Dahlia Lithwick on the Supreme Court’s decision to ban broadcast of the circuit court trial of Perry v. Schwarzenegger, the legal challenge to Proposition 8 which overturned California’s earlier law legalizing same-sex marriage.
Perry v. Schwarzenegger promises to be a sprawling exploration of every aspect of the fight over gay marriage. But beneath all of the social-science testimony and constitutional nitpicking lies a deep institutional anxiety about whether California’s voters or unelected federal judges should be the arbiters of what marriage means. Opponents of liberal jurisprudence, and their pushy push to legalize gay marriage, have long argued against allowing unelected, sherry-sipping judges to substitute their values for those of the American people. As an argument, this has legs. It’s populist. It’s catchy. But it’s hard to take it seriously when the same people making it also come out strongly against letting the people watch trials.
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The absurdity of the court’s meaningless distinction between broadcasting high-profile vs. low-profile cases is highlighted by the Supreme Court’s own broadcasting policy: The court only provides same-day audio-casting of its own oral arguments that are of major public importance, or, as the court puts it, if there is a “heightened public interest” in the case. So, to be perfectly clear: The court only provides same-day broadcast in its most contentious, hot-button cases, but when the 9th Circuit attempts to do the same, the justices run away shrieking.
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Putting aside the merits of the gay-marriage trial itself, in this new decision the Supreme Court has revealed something profound about its view of the American people. One cannot argue that the majority of California citizens wanted to ban gay marriage and should be respected while also claiming that supporters of such an initiative are a fragile, oppressed minority who must testify in dark sunglasses in dark rooms. Opponents of gay marriage can’t have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work.
On this Martin Luther King, Jr. day treat yourself to a mini civics lesson and go read the whole thing over at Slate.