While the mainstream media have been ranting incoherently about irrelevancies like Harry Reid, Jay Leno and Sarah Palin, something truly remarkable has been taking place in California. On Monday, in a San Francisco federal courtroom, a trial began in the case Perry v. Schwarzenegger about the constitutionality of California’s Proposition 8, which bans gay marriage. This may be the Scopes Monkey Trial of our generation.
The case is fascinating and important on so many levels, it’s hard to know where to begin. But two things are jumping out at me right now. The first is the lawyers involved. The plaintiffs, two San Francisco couples who were denied marriage licenses shortly after Proposition 8 became law, are represented by David Boies and Ted Olson.
Olson’s participation is simply mind-boggling. He would appear as solidly Republican as anyone on Earth. He was an assistant attorney general under Reagan, led the charge against Bill Clinton in the Paula Jones case, represented the Republicans in the “hanging chad” case that decided the 2000 presidential election (Boies, incidentally, represented the Democrats), and was solicitor general under George W. Bush from 2001 to 2004.
So, what’s he doing arguing for gay marriage? He explains it in an essay appearing in the current issue of Newsweek titled “The Conservative Case for Gay Marriage.” I could stick quotes in here, but I won’t. Instead, just go to newsweek.com and read it. It’s fantastic, rational, and impassioned.
This, of course, has caused all sorts of consternation among the prevailing knuckle-dragging Republicans—the neocons, the Christianistas, Sarah Palin’s “real America.” Gay marriage certainly doesn’t fit into their worldview, in which gays are hedonistic predators, in which being gay is either a satanic choice or a sickness that can be cured, in which hate and fear are the most cherished and most clearly expressed values.
Andrew Sullivan, the massively read blogger, who is both gay and conservative and who has been hypercritical of the Republican Party while bemoaning the decline of pure conservatism, noted that the right-wing blogosphere is virtually silent about Olson’s breach of what has been, up to now, fundamental right-wing doctrine. Of course, the longer-term impact of Olson’s manifesto won’t be known for a while, but it does represent a massive shift in the gay-rights debate, and a further and serious fracturing of factions within the Republican Party.
Another interesting development in this case was the judge’s decision to allow cameras in the courtroom, with closed-circuit broadcasts in other courtrooms around California and posts on YouTube. Cameras are generally barred from federal courtrooms, although several courts around the country are experimenting with their use.
The defenders of Proposition 8 (interestingly, the State of California refused to defend its own law, so the “defendants” in the case are represented by one of those well-funded “conservative” groups that runs around the country opposing gay-marriage initiatives) filed an emergency motion to keep the cameras out of the courtroom, arguing that it would imperil the safety of some of their anti-gay witnesses. Surprisingly, the Supreme Court issued a ruling, less than 30 minutes before the trial was to begin on Monday, temporarily barring the transmission of any video of the trial except to other rooms in the San Francisco courthouse. The stay only lasted through Wednesday, and by the time you read this, the court will likely have issued a more elaborate ruling. And it could go either way.
The whole cameras-in-the-courtroom thing has always bugged me. Courtroom proceedings are, with very few exceptions, public events as a matter of constitutional right. None of the arguments supporting keeping cameras out of the courtroom make much sense or stand up under even a little scrutiny. Spare me the “dignity of the courtroom” stuff. Why is that compromised when the cameras are on? Many states allow filming and broadcasting of state court proceedings, and with laudable results. Back when there was a Court TV, before it turned into whatever lowest-common-denominator dreck channel it is now, Court TV regularly aired court proceedings, and some of them were among the most compelling things ever on TV. As circus-y as it was, the live broadcast of the O.J. Simpson trial was compelling, brilliant and educational. All of a sudden the entire nation was engaged in discourse on the nature of things like probable cause and the admission of evidence.
So, it’ll be interesting to see where the Supreme Court goes with this, and why. Meantime, keep your eyes on California.