Prop. 8, the trial that should be seen

It’s too bad the U.S. Supreme Court ruled Wednesday that California’s Proposition 8 trial on same-sex marriage -- Perry vs. Schwarzenegger -- may not be broadcast beyond the courthouse. Like the Scopes “monkey trial” with which it is sometimes compared, Perry is not a legal case in the strict sense. It is a morality play aimed at all of us, speaking in a sense for all of us, and we should get to hear it.

In 1925, the national media descended on the small mountain town of Dayton, Tenn., to watch legendary lawyer Clarence Darrow go up against Populist leader William Jennings Bryan. The ostensible basis for the suit was whether barring an instructor from teaching evolution violated his rights. In truth, Scopes became a stage play reflecting a brewing public debate between fundamentalist Christian values and enlightenment scientific positions. The trial was covered by hordes of print journalists and was the first to be broadcast nationally by radio, and countless Americans tuned in.

The parallels with the Perry trial are telling. It too is peopled by star lawyers, most notably David Boies and Theodore Olson, who faced off in Bush vs. Gore and have now joined hands in support of gay marriage. The issue is equally fundamental. And what happens in San Francisco may be the first step in the resolution of an issue that not only affects, but implicates, us all.

The question of cameras in the courtroom involves a trade-off between every citizen’s right to watch the processes of government and fairness to the parties, witnesses and jurors. It is all the more complicated here by questions of whether the trial court followed procedures in allowing the broadcast in the first place.

But Perry, like Scopes, is no ordinary trial. In most court cases, something happened, and the purpose of the trial is to ascertain exactly what that was. Did the defendant mug the victim or cook the corporation’s books; was a company negligent to design the car the way it did? When it comes to courtrooms, we worry about fact-finding biased by the presence of cameras, and about witness and juror safety.

The questions being tried in Perry are of an entirely different nature. To “prove” their case, the plaintiffs must show that California has no legitimate -- let alone compelling -- interest in regulating who gets married. So the witnesses are “testifying” about the history and meaning of marriage, the profoundness of their love for one another, the morality of homosexuality and animus about gays. Guess what. Legal procedure won’t resolve these “facts.”

The participants in Perry are already on camera, like it or not. The case is part of a national drama over gay rights in which the participants choose to take a part. There is one legitimate concern about cameras. Opponents of Proposition 8 have used modern technology to “out” the donors to the campaign against gay marriage, and some of the latter have been harassed.

This sort of behavior is troubling no matter who engages in it; the law protected donor lists to the NAACP in the South for similar reasons. But, as the Supreme Court dissent pointed out, the witnesses already are fully in the public eye.

The current trial is but the first step on a ladder that was always designed to end in the Supreme Court. Cases like Perry have almost nothing to do with the parties in them (though those parties will surely be affected). They are aimed at social change, and in this dispute, some see the Supreme Court as the brass ring.

The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls.

That’s why the plaintiffs in Perry want the trial televised, and the defendants do not. There’s a huge national to and fro going on over gay marriage. The plaintiffs hope to out the opposition to gay marriage as nothing but irrational hatefulness. The trial record is intended to be Exhibit A in the Supreme Court. But to prevail, the plaintiffs and their supporters ultimately must capture the hearts and minds of the American people.

The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them?

Many proponents of same-sex marriage in the gay community opposed the Perry litigation, believing that the suit came too quickly; that public opinion is unsettled. Scopes may be instructive here as well. John Scopes lost and paid a small fine, though even that was overturned on appeal. But the real effect of the trial was to embolden creationists; it potentially set back the widespread teaching of evolution for years. The issue of creationism -- now called “intelligent design” -- was “tried” in Pennsylvania in 2005; it has not gone away.

It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process -- and, through our reactions, to participate in it.

Barry Friedman, a constitutional litigator and law professor at New York University School of Law, is the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”