January 25, 2010
By Julia Rosen
Man, David Boies just destroyed the defense’s first witness today on cross. I even had a friend and a former student of Professor Miller tweeting at me their embarrassment at his implosion. More specifically, Miller admitted that DOMA and DADT were legislated discrimination. And that was just the afternoon…
This morning the plaintiffs introduced evidence of Prop 8 proponents comparing gay marriage to 9/11 and a reference to polygamy or two. Oh and the tiny little revelation that NOM, the Catholic Church, LDS Church, and the Family Research Council all conspired together through ProtectMarriage.com to use fear and lies to pass Prop 8. It’s something we all knew, but it sure is validating to see it all laid out in Federal Court.
Boies gets to finish his fun in the morning, then it is on to their second and possibly last witness. I think they know they just hurt their case if they get any witnesses of their own on the stand, so they aren’t calling very many.
Now for the real show, the compiled liveblogging from Rick Jacobs from day 10 of Perry v. Schwarzengger.
It’s just after 0830 and we’re back for week three, day ten. I now feel as is I belong up here on 19, in the Ceremonial Court Room, with Teddy from FDL and seven or so others. Frank Schubert just walked in. For the record, he’s a genial guy and he obviously knows how to win campaigns. Let us not mistake skill for belief. He’s no William Tam or Andy Pugno (see Brian’s excellent post).
The Prop. 8 side has given notice that they want to call Frank, but the plaintiffs have objected. We’ll see what happens.
The first order of business this morning will be procedural and then we’ll have the plaintiff’s document dump, which I have a feeling will be more than fascinating.
For those of you not in San Francisco, it’s wet and cold again. Remember that that the first day of the trial, with that beautiful vigil organized by Molly McKay and MEUSA, was a cold, crisp and eventually very bright day. While I’m not much into omens, that was the right way to begin this trial.
One last point. At some point today or tomorrow, I’ll write a bit about the folks behind AFER, but I want to mention again the key person. His name is Chad Griffin. I have known Chad since the Dean Campaign, in 2002. He’s young (well, he’s recovering slowly from that), uncannily smart and has a natural talent for communications. While Rob Reiner had the idea to hire Ted Olson and gets full credit for same, Chad made all of this happen. He’s sometimes a bit reluctant to get too out front and that’s probably smart given today’s environment, but we all owe him a huge debt of gratitude.
We’ll be back to you, the community that cares so deeply about equality, to help get some ideas about how to build our movement during the coming weeks, months and even years before this winds up, almost inevitably, at the Supreme Court. We cannot rely on judges alone. We have to show our friends, neighbors, coworkers and all of America that we progressives, we who are gay or lesbian or bisexual or transgender, we who are straight and care about our nation, all want equality.
We’re waiting for the judge. And then off we go!
Judge Walker: Good morning. I hope you had a good weekend. Mr. Boutrous, I understand you have some things to bring up?
B: We understand that the proponents want to call Mr. Schubert. We do not think the proponents have the right to call Frank Schubert while having obstructed our inquiry with 76 objections to producing documents. In terms of calling Mr. Schubert to authenticate documents, we have no particular objection, but if
Judge Walker: When did you learn that Mr. Schubert would be a witness? As I recall on Friday, the defense was going to call Mr. Blankenhorn and Mr. Miller. They did not mention Mr. Schubert.
B: Last night. We filed a motion to object to Mr. Schubert. They have zealously guarded Mr. Schubert thinking, state of mind, they even objected to admitting Schubert article. We would have to cross tomorrow.
Ms. Moss: We received plaintiff’s motion against Schubert last night at 1145PM. This may be moot. Depends upon the documents that plaintiffs submit. Depends on docs they will submit based on 9th Circuit’s revision. In lieu of reopening depo, questioning would be limited to authenticating docs. That itself may not have to happen depending upon plaintiff’s agreement to the docs we submit.
One of the objections that we have…
Judge Walker: Assuming that they all come in, you have to assume they will.
M: Depends on whether they come in blank or with tender with specific tender.
Judge Walker: The evidence is what it is.
M: We might need a witness to respond to them as opposed to wait for their post—trial briefing when they would say that some documents are campaign docs and some not.
Judge Walker: These are defendant’s docs?
M: Some are, some not.
Judge Walker: ” What is source of docs?
B: Some are docs before trial that we’ve laid foundation. Some are from website, some from trial.
Judge Walker: Do you believe that the source of all docs is ProtectMarriage.com?
B: Some are not directly from ProtectMarriage.com, but we can show that ProtectMarriage.com funded and are connected from another source but they screened it in advance.
Judge Walker: That is category you are concerned about?
M: Yes. We very much dispute that some of the docs are made by, produced by ProtectMarriage.com. If coming in through sponsoring witness, clear from witness source and we could clarity. If docs are just moved into record, we may have to put on witness such as Schubert. These are docs we produced because we were forced to do so. They are moving into evidence. We have right to call witness.
D: They disclosed at 0829AM that they have objections. There are many, many docs on list that Schubert needs to authenticate, so they want to use Schubert for other stuff.
M: We want to move into evidence other docs. If everything that they’ve ided comes, in, we may need to bring Schubert up.
B: We asked in depo (Schubert) over and over about docs. Did Protect<arriage.com produce simulcast? Instruction not to answer. What
M. is asking for is since they have blocked us in depo—really quite extraordinary how depo was handled—now they want to have it both ways bringing Schubert up to talk about docs when the blocked dep.
J: I’ll reserve on that. We’ll proceed with doc production and then I’ll decide whether or not we need to call Schubert.
Boutrous: Now want Mr. Boies.
Boies (B): What we don’t have agreed to, is that we have objections to some of their designations is that the witnesses they have called are not competent to testify on those matters.
Judge Walker: (refer to some legal designation that fits with this objection.)
B: We have marked yellow ones that we agreed to and rest pink or red.
Judge Walker: Happily most are yellow.
B: Yes, we’ve tried to limit our objections. They have designated a whole series of questions and answers that shows that Prof. Young has very limited expertise. She’s not an expert in psych, soc., anthropology, and clinical dev. Is an expert in religion. She is an expert in Hinduism. Never did study in US about prejudice against gays and lesbians. Has never studied how many g and l are raising children, consequences. Not even familiar with views of US churches toward homos. Does not know proportion of children raised by gay and l or single couples.
Judge Walker: Excuse me for interrupting. Perhaps the way for me to deal with this is for me to take these into chambers to review? Mr. Nielson, who is going to deal with this?
Nielson (N): Patterson will deal with this, but I’ll make points. Court did admit parts of depo that Young and Nathanson made. There’s no question that they designated their testimony, but they want to use designation that is outside of their expertise. Under rule of completeness, we want to show that Y and N produced information that was beyond their expertise. Great irony here. They want to put info in that is outside of their expertise, but rule of completeness means they should be in.
Judge Walker: Very well, I need to see testimony in question.
B: We think yellow is what we played and should be brought in. Pink is not responsive.
N: That is not objection that I have heard before.
Judge Walker: I’ll read at lunch break or this evening and we can talk about it.
Moss: Very briefly, defendant interveners have order to compel against several groups that are associated with No on 8. We are not asking for argument, but for ruling.
Chis Desseaux (CD) (For Plaintiffs)
CD: First admission by parties, campaign messages (on which we have disagreements), docs from witnesses that should be brought. These should not be objectionable. Start with good news. 46 docs defendant has no objection. I appreciate courtesy Ms. Moss has shown in doing that.
M: No objection.
CD: Have witness binder that ties docs to witnesses for your convenience. These are docs that both sides have agreed to move into evidence. List we gave you includes all three categories.
