The Trial of the Prop 8 Campaign

A follow to my Variety story from Sunday: Both sides in the federal suit challenging Prop 8 filed legal briefs on Monday that offer a hint 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. On Tuesday, they put out a press release pointing out that the pro-Prop 8 side is citing the election of Harvey Milk in 1977 as an example of the political power of gays and lesbians and the idea that they do not need protection as a special class. 

One last note: In a separate suit, the Department of Justice defends the Defense of Marriage Act but nevertheless calls it "discriminatory." But it also rejects arguments that gay parenting has an adverse effect on children. That argument is first for the federal government, and will be one of the issues before the court in the Prop 8 case, as Cooper and the initiative's proponents are using it as a rationale for a compelling state interest to restrict marriage.