Proposition 8 Campaign Tactics: Ripe for a Trial?

U.S. District Court Judge Vaughn Walker will hold a hearing on Wednesday to determine the direction of a federal suit challenging Proposition 8, a case that already has attracted substantial attention for the star legal eagles involved and potential of the case to make its way to the Supreme Court.

Both sides in the federal suit filed legal briefs on Monday that offer hints as to how they will argue their sides in the case.

What will be a dramatic component of a trial, if it proceeds that way, is an effort to put the campaign itself under scrutiny. The No on 8 side claimed often that ads aired by ProtectMarriage used scare tactics, like the threat that churches would be forced to perform same-sex marriages and teachers would have to somehow add it to their curriculum.

Ted Olson and David Boies, representing the plaintiffs in the case backed by entertainment industry activists, say in a brief filed on Monday that they plan to seek documents "relating to Prop 8's genesis, drafting, strategy, objectives, advertising, campaign literature" and other communications with each other and their donors and supporters. Their goal is to prove that "no compelling or even rational basis" existed to pass Prop 8. They also want to depose Frank Schubert and Jeff Flint, the political strategists who managed the Yes on 8 campaign.

The Yes on 8 side, represented by a team led by Charles Cooper, argues that such a discovery is "both legally irrelevant and are protected from discovery by the First Amendment." Nevertheless, they say that is Olson and Boies are allowed to conduct such discovery, they want to do the same to the No on 8 side. They outlined a long list of people to depose, including Courage Campaign's Rick Jacobs, Equality California's Geoff Kors and Chad Griffin, who is spearheading the Olson-Boies case.

A trial also would focus on the question of whether homosexuality is "immutable," i.e. whether it can be changed. That is a central part of Olson and Boies challenge in proving that gays are a special class to fall under equal protection. Prop 8 proponents say in their brief that they plan on bring in experts, and to subpoena marriage and domestic partnership records in California. The idea is to spot contradictions, by seeing who has been in a same-sex partnership who was previously or subsequently married to someone of the opposite sex.

Another element in deciding that special class status is the extent to which gays and lesbians are currently discriminated against. Those on the side of Prop 8 say that discrimination "against individuals practicing a homosexual lifestyle is increasingly rare." Olson and Boies, it goes without saying, would argue that Prop 8 itself if proof that it is alive and well.

This entry was originally posted on Wilshire & Washington (www.wilshireandwashington.com).

Follow Ted Johnson on Twitter: www.twitter.com/tedstew

Comments

[Marty Epstein]

I predict Vaughn Walker will rule in favor of the No on 8 folks and the case will be appealed and appealed again to wind up at the Supreme Court -- what they will do, I'm not ready to guess

[bluprntguy]

Real authorities on the subject? The American Psychiatric Association has confirmed that sexual orientation is natural, biologically induced, morally neutral, immutable, neither contagious nor learned, and has no relation to an individuals ability to form deep and lasting relationships, to parent children, to work, or to contribute to society. The American Psychological Association states that homosexuality and homosexual relationships are normal. The American Psychological Association states that efforts for reverse sexual orientation are damaging to the individual and completely ineffectual. The US Census reveals that 1/3 of America's same-sex families are raising children, with the same responsibilities of any American family, needing and deserving all the same financial, legal and social protections that current marriage laws provides. The American Academy of Pediatrics confirms that these children develop normally in every way. The American Academy of Pediatrics, the American Psychological Association, and the American Psychiatric Association have all endorsed civil marriage for same sex couples because marriage strengthens the mental and physical health and the longevity of couples, and provides greater legal and financial security for children, parents, and seniors. When Americas premier child and mental health associations and their expert panels endorse marriage equality, there is thus no ethical reason to discriminate against gay people and their children, other than disrespectfully imposing one's own ideology on others.

[freelyb]

"A trial also would focus on the question of whether homosexuality is 'immutable­'....Prop 8 proponents say in their brief that they plan on bring in experts...­.The idea is to spot contradictions, by seeing who has been in a same-sex partnership who was previously or subsequently married to someone of the opposite sex."
----------­----------­----------­-----
Even the best legal Republican minds are unable to employ basic logic. Previous involvement in a heterosexual relationship is not the kind of contradiction that would indicate that being gay is or is not a strictly a conscious choice. It means little except as a measurement of how successful these hateful g00ns have been in their past efforts to suppress the legitimacy of homosexuality.

I am hoping to see follow-up info on who these experts are and who sponsors their "academic" endeavors. I am also hoping that our side will provide some real authorities on the subject, the kind that recognize and avoid conflicts of interest, understand the complexities of the issue, and value truth for its own sake. Please keep us informed.