Box Turtle Bulletin
News and commentary about the anti-gay lobby“Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife…”
News and commentary about the anti-gay lobbyMarch 6th, 2010
It seems that the anti-gay activists supporting Proposition 8 will get a chance to review the internal documents of No on 8. They had been complaining that they the Olson-Boies team in Perry v. Schwarzenegger had access to their documents and that it just wasn’t fair that they didn’t have access to the No on 8 side. That appears to have changed.
From the San Jose Mercury News:
A federal magistrate is ordering several gay rights groups that campaigned against California’s 2008 same-sex marriage ban to furnish some internal memos and e-mails to lawyers for the measure’s sponsors.
…
Spero says Equality California, Californians Against Eliminating Basic Rights, an ACLU campaign committee and an umbrella group that oversaw the campaign against the ban must hand over all documents “that contain, refer or relate to arguments for or against Proposition 8,” with the exception private communications between their core leaders.
This is a very perplexing order for several reasons:
First: The reason that Olson-Boies had access to the Protect Marriage campaign, was because it was pertinent to the question of the trial: was Prop 8 based on anti-gay animus and marketed to appeal to prejudice. Because this dealt with the intentions of the Yes on 8 side, their internal documents were relevant.
But the motivations or intentions of No on 8 were not up for question. There was nothing in the internal documents from No on 8 that could shed any light whatsoever on the question of whether Proposition 8 was intended to deny a class of Californians from equal protections. Nothing in these documents will tell the court whether Yes on 8 was motivated by animus, because they aren’t Yes on 8’s documents and don’t reflect their views.
Second: The trial is over. The testimony is concluded and the final written arguments have been presented. It is unlikely that the turn over of Equality California’s documents to the anti-gay activists will or even could occur before final arguments are made and Judge Walker makes his determination. So it is confusing exactly how this request advances the pursuit of justice in this case.
Third: As this order has no value on the merits of the case, it appears to be purely political in nature. I’m not suggesting that Justice Spero is engaging in judicial activism, but rather this seems to be an order purely to be “fair” so that “both sides can see each others’ secrets”.
But legal proceedings are to be based on the law, not on making both sides happy. “Making everyone happy” is not a standard that is applied to disclosure in criminal or corporate law.
This decision seems to be a product of the culture war. But justices are sworn to defend the constitution, not make sure that the culture warriors are each provided with the same ammunition.
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Ben in Oakland
March 6th, 2010
But who is Judge spero, who didn’t hear the case, and why is he ruling on ANYTHING? That’s the first question. Maybe it isn’t olson-boies, but the other case– Perry v/ Schwarzenegger?
But some thoughts anyway.
Documents from the Yes on 8 group will most definately show a religious based argument against civil gay marriage and civil equality for gay people. It is the core basis for their argument as every single group that was formed behind the Yes on 8 coalition had religious components. Perhaps the no-on-8 campaigns came up with a lot of good ideas that they weren’t able to present in court. By limiting the subpoena to only those documents “that contain, refer or relate to arguments for or against Proposition 8,” the court indicates that it is looking for further reasons why the Pro-8 arguments were defective, rather than looking for improprieties on the no-on-8 side.
Timothy Kincaid
March 6th, 2010
Ben,
The Olson-Boies case is the same case as Perry v. Schwarzenegger. Spero is the Magistrate Judge on that case.
Ray
March 6th, 2010
Ben, that’s an inviting POV but I’ve having a hard time imagining what a hypothetical example would be of your view. (full disclosure, I’m too stupid to think of an example. Please indulge me.)
Rebecca
March 6th, 2010
I don’t think it’s such a big deal. I doubt No on 8 has any Big Secrets.
Ray
March 6th, 2010
Well, since I can’t imagine what Ben is suggesting, I think Timothy’s conclusion about this being culture war fodder is the likely motive. Proponents have relied upon public opinion before, during and after Prop 8 to advance their position. So it makes sense that now, when Maggie has run out of blog material and NOMs showing at CPAC was a flop, they need something to stir the pot and at least get the lawyers paid and more money rolling in. How’s that, Timothy?
Timothy Kincaid
March 6th, 2010
My concern about this issue has less to do with secrets getting out. It’s pretty obvious why and what No on 8 was about, and the only negative is likely to be embarrassment due to it becoming public knowledge just how inept our “leaders” really were.
I’m more concerned with why this order was issued. It makes no sense to me, from a legal perspective (disclaimer: I’m not a lawyer and those who are may be able to explain it better)
daftpunkydavid
March 6th, 2010
i am going to ask a stupid question: what is a magistrate judge and why or how come one is getting involved in perry v schwarzenegger? is another such magistrate judge also able to willy-nilly invite himself or herself in this lawsuit? someone please explain?
i wouldn’t think there’s anything to hide on the no on 8 side; however, i feel this may serve as basis to claims that the documents the olson/boies team acquired about the yes on 8 side were acquired illegally? what do you think?
Mel
March 6th, 2010
“I’m not suggesting that Justice Spero is engaging in judicial activism”
That’s exactly what your suggesting. At least have the guts to own up to it.
occono
March 6th, 2010
….Yeah I’m seconding all the confusion here. I thought I understood US Judicial Law fairly well….
