Thursday, 14 January 2010

Hollingsworth v Perry: US Supreme Court Rules

It seems odd that so much attention in the Perry case isn't on the subject of marriage (so far) but on the process of the trial. Yet, even on the issue of process over substance, the world seems split between a more liberal attitude and a conservative one. This split has now largely been reflected in the US Supreme Court. They had to decide how to proceed with the televising of the trial to a series of other courtrooms (thus extending the number of people who could watch this internationally important case) and the YouTube issue. The 5-4 ruling by the Supreme Court bans the televising of the case and the idea of clips on YouTube is also dead. It is, to put it mildly, a bonkers decision.

In an editorial today, the New York Times describes the decision as 'a sad example of the quashing of public discourse'. Absolutely. Eden James, Director of the Courage Campaign added 'who else besides the five justices holding on to their conservative majority for dear life would bar recordings of a trial that will shape this country for generations to come?' The full decision can be viewed here. Those conservative judges to seem to be eagerly flexing their muscles as if the twenty first century was just some crazy idea in a dystopian novel. For us Brits, the case is a reminder of the pitfalls of having a heavily politicised Supreme Court and we should remember this when we talk about making are own new Supreme Court more like the US model with confirmation hearings and so on.

Justice Breyer once again stepped up to the plate as the voice of reason in his dissenting judgment (joined by Justice Stevens (appointed by Ford, Rep), Justice Ginsburg (appointed by Clinton, Democ) and Obama appointee Justice Sotomayor). For someone more at home with English judgements, the strong and clear language of Breyer is particularly striking. He concludes: 'I believe this Court should adhere to its institutional competence, its historical practice, and its governing precedent—all of which counsel strongly against the issu-ance of this stay. I respectfully dissent.'

So say us all.

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Larry Everett said...

I disagree with the decision too, but your arguments opposing it are a straw dog. If the ruling went the other way, this article could be reprinted by simply changing places with the term conservative with liberal by the other side. We need arguments that are substantive, not symbolic.

Law & Sexuality said...

Thanks for the comment Larry. To be honest it wasn't my intention in this brief post to set forth 'substantive' reasons. If I were to do so, I could do no better than Justice Breyer who works through each of the arguments in favour of the ban and notes: 'This case, in my view, does not satisfy a single one of these standards, let alone all of them.' You can't be any clearer than that.

Such is the political nature of the Supreme Court that these decisions are inevitably as much about symbolism as substance. It is (as J.Breyer notes) because of the symbolic nature and popular interest of Perry that there are very good reasons why it should have been televised. The reason activists on both sides are so worked up over all aspects of Perry is because the symbolic effect of the decision (either way) will be almost as powerful as the practical substantive impact.

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