Legal News

Prop. 8 Supporters Get Boost From Three Clinton Appointees

By Ashby Jones

The big David Boies/Ted Olson-lawyered suit challenging California’s Proposition 8 had controversy and a bit of strangeness written on it from the word go. Aside from the naturally high-profile nature of the suit — the constitutionality of same-sex marriage — the case had other fascinating little wrinkles. You had Ted Olson joining the fight on the side of gay-rights advocates, for instance, and the ACLU opposing the suit.

On Thursday, the bizarro-world theme continued. A Ninth Circuit panel comprised of three Clinton appointees held up a ruling made by Vaughn Walker — a Bush I appointee — which had advanced the plaintiffs’ case. In response, the ACLU cheered.

Got all that? Let’s unpack it. In October, Walker ruled that Boies, Olson et. al were entitled to see see the internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had sought to exploit anti-gay bias. Such evidence would strengthen the plaintiffs’ claim that the ballot measure was discriminatory and thus unconstitutional.

But the Ninth Circuit put a swift kibosh on that ruling on Thursday. A panel comprised of Clinton appointees Kim Wardlaw, Raymond Fisher and Marsha Berzo ruled that the Proposition 8 sponsors “have made a strong showing that they are likely to succeed in their arguments” that the discussions were constitutionally protected and that an order like Walker’s would discourage candid communications in political campaigns.

The court, which for now only ruled on whether to enjoin the effectiveness of Walker’s decision, said it would issue a formal ruling soon. Click here for the San Francisco Chronicle story; here for previous LB coverage.

The ACLU, which opposed Prop. 8 but expressed reservations about the Boies/Olson suit when it was filed, supported the Yes on 8 campaign’s challenge to Walker’s order.

Andrew Pugno, a lawyer for the Prop. 8 sponsors, said the court’s order was “very encouraging. Free speech requires protection for citizens to engage in campaigns, and that is all we are asking for.”

The trial is slated to begin on Jan. 11.

Full post as published by Law Blog - WSJ.com on December 04, 2009 (boomark / email).