Judge Walker: I assume at some point you are going to take me through these and tell me what these docs establish.
CD: Thought we’d do in closing or post-trial.
Judge Walker: Very well (with quizzical look on face). I don’t want to make your presentation overly long. There are a number of docs here and what I am supposed to derive from them is not clear. If you want me to derive some fact or inference or admission, you need to make that clear.
CD: Let’s look at all of them and then figure out what’s best. Next category is campaign docs. Three simulcasts we want to move into evidence: 503-505. 1867. 1868 and 506. 1867 and 1868 are court reporter-certified. The other is from PM.com website. These were moved in in depo with Prentice. P said they were part of pastor rapid response. Undisputed that simulcast part of grassroots campaign, paid for by campaign, undisputed that they are part of campaign.
If counsel wants to move against these, we can now. Or I can show some other evidence that makes clear there is no dispute.
We have binders for the court that are campaign material. 2075 (gives binders to court for review).
CD: Start with 2075 because we already moved into evidence and there was no objection. We can move this to screen as already in evidence. Blast email from F and S identifying themselves as campaign managers of Yes on 8. Passage that begins, “on www.protectcamarriage.com ” Also find videos of 25 September, 1 October and 19 October for various rallies to take place, all church-related.
Next document is 421. Exhibit 421 got from website. Not produced. Did check website over breakfast in my hotel room this morning and it was still there. Webcast protect marriage.com presents, which seems to be rather unequivocal evidence that ProtectMarriage.com behind rallies. Offers for sale these DVDs for $5 per DVD. That’s how we got them.
J: There’s also reference as well to “for more info about Prop. 8, visit www.protectmarriage.com .”
M: Moss? It is not a website of ProtectMarriage.com. I don’t know who maintains website. Mr. Prentice said he was never aware that these simulcasts were for sale. Fact that they want to put these into evidence when they have not proven that this is pm.com website. We do not dispute that simulcasts were paid for by PM.com. However, we do not know what is in simulcasts that plaintiffs contain are relevant. Prentice testified that he did not attend simulcast. Memory could be wrong, but I’m not sure anyone from PM.com was there. Without showing relevance, we are at a loss as to what is relevant. We know that we paid for them. The website is as it is. Not from files of PM.com and need to lay foundation.
CD: Ms. Moss just conceded that simulcasts paid for by ProtectMarriage.com. This is document we put on our list Thursday. This morning, website shows still presented by ProtectMarriage.com so it’s a bit odd that they’d object. I have another document that may shed additional light (2656).
2656 is document produced during trial by ProtectMarriage.com. Jim Garlow sends email to Mr. Flint. About halfway down you’ll see that Mr. Pugno says, “If we are saying that Protect Marriage is paying, CCM cannot say presented at no charge.” Pugno further says “CWA presents must be taken off, but it is presented by ProtectMarriage.com.” “The mass mailing must also be identified as coming from the Campaign’s address.” CWA is Christian Women of America.
Judge Walker: Objection to admitting 2656?
Judge Walker: (Interrupts) Very well. Admitted.
M: We are saying that since money for simulcasts from ProtectMarriage.com, had to be disclosed, but if they are trying to draw inference that ProtectMarriage.com controlled content, not established. Not clear what they want to show with these simulcasts.
Judge Walker: I gather there is no objection that ProtectMarriage.com paid for?
M: No objection.
J: Very well. That is sufficient basis to admit. It is admitted.
[So here we go again. PM.com does not want their own campaign info admitted because it is so damning because it is true.]
CD: New doc. Email between Tracy from Skyline Church with Prentice. Four page agenda of simulcast before it is presented. If there is question of coordination, here it is.
M: No evidence as to whether Prentice read or responded to email.
J: That goes to weight of evidence rather than whether it should be admitted?
M: Our objection is that they have not shown relevance?
Judge Walker: You’re going to that now?
CD: Paid for by ProtectMarriage.com and represented by Mr. Pugno that paid for by ProtectMarriage.com. That’s relevance. Want to enter all as evidence. My hope is that we can admit all as relevant, but show messages that were presented to CA voters as part of campaign.
CD: Playing 6-minute excerpts.
[You HAVE to read this. Here is the essence of Ron Prentice and Andy Pugno’s Campaign. And by the way, Frank, if you sanctioned this, which I’ll bet you did, shame on you. You should have objected to this, that it’s beyond the pale. This is just lies and fear. That’s how they won.]
Shows 6 minutes of Pastor Jim and Tony Perkins and others. Roberto Miranda, Lion of Judah Church of Boston, says, “Polygamists are waiting in the wings! If we have same sex marriage, we’ll have polygamy next.” Perkins video from US Capitol. People all over America do not understand implications of same sex marriage. Destroys foundation of marriage. Here I’m visiting couple in Mass where they show book that shows child being introduced to Clifford and his same sex partner.
Miranda says that governor of mass elected by strong support of homo lobby. Homo teaching being admitted more and more to schools, people of mass being desensitized day by day, being more and comfortable with same sex marriage…”
Garlow, “thanks for coming on. We see in papers that sky did not
AA Minister: No one wants to be called bigot. Attempt to hijack civil rights movement. I’m offended by that comparison. I had no choice but to be born black as opposed to deviant behavior …
Another AA guy: “Offended. Racist to compare homosexuality to being AA. Being black is not a choice. Being homo is.
(Screen is blank, but hearing stuff)…Saying that kindergarten books are already out there showing that kids in kindergarten are being to be homo.
Compare this to 9.11. How does this directly affect us? I did not know planes would crash into building. Change of marriage is same sort of thing. If Prop. 8 passes, it’s like 9.11.
AA guy interviews woman. Let’s just say that sexual attraction is definition. Pedophiles would have to be allowed to marry. Mothers and sons. Man who wanted to marry horse. Any combination would have to be allowed.
[No smoking gun here, more like an arsenal of incendiary devices. This is how they won. FEAR. LIES.]
Judge Walker: Ms. Moss?
M: If these are admitted, we want to review for rule of completeness to see if we need to add anything. [I can’t imagine what the hell they’d add. They’ve said it all.]
CD: Email between Prentice and Pastor Garlow.
M: We need to see relevance so we can see if we need to respond should we have any evidence to respond with.
CD: If we move to evidence, we’ll be pleased to point out…
M: Post-election doc.
Judge Walker: I notice that.
CD: I can show relevance. Email shows that after election trying to keep simulcasts out of public hands.
J: Goes to control?
CD: Yes and state of mind. “We must control message from simulcast.” Jim, I do not see any way to show any of simulcast to see “religious bias.” This is about what’s about to come up on Dr. Phil Show. [Prentice is trying to avoid showing that there is religious bias in campaign.]
CD: Pre-election videos that show Prentice speaking at rallies. Want to admit. And want to play 2.5 minutes to you.
M: If I am correct that these were shown in entirety to Mr. P during depo and he agreed they were he speaking, no objection.
P: We know that today we must win. That’s why we are so grateful that 2,500 pastors have come out on consistent basis every month. If someone is going to vote no, we flip them to show that kids will be taught this in schools. We have spent thousands of dollars on polling. Continue to do so. In 1999, LDS got involved in Hawaii. With capital S, they were significantly involved. No different this time. Campaign will cost minimum of $25 million and LDS across this state deeply involved. Catholic Bishop in SD, three evangelical ministers from SD all got involved. Asked Focus on the Family for money. They sent us $50,000 that allowed us to get petitions printed. Thanks to you, we are here, we will win. Don’t pay attention to newspapers, we have secret weapon (or secret voters or something, but basically, the weapon is kids in school.)
