LGBT POV

Cut!  Why did the Supreme Court ban videocasting of the Olson-Boies marriage trial?

By Jenny Pizer

Marriage Project Director, Lambda Legal

Following the emergency appeal filed by the Prop 8 team, the U.S. Supreme Court on Wednesday ruled 5-4 that the federal marriage trial may not be videocast for public viewing at other federal courthouses.  The earlier plan to upload trial video to the court’s website already had been nixed by the Ninth Circuit Court of Appeals’ Chief Judge Kozinksi, who decided there are technical problems to be worked out before webcasting will be possible.

The high court’s majority decision is troubling in its accommodation of Prop 8’s proponents’ supposed fears of harm.  As the dissent points out, the standard for Supreme Court interference with trial court management of such things is high and the evidence of threat submitted was paltry at best.  In other words, despite the many excited claims, when the details are parsed out, there’s just not much there, there.

The antigay defamers’ apparent success (still) at casting themselves as victims who need defending (like their marriages?), while running campaign after powerful campaign to eliminate gay people’s rights, is an Orwellian problem calling for a reality check.  But the absurd victimhood claims of right-wing political operatives and religious leaders are not the heart of the Supreme Court ruling.  Instead, the court simply concluded that proper procedures were not followed for changing the court rules about broadcasting.

Most importantly, this isn’t a ruling on the merits of the Olson-Boies marriage case.  The issues are entirely unrelated.

Through the Looking Glass:  who’s really targeted, defamed, and stripped of basic rights?

This and every well-done marriage discrimination case spotlights for the court and public the harms suffered by lesbian and gay couples by denial of the equal liberty to marry.  Many people of good will, including judges and other officials, simply do not see and understand the stigma and resulting pain and problems that flow from the heterosexist convention of excluding same-sex couples and their families from this core social institution.  Thus, at the heart of every discrimination case is the story of injustice and its unacceptable human costs.  Judge Walker heard four such stories from the plaintiffs at the outset of the trial.

In contrast to the daily demeaning wrought by antigay stigma, there is a “Through the Looking Glass” quality to the assertions by Prop 8’s lead champions, their campaign staff and their lawyers that they fear violence and intimidation at the hands of gay equality advocates.  These folks who sought the public spotlight for months to spread their Prop 8 campaign messages as broadly as possible suddenly are scared to be seen and heard?

Perhaps I’m jaded because I’ve had to learn that vicious email sometimes is the price of public advocacy in the internet age.  Yes, it’s upsetting but . . .  just delete it.

That five of our nine Supreme Court justices apparently credited, at least to some extent, the claims that gay people have been meting out violence and intimidation, is worrisome.  It would help if they become familiar with the federal hate crime statistics that have been discouragingly consistent for years in confirming the disproportionate prevalence and cruelty of antigay hate crimes.  All bias crime is destructive and wrong.

True, San Diego’s Manchester Hyatt has become “hotela non grata” for many because its owner, Doug Manchester, was one of the largest individual donors to the Prop 8 campaign.  But there is no rule that individuals must continue to give business to those who have helped eliminate their legal rights; each person is free to patronize only the businesses they prefer.  Likewise, after the Prop 8 vote, there was a spontaneous boycott of a Hollywood-area restaurant, El Coyote, better known for the tourist-appeal of its old-style decor than its food.  The fact that a close relative of the owner had supported the Prop 8 campaign made it briefly the focus of some people’s hurt and anger about the campaign’s tactics and success.  But whether objectively warranted or not based on the size of the campaign donation (only $100), taking one’s enchilada order elsewhere is hardly a hate crime.

Why did the Prop 8 team really fear video cameras?

Many of us suspect that they worry their witnesses won’t be able to explain their support for Prop 8 without revealing antigay prejudice and a determination to keep lesbians and gay men unequal and heterosexuality officially designated as preferred.  Equally important may be a concern that their experts will not be as sensible, clear, knowledgeable and compelling as plaintiffs’ experts.  We believe accurate information catalyzes positive change and every chance for rigorous examination moves us forward.  Perhaps that is exactly what they fear.

The lack of televised access does make it harder for the general public to sort professional talking points from actual testimony in the immediate term.  It means the public impact of the case will depend more on Judge Walker’s evidentiary findings and the other material that comprises the record that goes to the Court of Appeal.  As we saw in our Iowa litigation, however, experienced judges readily can and do sort solid data and reasoning from unsubstantiated opinions, whether or not the courtroom also is an open classroom.