Prop 8 Proponents Seek to Ban Trial TV Coverage

Corrected version

Proponents of California’s ban on same-sex marriage are making a last-minute effort to prevent camera coverage of the federal trial over Proposition 8, scheduled to begin on Monday in San Francisco.

U.S. District Judge Vaughn Walker approved coverage of the proceedings in a time-delayed basis, with footage to be posted to YouTube. He also agreed to live, closed-circuit coverage to courtrooms in Pasadena, Seattle, Portland and elsewhere, citing the public interest in the case.

But the plan is subject to the approval of the Ninth Circuit Court of Appeals and its chief judge Alex Kozinski. Proponents are asking that court to deny Walker’s plan. 

“The record is already replete with evidence showing that any publicizing of support for Prop 8 has inevitably led to harassment, economic reprisal, threats, and even physical violence,” according to a brief signed by Michael Kirk, one of the attorneys representing the proponents along with their lead counsel, Charles Cooper. “In this atmosphere, witnesses are understandably quite distressed at the prospect of their testimony being broadcast worldwide on YouTube.”

As if to underscore their point, William Tam, of the the proponents of the campaign for Prop 8 in 2008, asked to be removed as a defendant in the case, citing fears for his personal safety and that of his family because of the exposure he’s received from the case. Ironically, he cited instances during the 2008 campaign where he posted YouTube videos advocating the same-sex marriage ban and received threatening and racially-tinged messages.

“Most know him from Proposition 8 and are friendly but he is certain that people who are not friendly to him also recognize him on the street,” his request to withdraw states. “Therefore, he is reluctant to travel within San Francisco, outside of certain areas, since he fears he will be recognized and harm will come to him and his family.”

Thomas Burke, attorney for a media coalition that has been seeking broadcast coverage of the trial, stated in a filing late on Friday that “by accommodating the public’s substantial interest in observing these trial proceedings, including the evidence offered by the parties, the district court will enhance the legitimacy of the decision ultimately rendered in this case.” He added that the court had “announced a nuanced approach to allowing camera access designed to accommodate each of the petitioners’ concerns.”

Although TV coverage hasn’t been allowed in trials in federal courts in the western states, the Judicial Council of the Ninth Circuit approved cameras last month as part of a pilot program.

Tam has been at the center of the case as lawyers on both sides gather evidence in its discovery stage. The legal team challenging Prop 8, led by Ted Olson and David Boies, last month produced a letter that Tam had written during the campaign to potential voters, urging them to vote Yes on 8 by claiming that same-sex marriage was part of an agenda to, among other things, “legalize having sex with children.” The letter may be valuable as lawyers try to prove that the campaign was motivated by discrimination against the gay community, and Olson and Boies have been wrangling with Cooper over the release of campaign material and other correspondence.

Meanwhile, Brian Brown, executive director of the National Organization for Marriage, a group that this year successfully led an effort to pass same-sex marriage bans in Maine, said in a fund-raising letter that they “do not expect to win at the trial level.”

He wrote, per Karen Ocamb’s LGBT POV blog, “Gay-marriage advocates are in federal court arguing for a federal constitutional right to gay marriage that would trump not only Prop 8, but the laws of 45 other states, including the 30 other states where the people have passed state constitutional marriage amendments.

“That’s right, the Constitution drafted by our Founding Fathers contains a right to gay marriage–in their twisted view. This is judicial activism on steroids, and a flagrant disrespect for civility, common sense, and democracy.”

Note: A correction was made to a passage in this post. The filing by the media coalition stated “by accommodating the public’s substantial interest in observing these
trial proceedings, including the evidence offered by the parties, the
district court will enhance the legitimacy of the decision ultimately
rendered in this case.” In the previous version, I had mistakenly written the word “already” for “ultimately.”

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