Hypocrisy, Same-Sex Marriage, and Televising Public Interest Litigation

Over at Slate, Dahlia Lithwick suggests that gay marriage opponents who oppose broadcasting the San Francisco gay marriage trial are hypocrites. According to Lithwick, it’s inconsistent both to want the people to decide an issue and to deny them video access to a trial that might sway their opinion:

Opponents of gay marriage can’t have it both ways. If they want to say that unelected federal judges cannot subvert the will of John Q. Voter, then they cannot also insist that John Q. Voter be banned from witnessing federal judges at work.

I find this argument pretty unpersuasive. The first problem is that it applies equally to both sides. Proponents of gay marriage can’t have it both ways, the reasoning would run. If they want to say that public opinion is irrelevant and John Q. Voter has no right to decide the issue, then they cannot also insist that John Q. Voter must be able to observe the trial to have his opinion influenced by it.

But that’s not to say both sides are hypocrites; rather, it’s my view that neither are. Lawsuits challenging the constitutionality of high-profile and controversial laws are often part lawsuit and part plaintiffs’ public-relations campaign. The plaintiffs pick the forum, draft the complaint, pick the timing, and pick their witnesses. The plaintiffs shape the litigation so that it puts their case forward in the best possible light. In that environment, the plaintiffs will almost always want the case televised. Defenders of the law will almost always object. It’s not about constitutional theory, but about designing a p.r.-friendly case and hoping it gets a lot of public attention — or, if you’re representing the defendant, hoping it doesn’t. There’s nothing hypocritical about either position.

What would be hypocritical is if your view of televising the trial depends on the politics of the case. Let’s flip the politics with a hypothetical: Imagine a conservative group files a lawsuit challenging affirmative action at State University. The plaintiffs seek a trial to call to the stand former applicants who were rejected by State University because of their race. The rejected applicants will be carefully chosen by the plaintiffs’ lawyers. They will have come from humble backgrounds and worked hard, overcoming a lot of challenges along the way, only to be denied admission because of their race. Here’s an excerpt of the planned testimony of the first witness for the plaintiffs, a rejected applicant:

LAWYER: You have always believed in the American dream of going to college. Tell me about that dream.
WITNESS: I have always believed that if I worked hard I could go to college and be a success. I believed in education and the American dream. I worked three jobs in addition to going to high school to make my dreams a reality.
LAWYER: But why State University? Is that a special university to you?
WITNESS: Oh yes! I have always dreamed of going to State. My high school teacher Mr. Jones was a mentor to me, and he is a proud graduate. I wanted to feel the pride of being like him, an equal: A graduate of State University.
LAWYER: You ended up being rejected from State. Why?
WITNESS: I was rejected from State because of the color of my skin.
LAWYER: Did you have the test scores?
WITNESS: Yes, I had the test scores and the grades. But they gave my admission spot to someone less qualified because I was the wrong race.
LAWYER: How did that make you feel?
WITNESS: It was the worst feeling I have ever had. I felt like I was a second-class citizen. (Voice wavers, begins to cry.) All I wanted was equal treatment. But instead the university I loved discriminated against me. They gave the spot I worked so hard for to someone less because of my race.
LAWYER: You ended up at a community college. Isn’t that basically the same thing?
WITNESS: No way. We don’t have the opportunities or the resources. And I will always be ashamed. I can’t bear to talk to Mr. Jones anymore: He is a proud graduate of State. I was denied that opportunity, and I will never feel the pride that he was able to feel by enrolling there. I’m a second-class citizen.

The plaintiffs will also seek all of the records from the university about exactly what their admissions practices are, and they will then cross-examine the university admissions officers in open court about their practices. They will want the admissions officers to testify exactly how they use race in admissions, including by going through and explaining the university’s past admissions statistics line-by-line and year-by-year.

Should that lawsuit be televised, or broadcast and posted on YouTube? I think we all realize that the plaintiffs would just love that trial to be broadcast to the public. At the same time, the defendants would strenuously object. Why? Because we recognize that this impact litigation would be partly about the Constitution and partly about public opinion. Proponents of the lawsuit want to end affirmative action either constitutionally or through the political process, and they would be delighted to influence public opinion if their constitutional views lose. Similarly, the opponents of the lawsuit will argue that the choice to have affirmative action should be available to the public, but they won’t want the plaintiff’s carefully-crafted case to be the ground on which the issue is debated. Each side want the debate on its chosen territory under its terms, and a courtroom will be the plaintiff’s chosen territory guided by the plaintiff’s terms.

The California same-sex marriage trial seems pretty similar to me. The plaintiffs have chosen the forum, drafted the complaint, and picked their witnesses to make the best case to the public. Sure, there’s a constitutional argument there, but a lot of the case is about trying to influence public opinion. The idea is to put individuals on the stand and get them to testify about their hopes and dreams in a way that makes a compelling human story — just like the plaintiffs in the hypothetical affirmative action lawsuit described above. Consider this excerpt from the testimony of the very first witness in the case, Jeffrey Zerrillo, a 34-year old gay man. Here’s the direct examination by David Boies, as reported by The Seminal and cleaned up a bit by me:

LAWYER: Today, you are in a committed relationship. You love another gay man. Tell me about that man.
WITNESS: He is the love of my life. I love him more than myself, in sickness and in health, until death do us part. I would do anything for him.
LAWYER: How long have you been in the relationship?
WITNESS: Nine years.
LAWYER: Why do you want to marry him?
WITNESS: Marriage has a special meaning. That’s why we’re here today. To share the joy and happiness my parents felt, my brother felt, my friends and neighbors felt when they married.
LAWYER: Would being married change your relationship?
WITNESS: Absolutely. One’s capacity to grow continues through marriage.
LAWYER: Would marrying affect your relationships with family and your community?
WITNESS: Yes. At work and family functions, I would participate as a married person, together with other married family members. I would feel pride as they do.
LAWYER: Would it affect others who don’t know you?
WITNESS: Sure! When someone is married, when meeting a stranger, when someone notices my ring, it says to them, these individuals are serious, they are committed to one another, they are in a relationship that one hopes lasts the rest of their lives.
LAWYER: Do you have children?
LAWYER: Do you want children?
LAWYER: Why don’t you have them?
WITNESS: Paul and I believe that we and our child deserve the protection marriage provides. So that nothing could eradicate that nuclear family.
LAWYER: You are aware you can be a domestic partner in California, right?
WITNESS: Yes, but a domestic partnership would mean we are second- or third-class citizens. That is not enough, just part of the pie and not the whole thing. We would be saying we are satisfied with being second class. Only marriage can give us first class citizenship for our relationship.

I’m not sure of the legal relevance of Zerillo’s testimony, but obviously it’s carefully designed to try to influence public opinion. The testimony puts a human face to basic points in favor of gay marriage, just like the hypothetical first witness in the affirmative action trial did for the basic points against affirmative action.

Now let me return to the charges of inconsistency that Lithwick makes in her Slate article. In my view, it’s not inconsistent to hold one view of the Constitution and yet recognize the particular political strategy behind a particular lawsuit. What would be inconsistent is having different views of whether the same-sex marriage trial and the hypothetical affirmative action trial should be broadcast. It seems to me that we need a consistent answer for what to do with that kind of case: Either broadcast them both or broadcast neither.

UPDATE: I have edited the post a bit to clarify my point; see the debate in the comment threads for more.

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