David,
The thing that gets me is the federal district court judge’s belief that the internal communications would help with the constitutional claim. From the article:
Walker said lawyers for two same-sex couples and a gay-rights group
were entitled to see 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.
Let’s assume that the internal communications showed that the strategists were anti-gay. How does that help to establish that a ballot measure is discriminatory and unconstitutional? The ballot measure is either unconstitutional or it isn’t unconstitutional based on the measure itself.
The intent of the strategists pushing for the measure doesn’t have a thing to do, for example, with whether the measure violates the equal protection clause. Is the judge going to somehow decide that the measure would be constitutional if it wasn’t for the fact that some political operatives don’t seem to like gays?
Further, the strategists didn’t approve the measure. A majority of California voters approved the measure. This makes the issue moot as far as I’m concerned.
