Today, the CA S Ct opined that the Prop 8 official proponents have standing to appeal under state law. The Ninth Circuit will surely accept the ruling, and we can move on to the merits of the case. Here’s my analysis over at The New Civil Rights Movement. As always, comments welcome — on either site.
In my just-posted column over at 365gay.com, I distill the closing arguments presented by the Prop 8 proponents. Hint: they’re not good. It’s mostly this: We don’t need evidence in order to exclude gays and lesbians from marriage. Everyone knows marriage is for procreation, and gays can’t do that (not on our own, anyway). And letting us in will “destabilize” the institution.
That’s really about it.
Almost certain to be overlooked in today’s endless (yet fascinating!) summaries of the Prop 8 closing arguments is the public health cost of denying marriage rights to same-sex couples. Speaking on behalf of the City of San Francisco, Therese Stewart catalogued the public health costs of the stigma that second-class citizenship carries.
First, she talked about the cost to the public health system of diagnosing and treating those with mental health disorders brought about by the stigma associated with the denial of basic equality, especially as filtered through the particularly nasty campaign that was Prop 8. Then she said this, referencing testimony from trial:
Doctor Meyer talked about the stigma that laws like Proposition 8 impose. He also testified about the higher incidence of mental health disorders like anxiety and depression and he particularly focused on the fact that lesbians and gay men unlike other minorities often suffer harm and prejudice at the hands of their own family members and he talked about how youth in particular are affected in a terrible way. They can’t aspire to become married and have families when they are young and they realize that they are gay. And as a consequence of the impact on them the race of suicide, of suicide attempts are higher among lesbian and gay youth.
Isn’t this all obvious? Yet against it and other undisputed harms to gay and lesbian couples and their families, Prop 8 defender Charles Cooper could do no better than to blather on about “the channeling function of marriage” and the “deinstitutionalization” of marriage.
Evidence, he had none: worse, he said he didn’t need any. Really.
“Like it or not, we are now well into the 21st century.”
Thus spake Alex Kozinski, chief judge of the Ninth Circuit court of appeals and a reliable wit, in rejecting the Judicial Conference’s imperiously worded “suggestion” that he “consider” the Conference’s position against televising trials. Kozinski obviously shared the common-sense view that the Prop 8 trial is a matter of significant public interest (and, implicitly, that the claims of intimidation by the defenders of Prop 8 are poppycock). Kozinski is a somewhat conservative, but truly bright and independent judge whose opinions can sometimes make you laugh out loud. (Favorite example, from a torts case : People try to cram more and more stuff into airplane’s overhead bins, including “the occasional deceased relative.”)
But Kozinski was Roberts-slapped by the Chief Justice, who presides over the federal Judicial Conference . The Conference doesn’t directly bind lower courts, but it might as well have in this case, as Roberts (likely writing for the 5-4 majority behind the per curiam Japanese screen) used a procedural argument to upend the lower court’s decision. I thought that Justice Breyer had the better of the argument in dissent: The purposes behind the requirement of notice and a period for comment were met, even though the rule change was enacted hastily. Thousands of comments were received, and the arguments for and against televising were well and fully vetted.
I could live with a contrary decision, though, if it were truly grounded in an argument about procedural deficiency. But the more I study the Court’s opinion, the more convinced I become that this had little to do with procedure. The Court, after a tedious examination of the procedural issues, then expressed prim disapproval of the lower court’s decision, on the merits, to use this case to pilot the televising of trials. The Court also regurgitated the Prop 8 defender’s argument that witnesses would be intimidated, wouldn’t testify, and so on. What about the fact that many of these same witnesses have been proudly, even annoyingly public in other contexts? The Court:
These concerns are not diminished by the fact that some of applicants’ witnesses are compensated expert witnesses. There are qualitative differences between making public appearances regarding an issue and having one’s testimony broadcast throughout the country.
What are those differences? Who knows? The Court ignores the public interest in the case (except to regard it as a negative) and doesn’t bother to spell them out; and Justice Breyer, in dissent, gave this argument the burial it deserved. After noting that none of the witnesses themselves were complaining, he wrote:
And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. 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.1
But here’s one guess as to the difference the Court saw as important, but the one it dare not speak aloud: Public appearances can be sensational, focusing on talking points calculated to fire people up against marriage equality: Your kids will be force-fed “the gay lifestyle”; “gay marriages” will undermine “traditional” ones; religions are under siege from gay activists, and so on. These assertions have proven (maddeningly) effective in ballot initiatives, but they don’t work in court rooms. Sober public education, in other words, is the mortal enemy of the anti-equality forces. If you doubt this, consider the final devastating sentences from Margaret Talbot’s comprehensive New Yorker article on the case:
- That’s all the Court had before it; not the youtube issue, which the federal appellate court hadn’t resolved. ↩
I’ll be heard on 1150AM (WDEL) at 5:25 this evening, talking about both the marriage equality case being tried in California and the trial of Scott Roeder, who confessed to having killed Dr. George Tiller (who performed abortions.)
