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Prop. 8 foes seek initiative sponsors' internal campaign communications

December 1, 2009 |  2:34 pm

Lawyers for two gay couples challenging last year's Proposition 8 initiative banning same-sex marriage in California brought their case to a federal appeals court panel in Pasadena today, arguing that they need access to initiative sponsors' internal campaign communications to prove the ballot measure was passed with "discriminatory intent."

The request to review all messages pertaining to the campaign strategy of the Proposition 8 sponsors ahead of a Jan. 11 trial was approved by the San Francisco-based federal judge presiding over the case, prompting the initiative backers to turn to the U.S. 9th Circuit Court of Appeals with claims that such disclosure would violate their 1st Amendment protections.

Charles Cooper, an attorney representing the Protect Marriage group behind the successful initiative halting same-sex marriages, warned the three-judge appellate panel that disclosing the campaign's internal communications would have a "chilling effect" on freedom of speech and association in future political contests.

Theodore Boutrous, arguing for the two couples denied California marriage licenses because they don't meet the Proposition 8 definition of marriage as being between one man and one woman, told the judges that getting access to the internal strategy discussions was essential to show how the Proposition 8 supporters plotted to "push the buttons" to fan anti-gay fears among voters.

He produced one message obtained from a Proposition 8 proponent warning that the consequences of failing to pass the gay-marriage ban would include California "falling into the hands of Satan" and the next step in the gay-rights movement, including "sex with children."

The judges, all appointees of President Clinton, expressed skepticism that the opponents of Proposition 8 needed to go beyond what was publicly available from campaign ads and Internet-based statements to show the strategy behind the initiative. But they also openly disputed Cooper's contention that much of the communication was entitled to 1st Amendment protection.

A ruling is expected within a couple of weeks, given the pending start of trial on the constitutional questions of whether Proposition 8 denies gay couples due process and equal protection.

-- Carol J. Williams

Use The Times' interactive map to track changes in rights for same sex couples in the U.S. since 2000

Click to view Times interactive map on gay marriage