January 20, 2010
By Rick Jacobs
1020: Dr. Segura. Boutrous is examining.
S: Stanford for 18 months at Stanford Center for American Democracy. Newly established center to examine data about American electorate. Biggest project is American National Election Study. Been run consistently since 1948 (polling has been done since then). I’m currently on Ed Board of American Journal of Poly Sci, was on Ed Board of other stuff.
S: I’m a student of political representation. Look at mass opinions and actions in society. See how they subsequently connect to policy makers. Representation theorist. One of the vexing questions in poly sci is whether public changes how elites view and act. While my work began as a broad understanding of political behavior, I have spent recently a lot of time looking a minorities, particularly Latinos. I have also looked G and L. Have a new book. Latino Lives in America, just came out this month.
B: Turns to his CV. Peer review articles?
S: I have about 42 total publications, 25 of which are peer reviewed articles meaning that articles submitted for peer review before published. 15 or so chapters of books. Over last decade, I have probably attended and presented at 20-40 conferences. I present constantly.
B: Your work on G and L policy and issues?
S: Three pieces.
(I had to stop briefly because Chad Griffin came by. If you don’t know Chad, you should. He’s my hero. He is the mastermind of AFER and has orchestrated this whole unbelievably powerful trial and effort for our side. He’s unsung, but smart as hell, unflappable and just brilliant.)
Boutrous: I tender prof. Segura for political power and powerlessness of gays and lesbians in process.
Admitted as expert witness.
S: First thing I did was to read. Growing body of literature on g and ls in politics. Then went through statutory protection or disadvantage in each state. Looked at very recent attitudes toward g and l, absence or not of g and l in elective office, looked at ballot measures, which is subject here.
B: Asks if you attended would-be expert witness depos from other side and if wrote rebuttals.
S: Did. Here are the three over all conclusions:
1. Gays and lesbians are not able to protect their interests because they do not possess meaningful political power.
2. They are not subject to political exclusion and suffer political disabilities greater than other groups that have received suspect class protection.
3. The opinions of the Proponents expert Dr. Kenneth Miller are fundamentally flawed and incorrect.
S: Define political power as A getting B to do something. I’m a New Orleans Saints fan. I don’t have power over them, but I can agree to support them. Thought by Madison in Federalist Papers and then in 20th Century Robert Dahl (sp) who is icon of political theory. They worried about factions. Concerns that without plurality, one group can control power for too long. 20th century theory presupposes there is no such thing as permanent majority and that things will be fair.
S: By Madison’s definition, g and ls are small faction. We frequently refer to our system of government as Madisonian as distinguished from majoritarianism. Certain that society responds to majority rule, but there are limitations, such as a majority having the power to take voting rights away from a minority.
S: Lots of news recently about newly elected lesbian mayor of Houston. Media says “holy cow, a lesbian in Houston.” White lesbian against black man. Racial and economic and social and partisan fracture lines in Houston. That she was elected is great for g and l power. I have to look at context. Just a few years back, voters in Houston voted down Houston providing benefits to ss partners. So we have a lesbian mayor whose partner of 19 years cannot get city coverage.
S: Positive news about hate crimes leg is that it was 20 years in the making. We’re looking at a piece of legis that criminalizes crimes against g and l. It does not provide, for example, g and l spots at service academies. Passed by attaching to defense authorization bill. Even so, 75% of Republicans in senate voted against the defense authorization bill which is not what Republicans do. So even though it was passed, it is not a big move forward because it just criminalizes heinous acts against homos.
S: Laws passed are frequently able to overruled by plebiscites and people can just put these things on ballot. Since 1990, about 150 measures not include marriage and g and l lose about 70% of time.
S: When we want to focus on measure of political power, want to focus on markers that are important to that group. The first type of marker is manifestation and the second is causes or factors.
B: Start with manifestation of political powerlessness of g and l in US.
S: First thing I’d look at is absence of statutory protection.
[Puts up map of up with blue states and white states. Shows states that have some form of statewide protection for non-discrimination. 29 states do not include such protections.]
B: Heard Nathanson mention Matthew Shepard case.
S: Since then, Wyoming still has no protection and no hate crimes laws.
