So now we finally have a date for Closing Arguments for the Prop 8 trial — Wednesday, June 16th, or 156 days after the start of the Trial.  By now, we’ve heard the evidence, we know what’s been said, and there’s been a lot of analysis on this site about what it means for the outcome, our movement, and our lives.

But besides setting a date for closing arguments, Judge Walker set a date for the defense counsel to submit their motion to suppress at least part of Dr. Tam’s testimony.  As you recall, Dr. Tam was the right-wing San Francisco minister who believed that his kids will turn gay if marriage equality was allowed to remain.  We’ll find out on May 7th how much of the testimony they want stricken from the record, and what is their basis.  Our side will have until May 10th to then file an objection.

So what happens if Dr. Tam’s testimony is taken out?  Dr. Tam was powerful evidence that Prop 8 was driven by animus and a hatred of homosexuals, which would be enough to strike Prop 8 — even under the more lenient “rational basis” grounds set up in Romer v. Evans (1996.)  But while Dr. Tam’s testimony is damning and it should be kept in, there was a whole lot of other evidence that our side presented.  In fact, when it came time for the defense to produce their “experts,” there wasn’t a whole lot of reason they could provide.

If it’s impossible to dream up a “rational” basis for deny LGBT people the right to marry the person they love, and all the reasons the defense provides is merely a subterfuge for bigotry, Prop 8 must be found unconstitutional.  Dr. Tam’s testimony was the most dramatic and forceful, but our side put on a good case tying other “rationales” for Prop 8 to be simply animus.  In fact, I would argue the strongest witness we had for our side was San Diego Mayor Jerry Sanders — who explained how he came to the realization that his so-called “friendly” reasons for opposing gay marriage had merely been based out of irrational discomfort.

This is the last daily summary for a few weeks.

Here is the timeline we are looking at… Amicus briefs are due on February 3rd. Judge Walker is bringing the lawyers in to go over these briefs on Feburary 26th. He indicated as they were wrapping up today that at that time (the 26th) he will schedule the closing arguments. That likely means we will not have closing arguments until early March, with the ruling several weeks after that, depending on how long Judge Walker takes.

I know, the wait stinks, but I’d much rather Judge Walker be deliberative about this process and his ruling than it be rushed. No matter what way this goes, the wording in his ruling will influence what the appeals court and eventually the Supreme Court will say and do.

The hiatus does not mean we will be stopping around these parts. There will be fresh content throughout this break, so keep coming back and join in the comments.

————
DAILY SUMMARY

By Rick Jacobs

It’s the last day for evidence in this trial. We’re still upstairs, in the 19th floor Ceremonial Courtroom. This morning, Teddy from FDL beat me to the room, but it’s pretty much our same little group. So far, there are about eight people here, with a few meandering in. I ran into AP’s Lisa Leff on the way into the building today.

Up on 19, we’ve formed a sort of community. Everyone is respectful of each other, even if we are not all on the same side. The Prop. 8 folks continue to sit in the jury box up here, behind me. I’m at the long plaintiff’s table, next to the projector that occasionally shows videos, slides and “demonstratives” from the trial room.

The other twelve foot long, blond wood table that would have been at home in a college library.

0834: The judge just entered.

Judge Walker: Good morning. Mr. Blankenhorn, you understand that you are still under oath.

DB: Yes

Judge Walker: The oath that you took yesterday still applies?

Boies: Good morning Mr. Blankenhorn. I’m going to start with some things we agree on. You agree that marriage is a public good.

DB: Yes.

Boies: What is a public good?

DB: Benefits society..

Boies: Good for children and couples.

DB: Yes.

Boies: You believe it would benefit gay and lesbian couples and their children to allow same sex marriage?

DB: I believe it is likely to do that.

Boies: You believe it is almost certain to do that?

DB: Yes, I believe same sex marriage is almost certain to benefit gay and lesbian couples and their children.

Boies: Reads from B’s book. “If adopting same sex marriage would be likely to impede that goal, I’d be against it.” You believe that the rights of gays and lesbians should take second place to an existing institution?

DB: Read me the sentence again?

Boies: I’ll read the next sentence in which B says that if marriage will be sacrificed, I’d put gays and lesbians in second place.

DB: Yes.

Boies: To the degree that I must choose, with some anguish, I would choose children’s’ collective good and the institution of marriage…

DB: My entire book…

Boies: I’m not interested in your entire book.

DB: My book is about goods in conflict. (whines)

Boies: I thought you would agree with what I read (because they are your words).

DB: I do agree (whining again, like a little boy), but I am writing about goods in conflict. I do not believe that (gay marriage) is bad. Two “goods” in conflict.

Judge Walker: Let’s have a question and an answer.

Boies: I’m going to read from your chapter Goods in Conflict which is a sort of group think experiment in which you wrote things on a white board.

DB: I agree with substance of what you say, but it’s important …

Boies: Your honor would you instruct the witness to be responsive to my questions and not make statements no matter how important he thinks they are.

DB: I am making important points! I do not need those instructions!

Judge Walker: If this were a jury trial, the jury would be instructed to weigh the witness’s background and other factors. One of those factors is the witness’s demeanor. If the witness is not responsive to the questions, that affects the jury’s weighing of his testimony. I’m sure you would not want your testimony to be diminished by your demeanor. So please be responsive to the questions. Your counsel will have a chance to allow you to expand on points.

DB: Yes, your honor.

Boies: Read silently to yourself the 23 points that are listed in this chapter and tell me whether yes or no you agree with them.

DB: 1. – 7 yes. 8 and 9 no. 11

[UPDATE] 9:30

DB: 1 – 7 yes. 8 and 9 no. 11, 12 yes. 13. I don’t know. 14 no. 15 yes. 16, I don’t know. 17. No. 18 yes. 19. Yes. 20. I don’t know. 21. I don’t know. 22. Yes. 23. I don’t know.

Boies: Thank you. I’d like to publish this list and go through it and both identify the ones you agree with and ask you some questions about the ones you don’t agree with.

(UP on screen)

1. Same sex marriage would meet the stated needs and desires of g and l who want to marry. In so doing it would improve the happiness and well being of many gay and lesbian and individuals, couples and family member.

2. Gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children.

3. Extending the right to marry to ss couples would probably mean that a higher proportion of gays and lesbian would choose to enter into a commitment relationships.

4. Same sex marriage would make more gays and lesbians enter committed relationships.

5. Decrease promiscuity.

6. Same sex marriage would signify greater social acceptance of homosexual love and will increase the worth and validity of intimate relationships.

7. Gay marriage would be a victory for the worthy ideas of tolerance and include. It would likely decrease the number of those in society who tend to be treated warily as “other” and increase the number who are accepted as part of us. In that respect, gay marriage be a victory for and another key expansion of the American idea.

910. Gay marriage might contribute over time to t decline in anti gay prejudice as well as more specifically reduction in hate crimes.

11. Long one- basically would make homos more stable economically and therefore more likely to contribute to US.

15. Extending same sex marriage rights to would probably reduce the proportion of homosexuals who marry persons of the opposite sex and thus would likely reduce unhappy marriage to opposite sex couples.

18. By increasing the number of married couples who m be interned in adoption and foster care because same sex couples can have kids in their families.

19. Adopting same sex marriage would likely be accompanied by a side ranging and potentially valuable national discussion.

22. Gay marriage would probably expand the possibility and research on a variety of topics related to marriage and parenting.

Boies: Go back to number 14, with which you disagreed. Let me ask you if you agree with any part.

Reference here to “marriage lite” schemes such as civil unions and domestic partnerships, which can harmfully blur the distinctions between marriage and non marriage”

DB: I do believe, it is a concern of mine, one concern that needs to be taken into account, because cu and dp are similar to marriage so they could blur the distinction.

Boies: You are saying that marriage lite schemes such as civil unions and domestic partnerships are a concern because they could blur the distinction between marriage and non-marriage.

DB: Yes sir.

Boies: You understand that you were to list the documents you used to create your expert report?

DB: No sir. As I explained yesterday…

Boies: I do not want your explanation. I just want a yes or no.

Judge Walker: Perhaps if you showed the witness the expert report.

Boies: Shows report. Which of these show that same sex marriage would undermine hetero marriage.

DB: With proviso that most of these were written before the debate on same sex marriage arose, I can list these exhibits. 2, 3, 10, 24, 37 and that’s all.

Boies: With respect to number 10, who is this?

DB: Historian.

Boies: Not an anthropologist or

DB: One is by Maggie Gallagher. Who is Maggie Gallagher?

Boise: Who is Maggie Gallagher.

DB: Writer and organizer whose principal focus for the past four or five years has been to oppose gay marriage.

Boies: Do you believe she is a scholar?

DB: I do. She is an intellectually serious person.

Boies: Do you define scholar as intellectually serious?

DB: If you are quarreling over terms…

Boies: I’m not quarreling. You use term scholar a lot. What is it?

DB: Scholar is someone who is able and equipped to engage in serious discussion with one or more bodies of evidence and make rigorous arguments with one or more bodies of evidence. Good scholars operate with integrity and try to seek the truth of the matter.

Boies: One attribute is objectivity?

DB: In the sense that one must try to deal with objectivity, yes. Maggie Gallagher has a dual role. She’s a journalist and a partisan.

Boies: Has she published any peer-reviewed articles? Which ones?

DB: I don’t have her CV here. I can’t recall them here, but she has been in peer-reviewed journals.

Boies: Which ones of her peer-reviewed articles have you relied upon?

DB: I have read thousands of articles, hers included.

Boies: Which of Maggie Gallagher’s?

DB: You are putting words in my mouth.

Boies: On which of Maggie Gallagher’s peer-reviewed articles that rise to objectivity that you say scholars aspire to?

DB: None. I did not rely on any of her articles for my testimony here.

[Blankenhorn is self-righteous and very, very self-important. He really believes that he is a big deal and that what he says matters even though he comes across as a sloppy amateur.]

Boies: Article by Norval Glen you identified.

DB: I believe you asked me to identify any articles that I used to come to my conclusions.

Boies: Which of these materials contain assertions that homosexual marriage will harm heterosexual marriage, if any?

DB: Does it have to say it in that exact form of words that you offered?

Boies: No in words or substance so that a reasonable reader could read or understand that homosexual marriage would weaken heterosexual marriage.

DB: The key word is “likely.” No one can predict the future with certainty.

Boies: Yes, Mr. Blankenhorn. Likely.

DB: I believe a reasonable reader reading these materials would agree that this author states or suggests that homo marriage is likely to weaken institution of marriage.

Boies: Difference between stated and suggested?

DB: Stated would mean unequivocal assertion. Suggested would mean a serious concern or belief that ss marriage would be likely to weaken hetero marriage.

Boies: Let’s take them separately.

DB: Laughing I was afraid that’s where we were going! (Ha Ha)

[Tam did not bother me. He’s just an inflexible old guy. Blankenhorn is sanctimonious and dangerous because he is infinitely flexible, likes to play with words and that can hurt people.]

Boies: Stated?

DB: Number 3, Sinsky—opponent of ss marriage. I cannot speak with certainty

Boies: You understand that you cannot say that in this particular material that is cited here that she unmistakably communicates that ss marriage would undermine hetero marriage.

DB: I do not know if those exact words appear in the book Parity of the Sexes so we have to take her off the list. You are using an extremely narrow construction, which is your right.

Boies: You do understand that these are the works you listed?

DB: Of course!

[UPDATE] 9:45

Boies: Norval Glen trying to talk about substance of same sex marriage or the debate about ss marriage?

DB: I believe it is the latter.

Boies: So he’s concerned about the debate over same sex marriage will weaken marriage?

DB: I have not read this article in years, but this is more about the debate.

Boies: One of the thing he says is that legalizing same sex marriage would at most have a small effect on the percentage of fatherless children.

DB: Let me read it.

Boies: I understand, but do you see what I said?

DB: I do see it.

Boies: Take as much time as you like to review the context and let me know when you are ready.

DB: I’ve finished.

Boies: Do you agree that legalizing same sex marriage would have at most a small effect on the percentage of fatherless children.

DB: Do you want to know what he is saying?

Boies: I want to know what his words are, not what you think they are.

DB: That’s not what he means, but if you don’t want to know, that’s okay. (Pouting)

Boies: Do you agree with what he says here that there is no precedent for creating prohibition of family form.

DB: When I think of polygamy, and I’m no expert, it is prohibited because it is not a good form for children. Other forms that I’m not able to conjure now that have been prohibited, but I don’t remember.

Boies: You have said you are not an expert on polygamy, but do you know why it was prohibited in the US?

DB: I’m not an expert on polygamy.

Boies: Do you know any reasons?

DB: Not that I could state as a scholar.

Boies: You had said, The main rules of the game for the rules for marriage are three.

DB: You make it sound jocular.

Judge Walker: There is a question here, Mr. Blankenhorn.

DB: Do you wish me to stop my inquiry? I’ll stop if you want me to. I’m going for clarity.
[Blankenhorn is more interested in jousting and showing that he is smarter than he is in convincing the judge. The judge looks pretty disgusted at this point. Had Blankenhorn any credibility with any jurist, it is loss.]

DB: Yes! I was right! It came from an Nobel-prize winning economist! That’s why I footnoted it! (See, I told you so! I told you so!)

Boies: You have said that the rules of the game (of marriage) are three.

[UPDATE] 10:54

We are on break until 1050. I cannot adequately transcribe or describe what is going on. Mr. Blakenhorn is much more interested in winning small debating points than he is in being a good witness for his side, or for anyone. The judge admonished him gently by saying that his testimony will be weighed by his conduct as well as his expetise. He did not understand that. This is not good for them and it is good for us, but it’s bad for society to have a guy like this out there acting as a sanctimonious keeper of the truth on marriage. He wants to have it all ways; at end, he says he’d sacrifice the happiness and health of gay and lesbian families to maintain what sees as the essential institution of marriage.

Boies: Who are the principal scholars on whom you rely?

DB: Let me take a moment to make a note to myself as I collect my thoughts on that question.

[Walker stands up for a stretch, drapes arm over beige judge’s chair. Today is red tie with a sort of white polka dot pattern on a blue shirt.]

(Blankenhorn is left-handed, just FYI.)

DB: Would it be against procedure for me to consult a copy of my book to look at the index?

Boies: Putting on the record that you have not consulted your book and you don’t have a photographic memory, are there any writings or scholars on whom you rely?

DB: Malinowski and Fortis have influenced me deeply.

Boies: The three rules of the game….

DB: You keep saying that is my quote. It’s a Nobel-winning economist’s term.

Boies: No sir! I am not referring to the Nobel economist or anyone else. I am referring to what you said.

DB: The first is what you might call the rule of opposites, the customary man woman relationship.

Two, marriage is between two people.

Sexual relationship.

I want to clarify that these three rules do not constitute the definition of marriage. I am saying that these are the essential structures.

Boies: Okay, structures. Are you aware of structures in other societies that have not been limited to opposite sex?

DB: I am certainly aware of assertions in the popular society and in some scholarly literature that such examples exist. I have not studied this, but I have troubled myself to look at this. Of course, Massachusetts.

Boies: Spain and Iowa and Sweden…

DB: Certainly in the localities of the last months and years. That’s what brings us here today.

Boies: Let me ask you if you are aware of any that violate your rule of opposites prior to the last 50 years?

DB: Two or three or four hard cases that require explanation, there are no or almost no exceptions to this rule, that marriage is between a man and woman. For me to be on the safe side, there are no or almost no exceptions to this structural feature of marriage.

Boies: You say no or almost no.

DB: I’m trying to account for the two or three hard cases.

Boies: And you probably know I’m going to ask you about that.

DB: Yes. (ha ha). Form of question is different. There are cases that prefigure traditional marriage. Which question do you want me to answer?

Boies: Repeats question.

(Everyone laughs.)

DB: Mr. Boies, this is not a laughing matter. It’s very serious to me.

Judge Walker: Mr. Blankenhorn, Mr. Boies was not laughing at you. He was amused by the back and forth between you and many of us are.

DB: Okay. Let’s go!

Boies: Are there any that

DB: I can think of one instance in a human group that has been studied that some scholars believe and others disagree and it’s a hard case and there has been argument on both side, one case that is exception to this rule. I’m not saying no one else has asserted something. My view is that I know of one instance in a society in which there may have been, there…according to some scholars, may have been exception to this rule.

Society in Africa, it no longer happens this way, the men of this group lived in military barracks and the adult men would have sexual relationship with a young boy. Anthropologists translated this to marriage. The man would give gifts to the parents and the boy would be servant and sexual partner. The boy would outgrow this and then marry a woman. Period of time in warrior society, the males, as I say would like in a military type of barracks, the men would have a relationship with an adult child. Not viewed as deviant. Kinship groups accepted. Evan Richman (?) translated this as man-boy marriage, but said he uses word advisedly. Others talk about this in Ritualized Homosexuality, but it’s a phase of life that has marriage-like quality to it. Transitory and men go onto marry women.
This is a hard case. If we are searching out for an exception over time and space, this is most robust ethnographic example.
Boies: Anywhere else? Let’s pick ancient Greece.

DB: That was not marriage. Marriage-like relationships. Prominent anthropologist has found small society in Papua New Guinea where for period of time boys had sexual relationship with males. These people believe that a boy having a sexual activity with a man contribute to his virility and manliness. Runyon Kelly wrote about the Etoro Social Structure, although Kelly makes clear that this is not marriage. He understands that this has some mimicking quality of marriage for a period of time. Two or three years. He’s the finest scholar working in this field.

[His voice turns up, he’s so sanctifuckingmonious.]

Boies: Did you happen to run across Dr. Young in this case?

DB: Do I know her?

Boies: Expert in this case.

DB: All I know about her status as an expert is the thirty things you listed yesterday that I don’t have such as affiliation with university and so on.

Boies: What percentage of marriages over the last 300 years have been limited to two people, in your judgment?

DB: The way that I and many other scholars have looked at this, almost all marriage is limited to two people. If I may cut to the chase, I believe that perhaps…I’m sorry I thought you wanted me to pause. If you want me to cut to chase and talk about polygamy and polyamorie.

Boies: You are aware that there have been far more polygamous marriages than marriages of two people?

DB: 83% of societies permit polygamy. Very different issues as to how many marriages are polygamous. Still have marriages between two people.

Boies. Is it your judgment that prior to the last 100 years in China and India there were many polygamous marriages?

DB: Yes, but I need to answer with another statement.

Boies: Keep it short.

DB: In those societies, men would still marry one woman at a time. A rich man would then marry other women, but each woman is a separate marriage, so it’s still one man and one woman.

[This is unbelievable.]

Boies: Are you aware of any marriages that take place with one man and more than one woman at the same time?

DB: No.

Boies: Is it your testimony that the only instances where woman marries more than one man is when woman marries two brothers?

DB: I can’t answer yes or no.

Boies: I’m just asking you if that is your testimony?

DB: If you’d let me answer instead of arguing, we’d be done. I just need 15 seconds.

DBoies: Go! (Looks at watch)

(Everyone laughs)

(Thirty seconds later)

DB: How’d I do?

Boies: Not bad!

Boies: If you have a man who marries five wives…

DB: He marries them one at a time. If he marries one wife, he has one. If he marries two he has two.

Boies: And if he marries five and all of his wives live, he has five.

DB: Yes.

Boies: Is that consistent with your rule of two?

DB: Based on the studies of the finest anthropologists, this fits the rule of two.

Boies: But you are just a transmitter. You don’t do the work.

DB: I am not a transmitter! Stop putting words in my mouth!

Boies: (Puts transcript of depo in front of him.)

DB: Gotcha moment! You are right! I did say that seven months ago in a deposition! Gotcha moment!

Boies: Not trying to get you, just addressing that you said I put words in your mouth.

(Reads more of depo that says

Boies: The third is sex.

DB: That’s a good subject!

Boies: I don’t want to fall into the trap of making sex boring.

DB: Maybe we can do that together!

[The biggest laugh of the whole trial. Even the judge blushed. This guy is just too much. He thinks he’s performing; he does not do his cause any good at all. He makes our cause good, but he’s such a strange man.]

Boies. Are there any cases of marriage without sexual relations?

DB: You mean are there people who marry and don’t have intercourse?

Boies: I was not going to ask that, but since you did, let’s. That’s easy. The answer is yes?

DB: I was going to say no. Hypothetically possible that a prisoner could marry and not have sex because he is incarcerated. And maybe there are couples who do not like to have sex. It’s not a pattern (He yammers on and on.)

Boies: You are aware that there was Supreme Court case that allows prisoners to marry even though they cannot have sex?

DB: Don’t put words in my mouth! I am not aware.

Boies: I had thought you were aware of that court case that said it is not constitutional to deprive a prisoner of the right to marry.

DB: I’m not a constitutional scholar.

Boies: Reads depo that says that “law has changed a lot on this. There is now law that allows” prisoners to marry. Not court case. The law on this has changed in recent decades and now there is growing law that allows prisoners to marry without sex.

DB: I did not know about specific court case. (Whining and whining). I know there is tendency on the part of some courts to allow marriage.

Boies: You know such marriage is not hypothetical?

DB: never said it was hypothetical!

Boies: The record will show what it shows. I’m just asking you a question.

DB: I have never read any court document that specifically focused on this topic. If I ever have, I have forgotten it. I don’t think I have. I have had conversations with lawyers. I believe there is a tendency to allow prisoners more freedom to marry than heretofore allowed.
Boies: In your study of marriage have you come across cases of the Supreme Court that discuss marriage as a fundamental right?

DB: By come across, do you mean read?

Boies: Let’s start with that.

DB: To the best of my knowledge, no.

Boies: Has anyone summarized for you cases of the Supreme Court that discuss fundamental right to marry?

