Lawyers for two gay couples told a federal appeals court Tuesday that they need access to internal communications from last year's Proposition 8 campaign to show that the measure banning same-sex marriage was designed to sow "discriminatory animus" toward gays and lesbians.
Supporters of the measure that ended a five-month period when gay marriage was legal in California argued before the U.S. 9th Circuit Court of Appeals that their 1st Amendment rights would be infringed and future political discussions "chilled" if they were forced to reveal the thousands of e-mails sent out to campaign associates.
The battle over access to the sponsors' internal strategy is part of a broader national debate over what is private and what is public in the world of politics, especially on hot-button issues such as gay rights and abortion.
Some Proposition 8 supporters suffered heckling and boycotts after their campaign contributions were disclosed, prompting legal challenges to attempts in Arkansas, Florida, Maine, Massachusetts, Oregon and Washington to make public the names of those signing petitions to restrict gay rights.
"We have a 1st Amendment right not to disclose what we hold confidential and private," said Charles J. Cooper, an attorney representing the Protect Marriage group behind the Proposition 8 initiative, which passed with 52% support in November 2008.
Disclosing the campaign's internal communications, even if names are deleted and review limited to attorneys, would discourage freedom of speech and association in future political contests, Cooper said.
Theodore J. Boutrous, arguing for the two same-sex couples denied California marriage licenses because of Proposition 8, told the judges that getting access to the internal communications was essential to show how the initiative's supporters plotted to "push the buttons" activating voter fears that gay marriage could imperil society and their own families.
Boutrous produced one message he found on the Internet purportedly from Proposition 8 proponent Bill Tam of the Traditional Family Coalition in which he warned that failure to pass the measure would risk a national domino effect in which "states would fall into Satan's hand" and further what he said was a gay agenda that included plans to "legalize having sex with children."
Tam, who was among the Proposition 8 supporters who unsuccessfully attempted to join Protect Marriage in defense of the initiative, couldn't be reached for confirmation of the letter's authenticity.
The question before the appeals court panel on access to campaign communications arises from a lawsuit filed by the two couples prevented from marrying after the ballot initiative passed, defining marriage as between a man and a woman.
The couples, two gay men from Burbank and two lesbians from Berkeley, claim that their constitutional rights to due process and equal protection were violated by Proposition 8's passage.
The couples' lawsuit is set for trial Jan. 11 before U.S. District Judge Vaughn Walker in San Francisco. Walker has ordered the initiative sponsors to turn over e-mails and documents sent to third parties related to the strategy for winning over voters, prompting the appeal to the 9th Circuit to quash the discovery order.
The three 9th Circuit judges hearing the appeal, all appointees of President Clinton, expressed reservations about approving an overly broad disclosure.
"We're not just talking about Prop. 8," said Judge Kim McLane Wardlaw, noting that every campaign in the future could be subject to similarly exhaustive document exchanges if they approved the requested disclosure.
The other two judges on the panel, Marsha S. Berzon and Raymond C. Fisher, suggested that there probably was voluminous information illuminating the campaign strategy available online and from public pronouncements such as the flurry of television ads that ran in advance of the vote.
Although 9th Circuit panels often take months to issue rulings, a decision on the campaign communications is expected sooner, probably within a couple of weeks, to allow the trial on Proposition 8's constitutionality to proceed on schedule, according to attorneys.