On The ACLU/EQCA Discovery Litigation

April 14, 2010 at 9:56 am 69 comments

by Brian Leubitz

Before I delve into this, I’d like to say that while I’m an attorney, I am by no means an expert in discovery. However, I’ll try to explain it as best I can.

To start, discovery runs on good faith backed by a big old stick. The normal process is for each side to ask questions (“interrogatories”) and respond to the opposing counsel’s questions with responses, and eventually documents. Document review is typically the domain of first year lawyers, who get to spend hours upon hours hunting for the smoking gun amidst heaps and heaps of meaningless paper. In fact, one discovery strategy is to bury the opposing counsel in so much paper that the good stuff remains hidden. A judge can control this sort of gamesmanship if it gets out of hand.

Now, in this particular case, the defendant-intervenors asked for a bunch of documents from the No on 8 Coalition. It was a similar request as the Yes on 8, protectmarriage.com, organization had received. Eventually, Judge Walker’s order was slightly limited to exclude completely internal documents within a “core group” of campaign insiders. But, they ended up turning over a bunch of useful documents, which I won’t go through now. But, go back over the old posts from the trial, and you’ll stumble across them.

In return, the Yes on 8 asked for similar documents. Now, at first blush, you’d think, well, fair’s fair. But, not really though. The only actions in question here are the actions of the Yes on 8 team and whether the campaign was seeking to deny equal protection of the law. On the flip side, the No on 8 coalition clearly had no such motives, and the constitutionality was never in question.

The relevant rules here are the Federal Rules of Civil Procedure, particularly Rule 26, which states, in part:

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.

The key part of this is relevancy. There are a number of different standards for relevancy, but they are all generally lenient, or at least far more lenient that standards for evidence at trial. That being said, even by these more lenient standards, this is a big reach. And frankly, all of the parties know that, but the Yes on 8 team is trying its best to get as much information as possible for future campaigns. Sure, they won’t say that, but that’s what is going on here. But, to the issue at trial, I’ll let Judge Walker sum it up:

This objection has three parts: first, that the magistrate applied the FRCP 26 relevance standard when a more searching standard was appropriate; second, that the subpoenas do not seek relevant documents under any standard of relevance; and third, that the magistrate failed to weigh the marginal relevance of the documents against the heavy burden production of the documents would impose.

Under the FRCP 26, the court, in this case Magistrate Spero, is to weigh the burden of disclosing the documents against the relevancy of the documents to the case at hand. After all, we don’t want our courts to just be a big fishing pond, be it for corporations, individual litigants, or for campaigns, as we have in this case. These issues are all somewhat subjective, that is the judge has to look at evidence and weigh relative merits. Unlike what Justice Roberts would have you believe, this isn’t about balls and strikes, it’s more like judging a boxing match. Each side has relative merits, and the judge has to use his legal training and experience to end up with the best result.

Now, on the Yes on 8 side, the 9th Circuit ruled that Judge Walker allowed too broad of discovery, a loss for our side. However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery. This time focusing on relevancy rather than any notion of privilege of free communication within a campaign. The importance of this distinction is critical. There is a bright line for why the Yes on 8 materials were discoverable. However, if the ACLU and EQCA documents are discoverable, any body associated with a campaign that is involved in litigation is discoverable. As Geoff Kors of EQCA points out, that is simply not something that we can allow to go unchallenged:

“Protect Marriage has not subpoenaed Equality for All, the organization that led the No on 8 campaign. Instead, it singled out two allied civil rights organizations that are not parties to the case to intimidate and dissuade all LGBT organizations and our allies from participating in future campaigns to defeat anti-LGBT measures. We want nothing more than for this case to proceed as quickly as possible. But if this ruling is allowed to stand it will set a harmful precedent that will have a chilling effect on all non-profits working in coalitions on social justice issues. They will fear harassment and the threat of being forced to spend precious, limited resources on responding to costly litigation and subpoenas rather than to do the critical work at hand.”

I know people are anxious for some resolution on this case, but folks, it’s going to be a while. There are still a lot of appeals to go; it’s likely to be years before we see a resolution. Even if Judge Walker overturns Prop 8, he’s likely to put a stay pending appeal. That’s why it is critical that we not take our eyes off the ball, which is the ballot box. In my mind, Prop 8 is clearly unconstitutional for several reasons. That being said, sometimes you have to fight when you shouldn’t have to. It’s not right, but it’s the way it is. We’ll win both in the legal arena and the ballot box.

Entry filed under: Uncategorized.