DB: I believe the answer is yes because if you or someone else asked me if it had happened, I would say yes. I’d be happy if it were true.

Boies: Has anyone talked to you or have you read that Supreme Court said that prisoners have a fundamental right to marry.

DB: To the best of my knowledge, no.

[UPDATE] 11:08

11:00AM:

Judge Walker: Shall we continue?

BO: Marriage Movement: A statement of Principles. Put out by Institute for American Values?

DB: Three orgs, but one was Inst.

BO: Did you read before trial and agree with it?

DB: Read it, but would have used different words if I had written it, but I agree with substance.

BO: Says marriage is in crisis?

DB: Not sure, but not surprised if it does.

BO: Shows that is says crisis and admits.

BO: Reasons given for marriage in crisis do not include homosexuality?

DB: 2000 document, but to best of my memory, does not mention homosexuality.

BO: Says marriage has at least six important dimensions. Do you agree with that?

DB: That marriage has six dimensions? Oh my goodness. (Sigh) Do you want me to day on word-by-word basis that I agree with everything in the following two paragraphs I’d have to re read it. I signed the document, but I’d have to reread it.

BO: Do you as a signatory of document that marriage has six important dimensions?

DB: Useful way to describe marriages dimensions.

BO: First is that marriage is a legal contract. Taking the current discussion of hetero and homo marriage, contract is same?

DB: Yes.

BO: Second important dimension is that marriage is a financial partnership.

DB: Same for hetero and homo.

BO: Sexual union, personal bond and commitment.

DB: All same.

BO: Sixth is family-making bond. Does this mean that the family-making bond only when two people or is this a way of establishing children?

DB: Pauses, and sighs. Could you repeat the question?

[UPDATE] 11:13

BO: Can both opposite and same sex raise children?

DB: yes. Important word there is “raise.”

BO: Yes. In that connection, let me ask you to turn to tab 9. Plaintiff’s 2898 Same Sex Marriage and Negative Externalities.

DB: Looking at article for the first time.

BO: Not familiar with either of the two authors?

DB: Sitting here right now, I don’t recall them.

BO: We ask that you take judicial notice of 2898.

Cooper: Makes a comment (inaudible up here).

Judge Walker: Fine.

BO: Objectives, Conclusions: The argument that ss marriage poses a negative externality on society cannot be rationally held. Many pols use rationale that ss marriage does pose a negative threat”

DB: Yes, I am aware of scholars that agree that ss marriage poses no threat as above. But many say the opposite and does not have to be tested because it is obvious on its face that marriage is between a man and a woman. They just know that.

BO: Have you looked at what associations of scholars have said about ss marriage?

DB: Not all ,but some.

[UPDATE] 11:18

BO: Do you know what American Psychoanalytic Association has said about same sex marriage?

DB: I am aware of what their lobbying organization says.

BO: Their lobbying organization?

DB: Their leaders, what their leadership says.

BO: Goes to what they say. APA in 1997 endorsed the following resolution, resolved that the state should not interfere with same gender couples who want to marry.

DB: Yes I was aware. I perfectly understand that many scholarly groups, the leadership, have endorsed same sex marriage as a policy matter.

[UPDATE] 11:24

BO: Asks him to indicate which articles in APA he’s read:

Bradford, Chan, Amato, Faulkner, Green I don’t know, Herek, House (no), Kirtzner (no) Glazer (I think), Kim (no I don’t think although I’m not sure), Meyer (no), Patterson, (I think so, I have read many of her articles), Peplow (?) (I don’ t think so), Williams (No).

BO: You did read Wake and Gallagher article and Patterson and pretty sure you read Peekolt/Glazer and Amato, Bloomstein and Schwartz.

DB: That’s the best answer I can give you right now.

BO: American Psychological Association?

DB: I know of endorsement. I have read excerpts, believe I read document when it came out in entirety but can’t say with absolute certainty.

BO: Have you read most of these?

DB: You mean more than 50%?

BO: Trying to figure out if faster to ask you ones you have or have not read?

DB: I think I have not read more than 51% of these documents.

BO: Which have you read?

DB: Most of these have not read. Some of these are duplicative of other list.

DB: Read: American Anthro Association. Estrich, Goodridge, I think Johnson. I think those few are it on this page.

BO: Both of Estrich articles that are here?

DB: No sir. Just his book. I’m sorry, it was a law review article. I’ve also read his books, but what’s listed here is article.

BO: You would have read four or perhaps five of the references here?

DB: I think that’s fair, yes sir.

[UPDATE] 11:34

The epic cross of Mr. Blankenhorn by the masterful David Boies continues.

DB: Badgett is someone whose articles I have read, but not sure of this particular article.

BO: Offer as evidence.

Cooper: No objection.

DB: I’ve read several of her articles and I appreciate the integrity of those articles. She’s obviously taken a position opposite of my own on almost every question, but she’s a good thinker.

Judge Walker: You got your answer.

BO: Amato article, move it in?

Judge Walker: Yes.

BO: This is an article in which Amato investigates how children in households with both bio parents differ with children from someone else.

DB: You are reading that from a summary.

BO: You’ve read the whole thing?

DB: Yes.

BO: Do you have current recollection of methodology?

DB: Well he used population survey to compare outcome differences comparing children of continuously married vs. others. Makes policy recommendation at end.

BO: Not asking you to summarize or give book report. Just want two questions. Compares children of bio vs. not.

DB: Not really.

BO: Let me read from very second paragraph of document. Amato begins by comparing children of bio in two parent with one parent.

DB: Well.

BO: Do you see that?

DB: Yes sir (defeated)

BO: He’s putting adoptive parents in same category as bio?

DB: Yes sir

[UPDATE] 11:35

BO: Have you stated that it’s important for unmarried women give their babies up for adoption to married couples?

DB: With respect to teenage girls, I may have been part of a study that made such a recommendation.

BO: May I have just a moment, Your Honor?

Judge Walker: Very well.

(Boies, Boutrous and Cooper conferring)

[UPDATE] 11:40

BO: Your Honor, we agree on documents to be admitted.

Cooper: With exception of one document by Mr. Prentice.

Judge Walker: Do you have a number?

BO: No.

Judge Walker: Very well, we’ll number it later.

[So this means we still may finish today!]

BO: Let me just ask you hopefully just two more quick areas. This is the review article you referred to previously published in Developmental and Behavioral Pediatrics?

DB: Lesbian Mothers, Gay Fathers and Their Children?

BO: Yes. Are you familiar with this document?

DB: I don’t believe so.

BO: There’s something here called an abstract. You are familiar with what an abstract is, are you not?

DB: Of course.

BO: Reads that children of ss no different in developmental outcome that hetero. Do you know of this study and such other studies?

DB: Yes.

BO: NO singularly accepted universal definition of marriage. Marriage constantly evolving.

DB: Yes sir. I wrote those words in my book.

Boies: No further questions, your honor.

[UPDATE] 11:43

Cooper: Should be relatively short.

Cooper: Gives him his entire book, which had already been admitted. You recall that Mr. Boies read from your book about ss marriage. Now I want to read from page three of your book.

From his book:

Many thinkers, perhaps most notably Isaiah Berlin, points out that most choices are between good and good rather than good and bad. Concept of goods in conflict is central to my thinking. One good is dignity of all persons. Other is child’s birthright to mother. These goods are at least partially in conflict. Point of this book.

[UPDATE] 11:47

Cooper: Recall colloquy with Mr. Boies in which you would choose customary marriage over same sex marriage although you would be anguished?

Cooper: Page 22 of your book
In case of same sex marriage, one priority is needs of ss couples. Needs for acceptance and respect. Other priority is need for as many children as possible grow up in bio family. To degree we can embrace both in harmony, want to do that.

Cooper: Can these be embraced in harmony?

DB: Yes.

Cooper: Is that domestic partnership?

DB: Yes. That’s my own conclusion.

Cooper: Did you talk of this yesterday about your journey on this that culminated in NYT article?

DB: Yes sir, in which you endorse domestic partnerships and same sex marriage?

Cooper: No further questions. Want to put that article into evidence.

Cooper: And so I have no further questions.

Judge Walker: Thank you Mr. B, you may step down, thank you for your testimony.

Judge Walker: Any more witnesses?

Cooper: No further witnesses.

[UPDATE] 11:55

Thompson: Proffer of documents including official campaign speeches of Protect Marriage. Plaintiffs have not objected.

Judge Walker: Very well.

Thompson: We now have a number for the document under seal we discussed before.

Judge Walker: And that’s admitted without objection?

BO: Yes.

Thompson: Have made counter designations of Mr. Tam’s testimony and depo?

BO: We’d like to review by end of week.

Thompson: No objection.

Judge Walker: Very well.

Thompson: Motions to compel are still in force and if those are enforced from campaigns we may want to admit other documents and call other witnesses.

Judge Walker: We have issued request for response from those three organizations and should have response by Friday.

BO: 2332A by Blankenhorn needs to be in record.

Judge Walker: Hearing no objection?

Cooper: No.

Judge Walker: Very well.

BO: Defendant’s 956 is in evidence, which is already in evidence.

Judge Walker: We’ll simply not that those are same book with two numbers.

Boutrous: Now have official copies of two docs from Library of Congress which was IRS letter of 1971 and letter to Matachine Society. We stipulated they were in Library of Congress.

Judge Walker: Very well.

Boutrous: We’d like to be able to review and supplement documents that we just got that are claimed under privilege.

Judge Walker: Okay.

Thompson: Another document number switch.

Judge Walker: do you intend to call any rebuttal witnesses?

Boutros. No.

Judge Walker: Some loose ends. One is notice to compel that plaintiffs seek. On the way.

Motion to withdraw by Dr. Tam.

Motion by Imperial County to intervene has been briefed .

Both remain to be ruled on by the court.

137 documents.

Boutrous: Do you recall those?

[UPDATE] 12:10

Well, its noon and it’s over. I just had a person from Gibson Dunn come up and thank me for the blog. That means a whole, whole lot. And nice young man from Australia.

Now, our work really begins. Now we have to spread the substance of this trial everywhere.

And sooner than later, we need to thank AFER, Chad Griffin, Bruce Cohen, Kristina Schacke, Yusef Robb, Amanda Crumley, Rob and Michelle Reiner, Ted Olson, Ted Boutrous, David Boies and all of the partners, associates, colleagues and staff of Boies and Gibson Dunn.

Hopefully, we’ll hear from them soon.

We fully expect and hope that the wonderful, brave plaintiffs will be out front more and more.

Thank you to Eden, Julia, Robert, Sarah, Andy and the entire Courage staff, as well as Brian, Paul, Caitlin, Jennifer, and Laura for blogging their excellent trial analysis posts.

And finally, thank you. Thank you to the community of Trial Trackers that has formed in the comment threads. All and each.

More soon! Stay tuned…

——–
Boutrous: We have documents. Will keep them and not submit them to court unless court wants them.

Judge Walker: We have enough.

Laughter

Boutrous: Court said relatively brief Amicus Briefs within seven days of presentation of evidence.

Cooper: we have no strident opposition to that, but think that court has enough to chew on, but we’d like to submit our own papers in response.

Judge Walker: Obviously. We’ll set a deadline for next Wednesday Feb. 3 to file applications for Amicus Briefs and either grant or deny as appropriate. Will set a fifteen-page limitation and will provide ample opportunity for response by parties. I will agree with Mr. Cooper that the record is abundant and I doubt that we’ll get much from these, but one never knows, so we’ll leave the door open.

Judge Walker: Here’s what I’d like. I’d like to take time to go over this material. I don’t think at this time it’s helpful to have post-trial briefs. You may very well find it useful to submit your proposed findings of law tied to evidence. You’ve already submitted your proposed findings of law. I realize that you do have a lot of material to go through. I’ll be guided by your suggestion for amount of time you need.

I’d like to review those and then set a date for closing argument. Then I’ll probably tee up some questions that have come to the fore to give you the opportunity to address in closing arguments. I would like to leave the date open now. But when the time comes, I’ll have the clerk call both parties with a range of dates so that you can work that out with your schedule.

How long?

Boutrous: 30 days would be fine with us.

Cooper: 30 days should be adequate, your honor.

Judge Walker: Why don’t we set February 26th. Alright February 26th and probably by that time I’ll have a much better idea of closing argument schedule.

Boutrous: On behalf of plaintiffs, want to thank court for making this easy.

Judge Walker: I want to extend my thanks to the lawyers for both sides for an extremely interesting, well-presented case. Obviously old hands, but I was struck by the expertise of the younger colleagues both in the courtroom and behind the scenes. The older hands should be very pleased. I’d just like to take a moment to congratulate you and tell you all personally (goes into courtroom to shake hands).

Can you believe we only have one day left of testimony? That’s a shame because watching David Boies cross-exam the defense’s witnesses sure has been entertaining. Our Trial Trackers can’t get enough of it. The stats and comments go through the roof any time Boies is grilling someone.

For those who like metrics as much as I do, we are now at 1.3 million views and over 13,000 comments. That’s more than a thousand comments a day.

Rick will be back tomorrow, which is likely to be a half day, since Boies just has to finish his cross examination of David Blankenhorn. Charles Cooper told Judge Walker today that they will not be calling Frank Schubert to the stand, so Miller and Blankenhorn will be their only witnesses. Then we will have a several week break before the closing arguments.

With that said, daily summary time…
——
DAILY SUMMARY

[UPDATE] 9:54

[Wherein Mr. Boies backs Prof. Kenneth Miller into a very small corner bounded by Prof. Miller’s own words and views.)

Sorry if some of this is not clear. I’m trying to get the quotes that Boies reads from Miller’s writings. When they read stuff, that’s hard sometimes. So I try to get the gist.]

B: Look at your Seattle Law Review article. At times … initiative process has provided convenient means by which to undermine minorities and bypass checks and balances. In CA steady stream has passed, nearly all of which have been challenged in court.

M: Yes.

B: Courts have long assumed the responsibility for defending the rights of minorities, especially when political process harms them.

M: Yes.

B: Conflict between initiatives targeted at minorities and courts strict scrutiny to protect minorities is normal. (Courts have long assumed the responsibility for protecting minorities…especially when the operation of those political processes ordinarily relied on to protect minorities..”)

M: My understanding of this quote…

B: You wrote this.

M: Quote from Justice Stone.

B: What is he saying?

M: He’s referring to the democratic processes, the legislative process.

B: Now let me ask you to look at tab 35, page 12. Accurate in 2001 to say that in California over the past four decades, approximately 2/3 of all voter initiatives have been challenged in court and half have been overturned in whole or in part?

M: Many of those did not involve minority rights, but correct.

B: You then go onto say that popular initiatives that go after minorities are sometimes challenged in courts. By contrast initiatives that protect the environment are rarely challenged in court.

M: Yes.

B: You wrote that courts’ strict scrutiny of minority rights means that many times initiatives that affect minority rights are frequently litigated.

M: Yes.

B: You ask, “What prevents initiatives from undermining individual rights? You answer, the Courts.” Would that still be your view?

M: I believe the courts still play a role in checking the initiative process.

B: If it’s a constitutional amendment, only courts can be check?

M: Unless it’s repealed, yes.

B: In exercising judicial review, must check…including individual rights, especially those of unpopular minorities. You wrote that. You agree?

M: I think there is a difference between protecting rights versus expanding rights, but I think that’s right.

B: At the time that prop. 8 was passed, in the months of July, august, did gays and lesbians have a right to marry?

M: There was an initiative pending…

B: Answer yes, no or you can say “I don’t know.” (Laughter).

M: Yes.

B: Simple question, in your view as pol sci did Brown v. Board protect a right or expand a right.

M: Protecting right guaranteed by 14th amendment.

B: So you believe Brown v. Board was not expanding, but protecting a right granted by 14th Amendment?

M: Yes, that’s my view.

[UPDATE] 10:17

B: Reads from another article. “Popular view that courts should be lenient in judicial review for initiatives is 180 degrees off. … “When courts review initiatives, need to be more vigilant, not less.” “Courts are the only institutional filter, the check of first and last resort” in imitative process. Courts project against “majoritarian” rule. Did you believe this when you wrote it?

M: It’s compound statement. Which part?

B: All of it. You wrote it!

M: I did not agree with all of it.

B: You don’t say here that you are exploring the issue. You don’t say maybe this is right and maybe you don’t know?

M: Maybe I should have written it differently. Maybe courts should look at initiatives in the same way as laws passed by legislature.

[Everyone laughed at this guy when he said he did not necessarily agree with all that he wrote at the time he wrote it.]

B: Once the initiative is passed, the only filter is the court.

M: Unless initiative allows for amendment or repeal.

B: Prop. 8 did not do that?

M: No.

B: At that time, you believed that “it is easier for violation of minority rights to emerge from unfiltered majoritarian” measures. You believed that at the time, yes?

M: Yes.

B: Plaintiff’s article, “Anatomy of a Backlash” written by you?

M: Conference paper, never published.

B: This is one of articles you testified about on direct, article you listed when qualified as expert?

M: Yes. Yes.

B: On page 10, you say, “once this majority gives its preference in initiative, neither state courts nor legislature can change it, only federal court can.”

B: You believed that when you wrote it?

M: Yes.

B: And you believe that today?

M: Depends on the state.

B: The state you wrote about and the state we have been talking about in this trial has been and is California.

M: Legislature can put on initiative on the ballot to repeal.

B: Return to the same majoritarian electorate?

M: I reject that. Different electorate in each election.

B: But there is still prejudice in the population and you don’t know how many voters were motivated by prejudice?

M: Correct. (But he says that prejudice is declining.)

B: Hate crimes. Were there other laws that were passed that demonstrate gay and lesbian power?

M: That’s the one I examined.

B: Laws that were passed that you used to demonstrate the political power of gays and lesbians?

M: That’s the only one I identified.

B: Only federal legislation you know of?

M: Only federal legislation I know of passed by congress.

B: All federal legislation is passed by congress! It’s the only one you know!

M: Yes.

B: Do you know the official name of the hate crimes bill?

M: Matthew Shepard Bill? (Sheepishly)

B: Matthew Shepard and James Byrd, Jr. Hate Crimes Bill. Do you know who Byrd was?

M: Someone killed…

B: AA.

M: Yes.

B: So AA community supported bill.

M: Part of the coalition, but AA hate crimes already illegal.

B: Better as a citizen of the US that this hate crimes bill passed? Better for all of us to protect people from hate crimes?

M: Yes.

B: Are you familiar with Meagan’s law?

M: Yes.

B: Provides punishment for people who perpetrate crimes against little girls.

M: Yes.

B: Do you think that passage of that law showed the political power of little girls?

M: No, those who care about them.

B: That’s my point, sir. We’re all better off having this law, just as society as a whole is better off with hate crimes bill.

M: Yes.

B: Looking at hate crimes stats in LA County. Do you have an opinion as to what minority is most subject to violent hate crimes?

M: I would guess gays and lesbians high as are racial minorities.

B: Have you investigated?

M: Not closely.

B: Adjusting for percentage of population, what segment most subject to hate crimes?

M: Have not done that work. Difficult to know percentage of population that is gay and lesbian.

B: Do you have opinion?

M: Not well formed.

B: Did you research that?

M: No. I relied on others. I estimate it’s 5%, but could go one-way or another.

B: Now look at hate crimes stats in California and LA County, exhibit 675, which is hate crimes in CA 2007.

Judge Walker: Asks where it is in book.

[UPDATE] 10:47

[Wherein Mr. Boies teaches us all how to conduct a cross-examination. He manages to get scripture and positions all admitted as evidence by cross-examining the witness, making clear that the witness has done virtually no research for this trial and is at cross purposes with himself. Recall how the Prop. 8 side clumsily just read stuff and tried to get entire books admitted. This is how it is done. And aside from the intellect, skill and style of Mr. Boies, he is making very, very clear points.

Hate crimes stats admitted as evidence, but now changing subject. My guess is we’ll get right back to it as Boies shows that LG are powerless.]

B: You described yesterday all of the powerful allies that gays and lesbians have.

M: Yes.

B: It passed.

M: Yes.

B: Reason it passed was religion?

M: I don’t know if I’d agree with that.

B: You showed report of religions that opposed Prop. 8?

M: Yes.

B: You did not show chart of those that support Prop.8?

M: No. Rebuttal report.

B: Do all churches here (CA Council of Churches) support same sex marriage?

M: Hard to say. They support same sex marriage.

B: Did you look at these one at a time to see which do and do not support same sex marriage?

M: The local ones do, but national or international may not.

B: Do you belong to organizations that have views that you do not share?

M: Yes.

B: The mere fact that these churches are members of CA Council of Churches does not mean that they support ss marriage?

M: Problem is definition of church. National may have different view.

B: Some do not support same sex marriage?

M: Yes, I agree with your statement.

B: You say that there are 1.5 mm members of the Council of Churches. How many are Catholic in the state?

M: Not sure, but I believe it is the largest denomination in the state.

B: Does it constitute 30% of the population?

M: A third of the 36 million CA population.

B: 12 million.

M: It’s difficult to estimate accurately the numbers of church members, but it’s safe to say that there are more Catholics than Council of Churches members.

B: What is your opinion of how many are Catholic? 30%?

M: About 30%.

B: Second?

M: About 20%, but not hierarchical like Catholics.

B: So taking your estimate of CA population, about 18 million?

M: Yes.

B: You know Catholic Church’s opinion on homosexuality?

M: Uh…

B: Catholic Church calls homosexuality a “serious depravement.”

M: I don’t know…

B: Let’s take a look. (Admits exhibit showing that Catholic Church calls homosexuality and serious depravement.)

M: Let me find the context of that.

B: Let me know when you find the context (muted laughter).

M: Sacred scripture says that Catholic Church says that homosexuality is a serious depravement.

B: Did you know that?

M: I knew church morally opposed.

B: Did you have any doubt that was position of Catholic church?

