Perry v Schwarzenegger, the battle in the US District Court over the validity of Proposition 8, is moving forward at incredible speed. Chief Judge Vaughan Walker seems intent on preserving the original trial date of January 11, 2010 – just a few weeks from now. In a sign of how important the court sees this case, the judge has said he would consider allowing television cameras in the courtroom if higher courts permit it. On that prospect, NBC News said, “Not since Supreme Court Justice Clarence Thomas’s confirmation hearings have wonks been so excited.”
No one associated with Perry v Schwarzenegger is resting as the trial date approaches. Our opponents in the federal court case sought access to internal e-mails and documents among Prop 8 campaign executives and supporters, in order to “prove” that the campaign aimed to stir “discriminatory animus” toward gays and lesbians. Of course, one of our most valued rights as Americans is the protection we receive under the First Amendment to the nation’s Constitution. Our team of esteemed attorneys objected to the opposing attorneys’ demands on the basis that such demands violate the First Amendment. Regrettably, Chief Judge Walker ruled in favor of the plaintiffs, seemingly requiring us to make available confidential, non-public campaign documents relating to campaign strategy and advertising. Fortunately, that was not the end of the issue.
The Proposition 8 legal defense team of attorneys, led by acclaimed lawyer Charles Cooper (Cooper & Kirk), appealed Judge Walker’s ruling to the United States Court of Appeals for the Ninth Circuit.
In that hearing, we made a thoughtful, clear and tight argument that to rule against us would provide a chilling effect, discouraging individuals from participating in future initiative campaigns and muting the exchange of ideas within those campaigns. And in a sign of how strong our arguments were, the American Civil Liberties Union of Northern California filed a “letter brief” urging the Ninth Circuit to overrule Judge Walker.
Indeed, in a unanimous decision the 3-judge panel of the Ninth Circuit did overturn the US District Court’s ruling and found in our favor, saying that to turn over internal campaign documents would violate the First Amendment’s guarantee of freedom of association and that the First Amendment trumped any right that plaintiffs might have to our internal documents.
“The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment,” wrote Judge Raymond Fisher for the panel. Disclosing the inner workings of the Prop 8 campaign “would have the practical effect of discouraging the exercise of First Amendment associational rights . . .”
This is clearly a critical victory for our side, both from a practical and tactical standpoint. Our attorneys did a stellar job of confidently making our case and, ultimately protecting your rights. However, this battle is far from over.
This appeal to the Ninth Circuit is just one example of many of the intense legal skirmishes in the Perry case that have been waged to preserve Proposition 8 and, by implication, the nation’s marriage laws defining marriage as between one man and one woman. Late last week, our attorneys finished conducting numerous depositions and representing campaign officials in depositions conducted by the plaintiffs. These depositions are intense, requiring a massive preparation effort. Meanwhile, we have also been busy helping experts prepare reports for the court and rebutting the expert reports prepared by the plaintiffs.
The stakes in the Perry case simply could not be higher as all eyes are on this case at state, federal, and international levels. Our opponents have the financial support of wealthy same-sex marriage activists and numerous well-funded national organizations. Representing ProtectMarriage.com-Yes on 8, the Proposition 8 Legal Defense Fund is the ONLY entity in this litigation defending the People and arguing in defense of Prop 8. We are counting on the help of thousands of people like you to mount a vigorous defense of Prop 8 and the institution of marriage as it has always existed.
Your contributions now are urgently needed and will be put to immediate use to help us continue the fight to protect traditional marriage as we move into the trial phase. Please be as generous as you can so we can continue to mount the most aggressive, winning legal defense of this most critical of social policies – the institution of marriage.
Most sincerely,
Ron Prentice
Executive Director
