Stay to continue on broadcast of Perry trial: second update and commentary

01/19/10 update

Law professor Nan Hunter, Supreme Court decision stopping webcast of Perry trial draws cross-fire, 01/19/10 hunter of justice

01/18/10 update

Adam Liptak, Justices Better at Precedent Than Prescience, 01/18/10 NY Times

Karen Lee Torre, Circus Trial Begins Over Proposition 8, 01/18/10 Connecticut Law Tribune

Karen Ocamb, Supreme Court Camera Ruling Continues History of Anti-Gay Discrimination, 01/18/10 Huffington Post

01/17/10 update

Law professor Rick Morris, Proposition 8, real-time streaming, and the US Supreme Court, 01/17/10 Medialawprofessor

Law professor Orin Kerr, Hypocrisy, Same-Sex Marriage, and Televising Public Interest Litigation, 01/17/10 Volokh Conspiracy

Lisa Keen,Supreme Court’s second move alarms gay legal activists, 01/17/10 Keen News Service

[The week's biggest controversy occurred out of the courtroom], 01/17/10 NPR

David Savage, Gay marriage supporters fear Supreme Court's ruling was an omen, 01/17/10 LA Times

01/15/10 update

Law professor John Culhane, What’s Really Behind the Supreme Court’s Decision to Block Access to the Prop 8 Trial? 01/15/10 WordinEdgewise

Robert Barnes, High court's broadcast ruling under microscope, 01/15/10 Washington Post

Civil rights attorney Marjorie Cohn, Keeping Same-Sex Marriage In the Dark, 01/15/10 MarjorieCohn.com

Dahalia Lithwick, Public Enemies: How the Supreme Court managed to insult both the law and the public. 01/15/10 Slate.com

Linda Greenhouse, Into the Closet, 01/14/10 NY Times Opinionator Blog

Linda Hirshman, The Nation: The Revolution Will Not Be Televised, 01/15/10 The Nation

01/13-14/10

Hollingsworth v. Perry, 558 U. S. ____ (2010) (09A648)

01/13/10 SCOTUS blog, updated, by Lyle Denniston:

Splitting 5-4, the Supreme Court on Wednesday blocked any television broadcast to the general public of the trial in a San Francisco federal court of the challenge to California’s ban on same-sex marriage. The stay will remain in effect until the Court rules on a coming appeal challenging the TV order. The Court, chastizing the trial court for attempting “to change its rules at the eleventh hour,” issued an unsigned 17-page opinion. The ruling, banning TV broadcasting “around the country,” came out nearly 40 minutes after an earlier temporary order blocking TV had technically expired ... As a practical matter, the ruling almost certainly dooms any broadcast coverage of the trial as it goes on.

Law professor John Culhane, …But at Least It will Make a Good Made-for-TV Movie, 01/13/10 WordinEdgewise [See also Professor Culhane's earlier post on the initial stay.]

And the idea that the Prop 8 supporters will be harassed or threatened by the trial? By applying that reasoning across the spectrum of cases, the public dissemination of knowledge would be greatly reduced, indeed. One should have to show a clear and imminent danger for such a claim to carry the day, not the kind of speculative harm that’s really all that’s alleged here ... The Court, though, sidestepped these more difficult issues by ruling that the order to broadcast was procedurally deficient (the lower court did change its rules “at the eleventh hour,” as the Court said). I’m trying to get my hands on the full opinion and will have more to say after I’ve thoroughly digested it.

01/13/10 press release, American Foundation For Equal Rights:

“Proposition 8 attacks the core of what our nation stands for — that all of us are entitled to equal protection under the law and equal treatment from the government. A trial on constitutional rights should be accessible to as many people as possible,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “Given the powerful evidence against Prop. 8 presented in court today, we are not surprised the initiative’s defenders sought to keep this trial as private as possible.”

Discrimination on Trial, but Not on TV, 01/14/10 NY Times Editorial:

There have been claims that televising the courtroom proceeding would somehow be unfair to defenders of Proposition 8, the California ballot initiative that banned same-sex marriage. They are hazy and unsubstantiated and vastly outweighed by the strong public interest in the airing of a major civil-rights issue. But the Supreme Court’s majority bought the false argument.

Jenny Pizer, Lamda Legal Marriage: Director Cut! Why did the Supreme Court ban videocasting of the Olson-Boies marriage trial? 01/14/10 LGBT POV

The high court’s majority decision is troubling in its accommodation of Prop 8’s proponents’ supposed fears of harm. As the dissent points out, the standard for Supreme Court interference with trial court management of such things is high and the evidence of threat submitted was paltry at best. In other words, despite the many excited claims, when the details are parsed out, there’s just not much there, there ... In contrast to the daily demeaning wrought by antigay stigma, there is a “Through the Looking Glass” quality to the assertions by Prop 8’s lead champions, their campaign staff and their lawyers that they fear violence and intimidation at the hands of gay equality advocates. These folks who sought the public spotlight for months to spread their Prop 8 campaign messages as broadly as possible suddenly are scared to be seen and heard?

Law professor Orin S. Kerr, Hollingsworth v. Perry, Bush v. Gore, and Manipulating Procedural Rules in High-Profile Litigation Impacting the Political Process, 01/13/10 Volokh Conspiracy:

I think the judicial instinct at play here is the objection of U.S. Supreme Court Justices when they see lower court or state court judges intentionally fudging procedural rules to help one side in very high-profile litigation that implicates the political process. In Bush v. Gore, the Florida Supreme Court was repeatedly fudging state election law to try to help out Al Gore in the 2000 election. In this case, Judge Walker was fudging the rules on broadcasting trials to try to give the plaintiffs a national forum to make the case for gay marriage. In both cases, the decisions left the strong impression that the judges below had picked a side: They were manipulating procedural rules to do what they could to help out the side they wanted to win in a case with enormous political implications.

Law professor Dale Carpenter, A Leading Judicial Indicator? 01/13/10 Volokh Conspiracy

Professor Carpenter concludes that because the majority questions Walker's objectivity and finds that Prop. 8 proponents need special protection, "it’s a bad start for the judicial challenge to Prop 8."

Law professor Nan Hunter, Supreme Court slams Walker for rushing through rule change to allow broadcasting of Perry trial, finds risk of irreparable harm to defense witnesses, 01/13/10 hunter of justice:

The more interesting part of the opinion was the Court's willingness to find a significant risk of irreparable harm (the standard for an injunction) in the press clips about post-Prop 8 demonstrations and boycott ... Preventing the webcasting of testimony by persons who have stepped forward to serve as witnesses and whose identities are already known and will in any case be subject to major publicity in such a high visibility case is not a good precedent in a system founded on the concept of open trials.

Ed Whelan, Ramifications of Supreme Court Opinion Blocking Broadcasting—Part 3, 01/14/10 National Review "Bench Memos"

For news reports, see the LA Times, the SF Chronicle, the San Jose Mercury News, and AP.