M: …

B: What is second largest church?

M: Evangelical.

B: That encompasses many churches.

B: Is it true that Southern Baptist church is second largest in CA?

M: Knew that is in US, but not sure about CA.

B: But you investigated that?

M: No.

B: Do you know that Southern Baptists say that homosexuality is shameful and an abomination against God? (Admits this as evidence.)

M: I did not know that language. I knew they were morally opposed.

B: Did you research any other religious groups?

M: Jewish faith. Mostly opposed Prop. 8.

B: Did you investigate what the view of Orthodox was?

M: As well as reform and conservative.

B: Orthodox oppose same sex marriage?

M: Yes.

B: View Orthodox is that homosexuality is a sin like adultery and shall be punished by death. (Admitted into evidence.)

(Confusion about exhibits so moves to Orthodox Churches).

B: Does Orthodox Church favor same sex marriage?

M: They are part of this coalition (California Council of Churches). I do not know if there is local church that supports, but think they must if they are part of CA Council.

B: You keep calling CA Council a coalition. Was it formed to pass same sex marriage?

M: Big part of their leg agenda last few years.

B: But CA Council does a lot of other things?

M: Yes, but I’m not aware of what.

B: Did you investigate that those churches supporting Prop. 8 provided far more money and people than those on the other side?

M: I did not have access to No side, but I made better assessment of yes side.

B: That would mean that you did have access to Yes side’s info?

M: I did have access to some papers, but can’t make comparative judgment.

B: Is this a document that you had access to? (Put in evidence.)

B: Second page, second paragraph that begins, “Grassroots signatures…” Email from Mr. Prentice?

M: Appears to be so.

B: Reads, “largest grassroots in CA history. 300 churches and thousands of pastors” supporting 8.

M: Yes.

B: Next exhibit. As you probably know the giving from LDS members is topping $6mm with no sign of slowing down. You may know that Mormons have been out walking neighborhoods with about 20,000 volunteers. Do you disagree?

M: No reason to disagree with that.

Judge Walker: “Takes massaging to get evangelicals involved, according to this” (Laughter)

B: They may not be so different from the rest of us. Can you say that contribution to yes greater by religious groups than those who opposed?

M: In looking at media reports…

B: Is it your opinion that larger contribution of money and resources by religious groups to yes than no?

W: Objection. Compound.

Judge Walker: (Looks on puzzled) Overruled.

M: My opinion is that religious groups put more resources into 8 than against.

B: Did they provide more institutional resources?

M: Depends upon how to define.

B: Your definition?

M: Depends upon campaign.

B: Well, let’s talk about Prop. 8 just to pick one out of the air.

[UPDATE] 11:07

David Boies is still thoroughly embarrassing Professor Kenneth Miller on cross-exam.

B: Reads a lot of what Miller wrote about religious involvement in Prop. 8, including that Mormons only 2% of CA population, Mormons came from outside US to provide personnel and financial resources.

M: Yes.

B: What part of the support was provided to the No on 8 side by religious organizations?

M: I have no idea because I have not seen that information.

B: You know that religion was a critical factor in passing Prop. 8?

M: I cannot say that. I know it was a critical factor for some voters.

B: You wrote that researchers confirm that religiosity was critical in determining voter attitudes toward Prop. 8.

M: A critical factor, along with party ID, age.

B: You never said that religiosity was critical matter for some voters.

M: I should have. Don’t believe it was critical for all.

B: Look back at earlier pages for context where you say that many observers were mystified at how California was at forefront on equal rights for gays and lesbians, supported Prop. 8 could voted for Prop. 8. This is part where you say that gays and lesbians have all that powerful support, but you then say that apparent contradiction can be explained by examining religious characteristics of California’s Democratic voters. That’s what you are saying?

M: Some…

B: You don’t say “some.”

M: Looks at book…

B: Dr. Miller?

B: You believe that then and you believe it now?

M: You did not say it was an important factor? You believed it when you wrote it. Have you changed your mind since you wrote it in 2009?

B: This was a critical factor.

M: no polling…

B: You came in here as an expert. What is your opinion as to the other critical factors, not just factors?

M: I believe that religiosity is a critical factor.

B: Yes. But what others are critical?

M: Did not list any others that are critical, but others are important.

B: I promised your counsel would be done by now. I am over my time. Will you just focus on my questions?

B: Is it your opinion that the opportunity to establish ss marriage because state’s Dem coalition divided along religious lines?

W: Witness has been cross-examined for about two and half hours. He said an hour ago he was tired. Can we have a ten-minute break?

Judge Walker: There’s something about pots and kettles when it comes to long cross examinations, but we’ll take a break until 10 minutes after the hour.

(HUGE laughter).

[This is very, very sad. It’s boring in a way, but not like what the goof balls on the Prop. 8 side tried to do in their cross. They never, ever could get a witness on our side in a contradiction or even question. So they resorted to reading in over and over and over again articles and sections of books just so they could have them in the record. This witness has been so bent by his own contradictions and lack of knowledge and expertise that he has no shape whatsoever. And this is THEIR expert!!

We right now have them acknowledging that religion played the key role. Stay tuned. This is vital stuff. Remember that never, ever in our history have we had this opportunity to air the vitriolic reasons that Prop. 8 was passed, that homosexuality has been condemned by institutions for decades and hundreds of years. So of course we are a suspect class and the courts are our only line of defense.]

[UPDATE] 10:36

Judge Walker: Mr. Boies, you may continue.

B: Admits exhibits.

Judge Walker: Yes.

B: One other housekeeping matter. Prof. Miller, you have the exhibit that is the list of materials you relied on?

M: Yes.

B: You circled the ones you were sure that you obtained by yourself.

M: Yes.

B: By my count, you circled about 23% of the exhibits that you provided?

M: I can’t say. Less than half.

M: Maybe I should explain the question marks if you want to know?

B: Go ahead.

M: Difficult for me to sort out those that I found about religious organizations versus those that counsel provided.

B: I do want to follow up what you just said. You are aware that Dr. Nathanson put in a report?

M: Yes.

B: If you received any Nathanson material you would have gotten from counsel?

M: Yes.

B: I would submit that about 180 of the items you put question marks by are on Nathanson’s list. You would agree that you got them from counsel? Not coincidence that you both have?

M: I got documents—some but not all—from counsel.

[Which is French for yes, he did not do his own work.]

B: Is it your opinion that the opportunity to establish gay and lesbian marriage in CA was lost in large part because the state’s Dem coalition divided along religious lines?

M: The sentence says “opportunity.”

B: I don’t care what sentence says. Do you agree?

M: In large part, yes.

B: The evidence indicates that many of states Blacks and Latinos cast Prop. 8 in religious terms so that they could vote for civil rights, for Obama and for 8 without contradiction. What evidence?

M: Exit polls that showed that blacks and Latinos voted for Prop. 8. Some but not all mobilization took place in churches.

B: As political scientist, do you believe that a religious majority should not be allowed to impose its views on a minority?

Thompson: Objection.

Judge Walker: Overruled.

B: From time to time in world history, religious majorities have been able to impose it religious principles on minority. Is that an undesirable way to organize society?

M: As a general principle, yes.

B: As a general principle that a religious majority should not be able to use law to impose its view on minority?

M: Might be some exceptions, but yes.

B: As you sit here now, can you think of a time when a religious majority used its power to impose its view and that was good?

M: Abolitionists.

B: Were abolitionist a majority?

M: I don’t know.

B: They were not.
Judge Walker: Counsel is attempting to understand the witness’s views. If the witness would answer the questions directly, there would not be a need for these other questions.

Thompson: But world history was start of question, and I never raised that in direct.

Judge Walker: This is cross-examination, Mr. Thompson. Objection overruled.

B: As a general rule, is imposition of majority view by majority religion good for society?

M: No.

Ms. Pachter from AG: What is basis for your opinion that role of AG could ameliorate majoritarianism?

M: AG provides title and summary. Less pure majoritarian than if proponents writing title and summary/

AG: Is it your understanding that AG can write anything other than neutral title and summary?

M: That was contested by both sides.

AG: Your understanding of the law in CA is that AG must provide neutral title and summary or can provide opinion?

M: Law says that AG must provide neutral, but within AG’s office there is some discretion and this is key.

AG: One of things that people can do is go to court to challenge AG’s title and summary

Judge Walker: Can AG do more than provide a neutral title and summary for the initiative?

M: Different in different in states?

Judge Walker: We’re talking about California. The question is can the AG do more?

M: AG can take public position.

Judge Walker: That’s not my question. You don’t know? Is that your answer?

M: Yes, I do not know.

T: Did you review all 427 documents in appendix?

M: I tried to.

Thompson (T): Please relay methodology of understanding progressive religious involvement in Prop. 8?

M: Did extensive reading. Pew website provides important information.

Thompson: You were asked about some studies you had done about four decades of ballot measures in CA and Colorado and another state. How successful were CA initiatives in 1970s that had the potential to tap into a strain of anti-minority sentiment against G and L?

M: Only one I know of is 6 and it was defeated.

T: 1980s?

M: Three anti-HIV/AIDS that were anti-homosexual and were defeated by voters.

T: Goes to document from Prof. Segura.

[UPDATE] 12:13

T: Moves into evidence document from Segura that shows the 74% of homosexuals not in favor of marriage.

T: What is the measure of warmth of CA toward gays and lesbians?

M: 2006 Field organization poll said that close to 2/3 of Californians held either positive or neutral view of gays and lesbians.

T: Do you recall you were shown documents by Catholic and Southern Baptists?

M: Yes.

T: First principle here: “God loves all people and we love all people regardless of their sexual” preference or whatever.

M: That is consistent with my understanding of evangelical religious view.

T: Put in 30-second ad.

B: Objects.

J: Put in by plaintiff. I’ll look at it and see if it’s relevant.

T: Tries to play but it does not work. (The audio indicates it’s the Courage Campaign ad about the Mormons.)

T: We’ll try again later on that one.

T: Can you explain the evolution of your thinking on the initiative process since the time you wrote the Santa Clara law review article?

M: Since two decades ago, I pursued Madisonian critique and articles were very clear on comparison of majoritarianism with courts as institutional check on pure democracy. That was my approach to this until 2001 or 2002. Then I took research leave shortly after Goodrich decision. Paper I wrote in 2005 started to shift my thinking on this. I have a more favorable view of this process having reviewed since beginning of last century. See it as a way to allow people to express their popular sovereignty.

TR also thought direct democracy could express intuitional check on courts that were too activist. This is basis for my book on direct democracy that diverges from Madison. He believed that democracy harmonized in legislature. My later views showed ways courts could pull power from people. Initiative system is way for people to protect selves from court.

Conversation yesterday about state DOMAs, 11 from citizen-initiatives, but rest and majority from legislatures, which harmonize with, direct democracy. Taking out of hands of people by courts is too strong for courts. I think of it as different from protection of minority by courts.

M: I decided a long time after thinking about this, that marriage is different. People should have input on definition of marriage. Not invidious discrimination. Okay for people to come to consensus on it and courts should not impose selves.

Finally, I looked at Prop. 22. I looked at homos as vulnerable minority for that in 2000 when they raised $4 million to fight it (and lost). Prop. 8 they raised over $40 million and had enormous coalition. I may have been wrong to say that homos were vulnerable minority in 2000.

T: Other than marriage, what has happened with initiatives and gays and lesbians?

M: One or two in 1990s, but hard to find any others that hurt homos.

T: You recall Estridge Amicus Brief in which he says that there is forced education but not okay?

T: Puts up that ad that says teaching kids about gay marriage will happen in CA.

T: What messages does that ad say?

B: Objection. Beyond the scope.

Judge Walker: Clearly beyond the scope.

T: I’m just reading from the Amicus Brief in which Estridge says central means of defeating Prop. 8 was teaching kids that gay marriage taught in school as good as hetero?

Judge Walker: Just stick to the Estridge document.

T: Wants to play ad again.

B: Object.

Judge Walker: I thought you were on the right track, Mr. Thompson, asking about the article, not the video.

T: Asks one more time about whether teaching same sex marriage in school is same as religion imposing views.

B: No.

T: Defendants rest.

Judge Walker: You say it is never appropriate for judiciary to intervene in initiative process?

M: no.

Judge Walker: When is it appropriate?

M: Only when it violates federal constitution.

Judge Walker: Who makes that determination?

M: This is the first time that it has gotten to federal court.

Judge Walker: You made an interesting comment. You said that it is sometimes appropriate for courts to intervene. When is that?

M: When there is a well-grounded constitutional principle violated by initiative. That’s my view. The Estridge-Kane brief deals with state constitution. Must be a well-rounded constitutional reason to check.

Judge Walker: So it is appropriate for judiciary to intervene?

M: Yes.

Judge Walker: We’ll break for luncheon. I’m going to hear a motion suppress at lunch which means that we probably won’t reconvene until 1:15 or thereabouts.

Note: Mr. Thompson said at the beginning of his cross, “this is the last binder for this trial, Your Honor.” To which the judge said, “That’s a relief.”

[So we’re winding toward a close of this phase of the trial. We might indeed finish up today. They have a maximum of two more witnesses, probably one. The next phase is for the judge to think and review everything and then to reconvene for closing argument. Then, he’ll issue his decision.]

[UPDATE] 2:06

[Looks like we won’t finish today. If the judge is indeed going out of town tomorrow, this will likely get held over until Monday. We’ll see.]

Dr. David Blankenhorn (DB) is sworn in.

Charles Cooper (CC) is examining him.

DB: Harvard in 1977 with degree in social studies. 1979 degree of history at University of Warwick. MA with distinction. John Knox fellowship as undergraduate study abroad at University of Warwick. Then spent two years in VISTA program, as community organizer in Boston and then continue my work as community organizer in Massachusetts and Virginia.

Our job as organizers was to advocate for reforms they thought were important. For me, seeing the weakened state of communities and families in those communities, particularly of children without fathers, motivated me.

In 1987, started Institute for American Values. Non-partisan think-tank focused on marriage and childhood well-being. I’m president.

Commission research, hold conferences. Our signature product is report to the nation where scholars work intensively for a period of time and then jointly release findings and recommendations. Main subjects, fatherhood, marriage, family structure, family well-being. In past years added other areas, but these are primary.

Annual report called state of our unions, which is report on the state of marriage. And then working on third periodic report on marriage.

Work with fifteen scholars to come up with principal social science findings on marriage. Have done two; now working on third.
Personally involved as principal writer or investigator or working with scholars to identify them and then with them in non-leadership role as they develop their conclusions.

CC: Have you authored any books?

DB: I authored a book called Fatherless America, a book about consequences of 35% of children living apart from their fathers. Then 2007, Future of Marriage that looks at marriage and how we might strengthen it in future.

CC: Describe research re: Fatherless America?

DB: Interviews with fathers in six different cities around the country and used transcripts. Looked at literature. Then held scholarly gatherings at which papers were commissioned and presented. Strengthened my work.

DB: Fair to say that book was widely and generally well reviewed: LAT, Washington Post, NYT, Newsweek, and CBS Evening News. Led to lots of public speaking at civic and community groups.

CC: Dr. Michael Lamb has testified in this case. Did he review your book?

DB: He disagreed about some of its findings, but gave it a respectful review.

CC: Demonstrative Number 1 which is among the things that Mr. Lamb said.

DB: This is among the nicer things he said.

Boise: Your honor, we have seen this before.

Judge Walker: It does ring a bell.

Thompson (T): Yes, it is in evidence.

CC: Witness’s book is in evidence, defense exhibit 103.

CC: Future of Marriage book, now.

DB: Talks about consequences and how society might strengthen the institution.

CC: Describe how you authored this.

DB: Spent concentrated time to learn literature about marriage as a cross-cultural institution. Spent time with scholars. Consulted my own accumulated body, having read, written and spoken about the issue over the past twenty years.

CC: Well reviewed?

DB: Not as widely reviewed as other, but got me invited to public speaking. I argued that we should not have same sex marriage. Got me invited to discussions with proponents of same sex marriage.

(Bad static)

CC: Prof. Dale Carpenter, Univ of Minn., probably best book yet written opposing same sex marriage.”

Francis Fukuyama says “enormously deepens the current debate on same sex marriage as a public institution designed to promote and foster procreation and the raising of children, an understanding not based on religious conviction but on observation of how our species has evolved over time.”

CC: Admit book into evidence.

CC: Other books?

DB: Black Fathers in Contemporary Society, 2003

The book of Marriage Equality USA Promises to keep: Decline and Renewal of Marriage in America (1996)

Rebuilding the Nest: A New Commitment to the American Family (1990)

50 references to my work in peer-reviewed articles and a number of reviews in academic journals (7 reviews).

Cited five times in Court Cases including by CA Supremes and Mass Supreme Judicial Court, both with respect to same sex marriage.

DB: Served on advisory panel for Bush I chaired by Ashcroft. Then served on panel that helped Gore do family conferences in Nashville while he was VP.

DB: I have delivered lectures quite often over the years on marriage, fatherhood, and family structure.

CC: Have you been invited to participate in debates or panel discussion on ss marriage?

DB: Have had opportunity to meet with leading proponents of same sex marriage, such as Evan Wolfson, Andrew Sullivan, Jonathon Rausch. We call them “conversations” now.

DB: Testified before congress.

CC: Tender Blankenhorn as expert on fatherhood, marriage and family structure.

Judge Walker: Voir Dire?

Boies: You got a master’s degree and that degree was in history?

DB: Comparative labor history.

Boies: Thesis?

DB: Comparative labor. Study of two cabinet maker unions that was peer-reviewed.

Boies: What is peer-reviewed?

DB: Competent persons who decide whether it should be published?

Boies: Other than on cabinet makers, have you ever had a peer-reviewed publication?

DB: Black Fathers co-published, was peer-reviewed.

Boies: Any others?

B: No. Except that at our own institution we have peer-review because we hold the process in such high regard.

Boies: Are you saying that there are more publications than two?

DB: I thought you were bracketing our organization. We’re looking at two publications only.

Boies: Those two peer-reviewed had nothing to do with same sex marriage?

DB: They did not.

Boies: You have never taught course at college or univ on marriage, fatherhood, family structure?

DB: Correct.

Boies: Do you understand that fields of anthropology, psychology, and psychiatry are important for this subject?

DB: No. You can go through list because I have told you what my degrees are.

Boies: Have you taught at college…

DB: any college or university has never employed me ever.

Boies: In the three cases in which you testified, were they about same sex marriage?

DB: No.

Boise: In preparation for your testimony did you do scientific study of ss marriage?

DB: Not for this preparation for this testimony.

Boies: I’m sure you’d like to answer questions that I’m not asking, but your counsel will allow you to do that. Your question is sliding over my words. Did your research include studying the effects of same sex marriage in any of the countries where same sex marriage is permitted?

DB: I don’t think I’m able to answer those questions if yes or no.

Boies: Answer my question, sir. Do you understand my question?

DB: No.

Boise: You are aware that there are jurisdictions that have permitted same sex marriage?

DB: I am so aware.

Boise: Have you attempted to study effects of same sex marriage in any of these jurisdictions?

DB: Yes, but I want to explain my definition of study.

Boies: I’d like to explore this in an orderly way. Which countries?

DB: Tried to pay some attention to effects of same sex marriage in Scandinavia and Massachusetts. But I have not conducted scientific study with data. I have talked to people and read about it. I did not come up with expert findings on those subjects.

Boies: Your honor, I object.

Judge Walker: Within the context of marriage, family structure and fatherhood?

Boies: Same sex marriage, which is context of this case.

CC: If you will let him testify you’ll see.

Judge Walker: I understand. I may let him do that. But do you have any other case?

CC: No.

Judge Walker: Recites Supreme and Appellate courts definitions of expert. Different for hard sciences that social sciences. If this were a jury trial, it might be a close call as to whether or not he may testify, but it’s a bench trial. As Mr. C said, I can weigh the testimony in the context of Mr. B’s level of expertise.

DB: Socially approved sexual relationship between a man and a woman. From broad consensus finding from scholars, including anthropologists, who have sought to expiate this in the modern era.

Marriage regulates legal relationship with children.

[UPDATE] 2:02

Boies objects to leading the witness. Judge says rather than just reading words and having him agree or disagree, ask him a question.
B: Claude Levi Strauss has said that across society, we have interest, in so far as we can make it so, the union of the man and woman who created child are also social and legal parents. Only one institution that brings together social, biological and legal. We think of it as the gift we give to children. You as a child are being given this gift of being able to know and known by the two people who brought you into the world.

This word “affiliation” –with whom child is affiliated—is cross-cultural reason for institution of marriage. Wonderful finding is that, as scholars who have looked it, gives child biological, social and legal parenthood. Fixes that because it’s so important for children. Marriage has evolved and changed over the years and across culture, but it’s for the children.
Marriage can look very different in different places and time. Always doing this thing, east, west, north and south, always doing this thing. For 1,000 years. It’s not just one thing among many. Because of its universality in piece of diversity, good evidence is that marriage addresses this thing.

This thing is need for child to be known by these two people. To make it as likely as possible that parents are social and biological.

[UPDATE] 2:22

DB: Reads quotes from books by people he says are scholars. They are admitted into evidence. These are from what he drew his expert opinion.

DB: Book from Dr. Kingsley Davis, eminent psychologist, who writes about marriage. “Granted that the unique trait of what is commonly called marriage is social approval. Approval of what? Intercourse between a man and a woman that produces offspring.”

DB: From 1951 book in Great Britain by what is widely accepted as most respected anthropologists in world. Field guide. These are concepts that are used by anthropologists in field. The family in this sense is based on marriage. Defined by union such that children are product of such offspring.

DB: Probably the most famous definition of marriage in history.

DB: Book called Human Family Systems by Pierre Vandenberg, 1979, anthropologist.