Importance EQCA and ACLU Lose Technicality Skirmish

69 Comments Add your own

  • 1. Kathleen  |  April 14, 2010 at 10:10 am

    THANK YOU, Brian. I really, really appreciate you taking the time to compose this post.

    A question: You suggest it’s important to keep up the fight at the ballot box. If California voters overturn Prop 8, won’t the legal challenge become moot, thus halting the case at whatever stage of appeal it’s in? If that’s the case, we could be left with at most a District Court and Court of Appeals ruling, yes?

    • 2. Brian Leubitz  |  April 14, 2010 at 10:34 am

      Yes, that could very well be the case. However, there’s a long time between now and November 2012, so it’s hard to know how these things will go. (and how fast they will go)

      • 3. Andrea  |  April 14, 2010 at 11:07 am

        Follow-up question:

        Should the case drag on through 2012 unresolved, does EQCA go all-in with the 2012 ballot initiative effort, or again eschew the repeal initiative in favor of awaiting a ruling in the Perry case?

  • 4. Kathleen  |  April 14, 2010 at 10:12 am

    Another question — do you know anything about the Yes on 8 people filing a petition for cert with the US Supreme Court on this discovery order? If so, do you know where we can access their petition?

    Thanks again.

    • 5. Brian Leubitz  |  April 14, 2010 at 10:35 am

      I’ve not heard that, but I’d be very, very surprised if they took the case.

      • 6. Kathleen  |  April 14, 2010 at 10:48 am

        Supreme Court docket

      • 7. David Kimble  |  April 14, 2010 at 10:54 am

        @ Kathleen – what is a writ of certiori? Sorry to be so ignorant, but it has been years, since I studied law.
        <3 David

      • 8. Ben  |  April 14, 2010 at 12:36 pm

        @David: a Writ of Certiori is a request that the Supreme Court intervene in a case, or take it on.

      • 9. David Kimble  |  April 14, 2010 at 1:17 pm

        Thanx, Ben! <3 David

  • 10. Monty  |  April 14, 2010 at 10:16 am

    Hopefully this will enlighten people on the importance of the appeals. Far more is at stake here than just marriage.

  • 11. David Kimble  |  April 14, 2010 at 10:40 am

    Thanks Brian for this story – it highlights many of the issues raised during the trial and thank you for answering the discovery question. Do you really believe it could be years before we see a resolution to Prop8? <3 David

  • 12. David Kimble  |  April 14, 2010 at 10:51 am

    “Now, on the Yes on 8 side, the 9th Circuit ruled that Judge Walker allowed too broad of discovery, a loss for our side. However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery.”

    I am confused again, these two items appear to be diametrically opposed to each other. Please explain…anyone? <3 David

    • 13. Brian Leubitz  |  April 14, 2010 at 11:21 am

      “However, the ACLU and EQCA argue that Judge Walker once again allowed for too broad of discovery. This time focusing on relevancy rather than any notion of privilege of free communication within a campaign.”

      For the Yes on 8 side, the stuff was unquestionably relevant, the question was privilege. This time, the issue is relevancy, in addition to the privilege issues.

      • 14. David Kimble  |  April 14, 2010 at 1:16 pm

        Thanx, Brian! <3 David

    • 15. Monty  |  April 14, 2010 at 11:22 am

      The first one referred to our discovery request earlier in the trial, if I’m not mistaken.

  • 16. Richard A. Walter (soon to be Walter-Jernigan)  |  April 14, 2010 at 11:39 am

    Thanks for keeping us up to date with this, at least, as up to date as you are able to.

  • 17. Andrea  |  April 14, 2010 at 11:59 am

    Motion for Prelimiary Injunction, July 2, 2009, page 10, Judge Walker speaking:

    …uncertainties, I think, weigh very heavily in this situation against the issuance of a preliminary injunction prior to the fact — prior to the ability, prior to the ability of the Court to consider the issues here on a full record.

    Motion for Summary Judgement, October 14, 2009, pages 94-95, Ted Olson speaking:

    if there is a stay that is going to last a long period of time or any substantial period of time, with respect to documents or evidence that you have ruled we are entitled to, our clients are entitled to, we would want to reopen the motion that was considered this summer for a preliminary injunction, because your decision with respect to denying that motion was based upon the premise that there would be a prompt expeditious trial on the merits.

    Our position is that our clients are suffering constitutional injury. The State of California has admitted that. And they are — we believe they are entitled; that Proposition 8 be stayed so that they will not suffer every day irreparable and irremediable constitutional injury.

    We understand that if there is a trial on January 11, then we will be getting the relief that we hope if the Court agrees with us; but if there’s going to be delays —

    THE COURT: Well, fair point.