CD: Flyer from California Family Council of which Mr. Prentice is CEO and Mr. Tam is involved. This is flyer that was produced during campaign. Any effort to distance campaign from knowledge or control, not credible.
M: Not PM.com. No evidence that this was distributed. No evidence as to whether this was draft. Dispute at depo as to date. Prentice disputed that some on this flyer were not involved in ProtectMarriage.com. Should not come in as something that was distributed. IF it was, to whom? Mr. Prentice is head of CA Family Council. Something that happened to be in his files and got produced.
Judge Walker: Goes to weight rather than admissibility. Without attaching weight, I’ll admit it.
CD: On page two of exhibit, “background: “The goal of the homo community is not marriage. IN fact, in countries where homo marriage is legal, no more than 3% married. Goal is full annihilation of marriage…”
1999—With the onset of domestic partnerships, CA legislature begins incremental attack on marriage.
CD: Another video. From Tony Perkins
M: Mr. P saw this video in depo and did recognize himself in video. I don’t know that this was shown to CA voters and until they can show that it was shown to CA voters, object to relevance. Website that talks about video, not ProtectMarriage.com. Can pull down from website now, but not show it was shown.
J: Weight. P was shown video at depo. Relevant. Admitted.
Everett Rice (AA fellow): Says that Prop. 22 would be overturned by judges unless Prop. 8 passes.
P: Homo lobby stronger and stronger.
VO: Activists made sure via media that CA court knew what they wanted to do.
P: If this passes, children will be indoctrinated
(Shows video of guys kissing at City Hall…Not only something to tolerate, but will be something to celebrate.”
(P: Whole argument that children need “mother love and father love”
Dads have instinctual differences from Moms. When do kids learn to be leaders without Dad?
Intentionally robbing children of male and female role models that God intended them to have.)
CD: Want to intro another video by American Family Association (the previous one was also). AFA donated $500,000 to campaign. Wanted to put out video during campaign with Mr. P in it talking to voters. For people who made this video with Mr. P. cooperating and participating, relevant.
M: No evidence that put out during campaign. No evidence that P was speaking in video for ProtectMarriage.com. No evidence that he knew what it would be used for, nor would be used to persuade voters. He’s not party. If there is article, it is hearsay. Not clear that it does, but if it does (prove that it was made for campaign), it’s hearsay.
CD: Article by people who made it …
J: I sustain objection. Tenuous connection.
Chis Desseaux (CD): Shows email from Prentice saying that what homos do in privacy of
Never in CA history qualified without paid signature gathering. This is where Bishop Cordiloeon and the S Catholic Community offered tremendous help. The bishop sought the help of NOM and Maggie G, herself a Catholic and ED Brian Brown. They helped with writing and to get in front of hundreds of donors. And got Knights of Columbus. Raised over $900,000…
CD: Email from Gallagher to Brian Brown and also to Schubert with CC to Mr. Prentice.
This sentence appears to be written by Brown to Gallagher, shared with Schubert and Prentice. You see at bottom of email Hollywood Stars, ACLU Pour Money into Anti-Marriage Efforts in CA.”
“We’re going to need to get approval from SF on this. Text of the agreement requires anything specific to California to get approval.”
Moss (M): Hearsay.
CD: Should be state of mind. But also if Mr. Brown thinks he has to run messages by Mr. Schubert, very important.
M: No way to place into context.
CD: Shows state of mind.
Judge Walker: Admissible. Question is weight to give it and what does it mean. May be one of reasons that Proponents wish to call Mr. Schubert.
CD: Another document from Prentice.
M: What is relevance.
CD: Talks about having strongest grassroots response in history of CA initiatives and who is involved.
Evangelicals—400,000 signatures; 3,00 pastors
The Arlington Group 60+ organizational networks; special offerings nationally
CD: Document from Mr. Swartzman who attempted to keep his name secret. Got this from his file after he was compelled. Want to move into evidence an email from Arlington Group to Prentice.
Judge Walker: Admitted.
CD: Shows that someone from Arlington Group talking about what they are doing. Organizing heavy hitters … Newt on board. Meese pleas to legal community, Levin plea to country, Dobson Christian community, House Whip Blunt, Rep. Pense, Senator Burr for plea to elected officials, Mike Judge/ Colin Hart UK) warning of what will happen if apathy sets in and what UK now faces), Pastor Garlow (plea to ALL pastors)
J: To Prentice and reflects his state of mind. It’s in.
CD: Another, not sure why they object.
M: We don’t. Error if it was on our list.
CD: American Anthropological Association shows no doubt that protected status is due to homosexuals based on APA view of race.
M: Judicial notice okay.
Judge Walker: Very well.
CD: Puts on screen: In the US both scholars and general public have been conditioned to view race as natural and separate divisions within the human species base on visible distinctions… has become clear not differentiated …
We now understand that human behavior is learned from birth. No human is born with a built in cultural or language: our temperaments, dispositions and personalities.. are learned (with genetic influence?)
How people have been accepted or treated within context of society or culture has a direct impact on how they perform in that society. The racial worldview was invented to assign some groups to perpetual low class status. Created by Euros to keep AA, Indians others low. … Products of society’s treatment of them.
[He’s showing that race has evoked stigma, but just because someone is of a certain race, it does not mean that they will act a certain way or are lower. Same as for homos, which is basis of much of case.]
CD: Communication to Pride Foundation in which US Treasury denies tax-exempt status (1974). Admissible under ancient documents exception. Shows that historical bias against homos.
Judge Walker: You are calling this an ancient document?
CD: Don’t shoot the messenger. Statute is 20 years.
M: Object. Can’t prove this was in Library of Congress.
Judge Walker: Would Library of Congress have a document such as this?
CD: We can show that this document can be obtained from Library of Congress. Perhaps we can admit it into evidence subject to verification.
Judge Walker: I will accept based on your representation. Court accepts lawyer’s reps and holds lawyers accountable. Based on that, it is admitted.
CD: Based on the foregoing, we feel that you’re advancing the unqualified and unrestricted promotion of the alleged normalcy of homosexuality. Thus, we concluded that your activities carry a serious risk of contributing tot a more widespread development of homo tendencies…contrary to public policy. Not charitable. Not accepted.
CD: Add another document from 1966 that shows US Civil Service Commission letter about government policy about homos.
J: Do you wish to point the court to what is significant here?
CD: Types of deviant sexual behavior, whether persistent, …recency of incidence… what I think is particularly noteworthy here, is that it denies employment by government of homos not as person or individual, but based on conduct.
CD: Government statistics that back up Badgett from Holland.
Morning break until 1055.
[UPDATE] 12:06 Sorry for the delay everyone. Rather long update below.
CD: We got note for 7,500 documents to be in privilege log. Docs were described for the first time last night. We may need to reopen based on additional production.
Judge Walker: I assume that defense will not object to right to reopen?
Moss (M): No objection provided we have the right to respond.
CD: I turn this over to Mr. Boies (B).
B: Purely ceremonial, your honor. Subject to the prior statements, the defendants rest.
Judge Walker: Mr. Thompson?
Thompson (T): The defendants call Prof. Kenneth Miller (M).
T: Housekeeping. List of documents to move into evidence to which to plaintiffs have agreed?
Judge Walker: With no objection, so ordered.
T: (Has three big binders.)
Prof Miller (M): Pomona and then Harvard. Practiced at Morrison & Foerster for five years. Two years in litigation office in LA and then three years to open Sacramento office. Then did contract work for firm. In Sacto, did regulatory work representing SF Airport, other clients who had matters before government. PhD in poli sci 2002 at UC Berkeley. Associ. Prof of government at Claremont McKenna. Tenured. Six years before that, asso. Prof. for one year, was visiting assoc. prof. at UC SF.
