Perry PlaintiffsThere have been two developments in the Perry v. Schwarzenegger case in the last ten days worth discussing.  The most recent is yesterday’s ruling by the Ninth Circuit Judicial Council that will allow the trial (due to begin on January 11th) to be televised.  Nan Hunter has the story here.  Televising of the case will certainly be applauded by the plaintiffs’ lawyers, David Boies and Ted Olson, who have wasted no opportunity to keep their case and their own names in the press.  Indeed, some have argued, myself included, that it isn’t clear whose interests are most advanced by this litigation: those of the plaintiffs’ lawyers or those of the people who will ultimately have to live with the outcome of this case.  Nuff said on that for now.

The second big issue, also one that suggests an ethical gap between the lawyering and the politics of the case, involves a motion by the plaintiffs to have the organizational proponents of Proposition 8 divulge their internal campaign communications relating to strategy and messaging.  Boies and Olson want this information in their effort to show that: “[t]he disadvantage Prop. 8 imposes on gays and lesbians is the result of disapproval or animus against a politically unpopular group.”  So, the internal communications of the Prop 8 organizers could show that they sought to ban marriage for same-sex couples because they don’t like gay people.  Not a crazy notion, surely, but is it a good idea?

Well, the 9th Circuit Court of Appeals thought it wasn’t.  3-0 the Court ruled that the plaintiffs couldn’t get access to this information because “Compelled disclosures concerning protected First Amendment political associations have a profound chilling effect on the exercise of political rights.”  Judges Raymond C. Fisher,  Kim McLane Wardlaw and Marsha S. Berzon found that the request violated well-settled constitutional law – established in a long line of cases where labor, leftist, civil rights and other progressive organizations were harassed by their opponents by trying to force them to divulge their membership lists and internal communications.  As Judge Fisher said for the majority in the 9th Circuit’s opinion:

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.

The Court began it analysis of the substantive issue at stake by quoting from a case involving the NAACP: “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” NAACP v. Alabama, 357 U.S. 449, 460 (1958).  It then turned to cases involving membership records of the Black Panther Party and labor unions  (AFL-CIO v. FEC, 333 F.3d 168 (D.C. Cir. 2003), Black Panther Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981))(“The Supreme Court has long recognized that compelled disclosure of political affiliations and activities can impose just as substantial a burden on First Amendment rights as can direct regulation.”), as well as cases seeking to compel testimony about membership in the Communist Party (Bates v. City of Little Rock, 361 U.S. 516 (1960)).

As I have blogged before, I get worried when the lawyers on “our” side pursue litigation strategies borrowed from the opponents of other civil rights movements, and which are deeply non-progressive in nature.  Further, isn’t there something rather, um I don’t know, ironic about gay people seeking to use shame as a political tool to combat their enemies by dragging them out of the closet?  More about that here.  But then, isn’t that what we’d expect from a litigation team that has no relationship to, history with, or accountability to the political movement of which their clients’ individual interests are a part?  Remember, Boies and Olson brought the case over the strong objections of every lgbt civil rights organization in the country, and then successfully opposed the gay rights groups joining the lawsuit as co-plaintiffs.

One last observation about the case: one of the Judges on the 9th Circuit panel, Marsha Berzon, represented the AFL-CIO and other labor organizations before the Supreme Court before she was nominated to the 9th Circuit in 2000 by President Clinton. (Full disclosure: I worked for her at her old law firm Altschuler and Berzon when I was a law student.)  No one more than Judge Berzon appreciates the stakes for organized labor and other similar groups in a discovery motion such as the one made by Boies and Olsen in Perry v. Schwarzenegger.

But this issue may not be resolved yet: the 9th Circuit has reportedly decided to rehear the disclosure motion en banc, meaning by a larger panel of judges. So we’ll see if the January 11th trial date will stick.


  1. Gender & Sexuality Law Blog » Blog Archive » Where We At in Perry …

  2. I could not disagree more forcefully with Prof. Franke. There is nothing wrong about demanding to see the internal Prop. 8 documents. In fact, given the Romer v. Evans argument and the practical effect of this suit on millions of lives, it would be malpractice not to. We must fight like hell to win.

    Prof. Franke, by contrast, seems to care more about the symbolism of the NCAAP case and thinks it just isn’t polite of us to shame the bigots by exposing their real motives. Well, I say screw them! Given the stakes, we need a little less kumbaya-my-lord and a little more focus on the endzone.

  3. […] unions, suspected communists, and other leftist organization.  See my earlier posts on this here and […]

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