The public and Prop. 8

In what could be the understatement of this young year, U.S. District Judge Vaughn R. Walker called the constitutional challenge to Proposition 8 “a case that has sparked widespread interest.” Therefore, the jurist has concluded that the nonjury trial beginning today should be recorded by television cameras and disseminated on the Internet.

Obvious as it might seem, Walker’s belief that an important public trial should be widely accessible is considered heresy by many of his judicial brethren, especially those on the U.S. Supreme Court. They too should recognize that televised proceedings can be as important to civic understanding as C-SPAN’s coverage of Congress.

The constitutionality of Proposition 8’s ban on same-sex marriage might seem strictly a legal issue -- and a dry, not terribly telegenic subject at that. But in weighing whether to strike down a law (or, in this case, a state constitutional amendment), courts sometimes take account of factual circumstances and expert testimony. Witnesses at this trial will include economists, psychologists and activists on both sides of the Proposition 8 campaign. We’ve expressed concern in the past that some of the testimony might degenerate into another nasty skirmish in the culture wars, ventilating myths such as the discredited idea that sexual orientation is a choice. But if the judge is to hear such testimony -- along with, we hope, more pertinent arguments -- so should members of the public, and not just those with physical access to the courtroom. In the age of YouTube, the ideal of public justice acquires an exponential importance.

Arguments against televising the trial are either flimsy or self-serving. Yes, the presence of cameras can lead some lawyers to pitch their arguments to viewers at home instead of to the judge, but we think they’ll be careful because doing so can prove counterproductive. Some Proposition 8 supporters also say that witnesses might be intimidated by the presence of cameras. That’s a plausible scenario in a criminal case, but it has no merit in this context. Academic experts are experienced in articulating their opinions to audiences. And Proposition 8 advocates who will be testifying already have inserted themselves into a highly public controversy.

Assuming that the chief judge of the U.S. 9th Circuit Court of Appeals ratifies Walker’s decision, Californians will be offered a second civics lesson stemming from this controversy, the first being last year’s televised arguments in the state Supreme Court. Such broadcasts should be the rule rather than the exception, even when the issue at stake is less freighted with politics than the challenge to Proposition 8.