UPDATE 12:25 p.m. Sunday: Opponents of California’s Prop. 8 ban on gay marriaged, along with a coalition of media organizations, argued at midday Sunday that televised viewing of the trial on the ban’s validity should not be barred.  In filings here and here (along with a new appendix), the challengers and the media argued that the request to stay videotape viewing of the trial is premature, since no final order to allow it on YouTube on the Internet was in place yet.  They also argued that the Supreme Court would not be likely to review and overturn the federal judge’s order allowing slightly delayed release of the trial video.  The media groups argued: “If there is a public benefit to public trials — and there is — then there is also a public benefit to complete access to public trials.” (Justice Kennedy has not yet acted on the stay application.)

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Supporters of California’s state constitutional ban on same-sex marriage went to the Supreme Court on Saturday in an attempt to stop the televising — on YouTube — of the trial starting Monday of Prop. 8 opponents’ claim that the ban violates the U.S. Constitution.  The stay application (Hoillingsworth, et al., v. U.S. District Court, application 09A648) was filed with Justice Anthony M. Kennedy as Circuit Justice for the Ninth Circuit.  Kennedy has asked for a response by noon Sunday.  The application can be found here.

The case is to be tried without a jury, before Chief U.S. District Judge Vaughn R. Walker in San Francisco.  If the televising is not blocked, the daily coverage appearing on YouTube will not be live; it will be delayed, perhaps to later in the day of each session, or perhaps the following day.  It will appear at www.youtube.com/usdccand.

Justice Kennedy has the authority to act on the stay request on  his own, or the option of sharing the issue with his colleagues.  Presumably, some order will be released promptly, perhaps as early as Sunday afternoon.

The Prop. 8 supporters have also asked Judge Walker to put off the TV order until it can be challenged in an appeal to the Supreme Court; the judge has not yet acted on that plea.  The Ninth Circuit Court on Friday turned down a request for a writ of mandamus that would order Judge Walker to delay the broadcasting.

The Prop. 8 trial before Judge Walker is expected to last several weeks.  Almost everyone involved appears to expect that the case is destined ultimately for the Supreme Court, as a major test of whether the federal Constitution will trump the widespread effort at the state level to prevent same-sex marriage.

Those defending Prop. 8 (who stepped into the lawsuit when the state of California refused to defend the ban) argued in their application Saturday that TV coverage of a federal court trial violates the long-standing ban on such broadcast by the U.S. Judicial Conference, the policymaking arm of the federal judiciary.  But the Ninth Circuit, and Judge Walker’s District Court, have recently approved a “pilot program” to see how TV broadcasts of non-jury civil trials would fare.

Such coverage, the Prop. 8 supporters contended, will lead to harassment and perhaps even physical violence against witnesses.  “Any publicizing of support for Prop 8,” the application said, has already led to such threats and violence.

Media organizations, in seeking permission to broadcast the trial from "gavel to gavel," likened the case to the famed "Scopes trial" and told Judge Walker: "Just as the chronicles of the trial concerning the place of teaching evolution in schools riveted the country in the 1920s, televising this modern-day Scopes trial would present viewers with a national civics lesson on a hotly contested issue that crosses social, political, educational, and religious boundaries."

Documents on legal maneuvering leading up to Saturday's stay application can be found at the U.S. District Court's website (a link to the case, Perry, et al., v. Schwarzenegger, et al., docket 09-2292, is near the top of the District Court home page. Access to some documents, including the original complaint, is free; for others, a PACER account is required).

Posted in Cases in the Pipeline