Prop 8 Backers Must Release Strategy Documents to Opponents

The San Francisco Chronicle has an article this morning that has huge ramifications for anyone opposing same-sex marriage. Communications that indicate prejudice against homosexuals may be used to over-rule laws against same-sex marriage.

Judge to Prop. 8 backers: Turn over your papers

(10-02) 18:10 PDT SAN FRANCISCO -- A federal judge has ordered sponsors of California's Proposition 8 to release campaign strategy documents that opponents believe could show that backers of the same-sex marriage ban were motivated by prejudice against gays.

Plaintiffs in a federal suit seeking to overturn Prop. 8 - two same-sex couples, a gay-rights organization and the city of San Francisco - contend that the measure's real purpose was to strip a historically persecuted minority group of rights held by the majority.

If the courts find that the ballot measure was motivated by discrimination, they could strike it down without having to decide whether gays and lesbians have a constitutional right to marry.

"The intent or purpose of Prop. 8 is central to this litigation," Chief U.S. District Judge Vaughn Walker declared Thursday in requiring backers of the November 2008 measure to give the opposing side their internal campaign communications.
Backers' argument

A day earlier, Prop 8's sponsors told Walker in a court filing that their opponents' claim of anti-gay motivation is legally irrelevant.

In a final round of arguments seeking to uphold the measure without a trial, defenders of the ballot measure said California voters were entitled to amend their Constitution to preserve the traditional, male-female definition of marriage for numerous reasons - including a belief that "extending marriage to same-sex couples carries a risk of weakening the institution of marriage."

Because there is no constitutional right to same-sex marriage, it wouldn't matter if the plaintiffs could show that Prop. 8 "was also accompanied by irrational attitudes such as animus," or prejudice against lesbians and gays, said attorney Charles Cooper.

The initiative, approved by 52 percent of the voters, overturned the state Supreme Court's May 2008 ruling that gave gays and lesbians the right to marry in California. The state court upheld Prop. 8 as a valid state constitutional amendment in May but also ruled that 18,000 same-sex couples who married before the election were legally wed.

Walker has scheduled an Oct. 14 hearing in San Francisco on whether to dismiss the suit or let it go to trial in January.
Judge looks for bias

In previous rulings, Walker has said the constitutionality of Prop. 8 is not an open-and-shut legal question but could depend on a variety of factors, including whether backers were biased against gays and lesbians.

He amplified that view Thursday in ordering Prop. 8's sponsors to disclose documents, including notes and e-mails between campaign officials and consultants, that discussed their strategy and the message they wanted to send to the voters.

Although "voters cannot be asked to explain their votes," Walker said, a ballot measure's authors and strategists can be scrutinized to see what their motives were.

He cited a magazine article last year by the heads of the public relations firm that managed the Prop. 8 campaign in which they discussed their strategy, including plans to show how advocates of same-sex marriage would indoctrinate schoolchildren. Walker said the article undermined the campaign's insistence that its strategy discussions were confidential.
Bad precedent?

Andrew Pugno, a lawyer for the Prop. 8 sponsors, said Friday it was unprecedented to allow "the losing side of a campaign to pry into the most intimate strategy discussions of the winning side."

"This will make any citizen group think twice before attempting a ballot initiative," Pugno said. He said his clients might ask a federal appeals court to intervene.

A lawyer for the plaintiffs, Theodore Boutrous, said Walker's order would allow them to see whether the justifications Prop. 8's defenders are now claiming for the measure were part of the campaign or after-the-fact rationales.

"Our position is not dependent on the notion that everyone who voted for Proposition 8 was acting out of bad motives," Boutrous said. He said the plaintiffs would look for "evidence that bolsters our argument that Proposition 8 was irrational and disfavors a group in a way that's unconstitutional."