Foes of California’s gay-marriage ban lose federal appeal


Gay marriage supporters challenging the constitutionality of Proposition 8 lost their bid Friday to see the internal communications of those who supported the initiative when an appeals court ruled that disclosure would violate the 1st Amendment.

Lawyers for two couples denied licenses to marry because they are of the same sex had sought access to e-mails and letters among Proposition 8 backers, hoping to show that the campaign aimed to stir “discriminatory animus” toward gays and lesbians.

U.S. District Judge Vaughn Walker in San Francisco had ordered the initiative backers to make available those documents that reflected the internal thinking of campaign organizers and key contributors.

The Yes-on-8 side, led by the Protect Marriage group, objected to disclosure and turned to the U.S. 9th Circuit Court of Appeals with their arguments that the request was irrelevant and unduly burdensome and that the communications are protected by the 1st Amendment.

Protect Marriage attorney Charles J. Cooper warned the three-judge appeals panel at a Pasadena hearing Dec. 1 that to expose the communications -- many of which were never disseminated to the public -- would have a “chilling effect” on political participation in controversial issues in the future.

A lawyer for the opponents of Proposition 8, Theodore J. Boutrous, told the judges that seeing the strategy messages was essential to prove that the initiative backers sought to stir public fears over gay marriage. One letter from a Proposition 8 supporter offered by Boutrous as proof of such a plot warned that the gay rights agenda included plans to “legalize sex with children.”

Vaughn had granted the Proposition 8 supporters’ request for protection of the names of those discussing strategy for the measure. But he ordered them Oct. 1 to disclose the relevant documents so the couples’ lawyers could prepare for the Jan. 11 start of trial on the constitutionality of the gay-marriage ban.

“We reverse,” the three 9th Circuit judges, all appointees of President Clinton, said in an expedited ruling released Friday afternoon. “The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the 1st Amendment.”

Disclosing the inner workings of the Proposition 8 campaign “would have the practical effect of discouraging the exercise of 1st Amendment associational rights,” the judges said, adding that the initiative’s foes had failed to show that their need to review the communications outweighed the defendants’ rights and interests.

Andy Pugno, general counsel for Protect Marriage, said Proposition 8 backers were “very pleased” with the appellate ruling.

“It’s about the principle, that campaign leaders and workers should not have to be put on trial for their thoughts and beliefs,” he said. “Whether they had been able to pry into campaign strategy memos or not, the campaign was singularly focused on protecting marriage and not attacking anyone.”

Yusef Robb, spokesman for the American Foundation for Civil Rights, brushed off the court’s decision. “We’re ready to proceed on Jan. 11 with an overwhelming case against Proposition 8 based on a multitude of documents, witness testimony and the United States Consitution,” he said. “We’re full steam ahead.”

The California Supreme Court has upheld Proposition 8 as a legal amendment to the state Constitution by virtue of the 52% majority vote in November 2008 to define marriage as between one man and one woman. The two couples challenging the initiative in federal court -- two gay men from Burbank and a lesbian couple from Berkeley -- claim their constitutional rights to due process and equal protection were violated by the measure’s passage.

Gov. Arnold Schwarzenegger is named as defendant in the suit but declined, through Atty. Gen. Jerry Brown, to defend the constitutionality of the voter initiative in federal court, leaving that task to the ballot measure’s supporters.