Gay Marriage Tests Legal Waters in New Way

Sunday, Jan 3, 2010  |  Updated 8:08 PM PDT
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Gay Marriage Tests Legal Waters in New Way

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In the long run, the issue of same sex marriage may be decided not on the basis of emotions but, rather, using the colder logic of the Constitution.

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Television cameras could appear in a federal trial court in San  Francisco for the first time as early as this week, in a pretrial hearing on a lawsuit challenging California's same-sex marriage ban.

U.S. District Judge Vaughn Walker in an order issued last Wednesday said he is considering allowing recording or webcasting of a Jan. 6  hearing on an experimental basis. 

Walker wrote that a review of the video would "be helpful to the court in deciding whether to permit recording or broadcasting of the trial  proceedings," which are due to begin Jan. 11.

Ten media organizations, including NBC Bay Area, have told the judge they would like to provide gavel-to-gavel broadcast and webcast coverage of the trial, with pool coverage handled by In Session, formerly known as Court TV.

In the trial, expected to last two to three weeks, Walker will rule without a jury on two same-sex couples' claim that the marriage ban violates their federal constitutional rights.  

The measure was enacted by state voters in 2008 as Proposition 8.

Consideration of trial broadcasting was made possible when the Judicial Council of the 9th U.S. Circuit Court of Appeals announced Dec. 17  that it had approved a pilot program allowing some televising of civil  non-jury trials in nine western states.

If the Proposition 8 trial is televised, it would be the first federal trial to be broadcast in the West, and one of the first in the nation.
     
Cameras have previously been allowed in some federal appeals court hearings as well as in California's state court system.

Walker gave lawyers on both sides of the Proposition 8 case until Jan. 4 to say whether they object to the limited recording of the Jan. 6 hearing.

Charles Cooper, a lawyer for the sponsors of the measure, told Walker in filings earlier this week that his clients oppose televising the trial.

He said the Proposition 8 sponsors are concerned about possible intimidation or harassment of witnesses. Some witnesses have said "they will not be willing to testify at all if the trial is televised or webcast,"  Cooper wrote.

But Theodore Boutrous, a lawyer for the same-sex couples, told the judge that his clients "strongly support televising the trial in order to afford the public meaningful access in this exceptionally important case."

The purpose of the Jan. 6 hearing is to resolve last-minute evidence disputes before the trial.

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