Marriage Watch / Maggie Gallagher

NOM filed this letter regarding Rule 77-3:

January 27, 2010 

Hon. Phyllis Hamilton
Chair of the Rules Committee
United States Courthouse
1301 Clay Street
Oakland, CA 94612

Re: Local Rule 77-3

Dear Judge Walker,

My objection to televising high-profile trials is not theoretical.  It emerges directly from the experience of the attempt to televise the trial for Proposition 8.  Two-thirds of the expert witnesses-people who had been willing to sit for deposition, to prepare testimony, to fly to Sacramento to testify-dropped out under the prospect of having their faces and names televised.  I understand their reluctance, because I know (personally) the kind of hatred and threats that adopting a high-profile position against gay marriage now generate.  Many people I know who had a low profile-donors of a few hundred dollars or less-unexpectedly faced a tidal wave of hate that has impacted their personal and professional lives. People I know have been attacked on the street for holding up a "Yes on 8" sign, received death threats, and lost their jobs.

The price of participating in a trial should not be the willingness to tolerate even a minimum of reasonable threats to one's livelihood or personal safety.

The Supreme Court stepped in to prevent the broadcast of these hearings.  But it was too late.  Expert witnesses had already dropped out.  The trial had been changed, forever, by the mere prospect of television broadcast.

Our case for Proposition 8 has been deeply harmed.  The public record has been impoverished and the information available to reviewing courts permanently reduced all because some witnesses feared retaliation as a result of the publicity.  I wish they had more courage, but I cannot view their fears as unreasonable.

The first purpose of a trial is to do justice to the litigants.  As much as I would personally love to be able to see the Proposition 8 trial unfold in real time, I cannot contemplate the reasons why a court should subordinate justice to some other interest, whether it is public entertainment or public education.   

The purpose of a trial is not to educate the public.  It is to do justice to the parties the court has permitted in the court room.  Where there is a conflict, or a potential conflict, courts must adhere to their primary purpose and eschew any innovations that threaten that purpose.

If television is ever to be permitted, it should only be when all parties to the litigation agree. Anything else is a travesty of justice, a subordination of the purpose of a court system to some other goal.

Here's the bottom line: If the Supreme Court should overturn Proposition 8 and find a constitutional right to gay marriage I will never know whether or not that would be a result of the haste to televise the trial.

And it is to no-one's interest that such a reasonable doubt should be thrown on the deliberations of the Supreme Court. 

Sincerely, 

Maggie Gallagher
President, National Organization for Marriage