Ruth Institute Blog

Suppose you were involved in a dispute with someone. It could be with anyone over anything… with a merchant over a warranty for something you had purchased at his store… or a coworker over a situation at your place of employment… a spouse over a relationship issue… or (as in this case) it could be a legal dispute being resolved in a court of law.

Now suppose it became obvious at some point that whoever you were at odds with was insisting that they should be held to much less rigorous standards of conduct and proof than you should be held to in whatever process was being pursued to resolve the disagreement.

Would that not seem to be just a little bit disingenuous to you? Might you not get the impression that your adversaries were in no way concerned with justice in the matter and that they had no problem at all with completely corrupting the resolution process itself in order to achieve their objective?

Well, do you remember who Ted Olson and David Boies are? (They’re the two attorneys trying to overturn Proposition 8.) Early in the Prop 8 trail they persuaded District Judge Vaughn Walker (the jurist presiding over the case) to order the Yes-on-8 campaign to turn over virtually all of their emails and other records of internal communications and they subpoenaed almost everyone who did any work for Yes-on-8? (Even Dr J got a subpoena.)

It was a classic case of what the legal profession refers to as a “fishing expedition”. Olson and Boies are attempting to make the case that, even though the people of California as a whole must vote on any amendment to the State Constitution, if just the staff of the Yes-on-8 campaign were acting out of some sort of “animus” toward homosexuals (or if the volunteers who worked on the Yes-on-8 campaign were… or any of the consultants to the Yes-on-8 campaign… or apparently anyone that Olson and Boies could connect in any way with the Yes-on-8 campaign…) then – whether or not anyone ever actually injected that animus into the campaign – the vote of the people counts for nothing and the amendment is unconstitutional.

Yes, to some of us this whole theory seems absurd. (Whatever anyone’s motives are, doesn’t it really just matter whether or not the amendment itself actually would somehow be an act of animus towards someone?) But the Olson-Boies team was obviously counting on finding at least some instances in the materials they had subpoenaed where someone affiliated with Yes-on-8 had said something indiscreet, and then they would have the pretext they were looking for to claim “animus” on the part of the Yes-on-8 campaign. (Their efforts failed, by the way.)

Anyway… guess what. Now Olson and Boies are throwing a fit because Judge Walker has ruled the No-on-8 campaign also has to turn over some of their records too! And they’re using the same arguments against it as Yes-on-8 made when their records were subpoenaed.

Now the plaintiffs are arguing that their campaign memos are protected by the First Amendment…now they insist that their internal communications are irrelevant to the case… now all of a sudden they say that even proposing that such private correspondence be made part of the public record is an act of harassment and could only be motivated by hatred, no less!

Does it seem hypocritical to anyone besides me that Olson-Boies assert that they, on the one hand, are entitled to rifle through the Yes-on-8 campaign’s documentation in an attempt to find the most tenuous of pretexts to support the specious legal theory they are advancing in order to overturn a vote of the citizens of California, but on the other hand, when the defendants in the case seek to review a strictly limited set of the No-on-8 campaign’s records to “demonstrate why a ban on same-sex “marriage” was necessary, and… prove that [the] political power of homosexuals makes them anything but a powerless group” (One of the arguments Olson and Boies made to support their case is that the political powerlessness of homosexuals makes it necessary to offer them special protection under the law.) then suddenly the records of a political action committee are to be considered sacred and untouchable?

We are supposed to be a self-ruling people. But our ability to govern ourselves depends greatly on the integrity of the institutions and processes we employ to settle the disputes that are inevitable in a society as diverse as ours. Anyone who was paying attention during the Proposition 8 campaign saw how severely our electoral process was tested by the malicious acts of intimidation committed (yes, almost exclusively) by the opponents of the amendment – both before and especially after the election. And now our legal system is being abused in an attempt to circumvent the results of the election.

Are we actually going to stand by and watch while the structural integrity of either pillar of our democracy (much less both) is diminished by such unscrupulous maneuvers?