The Fear Factor

Article excerpt

Byline: Dahlia Lithwick

Why gay-rights opponents won't testify.

One of the hot new trends in litigation this year is fear. Witnesses in important gay-rights cases have claimed they were too afraid to testify because they feared they would be subject to reprisals for their views. It's one thing to hear this kind of talk from eyewitnesses in gang shootings. But now it has become a common complaint among opponents of gay rights who say they are afraid to take part in civic life.

Concern about witness intimidation was the reason offered in January for the last-minute decision to unplug TV cameras in California's landmark fight over Prop 8--the state referendum to ban gay marriage. Before the trial began, presiding judge Vaughn Walker had said he would allow a limited video feed of the proceedings, possibly including a YouTube broadcast. Pro-Prop 8 activists opposed the move and the U.S. Supreme Court quickly weighed in with an unsigned 5-4 opinion, scolding the federal courts for the video project because supporters of California's gay-marriage ban had been subject to death threats, had their cars egged, and had faced retaliation after their support for the initiative was disclosed on the Internet. The conservative majority of the court sympathized with the anti-gay-marriage witnesses even though, as Justice Stephen Breyer pointed out in dissent, these terrified witnesses were "experts or advocates who have either already appeared on television or Internet broadcasts." The trial went dark.

In mid-January, when the supporters of Prop 8 cut their witness list from six to just two, they again said that their witnesses were too afraid to testify. Andrew Pugno, from the organization Yes on Prop 8, explained that they were afraid "that as others have, that they will be targeted for retaliation, both professionally and personally." On June 16, during closing arguments, when Judge Walker called into doubt the qualifications of the only witness who argued that gay marriage could be harmful, it became evident that one cannot put on a case if the bulk of your witnesses are too frightened to take the stand. (A final decision is expected within weeks.)

This spring the Supreme Court heard another case involving frightened citizens in Washington state. They had successfully campaigned to put a referendum on the ballot that would have allowed voters to reverse a state law granting certain benefits to domestic partners. …