I'm on record supporting the televising of the Prop. 8 trial, so it's natural that I am siding with Dahlia Lithwick over Orin Kerr in their fascinating and articulate debate. (H/T Andrew)
It's not that I think Orin is wrong, but that he focuses too narrowly on how plaintiffs want high-profile trials to serve as public forums for their viewpoints. That is inarguable. But the other side in those trials isn't just an innocent bystander. In the hypothetical high-profile trial Orin offers, where a conservative group wants to publicize a case challenging a public university's affirmative action program, I am probably aligned with Orin. But even if I weren't and were representing the university, I can think of any number of very good ways to use that forum to make my own case, not just to the court, but to the public. I know there are affirmative action supporters who are smart and passionate about their position, and who, like the conservative plaintiffs in that hypothetical case, would relish the opportunity of engaging with a very interested public on an issue of importance.
This is public relations, not law, and it is a necessary, though not entirely salutary byproduct of court proceedings being public in cases with political ramifications.
I think Orin might be distracted in the Prop. 8 case because the people defending Prop. 8 seem to lack that fire in the belly -- at least now that the election is over. Four of their six witnesses this week now refuse to testify, claiming that they are afraid of the effect publicity might have on them, even though, as Lithwick notes, this is "not a case about outing gang members." Nor, as we now know, will their testimony be televised. It will be recorded, as I'm sure their lawyers advised them early on the law demands. Their deposition testimony was also transcribed, and their prior public statements urging voters to support Prop. 8, or more generally to oppose marriage equality are hardly news any more.
Given that, I'd have to agree with Theodore Boutros from the Olson/Boies team, who says that the witness's main fear is not about their already on-the-record positions and statements, but an entirely rational fear of being subject to cross-examination by David Boies. Of course, all of the plaintiffs' witnesses were subject to pretty intense and sometimes withering cross-examination by the Prop. 8 defenders - cross-examination, even very tough cross-examination is not unknown in courtrooms.
The sudden reticence of the Prop. 8 witnesses really does look embarrassing for their side, despite their efforts to blame it on out of control gay vigilantes. This is the first full federal trial of an initiative they won, for God's sake. What better forum could they have to make their case broadly than this courtroom right now? Where is the parade of star witnesses, the academics, and the ordinary people who found Prop. 8 so compelling that they actually voted to amend their constitution - not just a law, but the document setting out the very guiding principles of governance - so that, contrary to one of the most fundamental constitutional protections ever devised, it would protect the majority from a minority -- a minority that comprises between 2-5% of the electorate?
I, of course, see this as one more sign that there is no defensible legal case against gay equality, only a still potent political one which comes, not from any actual engagement with reason, but from impulse, inertia, a residue of historic antipathy and a misperception of homosexuality's very nature that has been cultivated for centuries, and is only now being seriously questioned not just by those of us who are gay, but by heterosexuals across this nation and the world. In contrast to those heterosexuals who are engaged in the discussion and really want to explore why it is they believe what they believe, the Prop. 8 defenders seem only to have a whole lot of people who want to be left alone.
At their best, courts provide a truth-seeking function that need only be tangential in political debate. Courts ask people to testify under oath, unlike the sound bites and half-truths that color electoral politics. And specifically with a subject as weighty as a constitutional amendment (despite California's trivilalizing of that document), a trial can test the legitimacy of each side's arguments, rather than their rhetoric. Now is the time for Prop. 8's supporters to make their case. I, for one, keep waiting.
6 Comments for “The Still Invisible Case For Prop. 8”
posted by Throbert McGee on
It occurs to me that since this case is, in practical terms, a matter of “Same-Sex Marriage vs. Same-Sex Civil Unions,” the Prop 8 supporters could’ve helped their case a lot by locating a few same-sex couples willing to testify that they found civil unions to be a perfectly agreeable solution and that they didn’t really give a good goddamn about whether the word “marriage” appeared on the license. (As a counterweight to Helen Zia’s testimony that civil unions are utterly inadequate.)
But perhaps this would’ve seemed like too much an endorsement of civil unions for the ultra-conservative constituents of the Prop 8 supporters?
posted by Amicus on
Yeah, Orrin has it wrong.