    Once Judge Walker has a full record and rules for Perry, why would Prop 8 continue to remain in force pending appeal? If anything, should this discovery issue drag out, Ms. Perry’s legal team can re-open the issue of suspending Prop 8 during the trial.

    Suppose she gets it. And then if she wins, why would Prop 8 suddenly go back into force pending appeal? We can get married until she wins the case, then we can’t again because she WON? That no sense makes.

    Oh, but that would open another window, and create uncertainty, right?

    Ted Olson again, from July 2, 2009, Page 14:
    my clients would prefer the uncertainty of the ultimate outcome in this case, to the certainty of daily irreparable harm.

    It seems that the burden here is on NOM to prevent Prop 8 from being suspended for the duration of this case, not on us to accept living under it until it gets through USSC. The moment Walker rules for Perry, 8 goes away in California for the duration of appeals.

    • 18. Dave P.  |  April 14, 2010 at 4:12 pm

      Whoa!! Andrea, this sounds like really great news – how sure is this?? I had been under the impression that we would not have same sex marriages again in California until we either A) won it at the ballot or B) had this case completely concluded and decided in our favor. This sounds like we could get it back MUCH SOONER. Can we get some more confirmation of this issue? Do any other folks around here have info that might support this or conflict with this?

      • 19. Andrea  |  April 14, 2010 at 4:45 pm

        My source for the quotes (the part in italics) is the actual pre-trial motion hearing transcripts themselves. You can get them from AFER’s site, if you want to check up on me. Those two hearings are fascinating reads.

        Bottom line is, Walker only agreed to allow Prop 8 to remain in effect until the trial record was complete. And that was agreed to by Olson, only on the assumption that the trial stayed on its fast schedule. If the discovery lags, he reserves the right to re-open the motion to suspend enforcement of Prop 8 while the case works its way through the system. “Fair point.” said Walker. It’s all right there in black and white.

    • 20. draNgNon  |  April 14, 2010 at 11:25 pm

      Andrea, I wonder, reading your quotes, if this is one of the reasons the Yes on 8 people are dragging the evidentiary phase on.

  • 21. DonG  |  April 14, 2010 at 12:09 pm

    This article is somewhat not up-to-date. Monday night the 9th Circuit denied that ACLU appeal concerning turning over the documents. More information can be found at:


    So the ACLU and No on 8 either has to turn over the documents or refuse to do so and be held in contempt at which point they can appeal, or they can petition the US Supreme Court for cert.

    • 22. David Kimble  |  April 14, 2010 at 1:47 pm

      DonG – actually this article is perfectly up-to-date – click on the this link from the blogspot you posted and you will see what I mean – Hollingsworth v. Perry, petition by Prop. 8 proponents, No. 09-1210 (U.S. Apr. 5, 2010) [I don’t have online access to the petition!]

      • 23. David Kimble  |  April 14, 2010 at 1:49 pm

        oops the link didn’t work, but when you go to the article look for the link I posted – it will take you to the same discovery order we are discussing.
        <3 David

  • 24. Bolt  |  April 14, 2010 at 12:40 pm

    Thanks for the update, and your hypothetical speculation regarding the outcome of this trial. It’s difficult to keep my eyes on the ball. I would like to see the religious entities that facilitated the passage of proposition 8 financially devastated, but this is another issue.


    • 25. Monty  |  April 14, 2010 at 12:43 pm

      I’d be happy if they’d just lose their tax-exempt status (though according to them that’s apparently the same thing). But since the government is a bunch of pansies when it comes to enforcing separation of church and state, that’s probably not going to happen.

      • 26. Bolt  |  April 14, 2010 at 4:38 pm

        That sounds like a terrible idea. If they paid taxes then we would have government representing religion. That may be exactly what they want.


  • 27. David Kimble  |  April 14, 2010 at 2:23 pm

    I just found-out my new book is now available at Barnes & Nobles – here’s a link for everyone –

    • 28. Straight Grandmother  |  April 14, 2010 at 2:30 pm

      Congratulations David I am really proud of you! I hope it sells millions.

    • 29. Tony Douglass in Ca  |  April 14, 2010 at 7:32 pm

      @David – Are you going to make that available in any ebook format?

