Can gay marriage be a fundamental right, when all legal protection has been denied until recently? In a state that treats domestic partners the same as spouses, “what purpose is served by differentiating – in name only – between same-sex and opposite-sex unions?”
These are two of the questions sent to opposing lawyers by U.S. District Judge Vaughn Walker, who will hear their closing arguments next Wednesday in the San Francisco case being watched for broader implications. Supporters of gay rights are seeking to overturn Proposition 8, California’s voter-approved ban on gay marriage.
The closing arguments won’t be watched by just anybody. Judge Walker ruled late this week that arguments may not be televised beyond the closed circuit of the courthouse. So you’ll have to be on site to follow the proceedings up close and personal. Media organizations had sought to have the session, which is expected to last all day, televised; proponents of Prop 8 argued against the idea.
The denial means “the public will again only hear about this case second-hand,” said Thomas Burke, the media groups’ lawyer.
Andrew Pugno, a lawyer for sponsors of the ballot measure that banned same-sex marriage, countered that “the purpose of the court is not to entertain or educate the public, but to protect the right to a fair and impartial trial.” The sponsors had opposed televising any trial proceedings.
Two same-sex couples and the city of San Francisco have sued to overturn Proposition 8, the November 2008 initiative that amended the California Constitution to define marriage as the union of a man and a woman.
Walker presided over the non-jury trial in January. He had proposed to televise the trial live to several federal courthouses around the nation and record the proceedings for a delayed Internet posting on YouTube.
The telecast, which would have been the first for a federal court in California, was blocked by the U.S. Supreme Court just before the trial started.
In a 5-4 ruling, the court said Walker hadn’t given the public enough time to comment on the proposed change in court rules. The court also cited claims by Prop. 8’s sponsors that showing the proceedings outside the courthouse might intimidate witnesses.
Media organizations asked Walker last month to approve televising the closing arguments. They said that airing a hearing that included only lawyers and the judge couldn’t affect witnesses or the fairness of the trial.
Prop 8 supporters argued, though, that cameras in the courtroom could prompt “grandstanding and avoidance of unpopular decisions or positions.” Whatever the judge’s decision, it is guaranteed to be widely unpopular.