He seems to think that all ’emotional appeal’ is prejudicial to a public jury. But it is not. Pain and suffering are part of the fact-base of some cases, not prejudicial material introduced to alter how facts and might get weighed. This is why Walker has rightly allowed testimony that looks like “PR” to some.
More importantly, after scanning hundreds of comments in a variety of venues, NO ONE seems to yet have stated the obvious.
It’s not that Prop 8 are afraid of the emotional appeal. After all, Equality CA made the emotional appeals that went down in flames.
What they are afraid of is a highly respected source, a Federal Court, putting forward a logical alternative view of the world, in short, they are afraid of a Court speaking heresy against doctrine.
The attack on the cameras is a thinly veiled attack on the court itself. I was on one blog today that labeled the court a “pro homosexual Federal Court”. NRO has been actively attack the court, twice now putting up headlines about a “show trial”. Ed Whelan is falling over himself to show taint, bias, and “lawlessness” in the 9th Circuit.
There is also an embarrassment factor for Prop 8 that they don’t want to be seen. They don’t want to be seen imploring the highest court in the land (potentially) to adopt the lowest standard (of scrutiny) possible. The last thing they want is their narrative about kids to be cast into the long history of antigay campaigns.
It goes on and on, but that will do.
posted by Amicus on
more, omitted by many:
“The Ninth Circuit Court of Appeals has permitted television and radio broadcasting of oral arguments with approval of the panel hearing the case. Since 1991, the court has permitted video and audio recordings of oral arguments in approximately 200 cases.
All of its oral arguments are available on its website – http://www.ca9.uscourts.gov/media”
link:
http://www.ce9.uscourts.gov/cm/articlefiles/137-Dec17_Cameras_Press%20Relase.pdf
posted by Jerry on
It seems to me that the legal opposition to having the trial broadcast has nothing to do with the possibility of the witnesses potential harassment. I suspect some of them will be harassed if they haven’t already been harassed. I think what the defenders really fear is the widespread broadcasting of their position when it doesn’t have any rationality. It will be the voters who decide this ultimately. The gay community is already gearing up for another vote. Some are even hoping to have that vote this year. Televising this case would either provide enough momentum to reverse the Prop 8 vote or to quash the prospect of same sex marriage for an indeterminate time. Proponents of marriage for same sex couples believe openness is our friend. I tend to agree with them.
posted by Amicus on
FTR, today we find out that it wasn’t ALL about harassment or anything else.
Some on their witness list just didn’t support the Prop 8 stuff:
# 01/20/2010 Katherine Young Deposition Transcript
# 01/20/2010 Paul Nathanson Deposition Transcript
http://www.equalrightsfoundation.org/news/news-archive/
posted by DragonScorpion on
Okay, the ‘we’re afraid of being harassed’ excuse is really starting to wear thin. Especially this coming from those espousing the so-called overwhelming majority view.
Already, we were told that this extremely important trial cannot be televised because those testifying against same-sex marriage feared harassment. Nevermind the fact that these folks, their views, and their identities are all going to be on the record and if they’re going to get harassed then that is going to happen regardless whether this is on YouTube or not.
So the Supreme Court let them have their way. Now they’re saying they can’t testify because of harassment. Fine, if you’re not willing to own your beliefs, (especially when those beliefs include denying the equal legal treatment of your neighbors), then go home.
Ultimately, I think Mr. Link is correct, this isn’t about a fear of others criticizing them for their view; it’s a fear of having to explain these views rationally, in a court of law.
Still, I don’t want to gloss over the issue of threats. I think all of us who support legal recognition of same-sex marriage should take bullying by our side very seriously.
We have a right to protest. But we should try to exercise some civility here. I wouldn’t want to see our side out there literally shouting down others. That is not civil discourse, nor a civilized way to protest. The other side should bear that in mind, too, because they instigate these fights also.
Ultimately we are accountable for our own actions. When protesting and struggling for our civil rights, we should keep the peaceful civil disobedience of Martin Luther King, Jr. in mind.
We should never, under any circumstances, advocate violence or threats of violence.
Much thanks for Amicus for the resources…