S: No federal level housing and employment anti discrimination. No federal level protection except for hate crimes. Exclusion of g and l from military. DOMA prevents g and l from getting federal benefits/protections. Eisenhower started the policy of overt discrimination, only lifted in 70s.
S: History of homophile movement. Frank Kameny regularly sent letters to government asking why no federal protection. Much more likely to engage federal government than Matachine Society in LA and NY.
B: CA’s protections for g and l?
S: Presence of statutory protections better than not. Want to see why they were passed, etc. If we look at hate crimes or anti discrimination, purpose to ameliorate a wrong. Difficult to conclude that is measure of political power itself. Have anti discrimination ordinances because there is discrimination. Some of laws passed because of court orders, such as employment and housing protections, but very hard to get it passed. Gov vetoed. Only put in place in labor law which is less strong than housing discrimination.
S: DP in Ca does not protect spouse who travels to Las Vegas or New Orleans. Also, props are nationalized, which builds more harsh treatment of gays.
S: Measure 1 in Colorado stunning. Took lots of protections from gays.
S: No group in American society, including undocumented aliens who are a distant second, that has been targeted by ballot measures than g and l. Since 1970s, over 200. Lost 70%. Lost all same sex marriage initiatives. Propositions nationalize. “The initiative process has been the Waterloo of gay and lesbian politics.”
S: (Slide that shows how badly we have been beaten at the ballot). Culture war in the country. Initiative process has been used to get people hot under the collar. They expand the scope of conflict. If your side is not doing well in the legislature, you move to ballot and inflame momentary passions. Ballot measures puts g and l in bad position. At end, need 50% + 1. In CA, particularly problematic, because we allow simple majority to pass constitutional amendment. Voters do not look like CA, while legislature does. Allows the issues to be nationalized.
S: I believe g and l have failed 33/34, because lost in AZ and then passed it.
S: Talks about Prop. 187 that passed in CA but was struck down by court and state did not appeal. Would have been open season on Latinos because law said services do not have to provided to undocumented people and have to prove documented before they could get services. Also, anti-fair housing prop. that was passed was overruled by court.
S: Initiatives also chill legislators because they know money will be spent to fight them.
S: 500th of 1% of local officeholders are gay. 1% of legislators are gay. Only 6 in history have ever served in congress (openly) and only four ever elected as openly gay. Effect is that without g and l at legislative table, voice is not there. The presence of g and l and other minority groups to constrain bad behavior. (Ask former CA senator Sheila Kuehl, the first openly gay person ever elected to a state office in CA, how big a difference it made to have her in the “boys’ club” of politics.)
S: Gives example of Carol Mosley Braun (former Illinois senator) giving an impassioned speech from well of senate to get senate to stop giving money to DAR which is openly racist.
S: By not having g and l present in legislature, people can say amazing stuff. Coburn says that gays and lesbians are the greatest threat to American civilization today. Some public officials have compared gay marriage to marrying a box turtle. Cannot imagine any other group that receives such animus in public. When someone in position of authority communicates that this is okay. When two US senators compare gay marriage to bestiality, that is not the fringe, that is the US senate.
S: Gays and lesbians are not sufficiently present in any jurisdiction of any size to shape outcomes.
Prop. 8 Trials Professor Segura: Obama is not a reliable ally for the gay and lesbian community. Read on.
S: Prejudice and hostility toward gays and lesbians negates political power. Dr. Nathanson (on earlier tape today) agrees. A lot of people are repulsed by same sex sex.
B: Puts up slide that talks about “feeling thermometer” used to measure sentiment in public opinion research. Eg, how warmly do you feel about Evangelical Christians or African Americans.
S: Concluded re: gay and lesbians is that the American public is not very fond of gays and lesbians. On scale of 0-100, any demographic that had room for contestation (religion, etc.), scored in 60s. For AAs, Jews and Hispanics, have 30-40% who hate them. Mean score for homos 49%. Hispanics and AA held in higher esteem than homos.
B: Did those measurements have anything to do with ballot measures?
S: Yes. Religion is the chief obstacle for gay and lesbian political power. After government, difficult to think of more powerful institution than religion in America. Allows people to meet every week. Largely arrayed against gays and lesbians. Different than for AAs, because except for Baptists, nearly every religion favored civil rights.
