Over the coming week or so, you can expect plaintiffs’ counsel in the anti-Prop 8 to try to show that various sponsors of Prop 8 drew from their traditional religious beliefs unfavorable views of homosexual conduct; that the official campaign messaging must be deconstructed by left-wing academic partisans of same-sex marriage to reveal the messaging’s supposed hidden subtext of appeals to anti-homosexual bigotry; and that the votes of the more than seven million Californians who supported Prop 8 must be deemed to reflect that bigotry.
This is the wild witchhunt that Judge Walker has authorized and indeed encouraged plaintiffs’ counsel to conduct as the prime attraction in his intended show trial. In this series of posts, I will outline how legally unsound and abusive this witchhunt is. In particular, I expect to develop the following points in roughly this order:
1. The legal question whether Proposition 8’s restoration of the traditional definition of marriage amounts to unconstitutional discrimination against homosexuals does not turn on the subjective motivations of the more than seven million California voters who supported Prop 8, much less on the motivations or messages of Prop 8’s sponsors. The question, instead, is whether the traditional definition of marriage necessarily reflects an irrational or otherwise impermissible animus against homosexuals (and Walker himself has conceded that the answer to that question is no).
2. Beyond Walker’s mistake of trying to determine voter intent based on the messages of Prop 8’s sponsors, it’s absurd to give those messages anything other than their ordinary meaning and to give wildly disproportionate weight to stray messages that did not reach a large audience.
3. Walker’s witchhunt, including his approval of scorched-earth document and deposition discovery of the internal communications of Prop 8 sponsors, threatens an unprecedented judicial intrusion on American politics and a trampling of cherished First Amendment rights of political participation.