Research and teach. At Rose Institute of State and Local Government. Studies state and local politics mainly in CA but also in other states. Redistricting, fiscal policy and the like. Teach intro to AM Politics. Every year, teach a class in CA politics. Every year teach senior seminar and usually teach course in Constitutional law.
CA politics, cover range of topics from founding of state in 1850 to introduction of referendum and recall 100 years ago and then Pat Brown and the professionalization of the state legislature and then to term limited legislature with powerful initiative system, change of ethnic and racial minorities and shift from 50-50 R and D to majority D.
Large section on Prop. 8 and legal recognition of same sex couples, original dp law 1999 and how it was augmented, fight with judiciary over definition of marriage. Also address gays and lesbians in politics, as well as coalitions that affect two parties, particularly role of gays and lesbians as key part of Dems coalition. Also cover other minorities in politics. Have students read literature on that.
American politics class, I teach issue of racism in US prior to founding of constitution, Dred Scott, civil war, Lincoln, post-civil war laws, civil rights all the way to Obama. Shows degree to which one group is discriminated against and got civil rights. Assign simple justice by Kruger. Book includes history of discrimination up to and beyond Brown v. Board.
Discuss gay and lesbians as increasingly important part of coalition in US.
Main focus of scholarly research starting at Berkeley has been and is direct democracy and initiative process. Applied Madisonian critique and disadvantages that direct democracy has vs. representative democracy. Filed dissertation in 2001, published in 2002.
Continued to study direct democracy. It’s my continuing research. Now have a database that has info on all voter-approved initiatives in all 24 states that allow from 1900 when it started. Research goes back to progressive era.
I’ve modified my views since I was a grad student. I now see it as a way for people to exercise popular sovereignty and how it conflicts with courts.
Judge Walker: Shouldn’t you tender the witness before we get into this?
T: Yes, your honor.
M: Book published by Cambridge Press last year. Also book that looks at CA from geo to political divide. Moved from north-south divide to east-west with coasts more democratic and inland more conservative, but state has become more democratic. Published by Berkeley in 2008.
Recent journal article I wrote for French journal on politics focused on why Prop. 8 was unable to pass to even in a state that elected Barack Obama.
J: Do you mean did pass?
M: Yes, I’m sorry your honor.
M: Power of gays and lesbians. Presented twice at American Assoc of Political Scientists in 2005. Presented on Goodrich decision and probable impact. Also presented on relationship of courts and direct democracy regarding ss marriage.
M: On editorial board of something at UC Berkeley.
T: Tender witness as expert on CA politics and American politics.
B: Although I think I would not dispute that expert in some aspects in that broad field, concerned he may be asked to opine on political power of gays and lesbians which is beyond his expertise. Court to proffer his expertise. If it’s within his scope, okay. If not, we’d like to voir dire.
T: Certainly expert in gays and lesbians.
Judge Walker: Would you like to voir dire?
B: Good afternoon….
J: Still morning.
B: Have you written any peer reviewed articles on the power of gays and lesbians?
M: Depends upon your definition?
B: Of what?
M: Of power of gays and lesbians. I’ve written that French article.
B: Other than that French article as you referred to it, have you written any other peer reviewed articles about power of g and l?
B: You wrote about political power of gays and lesbians.
B: You showed that gays and lesbians do not have political power?
M: No. They ran a good campaign against Prop. 8.
B: Other than the fact that gays and lesbians campaigned against Prop. 8 and lost, did you conclude otherwise about power of gays and lesbians?
M: Well, I showed that they got support of Obama and their coalition.
B: Other than this article, have you done any scientific research on the pol power of gays and lesbians?
M: I wrote on Prop. 22. Showed that gays and lesbians have power. Central issue of case.
B: Anything else?
M: In my book, which was, peer reviewed.
B: Do you show anything else about political power of gays and lesbians?
M: Yes, I conclude that through outcome of ballot measures I see that gays and lesbians have politcal power.
B: Are you an expert on whether gays and lesbians experience discrimination today?
B: Are you an expert on whether gays and lesbians in last 50 years?
M: I have written on it before and in course of reviewing for this case I think I could write an article on this now. Not 50 years ago.
B: What would you say are the most important academic articles on discrimination of gay and l today?
M: My work on legal. Prof. Estrich, Susan Lezzy and one other.
B: You’d recognize them as important scholars on whose work you would rely?
M: I’m not holding myself out as an expert of the full history of the gay and lesbian rights movement. Know trajectory. Deeper knowledge on 1970s forward.
B: At your depo not aware of what Mattachine Society was.
M: Yes, I did some research and found out that it was founded by Harry Hay in 1950.
B: Role in 1970s period in which you say an expert.
B: But you did not know about them when you wrote your report?
B: In depo you were not aware of general social survey?
M: No, but no know.
B: You did not know who Alan Speer or Elaine Goldman were and that they were elected as first openly gay in 1976 and 9175 respectively?
M: No. I did not know and do not. Know some were elected in1970s.
B: We object to his testimony as expert out of area of initiatives. He does not even know the key facts.
J: Seems to me that his knowledge of American politics is undisputed. Important to keep him in his testimony of pol power of g and l. I don’t understand that defendant are offering him history of discrimination. I’ll admit that testimony as it is brought out (with respect to minority groups in CA and American politics.)
[Boies made him very, very nervous, FYI. Kind of fun.]
T: What are key determinants of pol power?
Money, access to lawmakers, ability to persuade and two others.
M: Money is very important asset in the Am political. Just look at Citizens United case and strong reaction to both sides very important. Money allows people to be heard?
M: Striking to me the amount of money that was raised on both sides of election of Prop. 8. $43 mm by opponents, which exceeded very large expenditures by yes on 8 (which he shows as $40 mm).
T: How many groups have raised more than $43 mm?
M: Exceptionally rare. A few that have raised this or more, such as regulatory or Indian gaming. For social issue, this is exceptional.
M: Having access to lawmakers is important for any minority group, in part because time for lawmakers is scarce resource. Gaining access to scarce resource demonstrates power. Also, getting access to legislature raises visibility of issue. Access gives ability to persuade lawmaker. Lawmakers have incredible political connection. Having access to lawmakers helps build coalition. If g and l have particular leg agenda and lawmaker sympathetic, can set up meetings with unions and others.
T: How does size and cohesion affect pol power?
M: If a group has larger numbers, helps gets votes. If you have large numbers, helps get to majority for one side or the other. If not cohesive, harder to help win elections. If you are smaller group, need coalition. Madison says everyone has to form coalitions, but minority groups particularly need to.
M: Based on my analysis of recent history and the way things work, Dem party in last ten years in CA and national. Elected officials from Congress and WH to local and state. Labor. Struck by extent to which org labor has coalesced especially around ss relationships. Corporations. Major corps are increasingly allied with lgbt rights movement. Newspapers is fifth ally. I’ve done a systematic investigation of CA newspapers and NYT all allied for ss marriage. Celebrities can garner attention and provide positive images. Religious and faith-based are well organized and can get people to help on campaigns. Professional associations of physicians, doctors and others.
T: Let’s look at each. How powerful is the Dem Party in CA today?
M: Part of my work on that book the New Political Geography of CA. State moved from 50-50 in 1980 where R and D comparable politically. Changed in last generation to where D is dominant. Feb. 2009 D 45.5% registered voters, whereas R 31.1%. Significant gap.
Elected officials in state 49-29 D/R with one Ind and one open seat. Very large gap.
Senate 25 and 15 D and R.
