The same-sex marriage trial now underway in California is unique for many reasons. The plaintiffs' lawyers are superlawyers David Boies and Ted Olson, adversary lawyers in Bush v. Gore, the questionable 2000 Supreme Court ruling that gave the presidency to George W. Bush. The trial is also unique because they are trying to show that Proposition 8, which prohibits same-sex marriage in California, violates the Constitution. But it is also unique because the court decided that a few courtrooms around the country could broadcast the trial live on closed-circuit television.

That will not happen, however. The Proposition 8 supporters -- the ones who don't want same-sex marriage -- objected to the televised trial. The Supreme Court this week agreed with them and stayed the broadcast. In non-legal terms, the Justices overturned the court order allowing the broadcast. The revolution will not be televised.

There are two components to the Supreme Court's ruling. First, the Court said that the California federal court system did not follow the rules in allowing the broadcast because the proposal did not allow the public enough time to submit their comments for and against. The Court also said that Proposition 8 supporters (the anti gay rights people) will suffer "irreparable harm" if the trial is televised.

This was a 5-4 decision. The five conservatives stood firm on the procedural "violation" like the hall monitor grabs you before you slip into the bathroom without your hall pass. The four justices in dissent called out the majority on this technical objection in arguing that the public had more than enough time to be heard on the proposal. Let me focus on the alleged harm that would befall the marriage opponents had the trial been broadcast around the country.

Emergency court proceedings succeed when someone can show that he would suffer irreparable harm without a court order. Irreparable harm means harm that cannot be fixed or remedied at the end of the case. Financial losses are not irreparable because you can recover them when the case ends. The loss of the right to speak out on political matters represents classic irreparable harm. The alleged irreparable harm in this case was the argument that the anti-marriage witnesses (include paid expert witnesses) would testify different if their testimony is broadcast around the country in light of harassment and threats from their political opponents. The Supreme Court majority reasons, "It is difficult to demonstrate or analyze whether a witness would have testified differently if his or her testimony had not been broadcast. And witnesses subject to harassment as a result of broadcast of their testimony might be less likely to cooperate in any future proceedings."

This is quite lame. Witnesses take the oath to tell the truth, and I presume that witnesses testifying about why they support Proposition 8 are able to put their money where their mouth is. Are witnesses really going to testify differently out of fear that they will be harassed by people watching the trial in federal courtrooms around the country? I doubt it. The four justices in dissent have the better argument in favor of public broadcasts. On their behalf, Justice Breyer writes:

I can find no basis for the Court’s conclusion that, were the transmissions to other courtrooms to take place, the applicants would suffer irreparable harm. Certainly there is no evidence that such harm could arise in this nonjury civil case from thesimple fact of transmission itself. By my count, 42 Statesand two Federal District Courts currently give judges the discretion to broadcast civil nonjury trials. Neither the applicants nor anyone else "has been able to present empirical data sufficient toestablish that the mere presence of the broadcast media inherently has an adverse effect on [the judicial] process.” ...

The applicants also claim that the transmission willirreparably harm the witnesses themselves, presumably by increasing the public’s awareness of who those witnesses are. And they claim that some members of the public might harass those witnesses. But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. And that is not surprising. All of the witnesses supporting the applicants are alreadypublicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

The likelihood of any “irreparable” harm is further diminished by the fact that the court order before us would simply increase the trial’s viewing audience fromthe occupants of one courtroom in one courthouse to the occupants of five other courtrooms in five other court-houses (in all of which taking pictures or retransmissions have been forbidden). By way of comparison literally hundreds of national and international newspapers arealready covering this trial and reporting in detail the names and testimony of all of the witnesses. I see no reason whythe incremental increase in exposure caused by transmitting these proceedings to five additional courtrooms would create any further risk of harm, as the Court apparently believes.

Televising this trial would be the best way to educate the public about our court system, especially since this trial involves a constitutional issue on the legality of laws prohibiting same-sex marriage. Is this prohibition legal? In my opinion, it is not. But that is a topic for another day. The trend should not be to close off trial broadcasts, but to do it more often. What is the conservative Supreme Court majority thinking?