New Prop 8 ruling: When the First Amendment trumps civil rights
The Ninth Circuit Court of Appeals just knocked down a lower court’s ruling that the campaigns who fought for Prop. 8 (specifically Protectmarriage.com – Yes on 8 ) needed to hand over internal communications to pro-gay plaintiffs in a suit to overturn the ban of same-sex marriage. (Download the opinion here as a pdf.)
The plaintiffs want to prove that Prop 8 violates due process and equal protection clauses of the Fourteenth Amendment (backgrounder from the LA Times). To do so, they say they need evidence that the Prop 8 folks deliberately fanned the flame of hatred. Judge Raymond Fisher writes:
Whether campaign messages were designed to appeal to voters’ animosity toward gays and lesbians is a question that appears to be susceptible to expert testimony, without intruding into private aspects of the campaign. Whether Proposition 8 bears a rational relationship to a legitimate state interest is primarily an objective inquiry.
OK, so any loss for the LGBT movement can be seen as a civil-rights set back. I’m not saying it’s not. The flipside is that the court ruled to protect the First Amendment, because forcing them to do so would have the effect of “chilling participation and…muting the internal exchange of ideas.” I think it would be a different story if the plaintiffs were accusing the proponents of Prop 8 of corruption or money-laundering. More from Fisher:
The freedom to associate with others for the common advancement of political beliefs and ideas lies at the heart of the First Amendment. Where, as here, discovery would have the practical effect of discouraging the exercise of First Amendment
associational rights, the party seeking discovery must demonstrate a need for the information sufficiently compelling to outweigh the impact on those rights.
What’s especially ironic here is that the precedents used by the court to rule in the anti-gay groups’ favor are rulings regarding liberal, civil-rights organizations like the NAACP, AFL-CIO and the Black Panther Party.