Dems do not quite have 2/3, but can pass anything except budget.
Of 8 state offices, all but one held by D and Lt. Gov open and Gov.
34/53 house members are dem and both us senators are dem for many years now.
In last pres election, Obama won 60.95% in statewide pop vote. Largest by any since 1936 when FDR won in landslide.
This is a blue state.
Goes through CA Dem Party platform and resolutions, which call for ss marriage and repeal of Prop. 8 within two years if not by courts.
Gov is ally. Against Prop. 8, DOMA, and would not defend against this case.
T: Who controls access to Gov?
M: Susan Kennedy is the Chief of Staff who is open lesbian and supports gay and lesbian rights.
M: John Garamendi, very pro.
M: AG Brown, former gov and strong contender for future gov, strong supporters. EQCA has recognized that AG is ally. Director of EQCA “Greg” Kors expresses appreciation to Brown and won’t endorse any candidate who does not support ss marriage.
M: Sec State Bowen ally. 2007 letter she wrote letter recognizing LGBT pride month. Stand with you and always have.
M: Treasurer Bill Lockyear, former two term state legislator, opposed Prop. 8, gave money to no on 8. “Greg” Kors scored 100% on our questionnaire and will be good Treasurer, says EQCA.
M: Controller Chiang has, according to NGLTF, been strong supporter…
T: We are doing what they did with Badgett. If necessary, we can go to binders. We are making excellent progress.
J: I would not want to interfere with your progress. You may proceed.
M: Jack O’Connell, supt of public instruction, appeared in ads against Prop. 8.
M: Legislature very supportive of LGBT rights. Have been 8 elected members of legislature, currently four.
M: Gavin Newsom nationally known advocate of GL rights. A Villaraigosa opposed Pro. 8 and gave $25,000 contribution. And Sanders of S-D we saw last week.
M: Lots of local jurisdictions support.
M: Amazing how supportive labor is. CTA, one of most powerful unions in state, SEIU, Farm workers, AF-CIO all very supportive.
M: CTA with 340,000 members, one of most powerful forces in CA politics. Union donated $1.3 mm and filed Amicus Brief. CA State Council of SEIU donated $500,000, supported in legislature and Amicus Brief.
M: Of 23 largest circulation newspapers 21 supported No on 8. One took no position at all. Not one took yes position. OC Register, not known as liberal, came out against Prop. 8.
M: Another striking development over past decade or more, major corporations have internally in their employment practices and in their policy decisions, have become increasingly supportive of LGBT. HRC reviewed 590 corporations 2010. 305 achieved100% rating on this organization’s survey. 99% provide non-discrimination based on sexual orientation. Report found that major employers stepped forward to provide steadfast support for marriage equality, particularly I CA.
M: Google, largest internet company in world and usually does not take positions on controversial issues. Sergei Brin put up opposition on blog. Yahoo, SISCO, E-Bay, the who’s who of Silicon Valley, got together and issued a full-page ad in SJ Merc News opposing Prop. 8.
T: To what extent did words of corporate leaders translate into actions?
M: Money. List of major corporate contributors to EQCA: ATT, Clear Channel, Kaiser Permanente, — made contributions of from $5,000-$250,000 each.
M: Entertainment industry generally has supported the LGBT rights movement. As an industry, in my view, has been supportive. Some corporations and individuals made major contributions to no on 8 and/or otherwise support ss marriage. Geffen, Spielberg, Kate Capshaw, Brad Pitt including Mr. Reiner have supported ss marriage.
Judge Walker: Break until ten minutes after hour.
T: Next to each pink, we have listed each page and line number to which we counter.
Boutrous: No objection.
J: Ten minutes after 1.
(adjourn at 1215)
1:15 and we are back.
Thompson (T) (defense lawyer): What role have progressive religious groups played with LGBT community?
Professor Kenneth Miller (M): California Council of Churches supported no on 8. Lists off a bunch of the 51 members.
T: What role, if any, did these churches play in the Prop. 8 campaign?
M: Many were active in the effort to defeat Prop. 8. Phone banked. Actively involved in opposition to 8.
T: In addition to 8, what have they done to support political goals of gays and lesbians?
M: Supported Leno’s bill, filed Amicus Brief for state Supreme Court.
T: What is your view of the intensity of support for lgbt agenda?
M: For many, has become a social justice, civil rights issues so it’s important to support. Increasing support, but some division inside some of the churches. Some see as primary work, for some, major issue of day.
Judge Walker: Which of the 51 do perform same sex marriages?
M: United Methodist Church is divided. I’d have to look at each. Not sure what Episcopal Church is doing. Situation where some in CA have more progressive or liberal view. All have taken publicly supportive view.
[In short, Miller just proved what Boies said this morning. He has no clue what he is talking about. He’s read a few articles and brushed up, but he’s far from an expert.]
M: Pew Research says CA one of ten least religious states.
[But there are a lot of Californians, so there are a lot of religious people here.]
T: Allies of professional groups?
M: Many, such as Psychiatric and medical associations and professors support LGBT movement.
T: How can professors help the LGBT movement?
M: They teach and they are well respected. They often go into government and then come back to the academy.
T: How about lawyers?
M: Lawyers often run for political office and they have influence.
T: How does persuasion play a role in political power?
M: If you have an idea and you are able to persuade a person in power that your idea is, should be acted upon, your ability to persuade that lawmaker or in initiative process is key.
T: Can you provide example of persuasive idea is favorable to outcome?
M: AA had very little political power. One of the primary instruments was the power of ideas. Used the power of ideas to persuade lawmakers of their case.
[This is really lightweight stuff. Compare and contrast with the real experts over the last two weeks.]
M: Increasing success of the LBGT movement to endorse candidates that win elections. EQCA regularly assesses success they have at electing candidates of their choice. “Californians voted into legislature 95% of candidates endorsed by EQCA Pac. 59/62 candidates elected/endorsed.
T: How much of a price did those who endorsed same sex marriage pay for their support of ss?
T: Turning to California legislative victories, how successful, if at all, were LGBT in legislature?
M: Okay, I have reviewed over time the success. Over past decade, laws passed to prohibit discrimination in a range of areas from employment to adoption, business services. Just some of the highlights. Some other examples are hate crimes committed based on sexual orientation. Domestic partnership legislation. Over 50 legislative victories for lgbt community in CA state legislature.
T: What is history of legislation for legalizing ss couples by legislature?
M: After Prop. 22 that recognized by statute that marriage only between man and woman, CA legislature nevertheless passed two bills that made marriage gender neutral. Schwarzenegger vetoed both bills. Said that under initiative law, legislature cannot amend initiatives adopted by the people.
T: When was recognition of same sex couples first achieved as a legal matter?
M: 1999, was first in series.
T: First local laws?
M: 1984 City of Berkeley passed this state’s first same sex ordinance. Then 1985 West Hollywood, then fifteen other municipalities.
T: To what did AB 849 refer?
M: I don’t remember for sure, but it was same sex marriage through legislature, I think.
(Puts up slide that says what it does.)
M: AB 849 received support from 224 organizations including labor unions, civil rights groups, etc. Gov. vetoed.
T: How do you respond to Prof. Segura that gays and lesbians are particularly vulnerable to the initiative process?
M: This is my particular area of expertise. It is true that LGBT movement has lost twice: Prop. 22 and Prop. 8. They were unsuccessfully in direct democracy. California voters have not used initiative process to revoke other rights granted by the voters. It cannot be said that those were stripped away by voters in election process.
[WEO! The initiative process did not take our rights away—always!]
M: 1978 Briggs Initiative. Would have fired teachers for promoting or otherwise engaging in homo acts.
T: What was vote?