S: Nathanson testimony confirmed what I already believed, that its really difficulty for gays and lesbians to achieve political power. Dr. Young freely admits the religious hostility to gays and lesbians builds hatred toward homos and leads to prejudice and discrimination.
S: Can’t think of any other group that has such round hatred from religious groups. In fact, it has served to make the evangelical movement more powerful because they ally around this issue.
S: Hate crime sends message to entire group, which is why must be extenuating circumstance to show that it’s a hate crime. Says to group that you are not supposed to be here, not supposed to be free in public. Fear of violence yields fear of self-identification. If there is violence, you don’t want to go outside of a gay bar alone because it’s not safe.
S: 2003-2008 FBI hate crimes and LA hate crimes stats have been reviewed by me. No real improvement in hates crimes; last five years, they got worse. Substantial increase in hate crimes and g and proportion increased from 14% to 17.7% of 1,171 to 1,617 (2005 v 2008). 2008 highest hate crime year in decade. Also want to look at intensity. Not just number, but type. Gays and lesbian are far more likely to be victims of violence. 2008, 71% of all hate-motivated murders and 55% of all hate-motivated rapes against gays and lesbians. No other group that comes close to being a target for their identity.
S: LA Hate Crime Report for 2008. Hate crimes on basis of ethnicity, race and national origin declined over decade by 16%, but increase in crimes against gays and lesbians. LA County showed increase due to Prop. 8.
B: Did you see the defendants try to show in Sander’s testimony that Prop. 8 supporters were targeted for hate crimes?
S: I did not know what to make of it. I think such acts of vandalism are abhorrent. Their video (prop. 8’s) did not mention any hateful things done to anti-prop. 8 but that was not in their interest.
S: I think that the psychology of closet are so relentless and insidious. They do vary across country and racial and economic groups and social status. Self-identification in lower status job, living in plains state or south, still detrimental. If you can’t self-id, you are not available for political mobilization. If you are in the closet, you won’t go to a gay rights march. If you are in the closet, it’s harder to have information about what to do. Harder to mobilize because you can’t find each other.
S: Public sees only gays and lesbians in larger cities. Public thinks that all gay men have advanced degrees. People who are in the closet are likely to be lower status. Public has a misperception of the level of treatment of gays and lesbians. Not every gay man is Will from Will and Grace. Will is an attorney in NY with a large apartment. When people see this, they think gays don’t need protection. Makes public less sympathetic. Makes public view numbers of gays and lesbians as smaller, which diminishes their political power.
S: Over last 25 years, has been statutory forbiddance of discussing homosexuality in health classes. Ban on funding for homoerotic art for a time by feds. Even some times when ban on discussing same sex for prevention of STDs.
B: Anything on Prop. 8 campaign that adds to this censorship?
Thompson: I object. He was not deposed on this.
Judge: Not disputing that it was discussed in depo?
Judge: Then it’s appropriate to proceed.
S: One of the campaign ads said that at school today, I was told that I could marry a princess, too. Underlying is that people are being told that if 8 does not pass, will be taught in school. Underscores that homosexuality is not to be talked about positively or even neutrally because it is evil.
S: Lowers familiarity with gays and lesbians. If public does not know what gays and lesbians have done or who they are, reduces political power because they are not taken as seriously when they speak up, not seen as desirable coalition partners. Easier to target people who never do anything (perceived).
B: Have allies in CA. Isn’t that power?
S: It’s nice to have allies and if those allies are reliable, even better. There is sense that those allies retreat when it’s tough. If you think of major groups in society outside of commercial enterprises, you think of military, church, Republican and Democratic Party. Dems say they support homos, but Democrats passed DADT and DOMA. Current president has refused an order from the chief judge of the ninth circuit to provide domestic partner benefits to court employees. Also, filed briefs that support DOMA and has done nothing to repeal DOMA or DADT. This is not a reliable ally.
S: AIDS crisis undermined political power because gays were trying to stay alive. That’s all they could do.
[It’s kind of odd, but the guys from Protect Marriage who are suing Courage for our logo on this blog are sitting behind me in the witness chairs in this upstairs courtroom where we’ve been for two weeks. They are always there. We are always polite to each other, but they seem not to like me or Courage or any of you.]
