But then the United States Supreme Court intervened. In the end, the plan to stream video of the trial regarding the same-sex marriage prohibition to several courthouses across the nation was limited to streaming trial footage to other rooms in the federal courthouse where the trial is taking place in the Northern District of California.

The somewhat snarky yet entirely civil language in letters and decisions back and forth among the jurists involved in this decision has made for some compelling reading.

First there is the Jan. 8 letter from the secretary of the Judicial Conference of the United States to Judge Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit. The letter asks Judge Kozinski to consider the conference's policy, "which does not allow courtroom proceedings in civil and criminal trials in district courts to be broadcast, televised, recorded, or photographed for the purpose of public dissemination."

Judge Kozinski quite cordially replied two days later, one day before the trial was scheduled to begin, that there is in fact no such policy in place, as it is up to the judicial council of each circuit to make such decisions. The judge said the court has responded to public demands for "transparency from its public institutions" by making "digital audio recordings of each appellate argument available to the public" on its Web site. He also says that a "substantial" number of arguments are video recorded and broadcast.

The judge then outlined the decisionmaking process that went into what he called the "pilot program" to experiment with the use of video in non-jury civil cases. Perry v. Schwarzenegger is one of these.

Near the end of the letter is the real zinger. The judge wrote: "Like it or not, we are now well into the Twenty-First Century, and it is up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology. If we do not, Congress will do it for us."

In an unsigned 5-4 decision Jan. 13, the United States Supreme Court granted the stay of the decision to make video of the case available to the public, in essence pulling the plug on the cameras. The majority found that District Court failed to follow the rules for amending its court rules. The majority is concerned with the witnesses who support Proposition 8 and fears for their safety if the trial were permitted to be broadcast to the public.

The dissent, written by Justice Stephen Breyer and joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Sonia Sotomayor, says that there was ample consideration of the court's intention to make the trial available to the public via cameras in the courtroom. He accuses the majority of micromanaging the lower court.

Justice Breyer also doesn't buy the argument that those who would testify about their support of Proposition 8 have reason to fear for their safety. "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," he wrote.

The majority made much of the potential for the testimony from the witnesses in support of Proposition 8 to be "chilled if broadcast." That led us to think about the kinds of hate-filled and venominspired comments about the news of the day that appears on some blogs and newspaper Web sites. We believe less anonymity in those kinds of instances would do a lot to chill this offensive kind of speech; few things clean up a person's words quite like the necessity of attaching your own name to them. We believe the same could be true for courtrooms via cameras.

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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