Monday, September 28, 2009

Plaintiffs in Federal Case Against Prop 8 Try to Obtain Internal 'Yes on 8' Documents

Federal U.S. District Chief Judge Vaughn Walker, presiding over the case against Proposition 8 brought by the plaintiffs represented by the Olson/Boies team, is considering whether to order the sponsors of the Yes on 8 campaign to produce internal campaign communications and records over to the the plaintiffs.

Attorney Charles Cooper, representing the Yes on 8 campaign, claimed the documents and internal discussions were private and cited First Amendment protections on political speech and free association. Communications made to the public at large are subject to discovery, Cooper conceded, but internal discussions should remain private. reports, "The material sought by gay marriage supporters could make for good impeachment evidence, argued their attorney, Christopher Dusseault of Gibson, Dunn & Crutcher. For instance, if the Yes campaign had commissioned a study that wound up showing that homosexuality is immutable -- and then the campaign withheld it from the public -- that would directly contradict arguments now being made in court, Dusseault said."

"That's a little speculative, Mr. Dusseault. Why not try a little closer to home," Walker said.

If the plaintiffs can show more publicly available contradictions to the defendants' court argument of state interest, then Walker indicated he would be more open to obtaining private documents.

"However, Walker appeared to be angling for some sort of compromise, asking Cooper why some sort of protective order couldn't be fashioned to avoid the pitfalls his side had elucidated," reports.

In what has been descriptive behavior of the case so far, Cooper stated in papers that if the plaintiffs get access to private documents of the Yes on 8 campaign, then he will request the same from the No on 8 campaign.

Related Reading: A harsh critique of the Olson/Boies legal argument for marriage equality titled, "The Case against Boies-Olson: Wrong on the law, and on civilization."


  1. UTF:

    Thank you for covering this. Once again UTF is ahead of a story. I don't understand why the other gay blogs haven't focused on this.

    The problem with the judge's likely ruling (requiring disclosure of the documents to the plaintiffs, but forbidding their disclosure to the public at large) is that such "protective orders" are inappropriate in litigation involving public policy or public interests. This is not a private contract dispute or a dispute over some personal injury. It is a case that involves the application of the US Constitution and the underlying motivations for the passage of an amendment to the California constitution. We have a right to know what motivated the Yes on 8 people to alter the state constitution. I can only imagine what is in those internal campaign documents.

    Unfortunately, this may be an instance where the failure of the gay groups to intervene will really have an impact. Boies may cut a deal to get the documents, but to keep them secret from the public. The gay groups would not have done that.

    If the judge decides to go this route, the only way the public may get to see the documents is if the City of SF objects and/or appeals. Someone needs to be looking out for the public.

  2. Really good point. But to play the devil's advocate here: does the means justify the end?

    If getting those documents while "cutting a deal" to keep them from the public enables the plaintiffs to win, therefore possibly keeping future discriminatory initiatives off the ballot - is it worth it?

    The gay groups, whom I highly respect for their years of amazing work, have not won in federal court a marriage case. Maybe there's a reason.

    Again, playing devil's advocate here, but curious at the same time.

  3. UTF:

    If the choice is between disclosure pursuant to a protective order or no disclosure at all, then yes of course it would be better to have the former option, so that the plaintiffs can win their case. But the best choice for the plaintiffs, for the public would be to let everything come out with no protective order, or perhaps a very limited one protecting only the personal identifying information on memos and emails. Revealing the discriminatory motives behind these marriage initiatives also hopefully would taint future efforts to discriminate.

    For example, the people of Maine might benefit by knowing what Mr. Schubert (who was hired by Stand For Marriage Maine and who is running the anti-equality campaign in Maine) really thinks about gay people when the cameras aren't around.