      • 30. David Kimble  |  April 15, 2010 at 6:56 am

        I have considered that, but at this point, no. I may make it available later, I dunno. <3 David

      • 31. fiona64  |  April 15, 2010 at 8:39 am

        David, you can set it up at no cost to you as a multi-format eBook via http://www.smashwords.com. You can look for my books there (search for fiona64, as it’s my profile name there too). I have been very happy with their services. :-)


  • 32. Straight Grandmother  |  April 14, 2010 at 2:46 pm

    Brian, many thanks for the topic about the trial. I honestly don’t see how you gay and lesbian and transgender people get up every day, one day after the other, and continue the fight. I am exhausted and I have really only be interested in this issue since January when the trial started. Aren’t all of “you people” just sick and tired of this? That is why when Brian says you have to keep working and get on the ballot in 2012 I yawn. Forgetaboutit, forget about holding your hat in your hand going door to door begging for your civil rights asking for a signature on a petition. The courts are the way to go and with this dream team I feel that we will win. Our lawyers say we will win and I don’t think they would lead us on.

    Screw the Executive Branch Obama has done nothing for us, screw the Legistlative Branch is takes decades for a crumb of pro gay legislation. I put my faith and my hopes in the Judicial Branch. Instead of us telling Congress DOMA is bad, just let the Courts do it instead, much easier and much less work and much more final. I really only support GetEqual who takes “action.”

    • 33. Monty  |  April 14, 2010 at 2:51 pm

      Historically, the courts have been the only reliable way of securing minority rights, at least initially. Right now, they’re still the best chance. However, public opinion is steadily improving, and I don’t think we should put all of our eggs into one basket.

    • 34. Bob  |  April 14, 2010 at 6:32 pm

      Straight Grandmother, the struggle for equality has been going on far longer than since we started discussing it on a blog, it’s been evolving for thousands of years.

      We win some and lose some, but there is progress, remember the moral arc bends towards justice. Maybe what we lack at present, is some joy, celebration, perhaps our own spiritual song to uplift us. For we are here and taking a stand.

      You bring two gifts which are crucial to our success, they are called FAITH and HOPE, we sometimes have to dig down inside ourselves to find these, often buried beneath our wounds,

      George E. Vaillant M.D. research psychiatrist at Harvard, has put forth the case in his book Spiritual Evolution, that we are hard wired for FAITH HOPE LOVE.

      The point in our being driven to dispair, is to reunite us with this source, in our DNA.

      I have only learned time and again, that humans alone are not worthy of these gifts, my most recent wake up was Obama, Faith and Hope, are more aptly placed in universal powers, knowing that they can influence and shape humankind, both the judges that sit on the bench, the president who holds the power, and our common neighbour.

      Our common humanity is far too noble to allow it to be bantered about by disagreements amongst us. Rise up Rise up,

      Ronnie’s back, I loved his battle cry, give me liberty or give me death

      • 35. Richard A. Walter (soon to be Walter-Jernigan)  |  April 14, 2010 at 6:52 pm

        So do I, Bob. And that battle cry of “Give Me LIberty or Give Me Death” is why it is so important that we also remember that until ALL of us are free, none of us are free.

    • 36. Bill  |  April 15, 2010 at 10:04 am

      Straight Grandmother already knows how I feel about this issue.


      Groveling to our fellow citizens leaves us without equal rights. How many times must we lose our rights and our money via the ballot box to understand that referendums are KILLING US.

      If I hear one more person encouraging another vote on our rights in 2012, I think my head will explode.


      It wipes us out financially. And as our enemy (also known as our families, friends, co-workers and fellow citizens voting on human being’s rights) will continue to beat us down. THIS GETS THEM OFF. They do not care about MARRIAGE. They care about continuing to ABUSE us with their referendums.


      Let them. Let them pass every single god damn referendum against us that they would like to. WE NEED TO IGNORE IT, LET THEM VOTE OUR RIGHTS AWAY AS IS THEIR CUSTOM, AND THEN TAKE IT UP WITH THE COURTS.

      It is the only way guys. Of that I am certain. If we spent the 80 million dollars we spent in California on TV ads on attorney and court costs, WE WOULD BE GETTING SOMEWHERE.

      But 80 million dollars for TV ads and such – WASTES OUR F’ING MONEY. And gets our rights taken away – EVERY SINGLE TIME. One might think we are a bunch of dummies if you look at it from the other side.

      Oy vay. This makes me so angry.

      My fellow LGTB friends – if you want your life to continue to be marginalized. If you want your life to be free of the security of equality under the law, then by all means, please do continue doing what we have done for the past 3 decades of referendums. I guarantee you it will keep us EXACTLY where we are.

      Only a Constitutional ruling by the Supreme Court will protect us. NOTHING ELSE. Why do you think the other side has tried so hard to keep this from the Supreme Court for so many decades???? It’s because THEY know that is our only shot.

      Referendums are for pussies. For citizens who seek to abuse and punish gay people.

      We need to stop participating.


      The courts are the way to our freedom.