WDEL is in Wilmington, Delaware. If you can’t pick that up, you can catch it on line here (“Listen Live”.) The conversation should last only a few minutes.
As I noted in my previous post, there won’t be any youtube coverage of the Prop 8 trial (Perry) now underway in California. But here’s a link to the Mercury News’s website, which is offering frequent updates of the proceedings. That’s what we’ve got from now, so we’re counting on those in the courtroom to relate what’s happening.
Less than one hour ago, the Supreme Court voted — by a lopsided 8-1 majority — to grant the defendants’ motion to prevent the youtube broadcast (even the delayed broadcast) of the trial proceedings in Perry v. Schwarzenegger, the California federal case challenging the constitutionality of Prop 8 (and, by extension the constitutionality of the ban on same-sex marriages.)
I can’t yet find the Court’s ruling, but it’s likely short, because the Court only agreed to defer the issue until Wednesday, by which time one would expect they’d issue a more comprehensive decision. But the fact that eight of the justices believe that the application has at least some merit (a least enough for a short stay) surely isn’t a good sign for those, like me, that planned on some good popcorn viewing over the next several weeks.
I’ll have much more to say after the Court’s more substantive decision on Wednesday (especially if the Court affirms and continues the stay), but for now I note:
- As the linked article suggests, some members of the Court may be allowing their own views about televising of Supreme Court proceedings to affect their judgment here. Several members, notably Chief Justice John Roberts, have been vocally opposed to suggestions that the Court allow anyone to actually see what it’s doing.
- It’s worth wondering how the professedly (if disingenuously) anti-elitist Justice Scalia will rule. Surely public access to a trial, where people sitting in their living rooms can make their own judgments about the evidence, should be — from the vox populi standpoint, anyway — better than having such proceedings filtered through the media lens; and a small number of media outlets, at that. Let’s see whether this sentiment even surfaces in a case where Scalia might believe that honoring it would do harm to a case in which his belief, from available evidence, is quite strong.
Of course, one might seize on my phrase “popcorn viewing” in support of the position that allowing the citizenry to watch trials of national importance is to permit their trivialization. But if we’re going to let people vote on rights, it seems the least we should do is to let the oppressed see the arguments being used against us.
As for the claim that witnesses will be intimidated or harassed should be trial be televised, it might be answered that the witnesses and their statements will (unless there’s something I’m not aware of) be part of the public record. Anyone determined enough to find out the information can already do so. Let’s not allow speculative, incremental risk to get in the way of full disclosure.
After all, the arguments against marriage equality are surely compelling, aren’t they?
In case you were wondering whether the Prop 8 defenders believe their arguments are sound, wonder no more: They have gone so far as to seek, from Supreme Court Justice Anthony Kennedy (who decides such applications for the Ninth Circuit, of which California is a part), an emergency stay of the California court’s order to allow a delayed broadcast of the trial proceedings. The trial is to start tomorrow, with the youtube broadcast to be offered on time delay (maddeningly, we don’t know when the video will be available; later the same day, or early the following day).
Does this action sound to you like that of a group confident in the strength of its arguments? Me, neither. The stay application cites the prospect of witness intimidation and harassment if this show trial is broadcast. Translation: We’re much better off if people can’t see that we have no good arguments against allowing gay couples the same right to marry that heterosexual couples take for granted.
One interesting tea leaf to read here: Justice Kennedy is among the Court’s most consistent defenders of the First Amendment, reading its guarantees quite broadly. Thus, if he does grant the stay, the prospects for ultimate success at the Supreme Court dim. His vote is likely decisive. And Kennedy probably can’t dodge the issue by asking the full Court to weigh in, because the other eight justices would likely split 4-4, throwing it right back to him.1 There’s something fitting about Kennedy’s role here: He can decide this, all by himself. We might as well say that about marriage equality, generally.
- I know, this is much too simple, because this isn’t the same as deciding the marriage issue on the merits. And the First Amendment issue could split the Court in a different way. Yes, but if Bush v. Gore taught us anything, it’s that theory and doctrine will be subordinated to political result when the chips are down. So I don’t expect the conservative wing of the Court to do anything that would diminish, even hypothetically, the case against marriage equality which they may soon have to hear. ↩