There’s a group that has begun to produce a professionally-acted reenactment of the whole Prop 8 marriage trial (Perry v. Schwarzenegger) using official court transcripts as their “script”. This is after a live broadcast on YouTube and simulcasts at Federal courthouses around the 9th Circut (Portland, Seattle, LA, etc.) was blocked by the Supreme Court through appeal by the defendants (the pro-Proposition 8/anti-gay marriage crowd). I think the very existence of this reënactment shows why the Supreme Court was on the wrong side of both public opinion and history with that decision. It’s also disastrous for anti-gay marriage groups.
It’s been 30 years since the creation of C-SPAN. There is plenty of back-door dealing and secrecy in politics, but people by and large expect that when the government is actually conducting its business, there will be a record and there will be audio and video. The courts have been largely absent from this shift in democracy, and there are some good reasons for that. I’m certainly not in favor of cameras in criminal trials, for example. I also understand the danger that, with greater access to courts, judges could become more partisan. But when cases are this important, –potentially creating a new application for constitutional rights– especially at the appellate level, I think it’s better for democracy that these trials be open.
For most of the court’s history, the barrier to this kind of transparency has been cost. Transcripts were costly, newspaper space was expensive, and the internet –a universal platform for nearly-free broadcasting– was science fiction. Times have changed, however, and the benefits of court camaraderie and objectivity don’t outweigh the secrecy that is unbecoming to a democracy.
The motion to block the YouTube broadcast was filed at the request of the defense. They were trying to protect their experts from public scrutiny, as well as shield memos from the Proposition 8 campaign from being read in court and available on YouTube. By blocking that broadcast, they created the need for this reenactment, and therefore lost all opportunity to appeal to the public through their legal counsel. I’m not suggesting that the reenactment team is intentionally or unintentionally trying to twist the transcript through their actors, but now the only video of the trial is that which is provided by supporters of the plaintiffs. In trying to hide, they lost all ability to spin the narrative.






