Ted Olson and David Boies’s landmark trial to overturn California’s ban on gay marriage began in January with much fanfare. Perry v. Schwarzenegger was expected to last a few weeks, but here we are closing in on May.
Perhaps one person just as frustrated with the slow progress as anyone is the judge himself, U.S. District Court Judge Vaughn Walker, who on Sunday issued a warning to Equality California and the ACLU to turn over documents requested by supporters of Proposition 8 (which banned gay marriage) or face a fine of $2,000 per day and be held in contempt of court.
According to Lisa Keen of Keen News Service, who has loyally covered the trial long after national reporters left the scene:
The order is a side issue in the landmark trial to challenge the constitutionality of California’s same-sex marriage ban. But that side issue has turned into a monumental struggle by pro-gay groups who opposed Proposition 8. The groups said they do not believe they should have to turn over hundreds of thousands of emails and other internal documents to the “Yes on 8” coalition that proposed the anti-gay law.The ACLU and Equality California are not parties to the lawsuit: they say it will cost them $20,000 to produce the documents and that they have a First Amendment right to protect the privacy of their internal communications. Judge Walker has said they have not submitted evidence to back up that claim. The groups will appear in court on Wednesday in San Francisco. According to an Equality California press release today, the organization’s executive director, Geoff Kors, promised to turn over the internal strategy e-mails related to its attempts to defeat Proposition 8.
We are very pleased that Judge Walker clarified his ruling in accordance with the Ninth Circuit's affirmation that the first amendment protections for communications applies not only to internal communications within each individual organization but also to communications among multiple organizations working in coalition. Had this protection been eroded, it would have set a devastating precedent for future social justice efforts. Having secured this ruling—the key principle we were fighting for—we will turn over responsive, non-privileged documents so that a decision can be rendered in an expeditious manner.
While everyone is eager for a resolution, no one wants to rush such a momentous ruling. Furthermore, for some supporters of gay marriage, the terms have changed since the case began. "Some people hoped the case would be taken very quickly to the U.S. Supreme Court while Justice Stevens was still there as a notably open-minded judge on gay-rights issues," says Jennifer Pizer, senior counsel and director for the National Marriage Project at Lambda Legal. "Now that it's clear he'll be retired, I don't sense the same feverish urgency in the community to see the final resolution of the Perry case."
But urgency or not, justice marches on. If the logjam with the communications clears up, say legal sources working on the trial, a date for closing arguments might be set in the near future. Finally.