Wednesday, March 24, 2010

Prop8 case update

There was a little news this week about the case. As a reminder:
Where we are now After the presentation of both sides of the Prop8 case, Judge Vaughn Walker postponed closing arguments till he had a chance to review the evidence and the testimony. Those arguments have not yet been scheduled.

The latest order One of the arguments being made by our side is that the bad guys were motivated by hate. To prove that, they won access to the internal documents of the Pro-PropH8 side. In an example of turnabout, the Prop-H8 side has requested access to the similar documents from our side, particularly from the ACLU and Equality CA (EQCA). This access has been granted.
Walker referred to the discovery hearing on March 16 when Prop 8 proponents argued that the “mix of information available to the voters could help determine the state interest in Proposition 8 and asserted that documents from No on 8 groups could add to the mix. Proponents also argue that the documents might speak to the political power of gays and lesbians.” He said that the Yes on 8 proponents failed to prove that the documents they seek are “highly relevant to the claims they are defending against.  Nevertheless, proponents’ showing satisfies the standard of discoverability set forth in FRCP 26, and the magistrate did not err in ordering the No on 8 groups to comply with the proponents’ subpoenas and to produce nonprivileged documents.”
The logic of this request isn't clear; after all, our side lost the election. What relevance does their campaign have? Speculation continues that this is an attempt to find evidence that GLBT have "political influence" . To which the proper response is from the previous testimony:
So imagine for a moment that I was going to write an opinion that says gays and lesbians are powerful in the political system. So I go and I survey the world and I survey the literature and I say, Well, the FBI suggests that gays and lesbians are experiencing increasing levels of violence and represent 70 percent or more of the hate-inspired murders. Could I see that and still conclude that the group is powerful? Well, conceivably, because there are other factors.

Could I look at the circumstances around the country and say, Well, in 29 states gays and lesbians could still be dismissed without cause for their identity from their source of employment, that they enjoy no protections. Could I observe that and still conclude that the group was powerful? Well, possibly.

Could I observe that even small statutory protections designed to redress previous disadvantages have been challenged at the ballot box over 150 times, and gays and lesbians lose those more than 70 percent of the time, and still conclude that the group is powerful? Presumably.

Could I look at the enactment of statutory -- excuse me, constitutional exclusion and establishment as excluded from a civil institution as a citizen that is separate -- that is treated separately from all other citizens, and conclude that the group is powerful?

I could conceivably observe one or maybe two of those things and still decide that there's other evidence to suggest that the group is powerful. To observe all of those things and to conclude that gays and lesbians have the political power to protect their basic rights in the political system would be the political science equivalent of malpractice. I -- I couldn't possibly draw that conclusion.
With regard to the current order, ACLU and EQCA continue to fight this but are unlikely to prevail.

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