High court's broadcast ruling under microscope

The Supreme Court held that judges had erred by allowing video feeds from a trial related to California's Proposition 8. Pictured are plaintiffs Paul Katami, left, and Jeff Cirillo, with Kris Perry and Sandy Stier.
The Supreme Court held that judges had erred by allowing video feeds from a trial related to California's Proposition 8. Pictured are plaintiffs Paul Katami, left, and Jeff Cirillo, with Kris Perry and Sandy Stier. (By Marcio Jose Sanchez/associated Press)
Washington Post Staff Writer
Friday, January 15, 2010

It was a hastily written ruling by Supreme Court standards, and it carried a dissent almost equal in length to the majority's opinion. But the 5 to 4 decision the court issued late Wednesday blocking the broadcast of a federal trial about the constitutionality of same-sex marriage is being scoured by legal analysts and activists for deeper meaning.

Many are finding a hint of sympathy for those who oppose same-sex marriage. An unmistakable worry about how cameras could transform what the ruling called the "orderly, decorous, rational traditions" of the courts. Some even detect a whiff of Bush v. Gore.

"It is almost classic Freudian," said Andrew Koppelman, a law professor at Northwestern University, "in that it is talking about one thing, but really seems to mean something else."

Although the ruling went out of its way to emphasize its own limits -- "Our review is confined to a narrow legal issue," the majority said -- the ideological split in voting drew speculation about what it portended for a court that is likely to decide the constitutionality of same-sex marriage.

"If there had been a mixture of ideologies on each side, this would have been less remarkable," said Dale Carpenter, a civil rights and constitutional law professor at the University of Minnesota.

The court held that federal judges in California had violated their own rules by allowing video feeds from a San Francisco trial examining a challenge to California's Proposition 8, which voters approved in 2008 to amend the state constitution to forbid same-sex marriages.

The majority said the presiding judge, Vaughn R. Walker, and the chief judge for the U.S. Circuit Court of Appeals for the 9th Circuit, Alex Kozinski, had pushed through "eleventh-hour" changes to the court's rules to transmit the proceedings to five courthouses around the nation and, perhaps, to post video on the court's Web site.

The question of whether the trial should be broadcast, seemingly a politically neutral question, has been cast in decidedly ideological terms beyond the court. Conservatives view the proceedings as a show trial from one of the nation's most liberal cities meant to promote a gay rights agenda. Liberals said the trial would expose bigotry on the part of those who promoted Proposition 8.

Those issues were not in front of the court, of course. But they create an atmosphere of "what side of the cultural divide are you on," Koppelman said.

The unsigned opinion represented the views of Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. Justice Stephen G. Breyer was joined in his signed dissent by Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor.

Carpenter said he thought the ruling brought two ominous messages for proponents of same-sex marriage. One was that the majority seem to regard Walker with skepticism for his efforts to more broadly disseminate the trial. The other was an acceptance of the argument from proponents of Proposition 8 that they face harassment and even physical threats for their testimony, and that even limited broadcast of their appearances at the trial would cause them irreparable harm.

"Some of applicants' witnesses have already said that they will not testify if the trial is broadcast, and they have substantiated their concerns by citing incidents of past harassment," the majority said, citing newspaper articles. The dissent dismissed such concerns, noting the witnesses have already demonstrated themselves as opponents of same-sex marriage in ways "far more likely to make them well known than a closed-circuit broadcast to another federal courthouse."

Carpenter said it seemed that opponents of same-sex marriage had already scored a strategic victory at the high court.

"As an advocate, you'd rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath," Carpenter wrote in a blog post at the Volokh Conspiracy, a legal blog that draws conservative thinkers and was thick with analysis and speculation about the court's ruling.

Koppelman, a constitutional and political philosophy professor who wrote "Same Sex, Different States: When Same-Sex Marriages Cross State Lines," agreed with Carpenter that both sides of the same-sex marriage debate would like to present themselves as "the endangered, beleaguered minority" in need of the court's protection.

He was among several who found reminders of Bush v. Gore in the decision. Both involved the Supreme Court taking emergency steps to overrule the procedures of lower courts, although with obviously unequal stakes.

Others were examining the ruling for clues about whether a court that has added three justices in the past four years might be reevaluating its views on cameras in the courts. Although the majority said twice it was not passing judgment on an issue on which "reasonable minds differ," it expressed concerns about "the effect of broadcasting in high profile, divisive cases."

"While the majority couches its opinion in terms of supervising the administration of the judicial system, it seems to evince an anti-camera bias," said David L. Hudson, a scholar at the First Amendment Center.

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