The Dangerous Olsen and Boies Precedent

Two high-profile lawyers are challenging California’s constitutional ban on gay marriage.

California’s high-profile federal lawsuit against Proposition 8, which begins in court on January 11, appears to be about creating a federal case for same sex marriage. But in fact, much more is at stake. Lurking in the shadows of this case is a breathtaking expansion of judicial interference with perfectly valid elections. Whatever your views about Proposition 8, we surely should be able to agree that special interest groups can’t go into court to overturn elections they don’t like.

Ted Olsen and David Boies want to convince the court that the alleged anti-gay bias of Proposition 8 supporters should invalidate the election. But first, they have to find some such bias. This is why Olsen and Boies sought the trial court’s permission to demand confidential campaign documents. They want free reign to rummage around through the Prop 8 campaign’s computers and filing cabinets, looking for evidence of this supposed meanness. The trial judge had ruled that Prop 8 proponents had no First Amendment privilege, and therefore had to hand over all communications among members of the campaign and their contractors.

The Ninth Circuit Court issued a preliminary order against the enforcement of these outrageous demands. While this is a welcome development, it is only a temporary reprieve for the integrity of the electoral process. The Ninth Circuit should completely overrule the trial court.

I happened to know about this because I received a subpoena from Boies’ office. I was a consultant to the Prop 8 campaign. I have not the slightest concern that anyone will find any evidence of hatred hidden in my correspondence. My views are all over the internet. It is the pettiness of Olsen and Boies I find revolting. Out of over US$40 million spent by the Yes on 8 campaign, I was paid a grand total of $10,000. If they can harass little old me, nobody is safe.

But more importantly, people’s motives are completely irrelevant to the validity of an election. Think about Obama’s election. Some people voted for him because, after careful study, they agreed with all of his policy ideas. Others held their noses and voted for him, even though he is not nearly far enough to the left for their liking. Some wanted to see a black man as president. Some no doubt voted for him because they like his wife, or because Oprah told them to. Amongst the millions of people who voted for Obama, were surely some who hate white people and others who have a visceral, irrational hatred of Republicans.

None of this has the slightest relevance to the legality of Obama’s election. The motives of the voters, no matter how venal or exalted, no matter how petty or profound, are completely immaterial. Obama won in a legitimate election, with exactly the same percentage of the vote that Proposition 8 had: 52% to 48%. No court in the land should have the authority to look over the shoulders of campaign managers and voters to see if their motives pass some ideological litmus test.

The motives of the seven million Californians who voted Yes on 8 are irrelevant. The election was about adding 14 words to the California Constitution. The entire state of California knew perfectly well what those words were. The point of the campaign was to discuss the likely impact of those words. Olsen and Boies don’t like what the voters decided. Sorry. Self-government is about abiding by the results of lawful elections, whether you like the outcome or not.

Political professionals of all parties and persuasions should be completely outraged by this judicial foray into mind-reading. The rules you create against your opponent today can be used against you tomorrow. Everyone involved in politics, as a professional, spectator, or voter, has a stake in the outcome of this foray into legally sanctioned harassment. The Ninth Circuit should protect the integrity of the electoral process by completely overturning the trial court’s ruling.

And no one, gay or straight, left or right, Republican or Democrat, should support the Olsen and Boies nonsense.

This article was first printed at on January 9, 2010.

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