The Proposition 8 federal trial re-opened Monday with a skirmish over allowing testimony by Frank Schubert, the measure's Sacramento-based campaign manager.
Attorneys for gay couples challenging California's 2008 gay marriage ban objected that the defense informed them only Sunday morning that Proposition 8 attorneys wanted to call Schubert to the stand this week.
Theodore Boutrous, one of the plaintiffs' attorneys, said that the defense instructed Schubert 76 times during a pre-trial deposition not to answer questions about evidence and his "state of mind" as he planned the 2008 ballot initiative campaign.
"We think it would be inappropriate for the defense to have it both ways," Boutrous told U.S. District Judge Vaughn Walker in San Francisco. "We have a lot of questions for Mr. Schubert we were not allowed to ask."
The plaintiffs' attorneys listed Schubert as one of their potential witnesses, but so far have not called him to the stand.
Nicole Moss, an attorney defending Proposition 8, said, "This may be moot. We don't know for sure if we're going to call him (Schubert)."
She said Schubert might be called to "clear up" evidence that the plaintiffs' attorneys say represents the tone of the campaign and certain messages that were transmitted to voters.
The Proposition 8 plaintiffs' strategy includes an argument that the campaign played on longstanding historic prejudices and fear about homosexuals, especially claims about gays being "recruiters" for homosexuality and inherent child molesters.
Schubert is a professional campaign manager who has become a leading strategist nationally for anti-gay-marriage campaigns. He has a sister who is a lesbian and is a Sacramento County prosecutor.
Boutros said that the move by the defense to put Schubert on the stand would be "opening up a whole new world" and that the plaintiffs' attorneys should be entitled to see documents that might be referred to during testimony.
Walker said he was going to reserve judgment for now on allowing Schubert's testimony.
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