Discovery Fight in Suit Challenging Calif. Ban on Gay Marriages

Dan Levine

The Recorder

Even the discovery fights in a federal challenge to Proposition 8 are weighty.

Gay marriage opponents trooped into Northern District of California Chief Judge Vaughn Walker's courtroom Friday to quash requests for internal campaign e-mails and other documents from last year's "Yes on 8" effort. Marriage supporters, meanwhile, argued that the motivations of those behind the ballot initiative are highly relevant because discriminatory intent would undermine opponents' claims of a rational state interest in the ban.

First Amendment protections on political speech and free association should shield much of the evidence sought by gay marriage supporters, argued Yes on 8 attorney Charles Cooper of Cooper & Kirk. Communications made to the public at large are subject to discovery, Cooper conceded, but interactions among political consultants, volunteers and other campaign leaders should remain private.

Even the makeup of a six- to eight-person "ad hoc" steering committee, comprised of some big donors who then hired the political consultants, has never been disclosed, Cooper said. Nor have the identities of donors who gave under $100 to the "Yes" campaign, he said; they may have wanted to avoid the fallout that higher donors faced.

"Disclosure of the names of donors brought forward widespread economic reprisals," Cooper said.

When Walker tried to suss out the line between private and public speech, Cooper said any communications among Yes on 8 staff, volunteers or allied third parties were private, and hence protected, because those people had formed a free association with each other.

"That suggests communications with the converted are private, and with the unconverted are public," Walker observed.

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.

Walker indicated that if supporters were able to point to more specific contradictions in publicly available material, they'd have a better case for getting at the e-mails. The chief judge also criticized one of the marriage supporters' discovery requests as overly broad.

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.

In his papers, Cooper wrote that if gay marriage supporters are ultimately allowed access to Yes on 8 communications, then his side would seek comparable discovery from the No on 8 camp. That didn't come up at the hearing. Nor did gay marriage supporters' charge that opponents were less concerned about privacy and more with frustrating an upcoming trial that they never wanted in the first place.