House Republicans could not get to the microphones and e-mail blasts fast enough after the Obama administration announced in February that it would no longer defend the constitutionality of the federal Defense of Marriage Act (DOMA). House Speaker John Boehner denounced the move as “pandering” and immediately raised the possibility of the House intervening in litigation to defend the 1996 law, which denies federal benefits to same-sex couples.
Boehner made good on his plan by winning party-line approval for the House Bipartisan Legal Advisory Group to intervene in suits challenging DOMA, including one in California by a federal court employee seeking health coverage for her legally married wife equal to that available to married opposite-sex couples. But the House’s legal team apparently is less eager than Boehner was in February to call attention to its defense of the law.
In a Sept. 9 filing, House general counsel Kerry Kircher put the kibosh on video recording the next hearing in the case, scheduled for Oct. 21 before U.S. District Court Judge Jeffrey S. White in San Francisco. “Intervenor-Defendant the Bipartisan Legal Advisory Group of the U.S. House of Representatives respectfully advises that it prefers not to participate in this district’s pilot project permitting video recording of courtroom proceedings,” Kircher wrote in a two-sentence memorandum, posted here on the web site of the gay publication Metro Weekly. “Accordingly Intervenor-Defendant declines to consent.”
The move drew immediate criticism from House Minority Leader Nancy Pelosi as well as the gay rights group representing Karen Golinski in the case, Golinski v. U.S. Office of Personnel Management, 3:10-cv-0257-JSW. “It is outrageous that the leadership of the U.S. House of Representatives wants to shroud in secrecy their use of tax dollars to try to defend discrimination," Tara Borelli, a staff lawyer with Lambda Legal, said in a prepared statement.
Pelosi, a Democrat from San Francisco, was not informed of the House move in advance, according to her spokesman, Drew Hammill. “Leader Pelosi strongly supports transparency,” Hammill told Metro Weekly, “but this decision by Speaker Boehner is not a surprise since his defense of the indefensible 'Defense of Marriage' Act does not have the facts or the law on its side.” Boehner’s office did not respond to a request for comment, the newspaper said.
The move reflects not only on the House Republican leadership but also on the federal judiciary for its tentative move toward opening the courts to 21st-century style coverage of proceedings. Judge White opened the issue because his is one of the courts participating in a pilot program for camera coverage authorized by the U.S. Judicial Conference in September 2010.
Open-access advocates applauded the decision, but with one hand behind their back because of its many limitations. The pilot project was to extend only to courts whose judges volunteered to participate. It would apply only to civil cases; a federal statute bars either audio or video coverage of criminal trials and hearings. And even civil cases could be recorded, broadcast, or streamed only if all parties to the case agreed.
The dual-consent requirement was presumably intended to protect the privacy of private civil litigants. The government’s interest or in this case the House of Representatives’ interest in limiting the public’s opportunity to see or hear a proceeding challenging a federal law is hard, if not impossible, to discern.
The various limitations in the pilot project appear to have been essential, however, to winning approval from the Judicial Conference, the federal judiciary’s policymaking arm. The federal courts had conducted a pilot project for broadcast coverage of appellate proceedings in the early 1990s. The Federal Judicial Center, the conference’s research arm, officially pronounced the experiment a success, but the conference let it die in 1996.
The impetus for the new experiment came in part from Congress, which over the years indicated increasing interest in legislation to mandate radio or TV coverage of federal courts. Judge John Tunheim, a federal judge in Minneapolis who formerly headed the conference’s committee on court administration and management, told me earlier this year that he had worked with others in drafting rules for broadcast coverage just in case Congress acted.
A second push for action came from the Ninth U.S. Circuit Court of Appeals, which gave a green light to plans for Internet streaming of the federal court trial in early 2010 of the challenge to California’s anti-gay marriage Proposition 8. The Supreme Court squelched that plan, however, by ruling that Judge Vaughn Walker had not followed proper procedure in amending local court rules to permit the plan.
Federal judges in California have also been prime movers in Golinski’s challenge to DOMA. Golinski, a Ninth Circuit employee, married Amy Cunninghis in California during the six-month window between the California Supreme Court’s decision recognizing same-sex marriages and passage of Proposition 8 in November 2008. In September 2008, she submitted an application to enroll Cunninghis under the court’s health insurance plan. Chief Judge Alex Kozinski approved the application, but the Office of Personnel Management refused, forcing Golinski to sue.
The Justice Department filed a brief in July 2011 arguing that DOMA is unconstitutional. The House’s camera-shy lawyers will have their own arguments to make in the October hearing. But anyone interested will have to go to San Francisco to watch or wait for a printed account to read what they had to say.