[They like old books.]

DB: (reads) “Here I shall argue that while all this is true, marriage is the socially sanctioned pair bond for the avowed social purpose of procreation.”

DB: Sex Culture and Myth published in 1962 by Malinowski. Widely and fairly viewed as father of kinship studies in anthropology.
We are thus led at all stages of our argument that the institution of marriage is dependence of children on parents.
I made a pretty close study of Malinowski because of his importance in the field.

DB: 1985 book View from Afar by Claude Levi Strauss , “one of the giants of the field” The family … of two individuals who have children relied on by every society.

CC: You relied on this (and all others above?)

DB: Yes.

CC: Are these the only studies you relied on?

DB: No. I’m not saying that everyone agrees with them, but I view these as representative of what people in the field say marriage is. Could multiply by ten and still get same message.

DB: My conclusion is that this is the correct view of society, that this is what marriage is.

CC: Is there an opposing view?

DB: Yes there is. There is a well-developed and relatively newer view that marriage is not this, that marriage is fundamentally a private, adult commitment.

DB: Reads from a report: Beyond Conjugality published by distinguished Canadian legal professionals in 2001 to make recommendations of marriage and family in Canada.

CC: Was this for same sex marriage?

DB: Not only, but one point it addresses.

CC: Turn to page Roman XVIII.

[UPDATE] 2:36

[This guy is really, really earnest. He reminds me of one of those southern ministers. He does not come off as an intellectual, which is useful for them. He’s the face of what they want out there. He’s smooth and likeable. He uses big words and term and then quickly defines them for all of the world. He’s what they have. And he’s not a Harvard professor or a slick lawyer. That’s what this is all about for them. They want this part of the PR machine out there. They want to say, ‘you know (wink), our whole lives we have all known that marriage is all about kids. This new gay thing is fine for them, but it’s just not marriage.’

This is our real challenge: we have to tell the stories that show that gay people are normal, that love is to be consecrated and celebrated, that kids are frequently NOT part of a biological family and often it’s better if they are not.

DB: “Marriage is sometimes referred to as an institution, but that’s an odd application of the term. The Department of Defense is an institution. But a marriage is a private arrangement for parties in love.”

Reads from Prof. Charles Estrich, the case for same sex marriage. “In today’s society the importance of marriage is relational and not procreational.” Has debated him before.

CC: Are there other sources that you relied on that show marriage as adult-centric?

DB: Yes sir. There are many, many others like this that are out there.

CC: Do you believe it is accurate?

DB: No sir, I do not believe it is accurate. I believe that the relationship between adults is a dimension but I do not believe that in the history of societies this has been the heart and core, that the thing itself can be encapsulated in this idea that marriage is a private affective commitment between two adults.

DB: The affected dimension of marriage in many societies is negligible. Many where most are arranged or governed by kin groups. Many societies in which affective dimension is not true. In our society, it’s one that is important and one we celebrate on Valentine’s day and so forth. That is not all marriage is.

What these analysts are saying is incorrect as a matter of our history and lives. That assertion they made as a question of what may happen in the future is one thing, but not accurate view of today’s society.

CC: What role does religion play in marriage?

DB: We know now that this concept is a universal or nearly universal in society. This is not something religion invented. It does not depend on rationale for religion. Evolution of marriage is natural. It concerns itself with natural not supernatural forces. Exists in mono and polytheism. Simply erroneous to imagine that this institution is an artifact of religion. Not controversial among scholars.

CC: You don’t disagree that marriage is sacred to many religions.

DB: Not at all. Religion is important to many and marriage is important. They believe that marriage is a promise to God or higher power, not just spouse. Marriage occurs in synagogue, church or mosque. Sometimes religious officials are agent of state in legally performing marriage. Many people draw from religion the inspiration to the calling of the marriage vocation. Interconnection or strong influence of religion on this dimension of life. Might call marriage in many societies a religiously informed institution. The thing itself, I’m trying to be very clear, this is not derived from religious doctrine. It’s not derived from anything supernatural. It derives from our bodies and does not conjure supernatural.

DB: I do not believe that anti same sex marriage is a symptom of homophobia. Homophobia is present in our society and many others around the world. I regret and deplore it and wish it to go away. I have sought to look at the evolution of marriage in societies as I have sought to understand how marriage became universal in its reach and impact and how those custodians of the institution have sought to state the reasons, goals of institutions, what the thing was trying to do and why it matters so much. I am not able to find any evidence that animus toward gay and lesbian people or hatefulness of homosexual persons is why they justified their participation in the marital institutions. I am not saying that no such evidence exists. If such evidence exists, I want to know it. I’m telling you I have looked for it and I cannot find it.

[UPDATE] 2:56

DB: Big speech about how it’s absolutely much better to have child with natural mother and father. Scholars are extremely emphatic that optimal outcome for children, whether it be living in poverty, abuse, neglect, –across the range of outcome measures, this family form of a two parent biological couple in a stable marriage is best outcome for child.

DB: Summary in the form of a research brief of research carried out by three scholars from Child Trends, non-partisan research center in DC, was published in I believe 2002. Called Marriage from a Child’s Perspective.

Research clearly demonstrates that family structure matters for children and that family structure that is best for children is bio mother and father in low-conflict marriage. Parental divorce linked to range of negative outcomes. Not good in single, cohabiting or extended family homes. Marriage is good for children.

I relied on these also in my research.

DB: Reads article excerpt by Sarah McLanahan. Children who grow up in household are worse off with one bio parent than with both regardless of whether married when child born, they have remarried, etc.

CC: Does customary definition benefit only the child?

DB: Certainly benefits child, but benefits mother, father, society. Mother because it means it’s less likely to raise on own. Father because it attaches to child. For society because seed bed for good citizens. Human capital question. Highest investment we can make is to give children the gift of growing up in family forum. Does not guarantee success, but has been very well documented by scholars as the best bet.

[By talking about the scholars, we are constantly reminded that he is not one.]

CC: Deinstitutionalization of marriage?

DB: First paper I ever wrote at institute. Institution is relatively stable pattern of rules and structures intended to meet basic social (communal) needs. Deinstitutionalization means it becomes more brittle. When you take away its rules and you weaken its structures, scholars say you see deinstitutionalization. You can see this with a baseball team or museum. People become less loyal to it. It loses esteem and thus is less capable of carrying out its role in society. This concept is key to study for any institution, but most importantly for scholars to look at with respect to marriage. There has been marked process of deinstitutionalization of marriage. Need to come to its aid.

CC: You just testified that institution of marriage has already been weakened. What are manifestations?

DB: Look out of wedlock childbirth, five decades ago to now , rate is 38% vs. what we had in 1960. Increase in divorce suggests a reduction in value of marriage. Assistive repro technology that disturbs bio bond and last but not least the the the spread of the idea and reality of same sex marriage in the view of, I think, leading scholars, is another aspect of manifestation of this trend of deinstitutionalization.

Heterosexuals did the deinstitutionalizing. (He laughs sort of). Did not just come up a few years ago when we started discussing ss marriage. Scholars are telling us that process of weakening will be accelerated significantly by same sex marriage.

[This is oxymoronic. He seems to be saying that the more people who want to marry, the better, but not if they are gay?]

DB: I believe same sex marriage will culminate the process of deinstitutionalization of marriage. If you change definition of marriage that has been child centered public institution to adult centered private instit

[UPDATE] 3:29

[Wherein at the end, the witness says “Discriminatory not to call two things that are the same by the same name.” This is not out of context. That’s what he said about same sex marriage vs. domestic partnerships. Read to the end. This guy is just too much. And boy can he talk!

I’m sorry to keep editorializing, but this guy has strong opinions and no data. He just knows what he knows, is apparently incapable of original research and just keeps repeating himself.]

DB: Dr. Norval Glenn who is prominent sociologist at Univ. of Texas in Austin 2004. Reads: However, acceptance of the arguments made by advocates of same sex marriage would lead to its logical end, i.e., that purpose of marriage is the couple rather than anything larger than the couple.

The scholars are on opposite side of policy side of whether we should adopt same sex marriage.

CC: Are there other scholars who talk about same sex as accelerating deinstitutionalization of marriage?

DB: Yes

CC: How confident are you that same sex will accelerate deinstitutionalization of marriage?

DB: Impossible to say. I do believe marriage will weaken through deinstitutionalization. No one can say with absolute certainty that this will happen. I sincerely, believe this is likely result of adopting same sex marriage.

CC: Getting close to end of examination. How will this manifest self in society?

CC: In what ways in your opinion will extending marriage to ss couples and therefore the deinstitutionalization of marriage manifest itself in society?

DB: I think a likely consequence is acceleration or devaluation of marriage, fragility, divorce, one-parent homes.

[Okay here it is. He says that if the gays can marry, more people will get divorced.]

DB: My fear and my conclusion is that this is a likely outcome.

DB: I have had some personal experience with this. Since 1995, I have spent more time than just about anyone else saying that child needs father. Ought to be non-controversial. Will go from mildly controversial to mean-spirited, offensive. If you cannot speak publicly about a value, hard for me to see how we can defend value. Simply being able to say that a child needs a mother and father, if that becomes just indefensible in any forum, a church, a school, a PTA meeting we lose something precious.

Boies: Objects.

Judge Walker: I’ll overrule . You said you are getting close to the end?

CC: Yes, your honor. How will same sex marriage hurt kids?

DB: When Canada passed same sex marriage, struck words, “natural parent” and replaced with “legal parent” which increases likelihood of children being raised in family forms other than her own two natural parents.

Also possibility, I there, could be the possibility of the public willingness to consider family forms such as polygamy. I think polygamous marriages are not in the interest of women or society. There’s already that in our society. The concept that marriage is between two people is already weakest attribute. It seems likely that over time that this aspect of the institution as well will come under criticism and call for reform.

CC: Why would redefining marriage as adult centric increase possibility of polygamy being accepted?

DB : Because man and woman reinforces idea of institution to two. If you knock out one of pillars, becomes less defensible.

DB: I support Civil Unions as possibly humane compromise between homos and marriage. I co-authored article in NYT with Jonathan Rausch who is scholar at Brookings who is proponent of same sex marriage.

DB: I really had not thought much about domestic partnerships until about two years ago. Rausch publicly challenged me and called me out on this. Said your thinking about DPs is uninvolved and immature. He challenged me to consider more carefully. I told him that I would and I did. It began a sort of journey with him and other leaders of pro-same sex marriage. That led to Rausch and I writing article endorsing civil unions and domestic partnerships in NYT.

CC: Why had you not thought about domestic partnerships until that time?

DB: Did not think I had to. Went into with idea that if you set up comparable institution to marriage and open to heteros as well, would set up smorgasbord of options for relationships. The people I was talking to were vociferous in denunciation of domestic partnerships. They thought was invidious, demeaning to same sex people. I accepted that view. Strongly influenced. I repeated that view as back of the bus, discriminatory and unfair. My concern about setting up dual institutions and the unfairness, the idea that it would be discriminatory without having written or thought much about.

Then in meeting with Rausch in 2007 and in next two years, I tried to think about it deeply and carefully with Rausch and others and that led to article I published with him last year.

CC: I take it that you no longer have views you had before?

DB: Still worry that domestic partnerships possibly could have weakening effect on marriage institution, but think we should do anyway because of other issues involved, but satisfied myself on issue of fairness. Is it unjust to have DP program. Core journey and exploration for me. My thinking now is that the core principle that we can hold out for our understanding is that marriage is larger than the sum of its legal incidence. When we say the word marriage, it’s a big institution that performs a very large contribution to society and much larger than its legal incidence. Marriage is not a creature of law. We look to law to recognize and support marriage, to give it support. Look at legal incidents of DP and legal incidents of marriage, comparable, but not same as marriage. Purpose of marriage is to bring together bio male and female, to bring together two genitors of child, to make it as likely as possible that they will be parents of child. That’s the lodestar. The DP is a differently purposed institution particularly with respect to marriage. This lodestar notion that animates the DP is different. Discriminatory not to call two things that are the same by the same name. I had to work that out with myself in the mirror. I’m not saying he’s responsible (Rausch) for my journey. I have worked that out to my satisfaction. Means a lot to me personally. I have been able to understand as advocate for customary marriage.

CC: Thank you.

Judge Walker: Ten minute break.

[UPDATE] 3:52

[Wherein the defendant’s witness says he’s for same sex marriage, seriously.]

Boies cross-examines.

Boies: Did you understand that the research shows that there is causal relationship between father/mother family and worse outcome to children?

DB: Yes.

Boies: Did you read the entire chapter?

DB: I read the whole book.

Boies: Do you remember the next page that says that single family homes are not cause of poor outcomes.

DB: Yes.

Boies: Are you saying that adoptive parents are worse than bio?

DB: No. (Insists on saying that because of screening often adoptive parents can be better parents than bio.)

Boies: Yes, I was going to get to that, but you have speeded things along.

(Puts up article from B’s institute. Did not expect to do this, but witness is more helpful than I thought.)

Boies: Offer exhibit 2880. When your Institute for American Values does it studies, it treats bio and adoptive together.

DB: I did not do this study, but I would not be surprised if we used them all together. We used customary practice that lumps them together. To see different outcomes, you’d have to study them separately.

Boies: Ordinarily, researchers include adoptive parents in studies with bio parents?

DB: No sir.

Boies: Ordinarily, do researchers …

DB: Depends on factors.

Boies: Let me jump right to bottom line.

DB: Good.

Boies. Are you aware of any study that shows that children of gays and lesbians have different worse outcomes than straight?

DB: No. May I add?

Boies: It is not okay for you to volunteer any information. You can give speeches when your counsel has you.

Boies: Have you given a lot of thought to DPs?

DB: Yes.

Boies: I asked you whether it was your view if DPs contribute to deinstitutionalize marriage? Yes, No. I don’t know.

DB: Yes, they could.

Boies: Let’s try to get your view regardless of what you said before.

DB: I believe it’s possible they could do so.

Boies: You say it’s possible. Anything is possible. Do you say it’s likely that they do so?

DB: I believe

Judge Walker: Counsel is entitled to an answer to his question. There’s a question and then an answer. That’s the way the process works.

Boies: Do you believe that DPs that are open to opposite sex couples are likely to speed deinstitutionalize of marriage.

DB: Yes.

Boies How about only open to same sex?

DB: Significantly less likely to do so.

Boies: Opposite sex couples over 62?

DB: Significantly less likely.

Boies. You know that same sex couples are raising children?

DB: Of course!

Boies: Hundreds of thousands?

DB: I don’t know.

Boies: Did you attempt to find out how many?

DB: Yes.

Boies: Approximately how many?

DB: I don’t know.

DB: I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

[UPDATE] 4:17

Boies: Reads DB’s quotes in which he says that America would be more just if it provides same sex marriage.

DB: I believed when I wrote them and I believe them now.

Boies: Do you recall scholars that you identified with Mr. Cooper?

DB: Yes.

Boies: Did any of the scholars that you identified with Mr. Cooper say that same sex marriage would reduce hetero marriage?

DB: May I say it back to you? I think I understand it.

Boise: Have any of scholars you have relied on asserted that allowing same sex marriage would lower rate of hetero marriage.

DB: Safest answer is I don’t know, but I believe the answer is that some of them have.

Boies: In that case, I’ll ask you which ones?

DB: I thought you might. That’s why I was careful walking into it. (Harrumphs.)

Boies: Comes from those discussions.

DB: Mr. Glenn talks about deinstitutionalization…

Boise: I need you to focus on the question. It’s a simple question.

DB: Not simple to me.

Judge Walker: Don’t argue with each other. Just ask a question and give an answer.

DB: I can answer the question.

Judge Walker: Than why don’t share your answer?

Boise asks question again.

DB: I believe that some of the scholars believe that permitting same sex marriage would lead to deinst of marriage. And goes on…

Judge Walker: Shall I take that as a “I don’t know?”

DB: With respect your honor, I do know the answer. I said it and I can repeat it.

Judge Walker: (Quite exasperated) The record is quite clear on what you said.

Boies: What scholars said that same sex marriage will lead to lower marriage rates?

DB: It will take me a few minutes to compose my memory.

Boies: Let’s be sure you know what is being asked. Which scholars that you have named with Cooper assert that deinstitutionalization of marriage will be hastened by same sex marriage and will lead to lower rates of hetero marriage.

DB: Professor Norval Glenn said that. He’s one of the most distinguished family scholars.

[Judge has completely stopped paying attention. This witness has ZERO credibility.]

DB: Prof. David Popenoe from Rutgers is another one.

DB: Popenoe says that same sex marriage will reduce hetero marriage rates. I can’t sit here right now that I cannot prove in exact word formulation what he said. If he were sitting here, I believe that’s what he would he say.

Boies: I am asking you to tell us what these people have written, not what you think they’d say if they were here, or what you believe they think. Do you understand the difference.

DB: Of course I do.

Boies: Answer my question.

DB: I am trying to the best of my ability. I came all the way from NY to be here to answer your questions to the best of my ability. I believe that Popenoe asserts that deinstitutionalization of marriage will lead to lower marriage rates, but I do not know if he mentioned same sex marriage.

Boies: While we were talking, I was looking at Professor Glenn’s paper. I don’t see that it mentions same sex marriage?

DB: It never occurred to me that everything I would say regarding my views had to be documented. I have studied this for twenty years. Maybe I made a mistake, but it never occurred to me that all of the views that I state had to tie to documents at end of book. If it did, this would have had many more scores of documents listed.

Boies: I do want to follow up on something you just said.

DB: No sir, (that article by Glenn) it’s listed.

Boies. At end of expert’s report, you placed a list sources on which you relied to form your opinion.

DB: Yes. That’s the list from which I was just reading.

Boies: Maybe the easiest way for me to approach this is to go through the articles that you went through with Mr. Cooper.

[UPDATE] 4:35

This witness is probably very clever. He is belligerent, but clever. I fear that even though he is worthless or worse for their side, he’ll be great to say that he was bullied or whatever. He was not. He’s just uncooperative and not an expert on anything discernable.]

Boies: Did Prof. Quayle write anything in here about same sex marriage?

David Blankenhorn (DB): No. I’m not aware of her ever having said anything about same sex marriage. That was written in 1988.

Boies: Deinstitutionalization?

DB: No. She’s a historian. That’s a term that comes from sociology.

Boies: Neither Davis, nor Quayle, or Fraser, nor Committee of Anthropology of Northern Ireland, nor prof. Vandenberg, nor prof. Malinowski talk about same sex marriage or deinstitutionalization of marriage?

DB: Not correct.

Boies. I was trying to speed things up, but it won’t work.

DB: I can speed things up.

Boies. Let’s do it my way.

Boies: Fraser, same sex or deinstitutionalization?

DB: No.

Boies: Quayle, same sex or deinstitutionalization?

DB: No

Boies: Davis?

DB: Either uses deinst or uses same argument. My best understanding is that he does use that term.

Boies. At end of that long speech, you said yes.

DB: Not long speech.

Boies: I get to ask the questions. I ask them in a precise way to get you to say yes, no or I don’t know.

DB: That was not a long speech. I can’t answer these yes or no. I do know the answers and I can’t answer when you ask that way.

Boies: (Finally gets him to answer “I don’t know.”) There. I knew I could do it!

Laughter!

Boies: Royal Institute discusses same sex or deinstitutionalization of marriage?

DB: Not same sex, but in substance discusses process of deinst.

Boies: Can you find that for me sir?

DB: If you get me the book, I can.

Boies: Vanderveer?

DB: I tried to make clear that I did not rely on them for same sex and deinstitutionalization. They are historians.

Boies: I’m trying to make the same point, that you tried to make, that you did not rely on any of the people in this notebook to arrive at your conclusions?

DB: That’s not correct. We already found that Prof. Davis dealt with deinst.

Boies: Where?

DB: I can’t find it here, but he does.

Boies: Malinowski?

DB: Not on same sex marriage.

DB: Deinst, in body of writing.

Boies: In those materials in your binder does Malinowski deal with subject of deinst of marriage?

DB: I don’t know.

Boies: Prof. Levi Straus?

DB: I can save time by saying that he does not deal with same sex marriage but I don’t know if he dealt with deinst. Quite confident that this is only article in my testimony.

[UPDATE] 4:42

[This is the last for today, but I may try to reflect tonight. The presentation phase of the trial ends tomorrow at noon. It’s kind of sad, but it’s way time.

The judge is very amiable, but pushing. He said, Mr. B, you can answer the questions and then Mr. Boies or your counsel can ask what you think.]

Judge Walker: Perhaps a good night’s sleep will help everyone here. Can we conclude by noon tomorrow?

Boies and Cooper confer.

Boies: Yes, I can sharpen my questions and perhaps the witness can sharpen his answers and we can work together to get that done.

Judge Walker: Mr. Cooper, will you call Mr. Schubert?

CC: I don’t believe that will be necessary. We can solve the evidentiary issues between us.

Judge Walker: Very well.

CC: Tomorrow at 8:30?

Judge Walker: Absolutely! See you tomorrow.

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.

——
DAILY SUMMARY

[UPDATE] 8:51

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!

[UPDATE] 8:59

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.

[UPDATE] 9:08

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.

[UPDATE] 9:37

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?

M: No.

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.

[UPDATE] 9:42

[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.

[UPDATE] 10:06

[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.

Shows video:

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.

[UPDATE] 10:23

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
LDS
Catholics
Orthodox Jews

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.

M: Hearsay.
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)

M: Object.

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.

[UPDATE] 10:36

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.

J: In.

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?

M: No.

B: You wrote about political power of gays and lesbians.

M: Yes.

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?

M: Yes.

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: Yes.

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.

M: Yes.

B: But you did not know about them when you wrote your report?

M: Yes.

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…

B: Object…

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.

[UPDATE] 12:19

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)

[UPDATE] 1:23

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?

