"The knowledge that you're testifying to untold thousands or
millions … can cause some witnesses to become more timid," and induce
others to be overly dramatic, attorney Michael Kirk told Walker.
Prop. 8's campaign committee, Protect Marriage, has maintained that
some of its supporters have been harassed, and that witnesses whose
testimony was widely seen would face further danger.
Walker will have the power to order that individual witnesses' faces be concealed or their voices muted on the YouTube uploads.
Kirk said such actions would only draw attention to the witnesses.
But Walker said this case seemed ideal for a pilot program, approved
last month by the federal appeals court in San Francisco, to allow
telecasting of selected nonjury civil trials.
He cited the wide interest in the case and said most of the
witnesses would be campaign officials or academic experts accustomed to
speaking in public.
"I've always thought that if the public could see how the judicial
process works, they would take a somewhat different view of it," the
Prop. 8, approved by the voters in November 2008, amended the
California Constitution to overturn a May 2008 state Supreme Court
ruling that allowed gay and lesbian couples to marry.
The lawsuit by two same-sex couples, a gay-rights group and the city
of San Francisco claims the initiative violates the U.S. constitutional
guarantee of equal protection by discriminating on the basis of sexual
orientation and gender. The nonjury trial, the first in any U.S. court
on same-sex marriage, begins Monday and is scheduled to last two to
Lawyers for the couples supported video coverage. "What happens in
the courtroom is public property," attorney Theodore Boutrous told
Courts in most states, including California, allow television
coverage with the judge's consent, but federal courts have historically
barred cameras. The Ninth U.S. Circuit Court of Appeals in San
Francisco is one of two appellate courts that televises some of its
hearings, but no appellate court has allowed telecasting of trials
Walker's order, subject to final approval by the appeals court's
chief judge, allows live video feeds to public areas of federal appeals
courthouses in San Francisco, Pasadena, Seattle and Portland, Ore., and
to a federal court in Chicago that has requested it.
The videotape will be posted on a YouTube site ( www.youtube.com/usdccand) as soon as possible, which might be later the same day or the next morning, said Buz Rico, the court's technical adviser.