      The courts are the way to our freedom.

      The courts are the way to our freedom.

      The courts are the way to our freedom.

      The courts are the way to our freedom.

    • 37. Carvel  |  April 19, 2010 at 9:58 am

      I suppose that the answer is that the struggle for equality has been going on not for decades or even centuries. The struggle of mankind has been going on since the beginning of time. The pagans worshiped many gods. they killed and sacrificed people to them. When Western religions evolved for whatever reason, they chose to allow slavery and condemned Blacks as a separate race. they of course singled out gays also. Not being homosexual as we know it today, but engaging in homosexual acts.

      As we all know for thousands of years the church burned at the stake witches, homosexuals and all sorts of people who did not fit the mold. However, with each generation more and more “different” people were born and lived. Most just learned to keep their mouth shut. They would have yo believe that God condemns homosexuality. Just talk to Rev. (that’s short for revolting) Fred Phelps. He can site you chapter and verse. If you want to know, just let me know. I have perhaps a few thousand words of analysis I have on the Bible.

      Even in modern day we are tormented, teased, and abused. We even do this to ourselves until 1969 with the Stonewall Riots. By that time I was almost finished with college and had tried to conceal my real feelings. I had not heard of any right to be gay until I was 21 and even then it wasn’t a right, I just could do it if I didn’t get caught. I never really had pride in my sexual orientation until I met my lover when I was almost 40 years old.

      When we met, i was in love, real love that was returned to me for the first time. Life changed, my life changed and I was finally at peace with the world. It is amazing what the love of a good man will do for another gay man. Everyone I had met or knew before that was unhappy and did not want to fit into society because society hated them. I know countless young men who drank, used drugs or just freeked out from reality because they were gay.

      It is hard to face the world when the entire world is against you. The laws are against you, your family and your friends don’t even know you. HOWEVER, if you survived growing up in hate, fear,and self loathing then you get to be pretty strong. You can’t walk across water, but sometimes the emotions will cause to to act as if you could. You don’t give up the fight because you can’t. You can’t walk down the street without knowing that somebody hates you and if given the chance they would start in on you with hate words and deny you your rights. It is not strength on your part, it is simply self survival build upon a lifetime of fighting. And yet, there is the dawning of a new day that is about to happen in this case if we can get it moving.

  • 43. Ronnie  |  April 14, 2010 at 4:11 pm

    Ok everybody the Betch Drama Queen is back……..
    Posted on Advocate.com April 14, 2010
    NYC Gay Center’s Flag Burned
    By Michelle Garcia
    The staff at the LGBT Community Center of New York City arrived at work Wednesday to find that a rainbow flag that once flew in front of the building had been burned.
    (me) ah oh.ohhhhh…..steam is literally shooting out of my ears…….
    According to a press release, police were called, and investigators from the hate-crimes unit and the center’s local precinct were dispatched to the crime scene.
    (me) hate crime?….oh..no no no no no no….this is more then a hate crime……
    “We at the center will not stand for anyone who thinks they can come into our community and try to intimidate us,” center executive director Glennda Testone said in a statement. “We work hard to create a safe environment and provide a safe space for all LGBT New Yorkers. Hate and intolerance against us will not be accepted in New York, and it is so important the center is a safe space in our city.”
    Anyone with information is urged to contact the police at (800) 577-TIPS.
    (me) I’m sorry but in every civilized society in known history and present day….burning another’s flag is an act of war…..As far as I’m concerned Civil War II has just started…..did I not tell you?…..hmmm…?????……<3….Ronnie

    • 44. David Kimble  |  April 14, 2010 at 5:25 pm

      Wow and they call us – the bad guys? This story only illustrates their lack of compassion for anything that doesn’t fit their moldy ideas of reality and marriage. I am bewildered by their actions, since they only serve to prove animus toward our community. <3 David

    • 45. Dave P.  |  April 14, 2010 at 5:33 pm

      I think the LGBT Center ought to put the burned flag right back up there on the flag pole flying 24/7, to help illustrate what bigotry and hate looks like. Let everyone see it. Show the people on the fence about LGBT rights issues what the anti-gay crowd is really like.

      • 46. Carvel  |  April 19, 2010 at 10:26 am

        No, they need to put a new flag out and then prepare an exhibit that they can bring to press conferences and exhibit how the prople who preach God’s love and acceptance practice hate. They should make a place for it as it is like any flag that has sufferened the ravages of war and hate, a banner to the cause. We need to confront them with their hate and their prejudice. If God wants us dead, he could do so with less than a blink of his eye. God could kill every gay person on the earth and leave everyone else untouched.