….I guess not.
Madison
March 6th, 2010
Not a lawyer here either, but could this just be preparation for an appeal?
I assume that neither side is going to back down whatever the outcome, and the bad guys, Pro-8, will want all the fodder they can get. I didn’t read all the transcripts, but from what I read it does seem that the good guys, Olson-boies presented a slightly better case.
Side note: Thanks to BTB for all the hard work keeping the LGBT community informed. Between BTB and pinknews.co.uk I feel so much more knowledgeable about what is going on for LGBTs around the world. Thanks
-Madison
Tucson, AZ
Ray
March 6th, 2010
I think all collective understanding (including Timothy) hinges on exactly *what* a federal magistrate judge does.
It is a judge *elected* by the district judges (Vaugh Walker, for example) who tidies up loose legal ends on cases in that district. The magistrate sound like someone who usually deals with administrative chores and leftover issues. So Mel! Since you didn’t know what role such a judge played, either, you sure jump to criticize when someone else is just a ignorant as you.
Timothy Kincaid
March 6th, 2010
Ray, I’m not as ignorant as Mel. I’m aware of Spero’s role in the case from the beginning. But I find this decision perplexing.
Bruno
March 6th, 2010
Maybe the plaintiffs should ask the SCOTUS to stop Spero’s order. After all, it’s what the defendants would do time and again.
Ray
March 6th, 2010
@Timothy. I suspect that was the case.
@Madison. No. It wasn’t “slightly” better. There was NO comparison. Proponents case was a disaster. Their witnesses SUPPORTED Plaintiffs and WRECKED Prop 8s case. Proponents *star* witness, David Blankenhorn, utterly destroyed Prop 8s case and simultaneously destroyed his own and Maggie Gallagher’s credibility.
Ray
March 6th, 2010
Virtually the last words spoken in the trial were Cooper’s reminder to Judge Walker that 1) the matter of getting these communications was still at issue and 2) if anything arose from getting those documents, Defendants reserved the right to re-open the case.
That was on Day 12.
So, was is little known is that discovery of Prop 8s internal communications did not end with the trial either. Prop8Tracker.com blog about one such newly discovered communication that implicated Pugno as having a long relationship with the Mormon church that went back to the time when Pugno was a gofer for another state legislator. It was like reading the history of ProtectMarriage.com Mormon connection which has been strongly denied by the Prop 8 campaign. I imagine Olsen and Boies have even more surprise up their own sleeves.
Ben M
March 7th, 2010
Magistrate judges are appointed by a majority vote of the federal district judges they serve with for limited terms. Federal law sets the powers and responsibilities that may be delegated to magistrate judges, but it is up to each district to determine how much is delegated to the magistrate judge. One of the common delegations (at least in civil proceedings) is to manage the discovery process.
All magistrate judges rulings are subject to review by the district court judge they are assisting.
Timothy Kincaid
March 7th, 2010
Madison, thank you. I’m glad you find the site helpful.
TomTallis
March 7th, 2010
My guess is that the defendants are looking for evidence that there was some sort of planning for harassment of Prop H8 supporters.
Cole
March 7th, 2010
The Prop 8/ heterosexual-only/ anti-gay marriage supporters damaged their own signs and went to the media to blame gay marriage supporters.
The gay marriage groups should refuse to hand over documents. The National Organization for heterosexual-only Marriage has refused to hand over any documents in any state and no heterosexual official has forced them to even those required by law.
Alex
March 8th, 2010
“The Prop 8/ heterosexual-only/ anti-gay marriage supporters damaged their own signs and went to the media to blame gay marriage supporters.”
Can you prove that, Cole?
Paul G
March 8th, 2010
When will Walker hear final arguements?
Al W.
March 8th, 2010
You know, I read this not as relevant to the present case, but instead as an activist judge ordering the No on 8 side to furnish their campaign secrets so that anti-gay types can use that information in FUTURE anti-gay campaigns. If the anti-gay types have information on what gay-rights strategies are, they’ll have that much more ammunition next go-around.
Jon
March 8th, 2010
The only downside I see to this ruling will be the incompetence exposed on both sides.
We don’t need to hide our donors/supporters. We have no need or reason to fabricate fear and/or false statistics. . .
I think this was a good ruling. It levels the playground.
Are we scrambling to hide our donors? . .no. . . Are we scrambling to fake statistics?. .no. . .We have nothing to hide, and if we do . .then shame on us.
I think that the shame I have is from trusting & financing “leaders” who went on vacation & hired a clueless media team. Is why the oposition to this ruling might be frightened?
There should be no reason for us to be secretive. . .We have the facts to counter every single argument that these bigots pull out.
If there were political shenanigans on our part . . . well ..go for it, I want to know about them as well, however, I seriously doubt that E-mail communications from No on 8 will reveal a conspiracy from supporters of civil rights trying to conceal donors, nor anything really that wasn’t available with and internet tube click.
Corporate religion always plays the victim card. . .Hyprocrisy and denial is good fiscal policy.
This ruling may expose more dirt than many want to acknowlege, however, it also will enforce the reasoning for transparencies in general. . .for the rest of us . . .who want to know that our cash went.
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