[UPDATE] 1:40

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?

M: None.

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.]

[UPDATE] 1:55

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?

[Good question!]

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.

T: Pelosi?

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.

(Everyone laughs)

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.

[UPDATE] 2:10

[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?

M: Correct?

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.)

[UPDATE] 2:16

[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?”

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.]

[UPDATE] 2:41

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.

[UPDATE] 3:03

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?

M: Yes.

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?

M: Yes.

B: Since you are an expert, you are aware that there is a history of discrimination against the lesbian and gay community?

M: Yes.

B: And you are aware that that continued into the 1970s in the era in which you began to study LGBT history?

M: Yes.

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?

M: Yes.

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.

[UPDATE] 3:10

B: Any examples of discrimination against gays and lesbians in modern period?

M: Military.

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?

M: Yes.

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!]

[UPDATE] 3:22

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?

M: Yes.

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?

M: No.

B: Do you know who R. Bradley Sears is?

M: No.

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?

M: No.

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

[UPDATE] 3:35

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.

B: California?

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?

M: Yes.

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?

M: Yes.

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!

(Laughter)

[This guy either has the best anti-perspirant on the planet or he is one big wet mess under that jacket.]

[UPDATE]

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.

M: Yes.

Judge Walker: Break until ten minutes before the hour.

[UPDATE] 3:57

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?

M: Yes.

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.

[UPDATE] 4:15

[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.

[UPDATE] 4:22

[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.

M: Yes.

B: And every state that has bar on same sex marriage was submitted to a popular vote?

M: Yes.

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?

M: Yes.

B: Amicus Brief by Professors Estridge and Kane. Let me ask you in this connection to look at page 7.

[UPDATE] 4:37

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?

M: Yes.

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.

I just got off the phone with Rick. He sounds like he is really looking forward to the weekend. I’d be lying if I said that I wasn’t as well. I’m sure your refresh buttons are as well. Even though it was a short week, it was action packed.

Today’s proceedings were a bit tedious, at least in the afternoon, as Nielson repeatedly attempted to get Professor Herek to say that gay and lesbians can change their sexual orientation. Dr. Herek hung tough and Nielson is lucky he didn’t totally tick off Judge Walker with his repetitive questioning.

Rick will be back liveblogging on Monday morning and we will have fresh content throughout the weekend, including a few guest posts from some new voices. Personally, I am looking forward to a post from my friend and coworker Caitlin who just proposed to her fiance Jen last weekend. They will be talking about this case and the difficulty in deciding where to get married, and have it be legal.

If you have appreciated all of the writing on this site, please consider making a donation to support the Courage Campaign Institute. We rely on thousands of small donors to fight for LGBT equality and a more progressive California and can’t do it without your support.

Help spread the word and keep your friends up to date on the trial: Click here to share the Courage Campaign’s Prop 8 Trial Tracker on Facebook!

And without further ado, here is your daily summary.

———–
DAILY SUMMARY:

Judge: Next witness?

Boutrous: What is timing of the closing arguments?

Judge: I think given the volume of evidence we should have the closing argument sometime in the future, probably in the distant future. That way I can read and review the evidence, tease out questions in the closing. Does anybody have a problem with that?
(No.)

B: Wants to enter into evidence some documents.

[UPDATE] 9:13

Cooper: We have done our counter depositions and are ready to enter those counter designations.

Boies: We are going through them now. I know we will object that some are outside of any expertise the witnesses have, but we’ll be ready to submit those this afternoon.

Judge: I gather you are not going to call them?

Cooper: We’ll respond by plaintiff’s calling our experts as his or her own witnesses.

Judge: That has been done before and can be done again.

B: Call Dr. Gregory Hererk (H). Examination to be conducted by Mr. Dettner (D).

H: Ph.D. in 1983 in social psychology and then at Yale as post-doctorate. Attitudes of Heteros toward Lesbians and Gay Men. Also attitudes toward HIV, which was a major issue then. Stayed at Yale as post-doc for two years. Asked to stay to teach for another year. Then went to teach at NYU—Interpersonal Psychology.

Associate Research Psychologist at UC Davis. All research. No teaching. 1999, full tenured professor. Teach “Sexual Orientation and Prejudice” and graduate course in conducting survey methodology and undergrad course as well as seminars in sexual orientation and prejudice.

(Herek is on numerous boards of journals and has published over 100 papers.)

H: I intend to offer an opinion on the nature of sexual orientation and how it is viewed by psychology and psychiatry today, the effect of intervention therapy and how stigma relates to Prop. 8

D: For the sake of efficiency, I have run these by Prop. 8 and they have no objection to the admission of these documents.

Prop. 8: Agrees.

Judge: Thank you for the cooperation.

H: Sexual orientation is a term we use to describe intense sexual attraction to men by men and to women by women and pattern of identification and behavior. (Three different aspects.)

H: In public health research, the focus is on STDs, so it’s defined in operational terms according to sexual behavior. In other contexts, would focus on identity because we look at discrimination.

D: Do ordinary people have an understanding of their sexual orientation (SO)?

H: We don’t use that term. We typically ask if people are hetero or gay, lesbian, bisexual.
Judge: By ordinary people you mean non-professionals?

H: Yes.

H: S.O. defined relationally. Whether talking behavior, attraction or identity, we talk about needs people have and forms of attachment.

H: Attachment is a core part of human behavior.

H: Am Psychiatric and Psychological and other major mental health organizations have all gone on record as saying homo is normal, not pathological.

H: No inherent relationship between SO and ability to contribute to society and lead a happy and fulfilled life.

D: What about in the past? Was there a different view?

H: 1952, Diagnostic and Statistical Manual of Mental Disorders (DSM) by Am Psychiatric Association included homosexuality in it. By 1973, Am Psych Assoc removed and then Psychological Association followed.

H: Looks at 1952 DSM to see homosexuality as a mental disorder. Then looks at policy statement that shows Am Psycho Assoc resolution passed in 1975 to endorse changed policy of Psych association. Pushes mental healthcare officials to lead in ending stigma.
Judge: What led to the change?

H: That’s a long story.

Judge: Well, we’re here for a while.

H: Prior to 1950s, no science, almost all hearsay. Then there was research and change in society that led to change. All culminated in change in 1973 when board of Psychi Asso voted to remove from DSM based on empirical studies.

Judge: You are saying that 1952 DSM was not based on empiricism, but the 1973 one is based on empirical data. Is that a fair statement?

H: Society had realized that homosexuality is not longer bad, but also there had been empirical work.

D: Do people choose their sexual orientation?

H: I did research that shows that vast majority of gay men and lesbians and bisexuals as well say that they experienced very little choice.

D: Reparative therapy?

H: Refers to intervention to change someone from being homo to hetero.

D: Have those types of those therapies been proven effective?

H: First, define “effective.” Does it consistently produce change and does so without producing harm to the person involved. With those definitions, no, reparative therapy has not been found effective.

H: These therapies have been around for a long time. The APA has considered them a number of times. Most recently was convened in 2008 or 2009, produced report in 2009. Evaluate their effectiveness, safety and whether or not they should be used.

H: Task force did thorough review of literature. First, not many high quality studies that showed effectiveness. When they did look at those, there was very little effectiveness and potentially harm.

Enduring change to a person’s sexual orientation is uncommon. The participants in this body of research continued to experience same sex attraction follow SOCE AND DI NOT REPORT significant change to their-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decrease same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare. …” Unlikely to reduce same-sex sexual attraction.

Also found many anecdotal reports that showed harm. Some in studies showed that individuals feeling harmed

Exhibit from APA after 2009 study:

Be it further resolved that the AM Psych Assoc reaffirms its position that homosexuality per se is not a mental disorder and opposes portrayal of sexual minority youths and adults of mentally ill due to their sexual orientation;

Further resolved that the APA concludes that there is insufficient evidence to support the use of psychological intervention to change SO.”

[UPDATE] 9:26

[Discussion that says that the bar for harm in any efficacy study is lower than for “cure,” because the first order is do no harm. These therapies do harm people.]

“Despite the general consensus of major medical, health, and mental health profession that both heterosexuality and homosexuality are normal expressions of human sexuality, efforts to change SO through therapy have been adopted through some political and religious organizations and aggressively promoted to the public. However, such efforts have serious potential to harm young people because they present ht e3view that the SO of lgb youth is a mental illness or disorder and they often frame the inability to change one’s sexual orientation as a personal moral failure.

H: LG can marry in California, but only to opposite sex.

D: Has that happened?

H: Yes. Sometimes they marry before they realize they were gay or lesbians. In other cases, may have known, but married because of intense social pressure or by marrying they would change, become hetero as a result, help them not to be gay anymore.

[I tried this. DO NOT DO THIS AT HOME. I became suicidal.]

H: If people do marry and one is g or l and other spouse did not know, likely to create conflict and problems for children, friends and family. Ripple effect.

D: In CA lesbians and gays can enter into domestic partnership (DP).

H: Yes, significantly the same rights as marriage.

D: Just a word, then?

H: No, not just a word. Public opinion data show that large proportion of public is willing to extend DP or civil unions, but not marriage. So in the minds of most Americans there is a difference between those words. Also, when g and l could get married in CA, thousands did. Fact that we are here today shows there is strong emotion and feeling about difference between marriage and DP.

D: Does marriage lead to stability of relationships?

H: Yes. Researchers look at reasons people stay together. They are brought together for many reasons. They love their partner, like being together. When people are married, there are legal and social barriers to dissolution. Family and community hoping that couple will stay together. Many barriers to dissolution. Relationships are more likely to be permanent when deal with rewards; barriers may keep people together when going through a rough patch. They may better get through that rough patch if married.

D: Do DPs create those same barriers?

H: We lack a great deal of empirical data, but I would say no.

H: In 2004, CA legislature enacted laws that increased responsibilities of DP. In 2004, CA Sec State mailed letter to all DPs saying that you should consider whether you want to change your DP due to changes in law. I find it difficult to imagine that if there were changes in tax laws that would affect married couples the state would send letter saying you might want to consider divorce before they go into effect. Way that marriage and DP are different.

[UPDATE] 9:38

H: Shows study that shows huge spike in dissolution of DPs before new law went into effect. Shows that people think more highly of their marriages than DPs through separate discussion.

H: Stigmatized people have less power than other individuals. Structural stigma is contrast to individual manifestations of stigma. Individuals may be ostracized, but structural may be codified in the law.

H: Gay men and lesbians are stigmatized based on great amount research. Great amount survey data that shows that Americans feel disgusted by gay men. FBI and state of CA track hate crimes against LGB. National survey found that 1/5 of homos had experienced violence in lifetime. Slightly lower had experienced some form of discrimination in employment. Children in schools feel negative pressure if perceived as l or g. Two men walking down the street holding hands feel pressure.

H: Within broader social context, structural stigma provides permission to denigrate or attack stigmatized members of society. In some research when researchers want to ascertain reactions based on images, have sometimes used photos of same sex couples. Get substantially more negative reactions to photos of homosexual couples than heterosexual.

H: By definition, Prop. 8 is part of structural stigma.

D: Going back to some of your earlier testimony that shows people do not choose SO. Can I ask a couple of follow ups?

H: This is a paper that I published in 2009 with two colleagues in journal. As part of the study that is described in this paper, we asked about 2,200 people in Sacramento area how much choice they have in hetero vs. homo. For purposes of study referred to as essentialist beliefs. 87% of g said no choice or little, l, 79%. 88% of gay men said they had no choice at all. L said about 66% no choice by about 16% little choice.

[UPDATE] 9:40

D: Any studies asking heteros?

H: Not that I know of. Hypothesize that heteros would have similar response rate.

D: (Puts up statement from Helen Zia in this trial.) We for a brief moment in time we experienced a feeling of what equality is, what instead of having to go to the fountain that is just for gay and lesbian people, here we could go to the fountain that formerly said heteros only. And we tasted the water that was sweeter there. And our families experienced that.”

H: Some people define stigma as unwanted difference. That’s what Zia seemed to feel, the lifting of that difference.

D: No further questions.

(Mr. Nielson to cross-examine.)

[UPDATE] 9:55

N: Want to get to your definition of sexual orientation. Most define by attraction, identity, action or combination of those.

H: Yes. Also refers to patterns of behavior and identity as well as enduring patterns of affections.

N: Something that has some consistency over time, but how long is not specified.

H: General understanding that not fleeting, something that constitutes a significant period of a person’s life.

[So would they ask this about heteros who marry? Is there a definition for how long they are mutually attracted before they can get married?]

N: There may be a distinction between social and personal identity?

H: Social is based on a collective view. Personal is based on specific relationship.

N: Possible that someone does not feel part of larger collectivity.

H: Some people can people feel a sense of their identity alone and not part of lgb group.

N: Some might want to be not part of collective.

H: Yes.

N: You used term gay to define homos?

H: I frequently use gay, but sometimes use lesbian to make explicit that I include both sexes. Some women choose not to be labeled gay, prefer lesbian.

N: Person can be gay, but not be part of gay community.

H: Yes.

N: Could be that a person’s social ID is very much tied to being gay, but could be that it is not?

H: Some do, some don’t.

N: Although it’s often discussed in three categories, but it’s on a scale.

H: This is a way to think about sexual orientation that goes back to Alfred Kinsey that shows continuum, but we usually refer to three different groups.

N: Do you believe that sexual orientation is on a continuum?

H: Can be very useful way to think about sexual orientation.

N: Reads from binder of Dr. H’s depo that repeats above.

H: Correct.

N: SO is generally a characteristic that is not readily identifiable by looking at them.

H: Unless they wear a button or something, yes that’s generally true.

N: PX 0918

H: Entry I wrote for Psych Encyclopedia for definition of homosexuality.

N: Homo

N: These are your definitions of homosexuality: Sexual attraction, desire, identity, home environment (?), and communities.

H: Yes.

N: Such labels—homo, bi, hetero—represent oversimplification?

H: Can yes.

N: Homosexuality can be seen as counterpart to hetero.

H: Yes, but I we do see instances that people have attraction but don’t act on it.

N: Not all people display consistency in sexual behavior?

H: Correct.

H: Porcini Encyclopedia of Behavior definition I wrote.

N: (Reads)

N: Not all people with homo attractions do not engage in sexual acts and do not ID as gay?

H: Yes.

N: Many men have sex with other men but never label themselves as homo or bi.

H: This is phenomenon that has been observed.

[UPDATE] 10:23

Dr. Gregory Herek (H): IF we go back in time, we see that these ideas of homo/hetero emerged in 19th century medical discourse. May have been in some writing before, but that’s when we first find in medical discourse.

[Mr. Nielson, the lawyer for the defense, who is conducting this cross-examination has a monotonous, flat voice. His orange hair, white shirt, red tie and blue suit make him stand out physically, but he’s very soft-spoken.]

N: Indeed two leading researchers in this area estimated that only half of those who have same sex sexual ID as lesbian, gay or bi.

H: Can be limitations in defining all who are not hetero because not all have broad personal or social ID but still occasionally have sex with same sex.

N: The world in which today’s youth come to understand their sexual orientation is vastly different than before.

H: World is vastly different today in many ways.

H: Among youth we see embracing of the word queer and they use that as label of description and yet that was an epithet. Youth self ID as queer, so gay, l and bi may not be fully applicable.

H: Chapter from book I co-edited in 1990s, research of l and g in military entitled “Why Tell if You Are not Asked.”

N: You write, “Although hetero and homo behaviors alike have been common throughout human history, the way cultures have dealt with governing them have varied widely.”

H: Yes.

N: “In US today, popularly understand as two types of people, homo and hetero.”

H: But sentence began with “For at least a century today and in Europe…”

N: This classification system differs from other possible ways of defining sexuality because it focuses on the individual…”

H: Yes.

N: Creates two ideal types.

H: Again I would say that there has been an expansion in the last few decades that includes bisexuality.

N: Hetero, homo, bi trichotomy creates three types?

H: I’m careful about using ideal type because it’s a sort of category.

H: By saying ideal type, not saying what we should strive for, but clean, clear distinction and that’s what’s meant by ideal type.

N: Defining oneself as gay or lesbian and more recently queer, provides entry into social communities?

H: Yes.

N: I have a copy of the book here. Do I have to show it?

Judge: Let’s let the witness make that decision.

H: I would like to see the book.

Judge: Do you have a copy?

N: No.

N: Are you familiar with this book?

H: Never seen before.

N: Edited by Badgett. Do you know her?

H: Yes, I do.

N: Chapter about economics and beyond.

H: Familiar with Badgett, but never read this article before.

Judge: Why don’t you ask a question?

N: We’ve identified the books and have designated articles, but have not wanted to copy entire books for copyright reasons, true of both sides.

Judge: Why don’t we try a question…(impatient).

N: Reads from book. Do you agree that homosexuality covers several potentially distinct dimensions.

H: Certainly a difference in behavior and attraction, so yes.

N: One approach that I have used with social survey data involves relative lifetime frequency of same sex partners. If had same or more ss as hetero partners since 18, lgb.

H: She is trying to draw conclusions from national surveys. She found that almost 90% were consistently hetero and 1-2% consistently homo. Some in between. I believe what she is doing is trying to develop rationale based on lack of data.

N: Do you agree with rationale?

H: I have not read it.

N: Do you agree that if person had as many same sex as hetero partners since 18, they are lgb?

H: We have to make assumptions and we have to explain assumptions so other scientists can see what we have done. Prof. Badgett had to report lgb as someone who had at least as much sexual contact with same sex as with hetero. Not ideal type, but she has spelled it out. We will evaluate data based on her explanation.

H: In area of studies of sexual orientation, she is well regarded, but as a non-economist I cannot attest to how she is viewed by economists.

N: Want to move whole book in.

Judge: Whole book? (nods head quizzically)

(Back and forth because N is confused. Keeps interrupting Judge. We’ll admit three pages and reserve on chapter and book.)

[UPDATE] 10:48

N: Reads from another part of another book by Badgett and shows that H was acknowledged in her book. (N wants to make the point that there are multiple definitions of homosexuality. Obviously, he wants to make clear that if there is ss marriage, we’ll not have a good definition of homos. On the other hand, heteros have been getting married for years but without definition; hence, some homos marry heteros and it does not go so well.)

H: Everyone is influenced by economic trends.

H: I’m not sure what she (Badgett) means by “heated theoretical debate” over definition of sexuality. Without having the context of having read this book recently, I cannot comment on that sentence and know exactly what she meant by it.

N: Your honor, we have confirmation that opposing counsel was given the whole book?

Judge: Nods head (as in why are you telling me that).

H: I cannot comment on that observation unless I have read the book.

N: The sexual orientation definition has provoked a heated theoretical debate. Do you agree?

H: I don’t know context of what she is talking about. If you can explain to me the writers on each side and what they are commenting on, perhaps I can comment on it.

(Laughter)

N: Alright, thank you.

N: Reads from Badgett: Do you agree that someone who has had as many same sex as opposite sex partners is not strictly hetero?

H: Probably depend upon number of partners in each group. If a person reports having had one of each in whole life, could be difficult to determine because we don’t know when they had those relationships. Could have had one or other a long time ago and don’t know length of time of each. Can’t know without looking at data set.

N: Leaving aside data set, do you agree that as many same sex as hetero partners mean they are not hetero?

H: You can’t leave aside data set. You have to see the context.

N: Of people who have had one or more same ssex partners, 49% are hetero. 59.8% identify as homo if they have had equal or more same sex partners than homo partners, but only 15% as hetero.

H: This is her way of breaking out data.

N: Does her way of breaking out data affect of definition of homo?

H: No. 90% hetero. Another core group consistently ID as l or g. Badgett is looking at group in the middle to try to get to some way of dealing with data.

N: Sexual orientation is not an observable characteristic as sex or ethnicity.

H: Typically cannot tell by looking at person if homo, but may not always be able to tell race or ethnicity, either.

N: I want to admit whole book.

(Plaintiff objects)

Judge: I’ll admit these pages. When might we take a break?

N: The questions about sexual orientation go to our theory of the case so I’ll keep questioning the witness.

Judge: That’s fine, but when might it be a good time to take break?

N: I’d be happy to do that whenever the court wishes.

Judge: Very well, then. Why don’t we do it now?

[Nielson for Prop. 8 is trying to show that there is no consistent definition of homosexuality and that people’s orientation changes throughout their lives. I presume that they will then try to show that we cannot have same-sex marriage because we cannot define it and it will force people into categories that are not appropriate. What does not make sense here is that there is no definition of heterosexual marriage by Nielson’s logic. People marry in that institution because they can. Given the option, we know that lots of homosexuals will marry; they already have. Is he going to show that there will be lots of legal problems over time with this? Does he want to prove that “gay” is not real, that by opening up all institutions to gays and lesbians, we’ll get more gay people because then people can “choose?” He does not understand we do not choose to be gay or lesbian or bisexual. Why would we?

And let’s keep in mind that it does no good to attack religion. In fact, as Courage’s research shows, that’s counterproductive. As we saw with Dr. Tam yesterday and from Gerry Shih’s excellent NYT story this morning about the Christian Chinese community, they believe what they believe. We do not advance our cause by attacking them. ]

[UPDATE] 11:27

We’re back.

[Back and forth about admitting entire book. Nielson wants to. Our side does not, saying that they had a chance to cross-examine Badgett when she was here. There’s a lack of foundation. Judge Walker asks Nielson why he wants to admit entire book? Finally, the judge says that he’ll admit the excerpts.]

Judge: What does “operational” mean for lay people?

Dr. Gregory Herek (H): One might have a textbook sense of “socio-economic status,” but you cannot ask in a survey “what is your socio-economic status?” because people won’t understand that. So you ask “what was your income last year?” for example and that becomes the operational definition.

Judge: So it’s a proxy for the theoretical definition?

