Was YouTube Ruling an Omen?

The U.S. Supreme Court last week cast its first vote in the case challenging the constitutionality of California’s Proposition 8, which bans marriage equality in the state. In a 5-4 ruling, the justices blocked broadcast of the court proceedings on YouTube, saying that the opponents of gay marriage and their witness would face “harassment as a result of public discourse of their support” of Prop. 8. The marriage ban defenders, the justices found “have shown that irreparable harm will likely result” if the proceedings were made public on video.

Since it’s widely believed that Perry v. Schwarzenegger, regardless the outcome of the current case in San Francisco federal court, might wind its way up to the U.S. Supreme Court, the Los Angeles Times asked court watchers if they think this 5-4 YouTube decision suggests how the justices might rule on Prop. 8 itself.

The Times reported that legal experts on the right and left gleaned three things from the high court’s intervention:1. The justices are following this case closely. They typically rule on appeals after cases are decided. It is rare for them to intervene on a pending trial.2. The court’s conservatives do not trust U.S. District Chief Judge Vaughn Walker, who is presiding over the Prop. 8 trial and had ordered the YouTube broadcasts of the proceedings. This, the Times reported, suggests Walker’s eventual ruling on Prop. 8 may be viewed with some skepticism.3. The majority of the justices has a distinct sympathy for the foes of marriage equality.

“The worst-case scenario is a 9th Circuit ruling in favor of [marriage equality],” said Vikram Amar, a law professor at University of California at Davis and a former court clerk. “That will force the Supreme Court’s hand, and it will lead to a bad precedent. I don’t see the five justices [who voted against the YouTube broadcast] to affirm that. There may not be two or three even.”

And even though marriage equality is the law of the land in Iowa and parts of New England, Amar said, “I don’t see Anthony Kennedy viewing that as the national norm.”