- The Washington Times - Tuesday, January 12, 2010

The Supreme Court on Monday temporarily blocked a federal judge’s decision to allow cameras in the courtroom during the trial on the constitutionality of California’s same-sex-marriage ban.

The court’s order will remain in effect until 4 p.m. on Wednesday to allow the justices more time to consider the issue. That means the Perry v. Schwarzenegger trial, which began Monday, will have proceeded for three days without being broadcast or videostreamed to news outlets and Web sites such as YouTube.

Attorneys for Proposition 8, the 2008 California ballot measure affirming traditional marriage, had filed for an emergency stay of the order with Justice Anthony M. Kennedy, arguing that televising the proceedings would interfere with the court’s ability to conduct a fair trial.

“The temporary stay of [U.S. District Court Judge Vaughn] Walkers ruling to allow broadcast of the Perry v. Schwarzenegger trial is a good sign that the full United States Supreme Court will give this immediate attention and hopefully protect our right to a fair and impartial trial,” said Andy Pugno, attorney for ProtectMarriage.com, which is helping defend the measure.

The defense argued that televising the trial would have a chilling effect on its witnesses. Supporters of Proposition 8 reported threats, vandalism, loss of jobs, economic boycotts and religious bigotry in the aftermath of the initiative’s passage in November 2008.

“[G]iven the highly contentious and politicized nature of Proposition 8 and the issue of same-sex marriage in general, the possibility of compromised safety, witness intimidation, and/or harassment of trial participants is very real,” Charles Cooper, lead attorney for Proposition 8, said in court documents.

The Supreme Court’s order was unsigned, with the only objection coming from Justice Stephen G. Breyer.

“I agree with the court that further consideration is warranted, and I am pleased that the stay is time-limited,” Justice Breyer wrote. “In particular, the papers filed, in my view, do not show a likelihood of ‘irreparable harm.’”

The Media Coalition and gay-rights activists had argued in favor of the cameras, saying the trial was a historic event and the subject of widespread public interest.

“While we are disappointed that the Supreme Court is postponing public access to the most important civil-rights trial in a generation, the opportunity still remains for the nation’s highest court to open up this trial so the American people can witness history,” said Rick Jacobs, chairman of the Courage Campaign, a California-based gay-rights group.

Judge Walker ruled in favor of cameras at the trial last week despite the long-standing ban on televising federal trials. The trial would have been the first to allow videotaping under a pilot program approved in December by the Judicial Council of the Ninth Circuit, which governs federal courts in western states.

In the Perry case, two gay California couples are challenging the state’s ban on same-sex marriage. Representing them are Theodore Olson and David Boies, the attorneys who argued on opposing sides of Bush v. Gore, the case deciding the outcome of the 2000 presidential election.

The defense is led by Mr. Cooper, a former assistant attorney general under President Reagan. He agreed to take the case after California Attorney General Jerry Brown refused to defend the law based on his support for gay marriage.

In Monday’s opening statements, Mr. Olson argued that the ban on same-sex marriage discriminates against gay couples. Mr. Cooper urged the court to take a wait-and-see approach, arguing that gay marriage is still too new to know its impact on traditional marriage, according to the Associated Press.