While the issue of same-sex marriage is widely expected to work its way to the U.S. Supreme Court over the next few years, another thorny legal question raised in the case has already landed before the high court: cameras in federal courtrooms.
The U.S. Supreme Court could rule as soon as Wednesday on whether to allow court employees to use a camera to record the pivotal trial in federal court here on the constitutionality of California's ban on same-sex marriage.
Though all 50 states allow cameras into some state-level court proceedings, federal courts from the high court on down have for decades generally refused to admit cameras into courtrooms. The chief judge of the Chicago-based U.S. 7th Circuit Court of Appeals went so far as to censure a trial judge in Peoria, Ill., for allowing cameras to record a hearing earlier this year.
Most federal courts say they fear broadcasts will diminish the system's dignity, could unfairly influence rulings and disrupt proceedings. There is also concern that judges, lawyers and witnesses will pander to the camera while potential jurors will shy away from serving out of concern they will be identified.
U.S. District Court Judge Vaughn Walker of San Francisco and 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski tried recently to buck that trend. Kozinski last month announced a "pilot program" authorizing courts in the nine western states to video record civil trials heard by judges without juries. Walker, relying in the appeals court "pilot program," approved of a camera for the gay marriage trial, which started Monday and is expected to last at least two weeks.
Walker told lawyers Monday that he intended for the recordings of the trial to be posted only on the court's Web site after several hours of delay.
Still, in even contemplating the existence of a camera in a federal courtroom, Walker and Kozinski pushed to the boiling point a Supreme Court issue that has been percolating unresolved for decades. The high court on Monday temporarily banned the posting of any recordings to any Web site and the plan to stream video of the trial to other courthouses while it considered an appeal by lawyers fighting to uphold California's same-sex ban. Those lawyers fear witnesses who testify in support of the ban could face unpleasant reprisals of their testimony is widely broadcast.
First Amendment experts said it is impossible to predict how the high court will rule. It has consistently refused to allow cameras into its own courts, but its 1981 ruling in a Florida case did open state courthouses to cameras.
Lawyers said there appears to be an informal agreement among the justices to keep the court's own ban in place until there is unanimous consent to let cameras inside. Justice Sonia Sotomayor said during her Senate confirmation hearing that she was open to cameras. Sotomayor replaced the retiring Justice David Souter, who famously said he would allow cameras in the Supreme Court "over my dead body."
"It is probably a positive development for camera advocates that Sotomayor has replaced Souter," said David Hudson, a Vanderbilt University law professor who works with the First Amendment Center.
Congress has failed several times to pass bills introduced to specifically allow the technology in the federal courts, though a new proposal with bipartisan support to allow cameras is pending before the U.S. Senate's Judiciary Committee.
Six trial courts and two appeals court participated in a three-year study during the 1990s that included granting applications to broadcast 186 hearing, including 56 trials. A majority of judges and lawyers who participated in the program supported opening federal courts to cameras, but the Judicial Conference of the United States — which sets the court system's policies — still said it was against recording hearings and trials,
The attempt to video record the trial has opened a schism among the nation's top judges. Kozinski is chief judge of the nation's largest federal appellate court.
The Judicial Conference of the United States, which is led by Chief Justice John Roberts, warned Kozinski on Friday that it opposes federal civil or criminal trials "to be broadcast, televised, recorded or photographed for the purpose of public dissemination."
Kozinski responded that the conference's prohibition addressed only recording made by the media, not by court personnel as ordered by Walker. Kozinski also pointedly noted that the conference ultimately has no power over the 9th Circuit and the other federal appeals courts. "That policy decision rests exclusively with" each court, he said.
"Like it or not, we are well into the Twenty-First Century, and it us up to those of us who lead the federal judiciary to adopt policies that are consistent with the spirit of the times and the advantages afforded us by new technology" Kozinski wrote. "If we do not, Congress will do it for us."
Associated Press writer Mark Sherman in Washington contributed to this report.
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