        God is not hate or vengence. If he is, then i will find another God to worship. They have singled us out because we are the only minority that it is still permissible to hate publically and campaign against and they can get support and followers. You see, some people just want to lead a crown of people against any scapegoat they can find. God hates fags. Well, Hitler imprisoned or killed close to 1 million gay people and he still lost. I guess he missed a few and that is why he lost.

        What people don’t realize is that when the concentration camps were liberated, they just transferred to gay prisoners to civilian jails. Hate knows no boundaries such as country lines as it is all pervasive

        That flag is a martyr to our cause and we need to constantly show it to the non believers. to those people who think that these things do not happen in these enlightened times. I am totally against violence, but I understand how hate can drive crazy people to blowing up churches, abortion clinics and all things that they see as against their beliefs. We have to constantly remind them that in this free country of ours, we are all free. Including them. They are free to hate to themselves, but never to act on it. That flag should be preserved as a symbol of their dirty deeds.

    • 47. PamC  |  April 14, 2010 at 7:00 pm

      Welcome back, Ronnie! :)

  • 48. Sagesse  |  April 14, 2010 at 4:43 pm

    “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.”

    Martin Luther King Jr.

  • 49. Ruth Anne Taylor  |  April 15, 2010 at 6:17 am

    It is just so frustrating!!!!!! I am 33 years old, I have been with my partner for 5 years, we own a home, 2 cars, are both tax paying well educated citizens…..she’s a nurse, I’m a medical device rep. We are contributing to a state hit hard by the recession, offer ourselves to our community, belive in God blah blah blah, but we can’t get married??? I know its personal issues but it drives me crazy that my nieces and nephews aren’t “hers” too and vice versa, after 4 years of being together, the first person in her family ever, a cousin I had never met said “welcome to the family” for the first time at her sisters wedding to a man who had been involved with the family 1/2 the time I have, I bet he was welcomed all day long!!!! I just want the opportunity to feel the security, stability and validity of marriage….
    There is no difference to me saying a black man and white woman can not marry than saying I can’t marry the person who I love, it is about EQUAL RIGHTS. I don’t have equal rights living here in the US. What dictates that marriage has to be a man and a women? religion? what about seperation of church and state? I don’t get it!!!! I don’t get how this even has to be in court when it feels so clear cut.

    • 50. David Kimble  |  April 15, 2010 at 7:07 am

      The sad reality is the lines between Separation of Church and State have been so blurred in recent years – I am disgusted. The original framers of the Constitution recognized a two-way separation – one where Churches were not allowed to interfere in the government and government couldn’t dictate to Churchs any laws. Many of the narrow-minded people in the US believe the separation is a one-way street, but history does not support this view. Thomas Jefferson, who many consider the author of our Constitution was himself either an athiest or a diest. (There are two versions of his views on religion) What is clear, he did not want the lines between religion and state to blur, else we lose our freedoms to a Religious Monotheist establishment.
      <3 David

    • 51. K!r!lleXXI  |  April 15, 2010 at 4:39 pm

      Oh, Ruth, you are so right to be frustrated. We all understand you. We have the same feelings. We know it isn’t right. We know their arguments are ridiculous. We know they are lying through their teeth. AND THEY KNOW THAT, TOO! History taught us, on examples of suffrage for women, slavery, and racial discrimination, history taught us that some people will never change, but the number of bigoted people will decrease significantly — and this is what we’re doing by fighting every day and by simply living our lives! It’s not fair, but that’s all we can do. Gandhi said, “First they ignore you, then they laugh at you, then they fight you, then you win!” We will win! And that, Straight Grandmother, is why and how we get up from our beds every morning — we know we will win!

  • 52. Ronnie  |  April 15, 2010 at 8:01 am

    Hey trackers….In lue of the act of war that was just committed on our community…I think we need a song the lighten the tension in the air……

    R.J. Helton is a Latin-American Christian who came out after he was on season 1 of American Idol (I knew he was gay the first time I saw him on the show)…anywho his first album came out a few years ago and it was a Christian gospel record, however the songs he sings are vague in their full gospel emotions. One song is about being abused as a child. Another one is just about dancing and being free.

    I found this video on advocate.com but I’m posting it from youtube…….

