Those of you following the Prop 8 federal trial might be wondering — what the heck just happened at the Ninth Circuit? Something about anti-gay emails, and then trying to remember which side is “pro” Pro 8 and which side is “anti”, and then a confusingly-headlined Chron piece with too many double negatives …. huh? Well, fret not! Us liberal bloggers at the Appeal are always here to help.

Okay, first of all, here’s the actual order from the appeals court if you want to read it (.pdf, 38 pages). So where we had left things, district court Judge Vaughn Walker was trying to figure out what evidence he can let in for next month’s trial on whether or not Prop 8 violates federal anti-discrimination law: namely, whether to allow the anti Prop 8 people to rely on certain emails from the pro Prop 8 side that might demonstrate anti-gay animus. Judge Walker decided that certain of those emails were relevant and would allow them to be introduced at trial as evidence.

the First Amendment protects even a bigot’s rights to organize politically in privateThe pro Prop 8 people got upset about this and went to the appeals court (the 9th Circuit) to ask them to reverse Judge Walker’s decision, claiming that they had a First Amendment right to keep those emails secret. The 9th Circuit then ruled on the question last week.

The first half of the 9th Circuit decision is all about whether or not the pro Prop 8 people have a right to appeal before the trial starts. You don’t have to read it unless you have strong opinions on writs of mandamus, which I don’t. The short answer is yes, and you can just move on to page 23 of the opinion, where the First Amendment stuff starts.

On the First Amendment, basically, the 9th Circuit finds that you can’t force people to disclose their political affiliations to the public, because that violates their First Amendment rights — even if those people are bigots. That’s because if they had to tell people they were bigots, they might be less likely to engage in political activity or communicate freely within their campaign. There is a touching anecdote provided by a pro Prop 8 person saying if he knew everyone in the world might know their “personal political and moral views,” he “would have to seriously consider whether to even become an official proponent [of political causes] again.” Awwww, I haz a sad.

So basically, the First Amendment protects even a bigot’s rights to organize politically in private — but it’s still an open question about whether or not the Fourteenth Amendment allows gay people to get married like everyone else, which the 9th Circuit gave back to Judge Walker to decide. Should be an interesting trial, no?

And the latest news: the 9th Circuit has cleared the way for Judge Walker to televise the Prop 8 trial, and the 9th Circuit has also asked for both sides in the Prop 8 trial to send in arguments about whether or not they need to look at this email issue again. Doesn’t mean they will, or if they do that they’d change their mind, but they’re definitely thinking about hearing more arguments about it.

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