On Monday, The New York Times carried an op-ed by Heritage Foundation scholar and former US Attorney General Ed Meese titled “Stacking the Deck Against Proposition 8.” In that piece, Mr. Meese criticized a series of pre-trial rulings issued by Judge Vaughn R. Walker in the landmark same-sex marriage case currently underway in federal court in San Francisco. One of those rulings involved Judge Walker’s controversial decision to broadcast the trial to other courthouses and post video recordings of the Prop 8 trial on the Internet.
On Wednesday, the US Supreme Court issued an order affirming the view of many observers that Judge Walker had indeed attempted to stack the deck in this case. In its order, the Supreme Court issued a stay prohibiting Judge Walker from broadcasting the Prop 8 trial until the parties had time to file a more traditional appeal of his order.
The lawyers defending Prop 8 had argued that Judge Walker’s broadcast order violated federal law and was a bad idea. Those arguments have been discussed in a series of excellent and substantive posts by Ed Whelan to National Review’s Bench Memos blog. Even The Washington Post published an op-ed of sorts accusing Judge Walker of performing “legal pirouettes worthy of ‘Dancing with the Stars’ to ensure cameras in his courtroom for the same-sex marriage trial.” The author of that piece stated, “I think judges should be impeccably fair, adhere without agenda to the rule of law and be as transparent as possible, so that even those who disagree with their decisions may nevertheless respect those decisions. Judge Vaughn Walker, who is presiding over the gay marriage case, has failed on these counts.”
In its order issued yesterday, the Supreme Court did not mince words in explaining the error in Judge Walker’s broadcast order. “The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.”
The Supreme Court explained how important it is for courts to be fair and neutral in deciding cases. “By insisting that courts comply with the law, parties vindicate not only the rights they assert but also the law’s own insistence on neutrality and fidelity to principle. Those systematic interests are all the more evident here, where the lack of a regular rule with proper standards to determine the guidelines for broadcasting could compromise the orderly, decorous, rational traditions that courts rely upon to ensure the integrity of their own judgments.”
The Supreme Court did not decide whether the Prop 8 trial should be broadcast at all. Instead, the Supreme Court merely ruled “that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting.”
However, even if Judge Walker’s order had been lawfully issued, broadcasting the Prop 8 trial would still be an exercise in bad judgment. Expressions of support for Prop 8 have generated a range of reprisals including “harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry.” As others have recognized, broadcasting the Prop 8 trial could subject the parties, lawyers, and witnesses involved in defending Prop 8 to similar harms.
The Supreme Court’s stay order includes significant discussion of the reprisals directed against Prop 8 supporters and recognizes that some of witnesses testifying in support of Prop 8 “have already said that they will not testify if the trial is broadcast” and “have substantiated their concerns by citing incidents of past harassment.” These concerns will be a key aspect of any future arguments about the merits of broadcasting the Prop 8 trial to other courthouses and on the Internet.
Marriage in every society is for procreation regardless of culture. Which is why you had polygamy & polyandry but not same sex in history.
I have no problem with same sex marriage. However When a decision is made by the voters, The courts have no right to change it. The courts job is to uphold the law not create it
Publicly displaying our foibles is no way to counter the "ugly American" syndrome – we've embarassed ourselves over OJ, we're picking on baseball players while ignoring steroid-crazed police, and we're threatening citizens who don't get health insurance – do we really care who's having sex?
It is not the privilege of the majority to vote on the rights of the minority. In order for democracy to exist in it's purest and most true fashion, it is the duty and responsibility of the majority to protect and defend the rights of the minority. More people during the time of Loving v. Virgina opposed interracial marriages than people opposing same sex marriage now, and yet that court case stood. Just because the majority of people have a certain religious conviction which compels him of her to believe a certain set of things, does not mean that that group then has the right to dictate its belief as law over all. As we all know, Americans have a very beautiful thing called freedom of religion. America was not founded on or even by Christian ideals. Most of the founders of our nation identified as Deists, which was more of a post-Enlightenment philosophy. It was an intellectual thing, much like Universal Unitarianism. Further, George Washington (for instance, in his inaugural portrait, Washington is wearing his Masonic Lodge apron) and other founding fathers were Free Masons, again, FAR from being Christian. The idea that America is a Christian nation is more based in teachings of the evangelical movement in America, which began in the 1960's.
The Constitution does not band or support same sex marriage. (I have a copy with me at all times) However the real way to stop the debate is to make Civil Unions through the government and Marriage through ones church. There is no need to have the word Marriage changed based on law. This is a clear case of Separation of Church and State, as my liberal friends would say. Even though the true meaning of Separation of Church and State is that church can not run the state and the state can not interfere with church (which it often does when government wants to limit input by its people)
To Tim Gonsalves, in Cincinnati: Yes, "marriage in every society is for procreation regardless of culture"…which is why we, in the United States, do not allow infertile couples to marry.