    Now as you all know I do not follow or believe in any religion but I find some of the music spiritual and beautiful. The art passionate and moving. And the jewelry enjoyable. Its the artist in me and my human ability to respect and recognize beautiful creations no matter what my world views are…..so here is “Blessing” by R.J. Helton……<3….Ronnie:

    • 53. David Kimble  |  April 15, 2010 at 9:20 am

      Thanx, Ronnie, that was beautiful! <3 David

      • 54. Ronnie  |  April 15, 2010 at 9:34 am

        You’re welcome….<3…Ronnie

  • 55. David Kimble  |  April 15, 2010 at 9:18 am

    I wanted to write a few words about civility – so here goes! Civility in our community should be a basic premise, however as has been shown here and else where on the Internet – we can get mean at times. I truly do not understand why our community cannot come together to fight for freedoms that many Americans take for granted in a loving atmosphere that promotes our cause. Name calling is something I would expect from grade school children, not adults.

    Our battle has been waged for many years now (at least since the 1960’s), when our movement first began with the Stonewall Riots in New York City. We need allies in our battle.

    My point is we don’t need to belittle those in our community, we need to fight the good fight. End of dissertation! <3 David

    • 56. Richard A. Walter (soon to be Walter-Jernigan)  |  April 15, 2010 at 9:27 am

      Since David metioned Stonewall, I thought I would let everybody know that if you go to the website for First Run Features, you can get information about the movie they did about the Stonewall Riots and many of those they talked to were actually there. You can also get on their email list to be informed when the DVD is released. THis documentary has been getting rave reviews, and I only wish I had known about it sooner, because it was shown at Full Frame in Durham earlier this month.

    • 57. PamC  |  April 15, 2010 at 11:04 am

      Thanks, David; good summary of the need for civility. We need to cultivate civility among ourselves and our allies the way we would for any healthy relationship: with patience and thoughtfulness. Thinking before typing is a rare talent on the internet! But essential for keeping a board as a “safe place” for all.

      The whole point of fighting for our rights is to be able to enjoy them peacefully once we get them. If we can’t get along during the fight, how will we handle freedom?

    • 58. David Kimble  |  April 15, 2010 at 2:20 pm

      I wanted to expand a little on my dissertation. Their are many in the hetero community, who would seek to divide us by using derisions within our community, as tool. As has been said, by many at this website – our battle is about love. The love between two people, which cannot be extinguished by hate, except they allow hatred to taint their souls. I refuse to allow hatred into my life, when I am confronted with hatred, I first try to show love, when love is rejected, then I internalize my feelings, which can have disastrous effects. Some years ago, when I was still in high school (while in a creative writing class) I wrote a poem I wanted to share with this site. It is called “The Dove”

      From hate, I will try to help others live with a love,
      that from happiness comes a dove,
      a dove with long wings, to fly
      a dove that comes to all that cry.

      There is more to the poem, but this is the essence of the poem.
      <3 David

      • 59. Ronnie  |  April 15, 2010 at 3:12 pm

        I like that….<3….Ronnie

  • 60. Bob  |  April 15, 2010 at 10:05 am

    Thanks for that Ronnie, song is an art form that can sustain us, and lift us up. This has been the mainstay of oppressed people throughout history, most notably the negro spirituals. They were the tool that was used often to transcend unbearable realities, raising people from the depths of dispair.
    An incredible transformation takes place when a group of people break out in song, A spirit cannot be broken when it sings.
    Real freedom came for the slaves when they learned to read, and understand that although the bible supported slavery, the victory came when they read your real master is not human flesh and blood, but the creator of all.
    Those words ring true for us too, it is only man’s interpretation of what he reads, that creates differences , we cannot succumb to these misinterpretations.
    Today for the LGBT community there is much disparity globally in our quest for equality, some countries have achieved seemingly more than others. The undergound railroad still exists, to help people escape death in countries like Iran, our local community collects donations to help LGBT people who must flee their families, to other countries.
    I am aware that we are only in the beginning stages of coming out and being equal, we must lift each other up where we can. In the west our lives may not be threatened, but spiritual death is equally as devastating, the road is long, but we have made strides.
    Just so you know, my mother sent me a prayer read by a pastor at the opening of Senate in Kansas, it was the most disgusting, assertion of religion in the political arena, it enraged me, and I told her so. The religious right here still hopes that the U.S. will set the standard for the world, in bringing religion into politics.
    We stand united, although it’s embarrasing that many of our community who are comfortable with the status they have achieved feel their job is done. I’m often chastized by friends for being concerned about equal rights because they are content with the lives they lead.

  • 61. Ben  |  April 15, 2010 at 10:26 am

    Maybe I just totally missed something here or maybe I’m just not understanding the basis of this trial all together…but I’m still confused by something. The No on 8 campaign isn’t part of the trial, correct? The plaintiffs are a private party of two couples.
    The Yes on 8 people volunteered to head up the defense because the attorney general refused to do it.
    No on 8 isn’t actually involved in the trial at all, right? So how can the defendants even request internal memos from the No on 8 campaign in the first place?
    This trial is still about Private Citizens Vs the State, right? not Opponents of the bill Vs Proponents?

