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Into the Closet—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was published on newyorktimes.com on January 14, 2010.

Into the Closet
By Linda Greenhouse ’78 MSL

Has anyone noticed that now that lesbians and gay men have left the closet to assert their equal rights as citizens, their adversaries seem to be running for a closet of their own?

My observation is, of course, prompted by the success that opponents of same-sex marriage had this week in persuading the Supreme Court to bar cameras from the San Francisco courtroom where Proposition 8 is now on trial. That is the amendment that California’s voters added to the state’s Constitution to provide that “only marriage between a man and a woman is valid or recognized in California.”

Judge Vaughn R. Walker of United States District Court for the Northern District of California, presiding over the challenge to Proposition 8 in the non-jury trial that began on Monday, announced last month that the court would provide a live video feed to enable remote viewing elsewhere in the courthouse as well as in federal courthouses in four other cities. He also raised the additional prospect of later posting on YouTube and the Internet. The Proposition 8 defenders, claiming that their witnesses would face harassment if their testimony was broadcast beyond the courtroom, asked the Supreme Court to block the plan. By the familiar vote of 5 to 4, the court quickly complied.

Beyond the ideological divide that the case produced, and the fact that Justice Sonia Sotomayor allied herself in dissent with her three most liberal colleagues, Justices Stephen G. Breyer, John Paul Stevens and Ruth Bader Ginsburg, a public spat between two powerful judicial forces provided another intriguing dimension to this fast-moving dispute.

One was Alex Kozinski, chief judge of the United States Court of Appeals for the Ninth Circuit, who approved the district court’s remote video plan. The other was the Judicial Conference of the United States, the federal courts’ chief policy-making body, headed by Chief Justice John G. Roberts Jr., who remained in the background as two top conference officials sent Judge Kozinski a coolly worded two-sentence letter “to bring to your attention” the longstanding Judicial Conference policy against televising trials.

Judge Kozinski, long the Peck’s Bad Boy of the federal judiciary, known for flaunting both brilliance and quirkiness, shot back with a reminder of his own — that “like it or not, we are now well into the 21st century.” His six-page letter basically declared that the Ninth Circuit would continue to do what it wanted. To describe the Supreme Court’s subsequent unsigned opinion blocking the video plan as a rebuke of Judge Kozinski would be an understatement.

That intrajudicial melodrama, so delicious that I could not resist describing it, should not obscure the larger canvas against which this episode unfolded. The Proposition 8 backers are far from the only proponents of “traditional marriage” to run for cover after invoking the levers of direct democracy. And the Supreme Court may have just begun to explore the issues raised by this quest for a new application of the old right to privacy.

At its private conference on Friday, the Supreme Court is due to consider whether to hear an appeal brought by an organization called Protect Marriage Washington. Under the slogan of “Preserve Marriage, Protect Children,” the group ran a successful petition drive to place on the state’s November ballot a referendum giving voters a chance to repudiate a new state law that granted enhanced benefits to couples registering as domestic partners. (The voters ended up reaffirming the new law, which took effect last month.)

Under Washington’s Public Records Act, the signatures on referendum petitions are public records, available for inspection and copying. The Public Records Act, itself the product of the public initiative process, provides as its rationale that “the people insist on remaining informed so that they may maintain control over the instruments that they have created.”

Last summer, Protect Marriage Washington filed suit to bar public disclosure of the names of their 138,000 petition signers. It won an initial victory, but the Ninth Circuit ruled on the eve of the election that the names were subject to disclosure. The members of the three-judge panel observed that “referendum petition signers have not merely taken a general stance on a political issue; they have taken action that has direct legislative effect.” The court held that the public interest in disclosure outweighed the “incidental limitations” that disclosure placed on the signers’ exercise of their First Amendment right to political speech and association.

The case, Doe #1 v. Reed, No. 09-559, obviously got the Supreme Court’s attention. In October, with only Justice Stevens dissenting, the court issued a stay of the Ninth Circuit’s decision in order to permit Protect Marriage Washington to prepare a Supreme Court appeal.

In other cases around the country, opponents of same-sex marriage have challenged disclosure of financial contributions to referendum campaigns. The Proposition 8 backers won their bid in the Ninth Circuit to block pre-trial discovery of their internal strategy memoranda.

There is a rich body of law on anonymity for political speakers and actors, including landmark Supreme Court decisions from the civil rights era protecting the N.A.A.C.P. against forced disclosure of its membership lists. For the most part, the decisions have been highly attentive to context. A question now is whether the opponents of same-sex marriage can plausibly claim, as their court papers have sought to do, that they face threats to their lives and property comparable to those faced by civil rights workers in the Deep South in the 1950’s and 1960’s. A challenge to compelled disclosure of financial information under the McCain-Feingold campaign finance law is part of the current Supreme Court case Citizens United v. Federal Election Commission, which was argued in September and on which the justices appear to be permanently stuck.

The issue of cameras in the courtroom, presented by the California case the court ruled on this week, is itself of long standing. But it has typically been seen as posing a free-press-versus-fair-trial question — in terms of First Amendment doctrine, a claim by those behind rather than in front of the camera. This week’s development suggests that a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off. In fact, in this media-saturated age, it may be overdue. Whether this deeply divided court can navigate the contested terrain of same-sex marriage to arrive at a useful synthesis is another question.