A federal bench trial got under way this week that could end up as one of the two or three most significant civil rights cases in American history.
Perry v. Schwarzenegger, a civil rights lawsuit that seeks to overturn California Proposition 8, is expected to last three weeks but if you want to know what’s going on from day to day you’ll have to read about it online or in a newspaper or watch or listen to a news broadcast.
You could have listened to or watched it yourself but the United States Supreme Court doesn’t want you to. It thinks live broadcasts, or even taped ones, are bad for justice. In a 5-4 ruling Wednesday, the court rejected an attempt to broadcast the proceedings on the Internet or post recordings of them there.
California voters passed Prop. 8 in 2008, establishing a state constitutional provision that marriage is between a man and a woman, which more than two dozen states have also done. Seven other states allow for gay marriage.
Consequently, there are few Americans who don’t have an interest in the outcome of this case. With that in mind, District Court Judge Vaughn Walker allowed for the proceedings to appear on the Internet in some fashion, which the Supreme Court subsequently rejected.
The suit argues that Prop. 8 violates the right of gay Americans to equal protection of the law established by the 14th Amendment to the Constitution.
It is likely that no matter Walker’s decision, the case will be eventually appealed to the Supreme Court.
And there, depending on the ruling, it will go down in history either as repugnant as Plessy v. Ferguson, an 1896 ruling that upheld racial segregation, or as triumphant as Brown v. the Board of Education of Topeka, Kansas, which rejected Plessy and ended racial segregation (or at least provided the legal basis for ending it). Or perhaps as destructively divisive as Roe v. Wade.
It is inconceivable that a trial of this magnitude being heard in an age of such technological wonder could be so shrouded from public view.
The case is public, to be sure. If you wanted to attend in person, you could. Of course, you’d have to travel to San Francisco and be willing to stand in line outside the courtroom for hours each morning in hopes you can be one of the few to get a seat through the court’s first-come, first-seated rules.
More than likely you’ll end up one of the hundreds left standing outside in the cold wondering what’s going on.
It needn’t be this way.
The Supreme Court’s arguments that justice will be harmed if there is a camera in a federal courtroom are specious. Conservative SCOTUS justices have long argued that lawyers, witnesses and even judges will grandstand for the camera or in some other way alter their behavior or testimony.
But cameras have been in state courts for decades and no such deleterious behavior has occurred, studies have shown.
This case is too important to keep millions of Americans from being able to see and hear for themselves history in the making.
It is ridiculous that the federal court system is stuck in the 19th century when it comes to public access. It’s time for it to join the rest of us in the 21st.