UPDATE: The Courage Campaign has filed a complaint with the Fair Political Practices Commission against attorney Andy Pugno over using state resources to communicate with a Mormon attorney about an anti-gay marriage initiative.
Andy Pugno, the lead attorney defending Proposition 8, once worked for state Sen. William J. "Pete" Knight, the Palmdale Republican who spearheaded California's first successful ballot measure to outlaw gay marriage. On Feb. 26, 1998, Pugno wrote a memo to a Utah lawyer with close ties to the Church of Jesus Christ of Latter-day Saints, regarding the initiative Pugno was crafting:
Photo: Dave Schumaker
"We urgently need you to review the proposed text and respond to two key questions before the close of business tomorrow," Pugno wrote to Lynn D. Wardle, a law professor at Brigham Young University. "Senator Knight will be re-filing language for a ballot initiative on Monday morning – and plans are laid to definitely qualify the measure for the ballot."
The Mormon church's involvement and financial support in California's gay marriage debate is well documented. But Pugno's newly unearthed memo, written on state government letterhead, is striking evidence of how closely the Mormon church has been involved in the gay marriage debate in California for more than a decade.
At Pugno's urging, a Mormon attorney was vetting the language of Proposition 22 and then quickly passing his information to the highest ranks of the LDS church.
"Is there a better way to draft the text of this initiative, considering California's long history of recognizing any marriage legally contracted elsewhere?" Pugno wrote to Wardle, adding: "Once that language has been submitted, we are stuck with it. Therefore, it is vital that we get it right the first time."
In public, Pugno has staunchly protected the Mormon church and accused its critics of religious bigotry. While defending Proposition 8 in federal court this month, Pugno said he was astonished that a federal judge had allowed evidence showing the church's close ties to supporters of the initiative.
"Today has been a major expression of religious bigotry," Pugno told the Times, after testimony linking the church to anti-gay-marriage efforts in California. "The gloves have clearly come off, and religious voters are in the cross-hairs."
California Watch obtained several memos showing the early activity of the Mormon church in the state's anti-gay-marriage debate. The memo between Pugno and Wardle, and others between the church leadership, are below. Also included is a January 1998 memo from the Capitol Resource Institute asking for Mormon funding to support the marriage ban.
The day after Pugno sent his urgent memo in February 1998, Wardle wrote to three church elders in Salt Lake City, along with two law firms and a law professor in Iowa, alerting them of proposed changes to Proposition 22. The recipients included high-ranking members of the church, Marlin K. Jensen and David E. Sorensen, from the church's Presidency of the Seventy.
"Andy Pugno called me late yesterday afternoon and told me that the people he is working with are going ahead to refile the Initiative Petition," Wardle wrote to the elders. He then outlined Pugno's proposed language changes to the initiative and warned them of the political risks of waiting until 2000 to put the issue before California voters. (The initiative nevertheless passed in 2000, with nearly 54 percent of the vote.)
"One risk of early qualification and long delay is that the political situation is hard to predict that far in advance," Wardle warned the church elders. "Andy (Pugno) believes the benefits outweigh the risks, and he believes that having an initiative qualified might nudge the Legislature into enacting a non-recognized statute to make the initiative unnecessary."
In another memo, Wardle updated the Mormon elders on a "strategic consultation" conference on gay marriage that he attended with Pugno and others in Arizona. He includes news about a Field Poll on gay marriage in yet another memo to the elders.
Temple Square in Salt Lake City
Even before Pugno asked his advice in vetting Proposition 22, Wardle was already aware that an initiative to ban gay marriage in California was being planned. Signed "faithfully your brother," another memo written from Wardle to church Elder Loren C. Dunn, warned that a change in the marriage statutes might face a court challenge.
"However, it might arguably be possible for a court to interpret the state or federal constitution as invalidating the voter proposal if it passes," Wardle wrote in the July 31, 1997, memo. "I do not think there are good constitutional arguments for invalidating the law, but opponents would certainly challenge it."
Then, using Church of Jesus Christ of Latter-Day Saints letterhead, Elder Dunn wrote to another church leader, Elder Richard G. Scott, asking approval to fly Wardle to Sacramento so he could testify on a bill banning same-sex marriages. (That legislation failed.)
In the memo, Dunn refers to "Governor Pete Wilson's legislative assistant" as asking for Wardle's testimony, but he more likely was writing about a request from Pugno, Sen. Pete Knight's aide.
As for Pugno using Senate letterhead for a political issue – and asking Wardle to use the government fax machine and phone lines – the law is fairly strict. One regulation does allow for "incidental" campaign use, but Roman Porter, executive director of the state Fair Political Practices Commission, said about cases like this in general: "The use of public funds for campaign purposes is unlawful." (The statute of limitations on any violation from 1998 has likely passed.)
In an interview with California Watch, attorney Wardle said he doesn't remember the memos from the late 1990s that vetted the language of Proposition 22, but he couldn't speak about his private legal communications if he did. Wardle nevertheless said it wouldn't be surprising for him to be consulted on gay marriage.
"I was writing about it in law review articles. I was speaking about it in legal academic symposia. I testified about it, I believe, twice, before the California Legislature. That was an issue that was on my mind, and I was happy to talk to anyone who would listen."
But Wardle, who has not been called as a witness in the Proposition 8 trial, said he has never been a paid representative of the Mormon church: "I do not speak for the church. I am not a lawyer hired by the church. I am a member of the church, and I understand its values and how they relate to public policy on this issue. I teach at Brigham Young University, so academically, I am connected."
The memo below, to professor Lynn D. Wardle, was written by Andy Pugno, on behalf on California Sen. William J. Knight.
View more correspondence by downloading each PDF.