H: Yes. We are almost always going to miss something in the operational definition.

Nielson (defense lawyer conducting the cross): Asks about article by Prof. Meyer and if you are familiar with him.

H: Yes, I am familiar with him.

N: Reads from Meyer’s article in which Meyer says only 15% of women and 24% of men fit all three categories that H has used.

H: Core group that self-identifies as gay or l or bi. But there was a group that has same sex desire as self-expressed. That is largest group that is not hetero. Then there were others who said they had engaged in same sex behavior.

N: Do you agree with these numbers?

H: Well, I don’t remember the numbers specifically as from my work, but I am willing to accept these numbers.

H: I’m not sure what Meyer means by “identity labels vary.” We certainly have seen differences in how ethnic or racial groups self-describe. Category of bisexual men as self-described much more likely to include Hispanic and non-Hispanic black men than women.

N: Reads that 42% of all men who have had ss sex never had it again after age 18.

H: Whenever you ask about time periods. If you specify a longer period of time, you’ll get higher response rate. If you ask someone if they have done something in the past year you get a difference response than if you ask if they have done that in the past twenty years.

N: Reads out title of another article, Lesbian Gay Bisexual … By Prof. Meyer, Dean.

[Think about this. The Prop. 8 lawyers and witnesses have to SAY over and over again, things like “same-sex sex,” gay, lesbian, bisexual, homosexual. They have to say it. By saying it over and over again, the friction around those words disappears. This trial is having the effect of making this talk normal.]

N: Do you agree that the degree of one’s self definition of sexuality varies greatly?

H: Yes, I’d agree.

N: Lesbian, gay, bisexual identity is complex and variable?

H: We have been discussing that it’s complex. As to variable, since definitions only available since 19th century, they have changed.

N: Do you agree that throughout history and cultures definitions of sexual orientation shift and change?

H: I would say those definitions have changed (because it is relatively new to medical science).

H: Term homosexual started to appear in medical literature started to appear in the late 19th century and heterosexual appeared shortly thereafter. Gay and lesbian appeared in popular culture in the 1960s and has become widely used.

N: Do you agree that there is still no widespread agreement on the meaning of the terms gay, lesbian, bisexual.

H: Well, let’s look at the rest of the paragraph. This is about the way in which studies define the terms: attraction, behavior and identity. I would not phrase it as no consensus, but depending upon research need, you would define it in one of those ways.

N: Do you believe that the statement that there is no widespread consensus is a reasonable statement?

H: If we are saying that the three definitions collectively define LGB. Different researchers use for different research. There is not broad consensus that there is no one definition used in all research.

N: Asks if it’s an unreasonable statement to say there is no one definition?

H: I must admit I am confused by your question. If they are talking about studies that use one of the three dimensions, then I don’t agree (that it’s unreasonable). If you are saying they are saying, which I think they are not, that one of these dimensions of sexuality is the definition, that is unreasonable.

N: Reads Meyer’s study that shows that 1-4% are homo.

H: Yes. Keep in mind that a number of people would say they find same-sex sex attractive, but do not identify as homo.

[UPDATE] 11:43

[This is slow going. Nielson is trying to create a pattern in science that there is no basis for a stable definition of homosexuality.]

N: Introduces article by Dr. Peplau who was plaintiff’s witness.

Judge: Do you have some questions about this article? This does not compose the same problem as does whole books.

N: Old and new Paradigms for Comparing Men’s and Women’s sexual orientation. Label on bottom is old perspective: sexual ID form discreet categories. New perspective: sexual ID and attraction can be varied, complex.

H: What Peplau is pointing out, just as used to be gender non-conforming and a medical problem, there are individuals whose sexual behaviors and identity don’t match up perfectly.

N: She writes, More broadly, sexual orientation are not fixed, but are highly variable.”

H: She is writing about history. If she is saying that contemporary women’s experiences cannot be generalized to all people over all time. Same with men.

N: In contemporary society, woman’s identity as hetero or lesbian or bisexual for various reasons. Her labeling herself as one or the other, does not mean that’s who they are.

H: People arrive at their adult sexual orientation through different pathways. There may be a variety of different experiences and maybe even biological effects that bring someone to their SO. There are different pathways to SO.

N: Do you agree that knowing that a woman IDs self as hetero, homo or bi, does not necessarily inform us of her current erotic thoughts and behaviors?

H: Most people who ID with hetero or homo or bi does not mean that everyone ids that way. Some people have attractions to opposite sex sometimes and same sex sometimes, but small minority.

H: Sexual Orientation in Women by Peplau et al.

N: Are you familiar with this article?

H: I believe so, but I can’t tell if it’s from book, article or journal. Can you?

N: I think the answer is yes. (Laughter).

H: A person’s attractions and identities sometimes do not match identity label. Sometimes there are individuals whose identity label does not match their behavior.

N: Do you believe that there is no inherent link between behavior and label?

H: I don’t know what “inherent link” means.

H: If you are a betting person and someone tells you they are hetero, very likely they are. But it is the case that some heteros have some same sex attraction. Cannot say that all heteros have exclusively opposite sex attraction nor that all homos have same sex attraction.

Judge: Admits as evidence.

[UPDATE] 12:17

H: If you pick it and you say it is not ambiguous, then you have an unambiguous definition. If you say you are going to measure homo and hetero in American population, what these researchers did was then to define those terms. Ambiguous if you just use words, “homosexuality” or “heterosexuality.”

N: Do you think there is a single definition of homosexuality?

H: Homo can be understood to be an ongoing attraction or SS sex, or ID.

N: Sounds like three definitions.

H: What they show in this report is that for most who ID as homo or bi, these three definitions coincide.

N: Puts up Venn diagram for women. Tries to show that no clear definition of homosexuality.

H: (This is very complicated. Hard to read exactly what data mean. H has to explain it carefully so that N does not to leap to conclusions.)

N: Now, turn to diagram for men.

H: 34 men for whom desire, behavior and identity coincide. If you accept the researcher’s own writing you can see that all of the men who ID as homo had desire, identity or behavior. 9 had desire and behavior but not identity. The 3 that identified as gay but did not have same sex sex made an error in filling out form according to researchers.

N: Do you disagree that this analysis demonstrates a high degree of variability in our society?

H: You have to take this with what I’ve already said. There is a core group that identifies as homo and exhibits all three behaviors, there are others that fall into different groups.

N: Do you agree that homosexuality has multidimensional phenomenon?

H: That’s what I’ve been saying for the past few hours.

(Laughter)

H: Title page of 1948 Kinsey book.

N: You relied on this document to form your opinions in this case?

H: At least on some of it. It’s a very massive document.

N: (Reads from Kinsey study) Males do not represent two distinct populations of homo and hetero. Not everything is sheep or goats. Not everything is black and white. The world is a continuum and the sooner we learn this in human behavior the sooner we’ll understand human sexuality.

Record also shows that considerable percentage of population that has had homo and hetero experience and psychic attraction. …
H: I would qualify that Kinsey is speaking here about his sample. We now know it could not be assumed that his sample applies to general population. If you do, you will see that 50% of American men have had homo sex or attraction. We can’t use his percentages for general population, but his research is good.

N: Puts up Kinsey graph that is 0-6 along the bottom that reflects degree of homo and hetero (H had to correct him to get that definition.)

Reads out numbers:
0=Exclusively hetero with no homo.
3=Equally hetero and homo
6=Exclusively homo

H: Kinsey was never out to measure sexual orientation. This scale has been used to measure attraction and behavior but not identity. Those are two of the three definitions.

N: Puts up study from 1970s by Scheiber (?). Shows two continua of affectional and then physical homo. “The bipolar view of homo as strictly physical and that hetero at expense of homo and homo at expense of hetero” is not correct.

N: By putting together the graphs of homo sex and homo affection, ranging from not at all to very on both. Correct?

H: This is from time that people were looking at masculinity and femininity scales. Presumed that if you were high on masc, no fem and vice versa. But found later that’s not true. Some are high on masc and feminine which was later labeled androgynous. Applied to homosexuality, but looking at physical affectional preferences, but not at behavior or the way they self identify.

[UPDATE] 12:31

K: Reads statement of paper that has Klein’s sexual orientation grid.

H: Not unreasonable for 1985, but since then we have learned a lot more.

K: Puts up list of Klein’s Sexual attraction, behavior, sexual fantasies, emotional behavior, social preference, self-identification… total of seven.

K: Another scale of 1-7 other sex only to same sex only.

K: Another scale 1-7 hetero only to gay only.

H: Turns out this is too burdensome because you are asking people to fill out grid with 21 variables. When you boil it all down, it comes to those three we’ve talked about all morning.

H: Those studies have shown that there is one core-underlying dimension here. Not that Klein was misrepresenting data. Just that when someone puts down data, subject to empirical review. Might be useful to apply Klein grid, but it’s too burdensome. You get to same point by asking three questions about identity, behavior and attraction.

Judge: Let’s break and come back at 1:20.

[This is really tedious. Prop. 8 is trying so hard to show that there is no one good definition of homosexuality. Then, they will state that you can’t have same-sex marriage because you can’t define it. Prof. Herek is more than holding his own. He keeps making the point that there is a core group of homosexuals and bisexuals and then there are others that have some of the three pieces of the definition. What we have not yet seen, because we cannot know, is how many people who do not identify as gay would identify as gay if there were no social stigma. And that too is what Prop. 8 wants to prevent. They want to prevent people from feeling okay to identify as gay. In short, while they love to talk about the 1st amendment when convenient (and it’s not convenient when it comes to parody), they do not want people to have the right to live their lives openly and unfettered, without stigma.)]

[UPDATE] 1:41

Judge: Says to Boutrous <B), “So if the defendants finish their cross 90 minutes before 4:00PM, you’ll finish your case today?”

B: Yes.

Nielson (N): That’s a target, but unrealistic.

Judge: We have something to shoot for and can be optimistic.

N: Another article.

K: Given measurement problems, one could seriously doubt that sexual orientation is a serious concept at all. Do you think that is unreasonable?

Dr. Gregory Herek (H): Well, I think they are raising that (hard to hear due to static) as philosophical way of discussing various positions.

H: Philosophical debate. SO is a real construct. It’s something they feel and believe themselves. I realize they (article’s writers) were doing this in a summary fashion. Nuanced social constructionist’s view. When social constructionist talk about sexual orientation, they refer to the construction of these concepts at the social level in the same way we have race, ethnicity and class. Those are social constructions. But to say that there is no such thing as class, race, ethnicity or SO is not right. They are not saying that that is the way individuals see things, but that individuals see things through social construction.

H: Most social constructionists would say that social structure builds on raw materials. Social constructionists would say race is entire construction, but it is built on physical attributes. Does not mean that individual does not experience their sexual orientation as a certain thing and that it will just change tomorrow.

[So can you imaging waking up and saying, “oh, I think I’ll be straight today.” Or, “Oh I think today is gay”? This gives “gay days” at Disneyland a whole new meaning.]

[UPDATE] 1:48

H: Title page from Handbook of Applied Developmental Science, V. 1.

H: Chapter 5 by Lisa Diamond and Rich Savin Williams (?) are both developmental psychologists held in good regard.

K: There is currently no scientific evidence…that defines people as gay, lesbian or hetero. …

H: Note that this is part of a handbook and it seems to deal with young people. Here it mentions a 15-year-old boy who has fantasized about boys since 11. For adolescents, it’s difficult to define orientation for those people.

K: No consensus on definitions.

H: Consensus means unanimity. No unanimity on anything like this.

K: Few individuals form individuals report uniform intercorellations across their attractions, behaviors and desires.

H: Inter correlations cannot occur with one person. Have to be with more than one. Not accurate.

K: Do you believe it is an unreasonable statement?

H: Not unreasonable if you don’t have data, but we do have data.

K: Do you think this is outside of the mainstream?

H: I would be hesitant to judge work of my colleagues by looking at one or two statements out of context.

[K keeps asking about “reasonableness.” They are going to try to show at a higher court, I’m guessing, that the plaintiffs have not met a threshold of reasonableness.]

K: Concept of sexual orientation not as straightforward as every day conversation would imply. Complex dimensionality and fluidity.

H: She starts off by saying, “ As suggested in the introduction” lays out examples in which there were inconsistencies in behavior and self-identity, that’s reasonable.

[UPDATE] 2:10

This all refers to another article in which K is trying to show that homo is mutable.]

H: It’s at least possible for some heteros to have homo response and vice versa. When we look at Lowen study, we would say that many people say that they don’t experience attraction to people of their own sex. I’m not sure what is meant here by homo and hetero response.

H: He’s using the general construct of homosexuality and heterosexuality as conceived along a continuum, which means there is no sharp line by definition.

H: Lesbian Health by Andrea Solarz. I’m familiar with it. I may have read portions of it. It was released about ten years ago and I may have read portions then.

K: In introduction, second p around middle, “Lesbians do not constitute a homogenous, identifiable population for research study.” Do you agree with that statement?

H: (reading context to himself) I think that their point is that the lesbian population is not a homogeneous population. Say that some women identify with lesbian women’s’ community. Some do not. Age, economics, etc. mean that they do not constitute a homogeneous population.

K: Identifiable?

H: I believe that they are saying that not all women will identify in a survey due to stigma or it may mean that they don’t fit all three categories in definition that we have discussed all day.

H: Views vary across different groups, institutions and traditions. That’s how you could have different views of what it means to be a lesbian.

K: “In general, sexual orientation is behavioral and cognitive. Women may exhibit different degrees of same sex behavior, identity along a continuum.”

H: They are referring to Lowen again, those Venn diagrams. There are groups that are consistent in their identity and some that are not. They are trying to be as inclusive as possible.”

H: For a researcher designing a study about lesbian health must use information at hand. If you are studying sexual diseases, want sexual behavior. If identity, want to study those factors.

H: The actual percentages cannot be generalized to general population. Also makes sense that they are saying high percentage of women have heterosexual sex because of society and how they are treated, forced to have hetero sex.

K: There are cultures in which engaging in homo behavior is not seen as being labeled homosexual?

H: I agree with that.

[K keeps cherry picking sentences. H keeps pushing him to see the rest of the text that makes clear that these various definitions in which K is so convinced show that there is no such thing as gay or lesbian refer to scientific studies. So you have to define race or sexual orientation specifically for a specific study. As one of the witnesses said last week, Jamaican adults may not identify as African American, but once their kids grow up here, they are AA. What are they? It depends on the study.]

H: It can be argued that gay and lesbian describe identity. It goes beyond identity. Homosexual is also a descriptive term. And it’s primarily rooted in the mid-twentieth century.

K: Bisexual experience is common with gays and lesbians. Study of Denmark, Holland, US shows that large percentage of self-identified homosexual men had hetero experiences.

H: This is from 1970s. Not a good sample. A sample of convenience rather than representative sample. Growing up with expectations that they boy will marry girl and girl will marry boy, not uncommon for homos to say that at one point in their life they did experience heterosexual intercourse, but not who they are now.

[UPDATE] 2:28

K: Some women are more fluid in their sexuality.

H: More women change than men in the course of their lives.

K: Your studies showed that virtually no men and very few women found changes I their sexual identity?

H: Yes. (Here’s how we obtained sample.) Survey organization that allows for very large group to take internet survey. One of questions, are you lesbian, gay or bisexual? If they had answered yes to one, they were considered eligible for one of my studies. In that study, there was an initial series of screening questions that asked about their orientation. We gave them five categories. For men, which of follow best described: gay only attracted to men; bisexual mainly to men; bisexual to women; straight, mainly women, or straight only to women.

K: You relied on self-reporting?

H: Yes.

K: These studies did not go to question of whether their SO had changed?

H: No.

K: If you are trying to do study that predicts future behavior, hard to do?

H: As I said, if I were betting person, I would bet that self-description indicates long term behavior, but not always (again, this deals with fully formed adults).

K: (Reads out deposition of H) We certainly know that people report that they have changed their SO at some point in their life. We don’t know why, exactly why that happened in every case. People do not always have knowledge of mental process.

H: True. When you look at people’s prejudices and biases, they cannot tell you what’s going on, but they do have those prejudices and biases.

K: So you do agree that people don’t always have possession of their mental processes?

H: I do.

[UPDATE] 2:35

[All from Steer court testimony]

Nielson (defense attorney conducting cross) (N): Are you aware that Ms. Steer was previously married to a man?

Dr. Gregory Herek (H): Yes.

N: “When I married Matthew, I loved him.” Does that surprise you?

H: I had no expectations about it, so it does not surprise me.

N: “When I met Matthew, I was attracted to him.”

H: Same reply.

N: “When I married Matthew in 1987 I wanted to have a meaningful marriage…”

H: Same reply.

N: Have you always had a sexual attraction to women? Does that surprise you?

H: That’s what I’ve been saying all morning. People are raised to think they are supposed to be hetero. You
are defining Ms. Steer’s time period of sexuality for entire life. We refer to durable as for a period of time, not entire life.

[Now moving on from Steer’s testimony.]

N: (Back to H’s deposition). Some portion of gays and lesbians report having been married earlier in life. Is that consistent with Miss Steer’s testimony?

H: Yes, it is consistent with what Miss Steer reports.

H: Now looking at Gates, Badgett, Hope study from UCLA Williams Center.

N: Figure that shows a number of people who were previously married and are now gay. Just like plaintiff Perry. Not unusual?

H: No.

[Judge is at that highlighting again. He bends right over his book and marks the passages when they are pointed out. He’s also getting or has a cold.]

N: Reads extensively from Steer’s testimony that she had to have enough experience so that I could “adopt the sexual orientation for myself.”

H: What she’s describing here is that she experienced these attractions as an enduring pattern. Once she saw that enduring pattern, she gave that enduring pattern a name.

H: A New Look at Sexual Orientation (for women), published in CSW Update by Garnett and (?).

N: “The fluidity of women’s sexuality and sexual orientation.” Scholars from many disciplines have noted that women’s’ sexual behavior is subject to fluidity and change…”

H: There is more evidence that women are more susceptible to environmental influences on their sexuality.

H: Women do develop their sexuality over a lifetime. We believe that people develop over a lifetime, not just sexually.

H: Reads in another study on women’s sexual orientation. Do not know article, but know Peplau, who has a very solid reputation.

N: “Although some may think of sexual orientation as being set early in life and not changing, growing evidence that a woman’s sexuality can change over life….

H: Consistent with what I’ve been saying.

[I admit that I drifted over and read some comments on the blog. This is deeply, deeply repetitive. N wants to get into the record everything he can to show that there is no such thing a homosexuality, that it is a choice, just like changing your dress or shirt (you decide which you want to change). Herek is patient. He just keeps repeating over and over that we’ve discussed all of this. “It is possible and it may vary.”]

[UPDATE] 3:15

H: We do have these retrospective accounts. As I said in my deposition, some people remain celibate for various reasons, so they may not act on their self-identification.

H: In this study (over ten years of women), she recruited women who called themselves bisexual, lesbian or hetero. She says that the patterns of sexual attraction by women remains fairly static. Most of movement was between groups who moved from bisexual to unlabeled. Very few if any who adopted label changed from lesbian to hetero. This is about labeling, not about attraction. In other words, the change took place from labeling not, attraction.

K: Puts up another friggin’ study. [By now, he must know more about homosexuality than any other straight man (is he?) than anyone in the Prop. 8 camp. Too bad Dr. Tam did not review this before he concluded that this all leads to incest and pedophilia.] “The instability was most pronounced by women…” but not exclusively.

H: I’m not familiar with this study, but earlier study. I was concerned about study because only nine males and eleven (?) females who ided as gay, lesbian or bisexual. I would not be surprised to see changes in how people view their sexuality in adolescence through early 20s.”

[UPDATE] 3:25

[Okay, kids. We have new evidence. We’re relying on a letter from Sigmund Freud from 1935. This guy is determined to prove that someone sometime has “converted” from being gay to straight. Of course, no one studies whether straight people can convert to being gay. And if there have been gay people forever—and history says there has been—why do they think it’s abnormal?]

H: This study includes people who were recruited because they were young and had sex with both men and women. Appears that few changed their id.

N: No one in this trial is saying that g and l should be forced to change, but is it your opinion that if someone wants to change they can?

H: It is my opinion that current interventions that have been designed for the purpose changing SO have not shown to be effective. Certainly, due to societal stigma, some have said they want to change,but we have not seen it work and it is not safe.

N: Is attempt to change always harmful? Is it impossible to change?

H: I’d be reluctant to say that anything is impossible. Limited data to show that it is always harmful, but the limited data we have shows that harm is done, i.e., depression. The data that are available do not work and are not safe.

H: Article by Robert Spitzer Published in 2003. Can some gay men and lesbians change their orientation? 200 participants report having changed their orientation from gay to straight.

He’s a very prominent psychologist known to be involved in diagnosis. He was involved in removal of homosexuality from DSM (changing it from being a disease). I believe he chaired that.

N: This study indicates that many gay men and lesbians report making a change from predominantly homo to hetero.

H: I would not take issue with that statement. Those people “report” this self-perceived changed. These individuals might have changed on their own without intervention because they are highly motivated to do so due to religion. People reported to Dr. Spitzer that they had changed.

H: The problem is that we know that people are not always aware of their mental processes. This is why when we test an experimental drug, we assign them to groups and see what happened. We are also familiar with the placebo effect. This is just an illustration of how people are not necessarily able to tell you why things have happened to them.

N: You have taken individuals at their word in your self-reporting studies?

H: I have tried not to. I try to use an experimental design for that purpose. I take them at their word that they experience little or no choice. It’s not that I asked them how they became lesbian gay or bisexual, but they say they did not experience conscious choice.

H: Appears to me a copy of letter Sigmund Freud wrote to a woman who wrote to him from America about her son being homosexual. It was written a long time ago and is known as “Letter to an American Mother.”

