Later this month the long-awaited trial of Proposition 8 will commence in a federal courtroom in San Francisco. Judge Vaughn Walker will preside over the case brought by a legal dream team of Ted Olson (former Solicitor General under President Bush) and David Boies (who represented Al Gore in the Bush v. Gore case in 2000). Olson and Boies argue - correctly, in my view - that Proposition 8 is a straightforward violation of the 14th Amendment and should be struck down.
People across California and across the country are eagerly awaiting the trial, and fully expect to be able to follow it on television. But Judge Walker may close the courtroom to cameras, following on an outrageous demand from Prop 8 supporters. What do they have to hide? And how can we fight back? Scroll down to find out!
One of the fundamental legal principles this country was built on is the openness and transparency of the judiciary. For the system to work, people must believe the process is fair, the outcomes just. And for that to occur, the public needs to be able to see what is going on in the courtroom.
On a case this important, the public's right to know should be protected and upheld in the broadest possible form. That means televising the proceedings. Since this isn't a criminal trial, there's no defendant who could be harmed by having this made public, no jury that could be swayed by the cameras. Since only a tiny handful of people will ever be able to be in the courtroom itself, that would seem like an open and shut case for allowing cameras in the courtroom. Right?
Well, not if you're the forces who put Prop 8 on the ballot and helped it pass. They are afraid of public scrutiny. Afraid of the camera. Afraid to let the people of this country hear the bigoted truth behind their defense of Proposition 8.
They have decided to organize the far-right to pressure Judge Walker to close the courtroom to cameras. Focus on the Family is circulating a petition to prevent the trial from being televised, and have generated tens of thousands of signatures.
Their argument is:
Following a short public-comment period – only five business days – the battle could bring a circus-like atmosphere. Chief Judge Vaughn Walker is considering allowing video cameras in the courtroom.
Ron Prentice, executive director of Protectmarriage.com, is concerned Walker’s decision could cause problems for proponents of Prop. 8 who have already come under attack.
"Intimidation and harassment will continue," Prentice said. "And, those who are put on the stand or are seen in the courtroom may very well be recognized and further intimidation or harassment may continue."
Not only is this ridiculous on its face - the people who have faced genuine "intimidation and harassment" as a result of Prop 8 are the LGBT couples who lost their rights when it passed - but it is a pretty weak reason to deny the public their right to know what is going on in that courtroom. If the Prop 8 supporters want to defend the law, they should have no hesitation to do so in a public manner, on television.
Judge Walker was planning to allow cameras in, but as a result of the Prop 8 supporters' protestations, has agreed to hold a hearing on the matter next week. He is asking for public comments by this Friday. So you have a chance to determine the outcome - will Prop 8 supporters be able to hide their true arguments, or will the public interest and democratic transparency win out?
The Courage Campaign Institute, where I work as Public Policy Director, isn't going to wait to find out. We're going to organize to deliver petitions of our own to Judge Walker, as he has solicited, in order to uphold the public interest and demand that this trial be televised.
You can sign your name here - along with CREDO Mobile, we will hand deliver the signatures to the court in San Francisco on Friday. Your signature matters - the more signatures we deliver to the court, the more likely it is that he will do the right thing in the name of equality, accountability, and transparency.
Here's the letter I wrote that the Courage Campaign Institute and CREDO are using for our petition:
To the Honorable Judge Vaughn Walker:
We are writing to insist that the trial of Proposition 8 be televised to the public. In any democracy, openness and transparency are necessary to the proper functioning of our courts. Americans have the right to know what is being said and argued in their courts, and allowing cameras in the courtroom to broadcast the trial is the best, most efficient way to provide the transparency to which we are entitled.
This case presents issues that are very important to the public, and will affect millions of people. However, only a tiny fraction will ever be able to watch the trial in person. By televising the trial, the public will be able to see for themselves the arguments and evidence presented by both sides, and will therefore have more confidence in the outcome of the trial.
Justice is blind, but the public is not, and should not be blind in this case. We urge you to uphold the public's right to view this important trial on television.
Please sign it by clicking here. The right-wing, led by James Dobson and Focus on the Family, are already organizing their members to write to the court. Are you going to let them beat us?
This whole episode raises the question of what the Prop 8 supporters have to hide. They haven't been shy about their vocal support for denying equality in the past. Few have faced intimidation and harassment for it.
It's more likely that their true motivation is to prevent the American people from hearing the powerful and compelling case that Boies and Olson are going to make in that courtroom. Both lawyers are expert litigants, and are pursuing a sensible Supreme Court strategy designed to swing Anthony Kennedy to join Stevens, Ginsberg, Breyer and Sotomayor to uphold the 14th Amendment and overturn Prop 8. Kennedy has made rulings favorable to LGBT rights in the past, including Lawrence v. Texas in 2003 which decriminalized sodomy.
Dobson, Prentice and the backers of Prop 8 want to hide that compelling argument from the public. They also want to hide their own anti-equality arguments from public view. In March 2009 they had Kenneth Starr argue in the California Supreme Court that voters can pass whatever they like at the ballot box, a view I label the Starr Doctrine. Such a radical idea won the day in the California Supreme Court, disappointingly enough. But in federal court, the Prop 8 backers seem to want to hide that argument from the American people.
Ironically, that trial in California Supreme Court last March WAS televised. And nobody was intimidated or harassed because of it - well, except for those who lost the right to marry the person they love when the court upheld Prop 8.
There is simply no reasonable justification for keeping cameras out of the courtroom. Thankfully, Judge Walker wants to hear your thoughts on the matter. Take him up on his offer by signing our petition right now. Thanks!