January 25, 2010
By Rick Jacobs
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)
[NOTE] There is a new thread for the afternoon session.