Presence of Malice?

Chief U. S. District Judge Vaughan Walker has introduced a new twist in the dispute here in California over the legitimacy of same-sex marriage. Here is how Bob Egelko reported the matter for this morning's San Francisco Chronicle:

A federal judge has ordered sponsors of California's Proposition 8 to release campaign strategy documents that opponents believe could show that backers of the same-sex marriage ban were motivated by prejudice against gays.

Plaintiffs in a federal suit seeking to overturn Prop. 8 - two same-sex couples, a gay-rights organization and the city of San Francisco - contend that the measure's real purpose was to strip a historically persecuted minority group of rights held by the majority.

If the courts find that the ballot measure was motivated by discrimination, they could strike it down without having to decide whether gays and lesbians have a constitutional right to marry.

"The intent or purpose of Prop. 8 is central to this litigation," Chief U.S. District Judge Vaughn Walker declared Thursday in requiring backers of the November 2008 measure to give the opposing side their internal campaign communications.

Backers' argument

A day earlier, Prop 8's sponsors told Walker in a court filing that their opponents' claim of anti-gay motivation is legally irrelevant.

In a final round of arguments seeking to uphold the measure without a trial, defenders of the ballot measure said California voters were entitled to amend their Constitution to preserve the traditional, male-female definition of marriage for numerous reasons - including a belief that "extending marriage to same-sex couples carries a risk of weakening the institution of marriage."

Because there is no constitutional right to same-sex marriage, it wouldn't matter if the plaintiffs could show that Prop. 8 "was also accompanied by irrational attitudes such as animus," or prejudice against lesbians and gays, said attorney Charles Cooper.

The bottom line is that Walker ruled against Cooper's argument, and this can have implications far beyond the scope of Proposition 8 and gay rights. California has a reputation for being overly enthusiastic (to put it politely) when it comes to proposing initiatives to be settled on state ballots. Walker decided that Proposition 8 was a clear example in which such an initiative was being used for discrimination, if not more the more extreme practice of hate speech; and he concluded that this was an abuse of the right of citizens to propose such initiatives.

The reaction from the Proposition 8 camp has been "fascinating" (as in Spock raising his eyebrow) in an ironic sort of way. Another of their lawyers, Andrew Pugno, declared:

This will make any citizen group think twice before attempting a ballot initiative.

Indeed, it will, Mr. Pugno; and those of us who believe in "liberty and justice for all" should take that as a good thing! Injecting even the slightest hint of hate speech in something as serious as a ballot initiative is tantamount to shouting "Fire!" in a crowded room, the classical example of "free speech" not protected by the First Amendment. Walker's ruling amounts to declaring that Proposition 8 should never have gone on the ballot in the first place (which would have spared us all a truly ugly advertising campaign, which really did test the boundaries of legitimate free speech); and, if all goes as Pugno anticipates, those who try to use the ballot box in the future for discriminatory practices will be obliged to think twice (or perhaps just once, for the more reflective and prescient).