    • 62. PamC  |  April 15, 2010 at 11:00 am

      You’re right, Ben; this is a good question. If the trial is Perry v. Schwarzenegger, and the only reason Perry et al asked for discovery was that Yes on 8 stepped up to fill the missing AG’s position, then why does Yes on 8 have the right to discovery re: ACLU & Equality CA? Because they filed amicus briefs? Not sure.

    • 63. Kathleen  |  April 15, 2010 at 11:50 am

      Ben, you’re right that the No on 8 campaign is not a party to the suit; you’ll see discussion refer to these campaign organizations as “third-parties” or ‘nonparties.”

      A litigant is entitled to relevant evidence from any source, even that which is in the possession of third parties. (it has nothing to do with them having filed amicus briefs) . However, when deciding whether to compel a third party to produce requested evidence, the court will consider the usual questions of necessity and relevance, with the additional consideration of the financial burden the production would place on the party. The court is required to balance these considerations in its discovery order.

      • 64. PamC  |  April 15, 2010 at 1:17 pm

        Thanks, Kathleen! You’re the best.

      • 65. Carvel  |  April 19, 2010 at 10:53 am

        I understand that the court has jurisdiction or power to compel a nonlitigant party (really a non-party party) to produce relevant documents or information. What I don’t understand is why the ACLU and the EQCA would be expected to have anything relevant to any issue on trial or even be concerned in any way. It seems to be just a fishing expedition to learn what the other side thinks about things internally.

        Besides, I would think that unless the ACLU and the EQCA choose not to produce the documents, they would not have to. Their actions should not affect the case if they complied or did not comply with the court order. They are not parties to the case and their cooperation is not required to determine the issue. They have no direct evidence on the issue of the Constitutionality of the California statute. This issue is not anything related to their actions and the hardships of the plaintiffs. They (ACLU & EQCA) can fight the subpoenas on whatever grounds they wish. They are lawyers and give legal advice and have staff attorneys. I just don’t understand what NO on 8 hopes to obtain in the form of documents. More importantly what can the judge do to the litigatants if they don’t comply and the matter is up on appeal. How could there be a possibility that a document that a non involved third party has in their possession that could bear on the issue of the constitutionality of Proposition 8 and the change of the California Constitution.

      • 66. Kathleen  |  April 19, 2010 at 12:31 pm


        There has been a huge question all along regarding what relevance any of the No on 8 campaign documents could have on the case. That’s is part of what the ACLU/EQCA have been arguing all along. They’re also making other arguments, primarily claiming they are privileged documents.

        According to the order Magistrate Judge Spero issued on March 5, “Proponents assert that they seek the documents to help elucidate voter intent and the purpose of Proposition 8 and because the documents may address the political power of gays and lesbians,” which, as you may recall, are elements in the suit.

        I agree that this seems primarily a fishing expedition, but Spero determined that the documents were sufficiently relevant to the Proponents’ stated purposes. As Michael Ginsborg suggests in his analysis of the dispute:
        this may be more about the “Yes on 8” Proponents trying to find an end-run around the scope of the order against them.

        You asked, “I just don’t understand what NO on 8 hopes to obtain in the form of documents.”
        I’m assuming you meant “YES on 8” (not NO on 8)?

        As to what non-compliance by No on 8 could mean to litigants on appeal? I suppose it would mean an appeals court could determine the evidence should have been available, and possibly admitted. Such a holding would likely result in remand to the lower court to carry out the ruling and re-evaluate based on any newly admitted evidence.

        Have you read all of the relevant documents? You might find it helpful to do so – you can see precisely what the various parties are arguing, what the actual order includes, what claims parties have raised on appeal.

    • 67. Andrea  |  April 15, 2010 at 1:23 pm

      Plaintiffs opened the door when they introduced that third-party church broadcast with Ron Prentice in it. Because of that being accepted into evidence, any crossover between the official No-on-8 groups and third parties can lead to discovery along those lines.

      • 68. Kathleen  |  April 15, 2010 at 1:39 pm

        Andrea, D-Is can request discovery from any party they believe has relevant evidence. Ultimately, the court decides if that request will be enforced through a discovery order by determining if it meets the applicable legal standards. The legal considerations have nothing to do with whether or not the opposition brought in third party evidence.

  • 69. Mykelb  |  April 19, 2010 at 1:41 pm

    All I can say is that if “its going to take years” then, I am going to take my marbles and move to a country where we already have freedom and to hell with the U.S.


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