M: Contested campaign, after mobilization, vote was decisive: 58% no.
T: What about 1980s? Which measures?
M: Three measures that 64, 1986 and 66 1988, sought to make people subject to quarantine and isolation for HIV. 70% and 68% no on those two, which were put on by LaRouche. Prop. 102 would have forced doctors and blood banks to report people who had HIV. Thought of as discriminatory for people with HIV and the gay community. All defeated.
[So he thinks that HIV is a gay disease. Nice.]
T: Which ones did not get on ballot?
M: If conservatives thought they could win on domestic partnerships, they could have gone to the ballot. But there was not one.
[This is seriously embarrassing.]
T: How many states have hate crimes legislation?
M: 22 + lots of local.
T: How about LGBT candidates who win office?
M: GLVC said 80/111 in 2008 elected to office. More in 2009 (49/79).
Boies (B): Objects, but we cannot hear why.
T: I cheerfully agree that M did not know about election results, but Segura testified so we want to put ours up. And I reject that he did not know about laws.
B: Keeps at it.
Judge Walker: Is this not a matter we should take up on cross-examination? Proceed, Mr. T.
T: How do you respond to Segura’s saying that gays and lesbians are powerless?
M: I believe that is incorrect. One example is that hate crimes was passed this past year and has been on agenda for LGBT for some time, but was passed over considerable objection.
M: Describing upward trajectory. Priorities have been and are: DADT, DOMA and ENDA. In each area, increased support of congress members for this objective. Hate Crimes and DP Partners Act (he had to look that one up)… in each, there has been increasing support.
T: Let’s focus on President Obama. What if anything has President Obama done?
M: Signed Matthew Shepard Act. Appointed homos to major positions in admin. Went to HRC dinner and made commitments about willingness to support their objectives and agree to support repeal of DADT. Gay Pride Month.
In the first year in office, he has given some evidence of support. Some members of GLBT community think he has not given enough support, but by objective standards, he has.
M: She’s an ally.
T: Now I’d like to shift gears and ask you about trends and trajectories?
T: What was the reaction of the opponents of Prop. 8, the leaders?
M: Some said we had to step back and look at the progress we have made. Quotes Leno as saying that we have advanced 18 points from Prop. 22, this time we only lost by 4 points. They’ll never get those points back. We are going to win.
T: Trends in political public opinion for LGBT?
M: Increasing acceptance. On a wide range of issues, increasing public support for ss marriage?
T: What has policy institute of NGLTF found?
M: Major lgbt rights organization. In a report analyzing the national election data in 2000. Showed that public support for adoption rights, right for gays to be in military and lack of discrimination all improving.
No evidence that it has dropped in last ten years.
M: Political powerlessness is no ability to attract lawmakers’ attention.
T: What is your view of that as an appropriate test for Supreme Court?
B: Object. Beyond his scope.
T: Very well, what is your view of their ability to attract attention of lawmakers in CA and nationally?
M: They can do that.
T: No further questions.
[Here’s why we have David Boies. This is really, really good.]
B: Do you have opinion as to whether legislature and gov would, if they could, make marriage legal?
M: Hypothetical, but hard to tell without 22 and 8.
B: Asking your opinion as expert.
M: Easier to answer for legislature for governor. Harder to say with governor. Given his public statements, probable he would have signed legislation.
B: Is it fair to say that you have had time to get a lot more information about these matters since your depo?
M: Yes, in past six weeks.
B: At your depo, you did not know how many states had laws that protect gays and lesbians against discrimination.
M: I did not know definition. Realize that some localities in states provide legislation.
B: Look at your depo, page 197, lines 18-23. Q I was asking about protections, to be more specific public housing, accommodation and work. A Put that way, I don’t know. You had not taken a closer look to know what is what before your depo?
B: Q: IN how many states is their no state law re: discrimination on the basis of SO. M: I think that was answered? Q: I may have forgotten your answer. You don’t know the number? A: I don’t know the number, ya.” Was that your testimony?
M: Part of problem was that I did not know about state and local laws.
B: I’m asking what you investigated.
T: He opened the door. He said this was my work product.
B: Did you discuss this with your counsel?
T: Object. Attorney discussion prohibited to make public.
Judge Walker: If you are going to what he investigated himself, that’s okay.
T: No objection.
B: Everything you testified to you investigated yourself?
M: I believe that’s true, yes.
B: For example, in your rebuttal report, at the end you have index materials considered. Were some of these materials provided to you by counsel or did you find all of them yourself?
M: Most myself, some by counsel.
T: Would you on the index of materials considered, would you just go down and they are numbered and just circle the ones that you found yourself and were not provided by counsel?
(M: Looking nervous.)
[Professor Miller is taking a lot of time to go through each document listed in the appendix to try to figure out which were provided by counsel and which he found himself. It’s slow going. Note that Prop. 8 never even tried this with one of our witnesses, because they were indeed experts. This is very embarrassing for Prop. 8. It looks like the lawyers did the work for their would-be remaining expert, which is a no-no of the first order. It ‘s as if the Prop. 8 side brought the guy in and said, “here are a bunch of documents. Can you testify that the prove our case?”
The judge is standing up, waling around, pouring himself water. He undid his robe and got some air in there. He’s watching the “witness” work through the list....slowly.)
Now the judge refastened his robe and is bouncing up and down. It’s silent. I have to believe that this whole exercise will not increase anyone’s confidence in this witness, especially that of the witness himself.]
After twenty minutes of staring at the evidence, Professor Kenneth Miller (M), witness for the defense is ready to answer questions again from David Boies (B).
M: Okay, I’ve looked through it.
B: May counsel approach?
B: What do question marks me?
M: Most of question marks mean I do not remember whether I found these myself or whether counsel showed it to me?
(B and W and are witness stand looking through the notebook with M. They agree and go back to their corners.)
B: Admit deposition.
Judge Walker: PX 749A
B: At the time of your depo, you were not aware of how many of the ten most populous states had laws protecting l and g from discrimination?
M: I did not know how many had statewide laws.
B: When you say statewide, let’s look at your depo. Q: How many of the top ten states do not have discrimination laws? A: I do not know. Was that your testimony?
M: Yes. I should have said that I thought that some of these states might have adoption protections. I just said I did not know.
B: You talk about adoption on p. 190, right? Q. I understand that, but you just told me that there is no statement in which there is no protection for g and l. A: Answer, would include wide range of things including adoption and not sure if any other state has protections that CA has.
No issue that you were talking about statewide laws or not?
M: I should have asked him if he meant statewide.
B: If the question had been how many of the top ten states have no anti-discrimination laws, would you have known the answer?
M: Not at the time of my deposition, no.
B: Looking at demonstrative 33, none was contained in information you relied on, isn’t that correct?
M: Not true.
B: Where are the things you relied upon?
M: Human Rights Campaign.
B: Show me.
M: I’m trying to remember. Maybe it was NGLTF. Should be in the report. Paragraphs 99 of the report. I was going through the HRC website and there’s a link to laws and elections and that’s where I found the information about discrimination as well as adoption rights. Some confusion because HRC map has different colors for different rights.
B: What did you do to resolve that confusion?
M: I attempted to break them out. I can read them out.
B: You don’t have to read these things out. Does it say there is confusion?
M: Reads report.
B: To move things along, you don’t have to read this into the record. Let me try to phrase this in a way that won’t be confusing.
B: Asking if M knows what he is talking about on gay power via elections.
M: I don’t know because it’s difficult to think about either the numerator or denominator with respect to the number of l g who have been elected to office.
B: You know that not one gay or lesbian has ever been elected to statewide office in history?