N: Fortunately, we have a typewritten version. “You ask me if I can abolish homosexuality … in a certain number of cases we can succeed in lighting the germs of heterosexuality present in every homosexual.” Do you believe that he is wrong?

H: Letter was written in 1935. “What analysis can do for your son is to bring him harmony and peace of mind whether or not he remains homosexual.” I believe Freud was very pessimistic about changing people form homo to hetero. His view was that everyone is bi and their outcome depends and development.

N: Do you believe he was accurate in saying that there is limited success in conversion by Freud?

H: The problem with using a psychoanalyst to self-report is that there is no check on what he is doing. He is both trying to make the change and reporting it. The patient may want to please the psychiatrist. I’m not sure this would all pass muster with modern science.

N: we can take a break now if you want.

Judge: Let’s just plow on, unless witness wants to take a break.

H: How much plowing on do we have?

Judge: Good question.

N: 30-45 minutes, depending upon length of answers. (Snarl!)

H: I can stay pat.

Judge: Why don’t we stand up?

(A minute later) Let’ take a five minute break.

[UPDATE] 4:04

We’re back.

Nielson (defense lawyer) (N): No consensus on what causes SO?

Dr. Gregory Herek (H): What I said in my expert testimony is there is no consensus of what causes people to have one or another SO.

N: The factors that cause a person to be homo or hetero not clear.

H: Yes.

N: Widely differing sources for adult sexual orientation, but no single theory enjoys broad support.

H: Yes.

H: My hypothesis, based on data currently available, is that we will find people went through multiple paths to sexual orientation.

N: Reading from Porcini Encyclopedia (not a mushroom here, but it may change if it is converted.)

N: No single theory is likely to explain homo or hetero.

H: That is my thesis.

N: Researchers are looking at homosexualities and heterosexuality’s?

H: That’s right, based on differences in cultures as we have discussed. In not coming up with single explanation, pointing to increasingly pluralistic view of sexuality.

N: People arrive at gay identity without having engaged in sex and others only after multiple homosexual experiences?

H: Yes.

H: It was at the time I wrote this (in 1970s) that some women considered themselves as “political lesbians” but were not attracted to women.

Judge: Why not common now?

H: Not sure, but think political climate has changed.

H: Reasons that we can speculate that homos may have higher ed rate than heteros. We can speculate that hetero women leave college to have kids and be with husband. Same with gay men. Might be that gay men don’t have children so can get more education.

It may very well be a real difference (ed level). In my studies, found higher ed level in homos than heteros, so it may very well be a real difference, but I do not know.

N: Turns to testimony of Prof. Nancy Cott on 12 January. P. 328 line 6 of trial transcript. “Is behavior infinitely malleable by social circumstances and by culture” with the “exception of self preservation.”

H: I have not thought about it and would have to think about it.

N: Is it a reasonable statement?

H: I ‘m sure Prof. Cott had a reason for saying it, but I’d have to think about it.

N: Back to big binder.

Judge: I thought we were done with the big one!

N: Badgett theory is choice of sexuality based on factors such as income level. A family’s economic status might allow for more homo. A family’s economic status may be more open to homosexuality than not. Do you agree with that?

H: I don’t understand what she is saying here. One possibility is that having higher income allows people to have more exposure to more same sex partners. Could also be that homos go school longer and have more exposure.

N: As you sit here today, is there any reason you would say this could not be possible?

H: As I sit here today, I cannot say. I would have to have read the entire article. This looks like an economist’s argument and I am not an economist so it would be very difficult for me to make a judgment.

[UPDATE] 4:12

N: There is no single developmental pathway that leads to a homo, hetero or bi orientation.

H: As I said previously, my hypothesis is that there are multiple pathways to sexuality.

N: Women’s sexuality is not tightly scripted due to genetic or hormonal influences?

H: I’m guessing that Prof. Peplau is offering that contrast with men’s. Women’s sexuality does seem to be more responsive to situational and environmental factors than does men’s sexuality. This notion of erotic plasticity is more applicable to women than to men.

N: She speaks specifically about erotic plasticity as broad way to understand women’s sexuality?

H: Broad, yes.

N: One implication of this research is that the very concept of sexuality may be misguided. Is that possible?

H: I’m very reluctant to comment because I have not read this paper. It may very well be that the focus on sexuality may be easier in context of men than women, vs. sexual orientation more appropriate for women.

N: (Again, Prof. Peplau in big book): “Available evidence indicates that biological factors are do not explain sexuality of women…

H: What she’s suggesting is the available evidence is that there is not a strong biological explanation for sexual orientation in women. We do not understand development of sexual orientation in men or women.

N: There is no inevitable association of masculinity and femininity have effect on sexuality. Evidence that biological factors do it are weak. Women’s erotic and romantic bonds are influenced by environment.

H: I agree with these.

N: (1990 article) “Evidence suggested that increase in demographics and diversity in same sex relationships.” The visibility and presence of gays in urban population attracts folks…

H: I believe they may be saying that people who were attracted to same sex did not know that there was idea of being gay. For those individuals, the existence of visible gay communities would allow them to realize others like them to find others like them and develop community.

Judge: How are we doing, Mr. Nielson?

N: We’re getting there, Your Honor.

Judge: Good.

H: Lesbians and gay men are likely to have had more years of education than lesbians and homosexuals.

N: There is mounting research evidence that pattern of women’s sexuality varies across time and place.

H: Again, this is something we have already discussed. Talking about different cultures, different socio-economic groups. I would agree with it in that sense.

N: (This is all from Peplau) Living in same sex institutions also increases chance or erotic and same sex attraction between women.

H: She refers to a 1929 study of women in same sex college in which women had tense relationship with another woman. And same in same sex prison. May be that same sex institutions foster greater sexual bonds for women.

[UPDATE] 5:19

H: I would certainly agree with the statement that we don’t know all of the causes for sexual orientation.

N: Study found that young females were more likely (than the older cohort) of having a ss sexual partner in adulthood? Need to look at age cohort effect as to why homosexuality became okay.

H: I would offer hypothesis that people who grew up before 1950s, when there was no discussion at all of homosexuality due to stigma. Older people might be extremely reluctant to express their sexuality.

N: I assume they’ll test their hypothesis. I have not read the paper. Sometimes the author will posit a hypothesis and then disprove.

N: Can you name any tangible benefits that are available to married couples that not available to DPs? Tangible?
Our side objects.

H: I’m not a legal scholar, so I don’t know about the law. In terms of tangible benefits meaning money, inheritance rights, etc. you see the more intangible benefits such as more stable relationship that might become tangible.

N: Are hate crimes illegal in California?

H: I believe crime is illegal in California.

[EVERYONE, including judge, gets a good laugh.]

N: Are gay hate crimes illegal in California?

H: Yes, and they still happen here.
(one or two more idiot questions)

N: I believe I am finished, but I have to check.
Judge: I hope we get good news!

N: Yes, no further questions.

D (back up for plaintiffs): Good evening, Prof. Herek!
(Laughter)

D: Puts up text of Meyer on screen. “So what is the correct definition of the LGB population? … It is the researcher’s intellectual responsibility to answer this questions with reasoned justification.”

H: I agree with this.

D: Are there are other areas in which there is differentiation in studying?

H: SO is not the only area in which things get pretty messy. Race and ethnicity also.

D: Would same labeling issues as for SO come up for racial or ethnic groups?

H: Why certainly, if you look at the different labels we have used for racial and ethnic minority identities over past 100 years. SO research has borrowed from research into ethnic and racial minorities.

H: For the vast majority of people we see that for the vast majority of people sexual attraction and behavior solid. Look at Lowen study. 90% of heteros never change and 2% or so homo, les, bi stay that way. The rest is where it gets messy.

H: I have interviewed thousands of people. Some people do not understand heterosexual but if you ask if they are straight, they understand.

D: There were a lot of questions today about causes of sexuality. Does that change your belief that some people are gay and some are straight?

H: Yes. They are unrelated really. People tend to be consistent in their sexual orientation. Somewhere in the neighborhood of 92% of people in Lowman study are consistent. L, G are consistent with attraction and ID even if did not have sex with ss partners due to societal issues.

H: Continuum is important because some people change. Among gay men, only about 5% had any degree of choice and 20% of lesbians say they had some degree of choice. Somewhat more for bi. (These are in my research.)

D: Do the three different aspects of sexual orientation—ID, sex and attraction—overlap?

H: Prof. Diamond made very clear that you cannot use her data on plasticity, particularly among women, to generalize to population. Interesting to see how it develops. Does not change my opinion that most people do not choose.

D: Peplau says that there is very little actual change in women’s behavior due to plasticity.

D: Are you familiar with Prof. Robinson? He was hired by defendant interveners.

N: Object. He withdrew as witness.

D: He lives more than 100 miles from courthouse so we can use his depo for any purpose.

Judge: You may proceed.

D: Robinson Depo: “Do you agree that sexual orientation is very unlikely to change? No.”

“And you have not found that change from therapy is common?”

“No. It’s not common at all.”

“Okay. So when you make a statement, homosexuality is no more immutable that those identifies one takes on I various walks and works of life … that don limit to 93% church going and 78% very religious…” [Which is cohort that Spitzer used. Very religious group of those who said they had “converted.”]

If my statement bout the mutability of homosexuality were tied exclusively to Spitzer’s research or anything like it, then indeed it would be an implausible inference.

H: Agree. Spitzer used very small religious slice.

N: Recommendation from APA (I think) that not use sexual preference because it means that someone can choose. Better to use orientation.

H: I agree.

D: Puts up Kris Perry trial testimony that says “well for me what it means I have always felt strong attraction and interest in women and formed really close relationships with women…”

H: Consistent with definition of homosexuality.

D: Puts up Perry testimony in which she says it’s easier to have relationship with boys or men, but it did not work.

H: Consistent with what I said before, that there is social pressure.

D: If two women want to marry each other, is it a reasonable assumption that they are lesbians?

H: Yes.

D: Is it a reasonable assumption that if two men want to marry they are gay?

H: Yes.

D: I have no further questions.

Judge: You may step down, Prof. Herek. You win the long distance award.

Judge: Mr. Boutrous, you have about 90 minutes of document presentation?

B: Yes.

Judge: You can do that on Monday morning?

B: Yes, your honor.

Judge: And then you will rest?

B: Yes, your honor.

Judge: Mr. Cooper, will you be ready to call your witnesses on Monday?

C: Yes.

Judge: Can you tell the defense so they are ready?

C: We’re not sure who will be first, either Dr. Ken Miller or Mr. David Blankenhorn.

Judge: Are they both going to testify on Monday?

C: We’ll identify 48 hours in advance who it will be. We just have not decided.

Judge: (not amused) Very well. The defense needs to be ready for both witnesses on Monday.

Judge: Those are your only two witnesses?

C: We may call one other witness just to identify documents?

Judge: One of your people?

C: No. One of theirs.

Judge: Very well. Monday at 8:30.

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Wow! What a day. Dr. William Tam was the star of the show today. The comments were flooding in as Trial Trackers obsessively refreshed the page.

But before Tam took his seat on the witness stand, Dr. Segura finished his testimony. Then all eyes turned to Tam who brought the crazy, as everyone expected. The Prop 8 lawyers did their best, filing objection after objection to keep Tam and evidence out of the court record, but Judge Walker let it fly.

Note: Be sure to stick around. Brian Leubitz has a post on Tam going live in a little bit and Robert Cruickshank will be writing later about how today’s SCOTUS decisions on corporate dollars in politics relates to Prop 8.

With that said, here is your daily summary of Rick Jacobs’ liveblogging. He will be back tomorrow as the plaintiffs finish their case and the defense starts calling their witnesses.

——-
DAILY SUMMARY

[UPDATE] 8:49

I’m back up in the overflow room on 19, where I’ve been for the entire trial. Sitting behind me in the jury box are the folks from Prop. 8/Protect Marriage. I’m at what would be the plaintiff’s table in this ceremonial courtroom. In the front row, which is like a big church pew (yes, I have been into a church!) are Andrew Harmon from Regent Media/Advocate and Dave Dayan from Firedoglake. There are only a couple of others in here today even though I think Mr. Tam will be up today, which should be fascinating.

The news just delivered from DC that Citizens United won its Supreme Court case is a jolt, but in this bubble of the Prop. 8 trial, it carries two messages. The first, which is very scary, is that corporations can spend unlimited amounts of money for election purposes. As Eden James, Courage’s Managing Director just said, welcome to California, brought to you by Chevron. But there’s a twist. Ted Olson argued the case on behalf of Citizens United. And he won. Again. Ted has an amazing success rate with the Supreme Court. Let’s just hope that he his odds continue in our favor on this trial.

We should start any minute with Prof. Gary Segura being cross-examined by Mr. Thompson. Prof. Segura was up nearly all day yesterday. If you have not caught up from then, take a look. It was a revealing, powerful day in which we learned about the difference between political power and simple influence. By Prof. Segura’s definition, with which I wholeheartedly agree, LGBT people are powerless in the political context.

And that’s what this case is all about. Are gays and lesbians a “suspect class” worthy of protection under the Constitution? So far, the plaintiffs have made an incredibly powerful case that we are.

[UPDATE] 9:24

0840: Judge: Very well. Any matters to take up? If not, I remind Prof. Segura you are still under oath. Mr. Thompson, your witness.

T: May I approach the witness?

Judge: More binders, eh?

T: Just one.

T: Sen. Feinstein[he says Fine-steen, which is not how she pronounces her name. Thompson loves talking about Jews. Loves it.] opposed Prop. 8. And she is very popular.

S: Yes, although her popularity waxes and wanes.

T: And Boxer.

S: Yes.

T: And Schwarzenegger?

S: But he vetoed same sex marriage twice.

T: Because it contradicted Prop. 22?

S: I don’t know.

T: And President Obama opposed the passage of Prop. 8?

S: Yes, but his support for that was muted by other things he said.

T: You refer to his appearance at Saddleback Church at which he said marriage is between a man and a woman?

S: I suppose so.

T: And president Clinton and he’s very popular in California?

S: Yes, but I’m not sure that he’s still so popular here.

T: Did any former presidents support passage of Prop. 8?

S: I don’t know.

T: Reads press release from EQCA that says that Levi Strauss and PG&E joined business council against 8 and gave money. Points out that Levi gave $250,000. Is this an asset to LG?

S: It’s a financial asset, but not sure how much political asset.

T: Stars, like Ellen DeGeneres and Brad Pitt opposed 8?

S: Ellen DeGeneres is like a political party in that she is part of the class that is under question here.

T: Do you know of any corporations that donated $250,000 to yes on 8?

S: Not corporations, no.

T: Lists hundreds of congregations that supported same sex marriage and opposed Prop. 8.

S: Yes, but it’s misleading. The groups you mention such as Universalists and Church of Christ (getting these wrong I think) constitute less than 2% of the US population vs. Roman Catholic 30% and protestant faiths that also supported Prop. 8 that are much larger.

T: Shows ad that appeared in San Jose Merc News with 25 ministers who signed ad for no on 8.

T: UCC Church takes stand against California’s Prop. 8 referring to first cong church of Berkeley. “In addition to voting to oppose Prop. 8, we’ve been actively working to defeat Prop. 8. Formed phone banks…” It’s true that churches formed phone banks?

S: Less than 1% of population and not surprised that a church in Berkeley would do this.

T: St. Francis Lutheran Church photo in newspaper agreeing to accept donations for no on 8.

S: Yes, but tiny.

T: Keeps listing churches, and rabbis who oppose Prop. 8.

S: Reads the release fro NGLTF in which they claim lots of religious support. Then reads paragraph T does not want him to read that says from NGLTF that “we have a problem with religion.”

T: Says that CA has the largest population.

S: There’s more of everything in California; one out of 8 Americans lives here.

T: Nevertheless, CA has the highest per cap of homos?

S: Not sure.

T: LGBT move to CA because they are protected here.

S: More than in other states.

T: LGBT supported Domestic Partnership laws?

S: Yes, as opposed to nothing.

T: Reads statement from Kors that says that AB 205 being signed by Davis “honored all families and shows that intolerance stops at CA’s borders.” Shows that LGBT community supports DP?

S: As opposed to nothing.

T: Reads NCLR (National Center for Lesbian Rights) that says we “hail” the passage of AB 205. Lots of LG “hailed” the passage?

S: Appears so.

T: You also talked about initiatives and the number that have passed or not targeting gays and lesbians. Number that were held in CA?

S: No.

T: Percentage of initiatives that targeted gays and lesbians in CA and passed?

S: No, since I don’t know how many occurred here.

T: “Lose, Win or Draw: Effects of Direct Democracy…” this is an article you used in preparation for this testimony? Have you attempted to determine whether gays and lesbians have been winning more initiatives recently?

S: No, I did not disaggregate.

T: Puts in as evidence with this appendix that shows the specific number of elections.

T: Reads from Dall’s book suggesting that majorities are inherently unstable. That’s the protection against the Madisonian concern about tyranny of the majority. Don’t you see that the majority is not monolithic and some are in favor of ss marriage like in New Hampshire? (Dahl or Dall is the authority on majoritarianism cited many times yesterday and part of S’s main education.)

S: You miss the point. One of the critiques of Dall’s pluralist theories is that there are some majorities that do not fade, that do not break down, that persist for a long time such as the majority opposed to gay rights and even what happened with AA people that took an exceedingly long time. You take this paragraph out of context.

S: Are legislators more or less likely to adopt policies; not clear that policy will endure.

T: Many times gays and lesbians are successful in keeping measures off of a ballot.

S: That implies an agency to which I cannot attest. Some measures do not go on ballot, but not sure that gays and lesbians did it.

S: Prop. 8 is a factor in demonstrating political powerlessness. As I said in response to His Honor’s question yesterday, one election is not dispositive.

S: Repeats that gays and lesbians have a “religion problem.”

T: Some people voted for Prop. 8 because they feared their churches would be forced to bless ss marriages?

S: I’ve heard that, so makes sense.

T: Some voted for 8 in reaction to judicial activism?

S: Political scientists lament the lack of information voters have. Doubt many voted due to judges.

T: We have decades of information that show how religion impacts voters, such as abortion. Religion is regularly cited as influencing voters? Everything shows that religious people vote based on religion?

S: Mr. Thompson, have you switched sides? Yes. Increasing levels of religious observance are more likely to dislike same sex marriage, then we might logically conclude they voted yes on 8 because of religion.

T: Hard to estimate who voted yes based on religion?

S: Could do surveys, polling, campaign messaging, language people use, lab experiments, variety of scientific methods we could use to look at distribution of votes if we had time and money.

S: I don’t have numerical basis to conclude why people voted. I don’t have a basis to make an estimate of whether its greater, less than or equal to 50%.

[UPDATE] 9:47

T: Goes through Muslims, Hindus, and Buddhists to say their religious views informed their votes on SS marriage.

S: Yes, but tiny.

T: 100% of Quakers?

S: All three of them, yes.

T: It’s your data set. Jews? Many voted against same sex because of religion?

S: Not sure that’s true.

T: Is it true that some percentage of religions in CA honestly believed 8 had more to do with children than anything else?

S: Yes.

T: How much money came from RC church?

S: Not sure.

T: How many Mormons campaigned?

S: Document that I read into evidence yesterday said church claimed 20,000. I have no reason to doubt them.

T: Don’t know how many Episcopalians, Jews and Catholics campaigned?

S: No. I don’t know how many people showed up for public events, but the event Qualcomm stadium was quite large.

[This is in the context of rebuttals S did to Prop. 8’s expert.]

T: Some individuals who themselves are not religious believe that marriage is religious so they could have voted for Prop. 8?

S: I suppose.

Judge: Please explain this table that breaks down religion and voting.

S: Tells judge that survey question asked do you favor full marriage, civil unions or no legal recognition. That’s from what these data are derived.

Judge: 47%+ of Protestants favor no recognition, 21% marriage and 27% civil unions (reading chart out loud to be sure he understands what data mean).

[Judge Walker asked a lot of questions about data, including whether any questions were asked about which people think the bible was written by man vs. God and how their beliefs influence their views of same-sex marriage.]

T: Wants to move in document that shows number of acts of violence in campaigns?
Boutrous: Object. Hearsay.

Judge: Didn’t he talk about vandalism and violence in campaigns?

T: S said in his testimony that “the moment you resort to violence the ability to persuade is lost.”

Judge: Okay.

T: With approval of Judge, showing video.

[Video from SD showing that there was a physical fight over Prop. 8. An old lady shows up with bruises on her face because she had a yes on 8 sign. Proud to show their support on their front lawn. “When I put up my sign, I noticed that my neighbor put up his little sign. That probably provoked him…” Arrested 53 year old man who did.]

[UPDATE] 9:59

T: Wouldn’t a video of an old woman with a bandage over her eye because she put up a Prop. 8 sign hurt the no side?

S: I can’t say what happened, but such a video is inflammatory.

B: Objects; not relevant.

Judge: Not here to adjudicate what happened in SD. But this is part of what witness talked about, so it’s relevant.

T: Reads news report about fight in Carlsbad, CA between people who were “stealing” prop. 8 signs and then fought with yes side and had dog bite person. Would this hurt no side?

S: (over objection) Yes.

T: Reads another report, “Prop. 8 supporter, Jose Nunez, assaulted for giving out Prop. 8 signs at church…” He was punched in his eye and the assailant ran off with the signs. (From int’l biz review.)

S: Not sure how many people read that paper and note that source is Protect Marriage dot com.

Judge: Pauses to check that citation. “Oh, I see. You may proceed.”

T: “The homeowners had Yes on 8 Protect Marriage signs on their yards…” Had garage doors spray-painted “no on 8” The rear window also hit with red spray paint. Does this sort of activity diminish support for gay marriage?