S: I generally familiarized myself with the campaign, but not with the organizations behind each side, so I don’t know about volunteerism.
B: Puts up recently obtained document about the campaign. Reads “LDS Church Takes Active Role in Supporting Prop. 8.” First presidency of LDS sent letter to California LDS leaders to take position on Prop. 8, which this Protect Marriage document says, is very rare.
C: Illustrates that LDS church was very active not just on the financial side, but on the grass roots side. Shows that gays and lesbians are powerless relatively.
C: On June 17, 2008, Jim Garlow, senior pastor of Skyline Church in San Diego…led to a total of 1,700 pastors located across the state to kick-off an aggressive grassroots campaign for Prop.8” Rev. Garland organizes a team that became Protect Marriage CA that took a strong role in passing Prop. 8. I was particularly struck by that number 1,700 pastors. Any campaign at all would be thrilled to have 1,700 volunteers on a conference call. Enviable number.
C: Centerpiece of pluralist democracy to take positions. What takes me aback here is sheer breadth of organization.
“Protect Marriage dot com is a broad based coalition of … leaders from all walks of life to pass Prop. 8.” Impression I got was that there was an organized effort rather than a group of people who happened to agree. When I evaluate the power or powerlessness of gays and lesbians, important to see strength of opposition.
S: Screen capture of website called “The Pastors Rapid Response Team” which sounds fun. Headed by Jim Garlow of Skyline Church.
S: NO political science definition of “rapid response.” I assume that this is so they can respond quickly. Taken aback that there was an organization that was monitoring everything.
Thompson: Would like to take lunch break so that we can work with plaintiff’s counsel to work through the documents that we have stamped as confidential.
Lawyer for Garland and McPherson: Have motion for protective order. We have argued that there are first amendment implications to introduction of speeches, sermons all of which are protected by first amendment.
Judge: Mr. Boutrous, there are two suggestions. One is Mr. Thompson’s suggestion for lunch. The other is from this attorney.
Boutros: We provided DVD to this lawyer so he could show documents to his clients over the weekend. He sent an email back saying that it would be too burdensome to his clients, so he refuses to cooperate. Next document I was going to discuss was document we obtained in discovery without restrictions. Also, other documents are public. They were shared with 3,000 people on the phone, so hardly possible to say they are not public. All documents are public. We did redact some names. We took our best good faith effort to redact names of those that we have not agreed upon.
Judge: You are representing that those documents were public.
Lawyer for pastors: I don’t think that one hand of the plaintiff’s team does not know what the other is doing. Ms. Lazarus from the plaintiff attorneys offered us a deal so that we did not have to have our clients be subpoenaed and appear if we review.
Argument back and forth with judge. Judge asks if there is privilege attached to statements, which are public. Seems not to be. Court is asking a pastor to testify as to his view of traditional or same sex marriage.
B: This is a pastor who was on political rapid response team, so he injected himself into the political arena.
Judge: I guess he did not respond rapidly in this case! (Huge gales of laughter).
Magistrate ruled that one of the people they want to consider as outside of depo will be, but three others including Wirthlin (who sits behind me), John Doe and one other can be the subject of discovery.
Adjourned for lunch until 1:10.
[This was fascinating. Prof. Segura made me think very differently about political power. He makes the point clearly that gays and lesbians have very little of it. And if you think of what we have not gotten done, even under Obama, he appears to be right. My friend Steve Hildebrand, who was Deputy Campaign Manager for Obama, asked if I could think of one politician who wakes up even once a year and thinks about pressure from the gays that he or she cannot withstand. The answer is clearly no.
And that’s another crux of this trial. It’s time to rethink how we organize and “do” political power. Courage’s research shows us a path to changing hearts and minds, which will be necessary, even for the Supreme Court to rule in our favor and then to prevent any backlash. And we must get this to scale. That’s why you all reading this and sharing are important. It’s also why we have to build a huge grassroots effort with straight folks as well as gay folks, to demand equality now and to mean it. We have to change the way we do business.
And it’s why this court case is so crucial. It does change the dynamic. It puts the lie to what the other side always says, which is that the gays are rich and powerful. If that’s right, why are we second or third class citizens?]