M: Yes. That’s true.
B: So whatever the denominator is, the numerator is zero (holds up hand and puts hand in shape of zero).
B: Did you ever use the term LGBT in any or your writings or your deposition?
M: I don’t recall.
B: You refer to DADT. Gays and lesbians are still being discharged from the military?
M: Yes, I think it’s less than it was.
B: Is there any other minority that would be dismissed from military that has been discharged from the military for doing a perfectly good job just because somebody discovers their sex?
M: I’m not aware of any.
B: You also mentioned the DOMA. DOMA has not been repealed. Correct?
B: That would be against LGBT community interests?
M: I would guess that the majority of the LGBT community would like that repealed.
B: You say you guess that. Is it your opinion that the majority of the LGBT community would like that repealed?
B: Since you are an expert, you are aware that there is a history of discrimination against the lesbian and gay community?
B: And you are aware that that continued into the 1970s in the era in which you began to study LGBT history?
B: You used the term gay bashing in your depo. What does that mean?
M: Insults or sometimes physical attacks.
B: When did you discover it was physical attacks also?
M: I have always known that, but think it’s more to do with insults.
B: Reads from depo in which M says that gay bashing does not include physical violence. “Seems like it has a sense of violence to it. The way I have heard it used in conversation it refers more to pejorative attacks rather than physical violence.” Did you give that testimony at your depo?
B: Depo: “What titles of books and articles can you refer to that ideal with prejudice against minorities?” “None.”
M: There are books that informed me, but they are not solely about prejudice.
B: Do you believe that laws that discriminate against intimate relationships between gays and lesbians is prejudice?
M: I would vote to repeal such laws. I have no idea what good purpose would they would serve.
B: You defined prejudice in your depo, as an unfair judgment. Using definition that way, does law that prohibits ss relations, rise to definition of prejudice?
M: I can’t speak to what was in the minds of lawmakers. If there was no supporting data as to why such laws were passed, I cannot say.
B: Sitting here today, you cannot say that such laws constitute prejudice?
M: Not something I would support, but cannot say if those constitute prejudice.
B: Laws that prohibited sex between gays and lesbians?
M: Yes and there were sodomy laws that prohibited sodomy between anyone before Lawrence v. Texas.
B: How many states had laws that prohibited homosexual sex?
M: Not sure.
B: Gives number.
M: (after considerable back and forth in which Boies tries to get him to answer questions directly, judge orders him to.)
M: Yes, there were several states in which homo sex was illegal.
B: Do you know that there were statutes against hiring homosexuals in many states before WW II?
T: Objection. We are not offering witness as expert on gay and lesbian history. Dr. Chauncey was here for that.
B: Well, counsel has a good point.
(Gales of laughter.
B: That was too easy to resist.
B: Have you ever heard of Prof. Chauncey?
M: No. I heard he was a witness in the trial.
B: Goes through a long list of scholars and scientists on history and political science of LGBT.
M: Has not read any of the work by any of them.
B: Any examples of discrimination against gays and lesbians in modern period?
B: Any others?
M: Private situations about which I cannot opine, but only official discrimination of which I can think is DADT.
B: Is that your definition, official discrimination, that is legally enforced by the state?
B: Are you aware of any official discrimination against gays and lesbians in this country today other than DADT policy?
M: (Thinking) I’m trying to think of other laws that are official…policies that discriminate on that basis. One thing you are looking at would be DOMA policy.
B: There you go!
M: That’s what you are getting at. The DOMA policy is a differentiation of the treatment between gays and lesbians.
[So the Prop. 8 official and so far only witness just said that DADT and DOMA are “official discrimination.” Thanks, Ron Prentice!]
B: Are there state laws?
M: More ones that do not protect rather than discriminate. Maybe Arkansas that prohibits unmarried couples from adopting.
B: But Arkansas passed law that says g and l cannot marry, so only g and l cannot adopt.
M: Yes, that is true.
B: What about what you call “private discrimination?”
M: There are instances of discrimination between and among people and gays and lesbians have recourse through administrative and judicial proceedings.
B: Are you familiar with the Williams Institute?
B: What do they do?
M: Research and find funding for research on LGBT rights.
B: Testimony here of R. Bradley Sears before House judiciary committee.
B: Have you ever read this?
B: Do you know who R. Bradley Sears is?
B: Reads Sears testimony to House: based on research ‘there is widespread and consistent pattern of discrimination against LGBT people for federal jobs. Same for state and companies. Instances far exceed instances listed. Do you agree?
M: I have not done research in this area so I have no basis on which to form an opinion.
B: Report on bottom of first page substantially same as what Mr. Sears told the Congress.
M: Appears to be substantially the same.
B: Have you ever read this?
B: Reads, “Courts and others have concluded that discrimination is not based on job performance.”
T: Object. Outside of scope.
B: He says that there is political power.
J: In same vain as videos. Meant to get reaction. Overruled.
M: I can’t think of any examples that would give me any objection to this statement
B: You compare the political power of gays and lesbians today with that of AA. Which minority do you believe has greater political power? First nationally? Then CA.
M: Somewhat difficult to make these comparisons. We have to define what we mean by power.
B: That’s what you were testifying to!
M: The ability to attract attention of lawmakers.
B: Using political power as you defined it, which?
M: Somewhat difficult to say.
B: Yes, no, I don’t know.
M: I’d have to say I don’t know. I’d have to think about it some more.
M: Compared to national level?
B: I’m not asking you to compare to national level. I’m asking you in California.
M: Closer call.
B: That means you don’t know?
M: Complex analysis.
B: You have not made that analysis?
M: Difficult to make comparisons.
B: You would need to do more analysis before you answer my question?
M: I would need to do more analysis to understand the resources that AA bring to bear. I think I can say that AA are not powerless.
B: I understand in your official testimony that you said both communities have political power. You are saying that there is not that much difference nationally, correct?
B: And in California?
M: Difficult to say.
B: Could you tell us which if you had done enough work, a comparable amount of work on g and l as AA?
B: In your academic work, you have done more work around AA than g and l?
M: Yes, but I have done more work on ballot measures on g and l.
B: You have said that Prop. 8 and 22 did not pass even with the political power of g and l community?
M: Yes. I ‘m glad I’m not the only one who makes that mistake (about passing v. not).
B: Given the amount of power that the g and l community has, I was almost ready to believe that Prop. 8 had failed!
[This guy either has the best anti-perspirant on the planet or he is one big wet mess under that jacket.]
B: Reads from article by M in late 2004 or early 2005 about recall election.
M: Sometime in 2004 after 2003 recall.
B: You mention that you were a lawyer and you wrote an article for the law review.
Judge Walker: Break until ten minutes before the hour.
David Boies (B) continues grilling Professor Kenneth Miller (M) on cross.
B: The first sentence reads that by limiting opportunities for the proponent to … initiative system makes compromise less necessary.” This is what M wrote in 2004.
M: I agree with this.
B: Reads: By allowing proponents (of initiatives) to eschew compromise, initiative system leads to polarization. You wrote that?
B: Do you believe it to be true?
M: More or less, yes.
B: Last full sentence: thus in CA, both initiative const amendments and statutes undermine the authority of representative government. What did you mean there by representative government?
M: I’ll have to recall… In general I meant that initiatives have the tendency to make it more difficult to do its job, for example by locking in spending mandates or other things. Fair characterization of my views on this.
B: Look at tab 82.
[It’s a good thing that this guy has tenure. I would not want to go back and face my colleagues at an academic institution after this shredding. M should have been our witness, except that he does not come off as so competent in this matter.]
