What do Prop. 8 proponents want to exclude from evidence in the Perry case, and why?

05/06/10: While I try to avoid rewriting posts, even when I err, I make an exception here, because otherwise I would lose a point I think worth making. See my new comments in red.

I've just returned from vacation. By now, this site's readers know what I've only just learned: in the Perry case, Judge Vaughn Walker has proposed June 16th as the date for closing arguments. (04/28/10 LGBT POV) A discovery dispute had delayed this welcome sign of progress towards a final judgment. The logjam broke when California Equality and the ACLU decided to avoid the prospect of a contempt citation for failure to give a large number of their No-on-8 campaign communications to Prop. 8 proponents. (Equality California press release and associated filing) Plaintiffs and proponents have informed Walker (here and here) that they believe these No-on-8 groups ("the No-on-8 groups") have complied with previous orders for document production, so yesterday he determined that there was no need to consider whether they should be cited for contempt.

Two discovery matters require resolution. (Walker's April 28th order) First, proponents must submit campaign communications from the No-on-8 groups that they want Walker to allow into evidence. Plaintiffs may respond to the submission, and proponents may answer the plaintiffs' response. Walker will then determine what campaign communications, if any, to allow, and he will close the evidence record.

Second, proponents (the defendant-intervenors) and their reluctant witness, Dr. Hak-Shing William Tam, want the Court to reconsider discovery orders in January and strike from the record certain parts of Tam's testimony. Tam - a director of the Traditional Family Coalition - was an official proponent. But neither defendant-intervenors nor Tam identify him among a core group of persons who worked together on Yes-on-8 strategy and messaging. In fact, at trial, defendant-intervenors claimed Tam's testimony and communications were irrelevant precisely because his association with ProtectMarriage.com gave him no decision-making role in campaign strategizing or messaging. Nevertheless, they claim that under the 9th Circuit rulings, Perry I and Perry II, Tam' association automatically qualifies some of his testimony and private campaign communications for First Amendment protection. On their understanding of Perry I and Perry II, the First Amendment protects from discovery communications by "those persons who come together 'to advance one's shared political beliefs.'" Walker has granted their requests (here) and (here) to file their proposed motions on the question of First Amendment protection, with opportunity for further argument by Tam, proponents, and plaintiffs. Walker is reported to have said that he is "inclined to grant the defense motion for Dr. Tam’s reconsideration," but he appears to have been referring to the request for leave to file this motion, not the motion itself. (Thanks to Kathleen Perrin for inviting me to reconsider this report.)

Tam testified on Day 8 of the trial (January 21st), displaying obvious hostility and prejudice against same-sex couples who wish to marry. But are Tam and proponents trying to exclude evidence of Tam's animus, as they would have good reason to do? I can't reach that conclusion. Proponents seek exclusions of not just Tam's testimony, but selected declarations or communications by leaders of other religious and allied organizations. In fact, as far as I can tell, proponents and Tam would have Walker remove from evidence material that, if retained, poses a problem they appear to consider serious. Left in the trial record, the targeted testimony and communications risk inviting Walker's perception that proponents' organization, ProtectMarriage.com, influenced or aided what Tam what said and did during the Yes-on-8 campaign; and it risks inviting Walker's perception that ProtectMarriage.com similarly influenced or aided other religious leaders who displayed obvious anti-gay animus. In other words, proponents would remove evidence on the nature of their relationship with Tam and other clearly hateful supporters, so that, with these omissions, proponents can try to separate Yes-on-8 campaign strategizing and messaging from the allied efforts of obvious anti-gay bigots.

Mine is an initial impression about one of proponents' aims here. I would need more time than I have to confirm it. You can form your own conclusion, of course. Start with the transcript of Tam's testimony. It provides context for specific testimony entries, and referenced exhibits of campaign communications, that Tam and proponents - in their motions here and here - have asked Walker to exclude from evidence. Kathleen Perrin has prepared a document to aid comparison between the transcript of Tam's testimony, on the one hand, and Tam's statements and campaign communications, on the other, that Tam targets for exclusion. Then, if patience and resolve match your curiosity (!), use proponents' motion to compare trial transcripts with targeted statements and campaign communications by Tam and other Yes-on-8 participants.

Finally, I wish to credit and thank Kathleen for her public service as she provides free access to the latest filings in the District Court case. She selectively supplements Justia.com's less current version of the docket. Almost needless to say, I own responsibility for my inferences from the filings. The mistakes are mine, not hers!