Supreme Court bars broadcast of Prop 8 trial in California

U.S. District Judge Vaughn R. Walker
U.S. District Judge Vaughn R. Walker (S. Todd Rogers - AP)
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By Robert Barnes
Washington Post Staff Writer
Thursday, January 14, 2010

The Supreme Court split along ideological lines Wednesday as it barred a federal judge in San Francisco from broadcasting a high-profile trial involving same-sex marriage.

The court issued an unsigned opinion that said lower courts had not followed proper procedure in approving plans for the broadcast. The trial is to consider the constitutionality of Proposition 8, California's ban on same-sex marriage, and the Supreme Court cited arguments from proponents of the ban that releasing video of witnesses could subject them to harassment and even physical danger.

The court's liberal bloc -- joined for the first time in an ideological split by Sonia Sotomayor, the new justice -- issued a strong dissent. It said the court's "extraordinary legal relief" was unjustified.

The majority "identifies no real harm" from televising the trial, "let alone irreparable harm to justify its issuance of this stay," wrote Justice Stephen G. Breyer, who was joined by Sotomayor and Justices John Paul Stevens and Ruth Bader Ginsburg. "And the public interest weighs in favor of providing access to the courts."

The court on Monday blocked U.S. District Judge Vaughn R. Walker's plan to stream live video from the trial, which started that day, to five courthouses across the country and to later release the proceedings for broadcast on YouTube. The justices' more complete ruling came at the end of the day Wednesday.

The majority said it was "not expressing any view on whether such trials should be broadcast." But it said Walker and Chief Judge Alex Kozinski of the U.S. Court of Appeals for the 9th Circuit "did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting."

The opinion came from Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

It was the second time the court has intervened with an emergency order in the sensitive issue of gay rights. In the fall, it barred Washington state officials from releasing the names of those who had signed petitions to overturn a state law giving benefits to same-sex couples.

On Wednesday, the majority criticized the California courts for changing their rules "at the eleventh hour to treat this case differently than other trials." Although Walker first raised the possibility of broadcasting the trial in September, it was not until December that the 9th Circuit began modifying its rules to allow such broadcasts. Walker announced his plans Jan. 7, and attorneys for proponents of Proposition 8 asked the Supreme Court for a stay.

Charles Cooper, a lawyer representing opponents of same-sex marriage, warned the court of "harassment, economic reprisal, threat and even physical violence" against those who planned to testify in support of Proposition 8, which was approved by California voters in 2008.

"While applicants have demonstrated the threat of harm they face if the trial is broadcast," the majority opinion said, "respondents have not alleged any harm if the trial is not broadcast."

But Breyer noted that the witnesses themselves have not asked the court to intervene.

"All of the witnesses supporting the applicants are already publicly identified with their cause," he wrote. "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."

The Supreme Court has adamantly resisted efforts to televise its own proceedings, allowing neither cameras nor recording devices. Many states permit televised coverage of their courts, and some federal appeals courts do as well.

In saying it was expressing no opinion on the propriety of broadcasts, the court noted that "reasonable minds differ on the proper resolution of that debate and on the restrictions, circumstances, and procedures under which such broadcasts should occur."

The case is Hollingsworth v. Perry.

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