B: Looks at another article he published in 2001. We discuss how ironically direct democracy can be less democratic than representative democracy because it violates norms of… transparency, compromise…”
M: Yes, that’s what I called my Madisonian critique of democracy.
B: Hence, direct democracy that forms greatest threat to democratic government are initiative forms. Initiative Constitutional Amendments most seriously undermine representative government because they can only be undone by another constitutional amendment. Do you still believe this is an accurate statement?
M: I don’t believe it is always the case. It can be. It’s true that an initiative constitutional amendment can only be undone by another amendment. Has to be put on ballot, maybe by leg, but still has to be passed by the people.
B: Looking at heading, Undermining Democratic Opportunities. “Leg procedures tend to maximize” compromise vs. initiatives.
M: Generally true.
B: You have studied initiatives?
M: Over 900.
B: When do initiatives provide for compromise and building consensus in society?
M: I cannot say specifically, but in general it’s better to have informed deliberation, consensus building and compromise.
B: How many would you give where initiatives fit the above?
M: Maybe 3 or 4 or 5. Would have to do serious investigation to see how drafting done and campaign run.
B: You have done no such research?
M: Yes. I did large study of outcomes. Idealized picture of legislature. Legislatures do not always live up to those four opportunities. The institutional structure of the legislature set up for those four things, not initiative process.
B: If there is going to be any refinement, it will be in drafting because it cannot be amended once it’s out there?
M: In California, there is no opportunity to amend unless they pull it back.
B: How often has that happened in California?
M: Not infrequently.
B: When was last time?
M: I guess.
B: I’m not asking you to guess. I’m asking you to tell me the last time.
M: Many times it’s pulled back.
B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?
M: Discussed in 2005 special, but did not happen.
B: Give me last time in California?
M: I can give you example in Colorado.
B: We’re talking about Ca. You wanted to talk about CA.
T: Objection, He’s badgering the witness.
Judge Walker: Overruled. This is cross-examination.
B: Good God man.
M: I don’t know.
B: Who is professor Bruce Kane?
M: Scholar at UC Berkeley.
B: Heading here says violating democratic norms. “Initiative process violates number of norms in democracy.” What were the norms you were referring to?
M: I’m trying to get the context here (paging through). I think it’s the norms in the paragraph above: competence, fairness, accountability (and one other).
B: Go back to your law review article. “In sum it is ironic that initiative process is considered purer democracy …when it violates democratic opportunities and procedural guarantees.”
M: I was talking about consensus building, etc. Not sure about procedural guarantees. Might have been openness. The four norms you were just talking about.
[Even I’m uncomfortable. Boies is just letting this guy hang himself—repeatedly—and twist in the winds of justice.]
B: How many states have constitutional amendments against same sex marriage?
M: About 30.
B: How many were by initiative?
M: I think ten. I believe about ten passed initiatives and the others were passed by state legislature.
B: You agree that there are 30 states that have constitutional bar.
B: And every state that has bar on same sex marriage was submitted to a popular vote?
B: Would you agree that every time this has come up for a popular vote it has passed?
M: No. Arizona defeated an initiative that bars same sex marriage, but ss marriage is not legal there.
B: In Colorado, were voters presented with an initiative to permit ss marriage?
M: Voted to bar same sex marriage.
B: In Arizona, did voters vote to bar ss marriage?
M: In Colorado, there were two options.
B: But you just testified that Colorado voted to bar ss marriage.
M: Two options.
Judge Walker: In Arizona or Colorado?
M: AZ passed bar of same sex marriage. Then legislature put another on the ballot.
B: Let me clarify for the court. In Colorado, voters voted to bar ss marriage. But in AZ they voted to bar ss marriage also?
M: Yes, but they voted not to the first time.
B: So they voted two times before they won?
B: Amicus Brief by Professors Estridge and Kane. Let me ask you in this connection to look at page 7.
B: Prof. Kane talks about hyper-amendability of constitution. He cites Prop. 14 and 105. What are they?
M: 14 to which he refers was passed in 1954.
B: And that was to take equal housing rights away from blacks.
M: Kane says that unlike 8, 105 applied to entire population. And unlike 8, 14 found that discrimination was at base, but 8 is on its face.
B: Do you agree that discrimination is on its face with Prop. 8? 8? 8?
M: No. It defines marriage as between man and woman.
B: You’ve said that 8 treats gays and lesbians differently. As a political scientist, is it discrimination?
M: Differently, but not necessarily in the law.
B: Not as lawyer, but as political scientist, is there discrimination?
M: Makes a distinction between people so that under that definition is it discrimination
B: Just to tie that down, this is discrimination?
M: By that definition, yes.
B: Kane and Estridge say that this is discrimination. Do you agree?
M: I don’t agree with them.
B: They say that discrimination of Prop. 8 is on the face of Prop. 8. You told me that Prop.8 treats people differently and that is discrimination.
M: It creates a distinction between people.
B: We’re going backwards. I asked you if the definition you used is the definition that most political scientists use. You said you do not know.
M: Dictionary definition. Very common in scholarship to have different definitions.
B: Is there a definition that you have that would make this not discrimination.
M: Let me try to move this forward. It is my view that Prop. 8 makes distinction, but whether it is invidious discrimination or not, I don’t agree.
B: Prof. Kane and Estridge do not refer to invidious.
M: I think it’s implied.
[UPDATE] 5:20 Sorry about the delay. This last update got stuck in the tubes.
M: Gay and lesbians are minority and have been subject to prejudice and stereotyping, but I think that has gotten better.
B: And still today?
M: Like a lot of groups they face some stereotyping and prejudice.
B: They… Do you believe that gays and lesbians face more prejudice and stereotyping than AAs?
M: I cannot make that distinction. I have not done that research.
B: Do you think that lesbian and gays face more than women?
M: Same answer.
B: Granted that women face prejudice and stereotyping, do you still think that gays and lesbians face more prejudice and stereotyping?
M: Women still face prejudice and stereotyping.
B: Let me take gays out of it and just deal with lesbians. Do you believe that lesbians face at least as much stereotyping as women and more?
B: Kane and Estridge say that proponents say that Prop. 8 required that schools teach that ss marriage is equal to hetero, which was false. That difference probably passed Prop. 8. Do you agree?
M: I see the sentence.
B: Now, I take it that…well let me ask you, do you have an opinion about the correctness of this statement?
Thompson: Object. I did not ask the witness about this in direct.
Judge Walker: Overruled.
B: Yes, I do have an opinion. There is a basis with respect to the curricular consequences of Prop. 8. There is a basis so I disagree with that. With respect to second clause, with regard to message’s impact on the outcome of the election, I don’t know.
B: If you don’t know. They make two statements. One is that Prop. 8 forces curriculum to reflect ss marriage.
M: Could be shown to have a basis.
B: Has anyone shown it to have a basis?
M: I think that proponent’s assertion is correct. I don’t know actually whether it would have happened or not, but there is a basis for it to happen.
B: Second, re: did this have a decisive difference, no opinion?
M: I can’t say.
M: If they said definitely, I would say I disagree. If possibly, might be true. If no difference, no opinion.
B: You don’t know whether what they say is right or not.
M: No basis for truth. No survey data to show why people voted for Prop. 8.
B: Are you aware of polling data on why people voted for Prop. 8?
M: I have seen no extensive data.
B: Have you seen any data?
M: I think I may have but I don’t recall.
B: Look at tab 78.
Judge Walker: As you do that, let me ask how you are doing in examination of this witness. You can see that it’s getting warm in here and our landlord shuts down the ventilation at 5:00pm.
B: I will not finish by 5:00PM and this is a convenient time to stop.
Judge Walker: Very well. We’ll resume at 0830.