Coming to YouTube: Prop. 8 Challenge

Decision to televise Prop 8 hearing would have impact beyond gay marriage

By Lori Preuitt, Jessica Greene and Kris Sanchez
|  Wednesday, Jan 6, 2010  |  Updated 2:31 PM PDT
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Judge Vaughn R. Walker has decided he will allow a television broadcast of the lawsuit challenging California's same-sex marriage ban.

Walker made his ruling just before noon Wednesday.

Significantly, it is the first trial to be broadcast in the federal court system's 9th District, which is headquartered in San Francisco and covers much of the West.

Walker turned down an offer by Court TV to shoot the proceedings, and opted instead to have the court's technology department do it.

Tech workers, one wearing a judge's robe, sat in three locations for an earlier test broadcast which  they posted on YouTube today. The proceedings will be shown in a triple split screen.

The video will be broadcast on YouTube the following day.  Live broadcasts will be piped to a nearby overflow room as well as facilities in Seattle, Portland, Pasadena and Chicago.

The judge said if witnesses did not want to be videotaped, they would simply turn off one of the three cameras during their testimony.  Walker said he will shut it down entirely if it turns out to be a distraction or causes problems.

Broadcasting of federal trials had previously been prohibited in the 9th District, but  last month a federal appeals court judicial council authorized a pilot  program to broadcast some non-jury civil trials in the western states covered by the district. Some trials in New York's federal courts have been televised.

The ruling is specific to this case. In future trials, judges will continue to decide whether to allow cameras on a case-by-case basis. But Walker's decision could reverberate well beyond his courtroom -- and the presence of cameras will amplify its impact.

"This is a very fundamental, even historic lawsuit," said Rory Little, professor of law at the Hastings College of the Law. "It's not just a question of gay marriage, should it be legal or not. That's the important popular issue but the real issue is, will the initiative process be allowed to control no matter what it does or are there constitutional constraints on that?"

Little says that allowing cameras in a 9th District court for the first time is part of an effort open up the process so more people might understand how the system works.

Opponents argued that this case was too important to serve as the guinea pig. The counterargument -- that this is a case people are paying attention to -- seemed to carry the day.

Walker said the broadcasting plan will require the approval of 9th  U.S. Circuit Court of Appeals Chief Judge Alex Kozinski.

The trial, which will be heard by Walker without a jury, will be  on a lawsuit in which two same-sex couples claim that California's ban on gay  and lesbian marriage violates their federal constitutional rights. The ban  was enacted by state voters in 2008 as Proposition 8.

The trial is scheduled to last two to three weeks.

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