If the Court dipped its toes into the gay marriage debate through its ruling against the videostreaming of the Prop. 8 case, then the Court will step into the shallow end in April to hear Doe No. 1, et al., v. Reed, et al., a case arising from a petition to get an anti-domestic partnership referendum onto a Washington State ballot.
Here’s Lyle Denniston from SCOTUSBlog:
The Court’s vote to hear the case of Doe No. 1, et al., v. Reed, et al. (09-559) marked the second time this week that the Court opted to act on controversies involving opponents of gay rights’ claims that publicity about their political activity has led to threats and even some violence against them. On Wednesday, the Court shut down a plan to televise the federal court trial challenging California’s ban on same-sex marriage, displaying concern for the potential effect on supporters of that ban when they appear as witnesses at the trial.
The new case involves an effort to bring out in public the identities of individuals in Washington State who signed petitions to put on the state election ballot a referendum that would overturn a new state law extending the benefits of marriage (but not marriage itself) to couples registered as “domestic partners.” (That referendum failed, and the law remains in effect; voters approved the new law by a 53-47 percent margin last November.)
In taking the Washington case to the Court, the petition-signers’ lawyer said the confidentiality issue “is arising with great frequency across the country as changes in technology have made it possible for individuals and groups seeking to prevent public debate from occurring to obtain the names and contact information of petition signers and post that information online to encourage harassment and intimidation.” One group, the filing said, has posted on its web site information about gay marriage petition-signers in Arkansas, Florida, Massachusetts and Oregon.
The thing about social change through the courts is that it invariably rests on what the broader public thinks. Consider the famous social change cases: Brown vs. Board of Education on segregation in public schools; almost any abortion case; Lawrence vs. Texas on gay rights and anti-sodomy laws. In these cases the court did not buck or define social views so much as confirm them. More and more, for better or for worse, Supreme Court decisions on social issues reflect opinion polls. [...]
The high court, perversely, felt broadcasting should be banned precisely because “this case . . . involves issues subject to intense debate in our society.” The majority stressed that studies had not shown “the effect of broadcasting in high-profile, divisive cases.” What, imaginably, could that bad effect be? That the American people might have views on the subject and debate them? [...]
It’s wrong, of course, to think the Supreme Court will “resolve” this issue, any more than it managed to resolve the issues of segregation, abortion, the death penalty or gay rights, for that matter. But what the court ultimately decides (if it decides), and on what basis, will profoundly affect the terms of the debate. If matters of social change are going to be debated in the courts, we all should get to view the process — and, through our reactions, to participate in it.
Friedman just came out with a book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, which comprehensively examines the Court’s responsiveness to public opinion up through the early part of this century.
Despite Friedman’s–and others‘–disappointment that the Prop. 8 case will not be televised, the people who camp out to see Perry v. Schwarzenegger at the district court and, ultimately, the Ninth Circuit Court of Appeals and the Supreme Court, are the ones whose reactions to the process are so strong as to compel them to participate through viewing the arguments in the flesh. And here, Perry is not unique: the same lines form for the cases of great public interest that never had Perry‘s prospect of live broadcast.
For this reason, by waiting out in line, I seek to test the Roberts’ Court’s sensitivity to its surrounding political climate as represented by the sample of citizens who care enough about the case and/or the Court to get to One First Street before the sun rises. It’s still too early to tell what I’ll find, but I’m sure I’ll find something. Perhaps I’ll put my interviews on video. That would be the next best thing, wouldn’t it?