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Eyes
on California
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.
—Paul
Rapp
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