HRC Blog

EQUALITY IN THE COURTS: Supreme Court Stays Prop 8 Broadcast, Cites “Irreparable Harm” to Pro-Prop 8

In this blog series, HRC attorneys discuss news and break down the legal theories related to the U.S. and state supreme courts as well as other significant federal cases.

Late this afternoon, the U.S. Supreme Court upheld its temporary stay on the broadcast of the trial proceedings in Perry v. Schwarzenegger. In an opinion issued per curiam, with no single justice listed as author, the Court concluded that the U.S. Court of Appeals for the Ninth Circuit had not followed the proper procedures in adopting its rules allowing the broadcast of certain trial proceedings. However, in a troubling analysis, the Court also acknowledged that the pro-Prop 8 plaintiffs and their witnesses had demonstrated a sufficient risk of harm “substantiated… by citing incidents of past harassment.” Citing solely the characterizations by the pro-Prop 8 plaintiffs, the Court concluded that the fear of harassment based on the national broadcast of the trial would cause witnesses to refuse to testify or to alter their testimony.

In a strongly-worded dissent, Justice Breyer, joined by Justices Stevens, Ginsburg and Sotomayor, disagreed with the majority’s conclusions. He noted that the pro-Prop 8 witnesses have been very public in support of their cause and 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” and that “literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all the witnesses.” While the plaintiffs in Perry v. Schwarzenegger could still appeal the underlying petition for a writ of mandamus to try and overturn today’s decision, by the time it reached the Supreme Court again, the trial would likely long be over. No matter how you feel about the value of broadcasting this or any other trial, it is deeply disappointing that the U.S. Supreme Court bought into the argument that holding the supporters of Proposition 8 accountable for their actions – through the dissemination of public information, economic boycotts, and other legal and nonviolent means – constitutes harassment and causes real harm. Thankfully, the trial will go and the plaintiffs and their witnesses will continue to demonstrate the real harm in this case – the discrimination perpetrated against loving, committed same-sex couples and their families in California. And you can read all about it – on hundreds of Twitter feeds, liveblogs, and front pages of newspapers all around the world.

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