Prop 8 Meets Catch-22?

posted at 5:54 pm on October 3, 2009 by J.E. Dyer

Time has not told yet, and others with knowledge of legal precedent will have to tell us if a judge has ever applied this particular reasoning before.  But Judge Vaughn Walker of the U.S. District of Northern California ruled this week that advocates of California’s Proposition 8, which was passed by the voters last November, must turn over records of their meetings and email correspondence to the court, in the case against the proposition being brought by celebrated attorney Ted Olson and his associate David Boies.

The significant part of this is the purpose for which Vaughn has ordered the records turned over.  He wants the records inspected for evidence of discriminatory bias against gays, displayed by the team that brought Prop 8 to the voters.  It is not necessary to read this into Walker’s ruling:  he says it explicitly.  If the advocates of Prop 8 showed discriminatory bias in their internal communications, this, in Walker’s formulation, would in itself constitute a basis for voiding Prop 8.

Obviously, the current case is only the first round in federal court.  Prop 8′s supporters will appeal any negative ruling, as will its opponents any ruling against their case.  (The case is scheduled to be heard in Walker’s court in January 2010.)  But the nature of Walker’s ruling this week raises serious questions about both regulation and jurisprudence in America.

First, what kinds of statements or language might be found to constitute discriminatory bias?  Walker stated in his ruling that the court might not make all the documents turned over available to the public.  This may reassure those who fear a preemptive release by the Olson team of excerpts that, while not “discriminatory” under statute, could still inflame partisan groups.  But it must also concern proponents of civil liberties, who might well be excluded from knowing what “speech” from the Prop 8 documents was ruled to be “discriminatory.”

Will any statement at all that opposes the concept of gay marriage be deemed “discriminatory,” and therefore disqualifying to the process that brought Prop 8 to the voters?  The specter raised is of existing statutes that prohibit discrimination making it impossible for the people to choose what they will accept, allow, or support – creating, in effect, a Catch-22 against which there is no remedy or appeal.  Again, the hearing in federal district court is only the first round, and Walker’s word, whatever it is, will not be the final one.

But another concern raised by this ruling is that Walker could prejudice follow-on jurisprudence – i.e., the inevitable appeals – by making the case “about” discriminatory thoughts in the heads of the proposition’s backers.  This move can certainly be seen as a bid to prevent the case from turning on the more fundamental question of what the people have the power to do.  We don’t know yet if Olson and team can squeeze out of the Prop 8 documents a basis for alleging discriminatory thoughts.  But if they can, then whether it was done deliberately or not, Walker will have shifted the legal issue from the question of the people’s authority to amend a state constitution, to the question of “discrimination,” and the implications of it in some people’s thoughts.

We can certainly hope that the courts recognize the judicial inanity of this.  Prop 8 was not merely advocated, it was voted on by millions of Californians.  But the waters will be muddied if, when the case reaches the federal appeals court, it arrives having been, in essence, upheld because people with putatively discriminatory thoughts can’t be allowed to propose ballot measures to the voters.  This is actually a separate question from whether Prop 8 should stand after having been voted on.  We must note that the Supreme Court could well rule that Prop 8 was presented validly to the voters – but that nevertheless, ruling on that narrow basis would still leave the door open for additional lawsuits against the proposition, on different pretexts.

If Team Olson is able to make a “discrimination” case stick, after examining the documents from the Prop 8 team, Walker’s ruling would thereby ensure that this case cannot close the door on further challenges to Prop 8.  Seasoned commentators like Andrew McCarthy have not thought much of some of Walker’s rulings in the past – but even so, it seems unlikely that what he is doing has not occurred to Judge Walker.

That he believes he could find a disqualifier for the ballot proposition, in the attitudes that may have been expressed by its advocacy team, is chilling.  The Prop 8 backers argued this point before his ruling – and indeed, how many of us really think a ballot proposition should be jeopardized in court by the sentiments expressed by its advocates?  Should the mere expression of sentiments disqualify any of us legally from participating in constitutional processes – or invalidate outcomes obtained by due process of law?  It seems that higher courts must rule that this was a bad formulation of judicial opinion.

But even if they do, opponents of Prop 8 will simply come back with a fresh challenge.  If Olson can find even one sentence from a Prop 8 backer that sounds prejudiced, Walker will have succeeded in making this case “about” discrimination and its implications for civic participation – and not about whether the voters had the right to amend the California constitution. In preventing the federal courts from affirming the latter, more basic proposition, Walker would merely guarantee the continuation of a legal three-ring circus.

J.E. Dyer blogs at The Optimistic Conservative and “contentions“.

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