S: Yes, but see above that campaign disavowed it.

T: Reason they disavowed it is politically “it’s kryptonite.”

S: I cannot say why they did that;.

T: Plays video entitled vandals target downtown Fresno church. From ABC 30. Pictures of church that was egged. Pastor told supporters that his home was also egged.”

T: Were you aware that mayor of Fresno received death threats? If that were true, would you say that would diminish the ability of the LGBT to appeal to norms of fairness?

S: From PR point, not helpful.

Judge: Before we take our break, if counsel from this matter could step aside, we have another matter which is happy.

[Inducts two lawyers into Western District of Texas. A young man and woman. Both attractive. Swears them in. Says, “very well, good luck in Texas.”]

Break until 1010. Judge tells T to “streamline things.”

[UPDATE] 10:44

Back at 10:15 after the break

David Thompson (T): Reads NYT story about the ugly specter of people getting death threats and white powder being mailed and boycotts. Does that make the LG position tougher?

Dr. Gary Segura (S): To the extent that these acts make the already weak position of the LG community weaker, I’d agree with you. Boycotts are separate. Difficult to imagine the success of the civil rights movement without the Montgomery Bus Boycott. We can all the way back to the 1770s when women in Boston organized a boycott of English tea to see that boycotts are often instruments used by weaker parties.

Judge Walker: Just occurred to me since T is exploring this line of questioning, have you considered the riots and vandalism and other inappropriate behavior associated with the civil rights movement and associated largely with blacks and how that affected civil rights movement?

S: Yes. Any form of violence or disorderly behavior has a negative impact on the public. Non-violent protests play better. That said, it is conceivable that such outbursts may serve the long-term impact of the group. Eg, post Rodney King violence that spurred “Rebuild LA” that brought about investment in south LA. Not endorsing such acts, but there are times when such acts express powerlessness.

Judge: Is it possible that the effects Mr. T describes had the same effect?

S: I’m a little concerned about making that leap. First, Mr. T mentioned NYT article of things that occurred after Prop. 8. We’ve heard Mayor Sanders talk about vandalism at his house, about Ms. Zia being attacked. Heritage Foundation reports about violence against Prop. 8 intellectually dishonest because did not take into account any acts against NO side. We know there were over 100 hate crimes reported in 2008.

T: Reads LAT article by Steve Lopez saying that police were called because of El Coyote boycott.

S: I have no problem with underlying boycott of business that makes money from gays and lesbians that used that money against them. If it got out of hand, not good.

T: Reads LAT article about teacher who called kid a fascist for supporting Prop. 8 after the election.

S: Yes, adverse publicity against a group is not good.

T: Reads definition of hate crime. Assailant is trying to create sense of fear… Trying to show that hate crimes were committed against majority.

pPlays Bill O’Reilly, who says courts want to support gay marriage, there is no doubt. Brings on 21-year-old guest who is Christian (named Christine Cloud) who plays Christian music and has been doing so in Castro for three years. We don’t stop people. “Are you trying to convert from being gay to straight?” “No, but we are hoping they’ll accept Jesus Christ and have that revelation.” “We wanted to be sensitive to these people. We were singing Amazing Grace. Man took my bible, “hit me upside the head with my bible, knocked me on back and kicked me.” Police arrested guy, but I said I would not press charges, that I forgive you.” O’Reilly tries to say that police should have arrested him. She says police did not see crime. “I don’t know if we are going to be back. We are going to use wisdom, we know it is a politically charged situation.” BO: “You turned the other cheek.” ]

Boutrous: Objects. A number of Mr. O’Reilly’s questions were leading.

[LAUGHTER, but B made the point perfectly.]

T: May fit my your definition of hate crime?

S: Might, but it could also be like yelling fire in a crowded theater. If an AA approached an Anglo and said, “You racist bastard you are evil” and then that person hit the AA, not a hate crime. I don’t know what to make of that video.

Judge: (In annoyed tone) Very well, can we move on Mr. Thompson?

T: Document in TIME Magazine. What happens if you are on gay rights enemies list? AA, 70% of whom voted yes on Prop. 8 according to CNN exit poll, racial epithets have been used against blacks, some of whom are fighting to repeal Prop. 8.” Bad?

S: As I keep saying anytime there is adverse publicity, not helpful.

[Just need to point out here that the 70% number has been debunked. About 57% of blacks voted for Prop. 8. The church relationships as disclosed yesterday also help to explain the vote of the black community. Thompson is trying very hard to show that gays hurt ourselves because we were violent. He’s saying that we are bad for us, but he does not take into account that a group that has been put down for so long by so many gets frustrated. Did Stonewall, which was violent, help our cause? Of course it did. Does vandalism help our cause? No. Should we be violent? No. But again, Mr. Thompson is trying to say that gays are powerful and hurt our own cause.]

[UPDATE] 10:56

T: Reads from Time Magazine story about the Cabinet, a secret cabal of rich homosexuals who met with two sitting governors in California at the same time. Doesn’t that show power?

S: It is clear that if people have money, politicians will show up to take it.

T: We can agree on that.

T: Tries to show that homosexual power is evidenced by the increase in AIDS Funding.

S: Deeply troubled by your assertion that this somehow shows political power. This is a disease that has ravaged and killed people all over the world and its incidence continues to grow. So the increase in funding is likely due to the fact that AIDS is so dangerous to so many.

T: Doesn’t right of adoption exist for gays and lesbians in 40 states?

S: Yes, but those laws predate gay movement. Adoption laws silent in those states about gay and lesbian adoption. Says one man or one woman may adopt. I predicted that once the anti-marriage movement peaked, the next frontier would be anti-gay adoption. Arkansas unfortunately proved me right. Florida, Miss., Oklahoma, Arkansas have taken this up by ballot measure. More will follow.

T: Goes through hate crime incidence rate of hate crimes. Jewish population per census is 2.2%.

S: I dispute this. Table you presented under this next tab has to do with religious observance so I think it’s 4-4.5%.

T: So there is a higher incidence rate of hate crimes against gays and lesbians less than Jews. Notwithstanding hate crimes against Jews, Jewish community is politically powerful?

S: Yes.

T: Look at African American rights in 1964 before civil rights act. Do you think gays and lesbians in California in 2009 are better off than AAs before the passage of civil rights legislation?

S: Depending upon your definition of “better off,” yes.

T: Shows that before civil rights there were two AA members of congress when AA were 10% of population.

S: Yes.

T: Women had between 10-16 members of House and 2 women in senate maximum before 1975 in 1970s.

S: Correct.

T: Women are less cohesive group that gays and lesbians.

S: I suppose.

T: Talked about politicians making disparaging remarks about gays and lesbians, most specifically Tom Coburn?

S: Yes.

T: Can you identify one statewide elected who made negative comments about gays and lesbians in last quarter century?

S: I would be shocked if there were zero. I don’t have encyclopedic knowledge of everything said in last 25 years.

[UPDATE] 11:24

Judge stops Thompson from putting in an article questioning whether its time to go to Supreme Court, apparently written by opposing counsel. “That’s at the edge of the pale, Mr. Thompson.” Judge is not happy with the way Thompson is handling himself.

T: Young people will support homos?

S: Quite likely that in time we will have majority that support gays and lesbians.

T: “shift in opinion (to support gays and lesbians) was frankly astounding.” Article by S:

S: Yes, but read on.

T: Reads on. Support for at least civil unions climbed to at least 61-64%. Outright opposition to any recognition dropped to 29% when President was reelected largely on anti-gay wave.

S: With respect to subject matter about which I was writing, correct.

[Redirect begins]

Theodore Boutrous (B): Explain what that article is about.

S: Article was about civil unions. Once Massachusetts had a court ordered adoption of gay and lesbian same sex marriage rights, support for civil unions climbed partly as a strategic move by those opposed to marriage. That notwithstanding, there has been growth in public support for gay unions.

B: Do the views in that article affect your views of powerlessness of gays and lesbians?

S: The fact that attitudes toward gays and lesbians are changing for the better is good, but does not always have to move in one direction. There can be ceiling and floor.

B: Civil unions similar to enhanced domestic partnerships later passed in CA.

S: Yes.

B: What happened to Grey Davis to whom Mr. T referred before as having signed D bill?

S: He was recalled from office.

S: Regarding boycotts, when you teach a course on American political history, David Thoreau’s civil disobedience and it was used again by AA and by Cesar Chavez t help grape harvesters.

B: Boycotts were used as a means for AAs to achieve equality?

S: Boycotts are difficult to maintain. They only work if there is long term and wide spread adherence. One of strategies by whites in south was to insist that their African American domestic help to shop at white boycotted stores. One of ways they resisted was to wear maid’s uniforms to show that they were not breaking boycott.

B: MLK preached a philosophy of non-violent actions. Were there times when certain members of the AA community engaged in violent activity even though MLK wanted non-violent?

S: First, remember that MLK rose to prominence due to Montgomery Bus Boycott started by Rosa Parks. He was chair of boycott. Notwithstanding, some AAs lashed out. Did it help cause? No. Bad PR? Yes.

B: Does fact that AAs engaged in boycotts suggest that they were powerful?

S: No. Powerful people do not do that.

B: Is this activity deeply entrenched in our history?

S: Boston Massacre was British troops opening fire on a protest mob.

B: Talks about Claiborne Hardware Case of 1982 v. NAACP.

S: Reads: “Boycott of with merchants at issue in this case too many forms. Nonviolent.”

S: Speech itself was also used to further the aims of the boycott. Nonparticipants repeatedly were urged to join the common cause via churches and to join via social pressure….

B: Supreme Court found that the speech and boycott were protected under 1st Amendment?

S: Yes.

B: Hardware sued because NAACP caused violence that spilled over. Supreme Court found for NAACP.

S: (Compares with violence and vandalism against Prop. 8 supporters.) Not clear that the violence and vandalism are applauded by American political process. Individuals sometimes behave badly. Individuals whose emotions run high frequently behave badly. Not endorsed or supported by No campaign.

B: Any electoral effect of the cases Mr. T. mentioned?

S: I know of none. Some individuals may have been motivated to vote based on those acts. Doubtful in the extreme that this would have affected outcome of Prop. 8 Idea that lots of people changed their minds from no to yes on 8 because of vandalism is almost impossible. Some might have, but not enough could have.

B: Refers to Heritage Foundation.

S: Conservative think-tank. I do not know of the author. Never heard of him. Heritage Foundation backgrounder does not conform to social scientific standards. In a social scientific journal, we’d want to look at evidence selected. Flaw in logic where you only study cases in which incidence occurred. Imagine if we wanted to study the cause of war, must look at cases where war did not start as well as did start or could not learn why wars start.

B: Do you think news reports Mr. T put up could have reached enough viewers to change outcome of election?

S: Almost impossible.

B: T only put up examples of harassment of yes side, but here’s Ms. Zia’s testimony from last Friday that shows that she was harassed.

S: Need to look at acts of violence and harassment on both sides. Takes me aback that someone would walk up to someone on the street and say you are going to burn in hell. What’s the right response to that? Have a nice day?

[UPDATE] 11:38

Theodore Boutrous (B) continues his redirect of Dr. Gary Segura (S)

S: Definitely want to look at hate crimes during campaign. Close correlation between hate crimes and election outcome/high emotion.

B: Puts up government report showing numbers of crimes against GLBT during campaign.

S: Range of crimes might be simple fisticuffs in protest to people who did not follow non-violent premises. Some of Freedom Riders fought back against crowds that greeted them with violence when they got off the bus in Mississippi.

B: 34 people died in Watts Riot. Was that a significant event of violence that many Americans saw and read about?

S: Yes.

B: Notwithstanding that, AAs at some points through courts and other means to achieve civil rights.

S: Fair Housing Act passed in 1968 after urban unrest. Society does not draw conclusions from one or two acts.

B: Any way that the few things Mr. T showed prove that gays are not powerless?

S: That would strain credulity.

B: Now I want to show Gathering Storm video to which T objected last week.

T: Does not in any way show powerlessness of gays?

B: At least as relevant as O’Reilly and other post-Prop. 8 stuff.

T: This was paid for by NOM, not Protect Marriage .com

Judge: I have taken a welcoming attitude toward evidence, so go ahead.

[Here is the video]

[UPDATE] 12:18

S: Makes point that the churches on our side represent almost no one compared with Baptists, Catholics, LDS and Orthodox Jews yes on Prop 8 vs. Unitarian Universalists, MCC and reformed Jews on no side. No comparison.

S: Their side claims that NO side’s religious supporters show that we have lots of numbers in our religious support. Also misleading to show that there is dissension in the Catholic Church because he uses Dignity as example, but Dignity is forbidden from being on Church property.

S: Prof. Nathanson claims that gays are working with religious groups so there is no problem with religious groups. Just because NGLTF is talking to religious groups does not mean organized religion does not present an obstacle to gay and lesbian equality.

S: If we look at the association of religiosity with the actions of religious people, we can see that people do vote according to their religious views. “Our institutions do a poor job of protecting minority rights even when they do enjoy majority support,” says article. True here but gays and lesbians do not enjoy broad majority support.

B: Even after Mr. Thompson’s line, do you think gays and lesbians lack political power?

S: I do. Even though Mr. T. pointed out there are gay and lesbian pols and pols in CA that support gays and lesbians, does not show power. Protections that stop at a county or state line are hardly protections at all. Need to look at layers of government. I do mind experiment that says, “Imagine that gays and lesbians are powerful.” I survey the world and see FBI report that says that gays and lesbians are 70% of hate-inspired murder. Are they still powerful? Possibly. 29 states do not protect gays and lesbians. Powerful? Possibly. Could I look at 150 ballot measures that gays lose 70% of time. Powerful? Presumably. Could I see constitutional prohibitions for gays and conclude they are powerful? Yes.

I could not draw the conclusion that gays and lesbians are powerful by looking at all of these factors. “That would be the political science equivalent of malpractice.”

[And that ends Professor Segura’s long time on the stand. And that last couple of paragraphs says it all. In the meantime, Protect Marriage harassed Courage in court for use of a logo. And they want to hide the trial. If I were they, so would I.

We adjourned at 12:10. We get Mr. Tam after lunch at 1:10. Ya gotta come back for that one. Tam was a proponent of Prop. 8, an original defendant in this trial who tried to drop out. So now we get one of their proponents as our witnesses. You’re gonna like this.]

[UPDATE] 1:27

1:15PM We’re back. Mr. Hak Sing William Tam is up.

Colloquy between Mr. Tam’s counsel, Mr. Thompson (a different Mr. Thompson and Tam withdrawing.)
chrome://foxytunes-public/content/signatures/signature-button.png
Boies: Tam cannot join a case, litigate it and then decide to get out.

Judge: Ordinarily under these circumstances, a defendant would withdraw and accept a judgment. I cannot understand what a reasonable judgment would be

Thompson: Intervention was voluntary. He did not have to intervene. Withdrawal is purely voluntary. Plaintiff has said if he did not like intrusive nature of discovery, he could withdraw. I could not find compelling or controlling legal authority (remember when Al Gore used that phrase?) that prevents him from withdrawing.

Judge: There has to be some consequence for putting defense to trouble and expense of litigating against someone. Typically, there would be a judgment that could recompense the opponents for their expense. He’s going to testify one way or another.

Thompson: He’s going to testify. He’s here and has been here.

Judge: Yes, he’s been very good about attending. A party’s deposition can be used by the adverse party at any time. I don’t know what prejudice there will be if he withdraws. Maybe the plaintiffs will agree he can withdraws or maybe not. So we’ll let him testify.

[UPDATE] 1:35

B: You were original proponent of 8. You worked with Shubert et al.

T: Yes and maybe some clerks who asked me to go to a press conference.

B: You supervised the language of Prop. 8?

T: Not sure what “supervise” means.

B: Look at declaration in which Tam says he supervised the appropriate language for Prop. 8.

T: I don’t quite remember what that particular document is.

B: Which document?

T: If it is about fourteen words of Prop. 8, I would go along with it.

B: This declaration that you have, did you prepare this declaration?

T: No.

B: Protect Marriage.com prepared this declaration for you and you signed it?

T: Yes.

B: Between January 2008 and November of 2008, did you devote substantial amount of your work time and organized rallies?

T: Yes.

B: Did you work with the people from Protect Marriage.com on the rallies?

T: No. Those rallies were mainly Asian Americans and those were the people that I knew. I only invited PM.com’s Ron Prentice to be present and one of the speakers.

B: Mr. Prentice CEO of ProtectMarriage.com? Do you consider that working with ProtectMarriage.com?

T: I would say so.

B: I would, too.

B: Did you personally participate in debates?

T: Yes.

B: Debate here in SF on Channel 26?

T: Not on Channel 26. They came and made a report on it that night.

B: This debate that was covered by Channel 26 was a debate in which you were campaigning for passage of 8 and you were told by people at PM.com to participate in that debate?

T: Yes.

B: Campaign for Prop. 8 began in 2007?

T: At 2007, if the preparation of the collection of the signatures is considered as a campaign, yes.

B: In October 2007, you were waiting for instructions from PM.com as to when you should start collecting signatures and eventually they told you when?

T: Yes.

[UPDATE] 1:48

Thompson objects to leading the witness.

Judge: He’s an adverse witness. He’s on the other side. Objection overruled.

B: You did take instructions from PM.com to send letters to pastors?

T: Yes.

Thompson: These documents are attorney client privilege. I’d like to reserve standing objection that T’s personal political views are protected under first amendment even though we lost in appeals court.

Judge: Very well, you may register standing objection so you do not have to get up for each question.

B: Points to exhibit 2685. (Asks for permission to approach to help T find the right page which he does.)

B: Is plaintiff’s exhibit 2685 a partial listing of the coalition of PM.com?

T: I believe so.

[Prop. 8 objects, but she’s standing in the back so I can’t hear what she is saying.]

Judge: Do you wish to lay any more foundation for this Mr. Boies?

B: I think I already asked him, but I’ll ask again. Is this partial listing of coalition of groups working with ProtectMarriage.com to pass Prop. 8?

T: I believe so, but it’s their website?

B: If necessary, I can take you through these one at a time. Focus on Family part of coalition supporting Prop. 8?

T: I believe so. I really don’t know why they put these names this list. You have to ask them.

B: I asked you if the Family Research Council was one of the organizations that supported Prop. 8? Yes. No. I don’t know. Family research council was an organization that was listed with your organization as working together to support Prop. 8.

T: Could be.

B: Read this list to yourself. Tell me if you know if any were part of coalition to pass Prop. 8?

T: I don’t know.

B: (Surprised) You don’t know any of them?

T: Focus on Family, Family Rearch Council, Ca Family Council, Values Advocacy Council, and Traditional Family Coalition—those are ones I recognize.

B: What is your relationship to the Traditional Family Coalition?

T: I am the Executive Director of the Traditional Family Coalition.

[UPDATE] 1:56

[Tam is very, very difficult. His lawyers are trying very hard to prevent him from testifying at all by constantly interrupting. The judge keeps overruling them.]

B: What is the Chinese Coalition referred to here (in doc that says Chinese community is strong and Bill Tam is one of the signers of Prop. 8).

T: I know some of the Chinese churches (evangelical) because of my position with Traditional Family Coalition.

B: You were already working with PM.com in July 2007 on what would become Prop. 8.

T: I think so, but my memory is fuzzy.

B: Does this document refresh your memory that as of July 2, 2007 you were working with Protect Marriage .com

T: I think so. We had discussions that a proposition could be put on ballot, but we’d need to gather.

B: This is email you sent on October 26, 2007 to whom?

T: Addressed “Dear Friend of TFC”

B: You say here, I am still waiting for http://protectmarriage.com as to when we can begin gathering signatures.”

[Boies is showing that Tam was integral to the campaign from the very beginning.]

B: You solicited contributions for ProtectMarriage.com?

T: Yes.

B: Email you sent on Feb 14, 2008.

T: Yes.

B: This is a uhm email that refers to an interview or debate you had on channel 26?

T: Yes.

B: You are talking about the opportunity you have to publicize “our protect marriage amendment” on television?

T: Yes.

B: This was debate that was broadcast over channel 26.

T: It was an interview, not a debate.

B: Is this separate than the debate you participated in on 26?

T: Separate events.

B: Both had interview and debate on 26 and you used both to support Prop. 8?

T: Yes.

[UPDATE] 2:00

B: You talk about many Christian forces including your organization, California Council, Concerned Women of America, the Values Council and Protect Marriage dot com. And others you don’t list. They all were part of this?

T: Yes.

B: Exhibit 2640. Email chain that includes both you and Mr. Pugno. Correct?

T: What I see here is my name on it and Pugno’s name on it. I don’t know if it’s a chain or not.

B: Well, sir, if you begin…

Thompson: I object under attorney client privilege.

Judge: Attorney Client Privilege?

B: There was no claim of privilege at the time.

Prop. 8 is not asserting atty client privileged and we produced document.

Judge: Very well. Over ruled.

B: What were you trying to tell Mr. Pugno?

T: He was asking if there is anything I should not say or disclose if there are questions from the Chinese press.

[UPDATE] 2:11

B: Emails between you and Lynn Fishel. Who is Lynn Fishel?

T: From California Family Conference (I think).

B: She addressed this to you as leadership of the Protect Marriage dot com? You were part of the leadership?

T: She did that to be nice. I don’t think I’m part of core group.

B: What do you mean by core group?

T: I don’t know but I heard you talking about core group while sitting in the courtroom and I know I’m not part of it.

B: So that’ something you picked up in the course of this trial?

T: Yes.

B: You sent an email on April 26, 2008. You remember that you said Fishel was just being nice to you when she called you part of the PM.com leadership?

T: yes.

Thompson objects that is attorney client priv.

Judge: Email sent by the witness?

Thompson: Yes.

Judge: Objection overruled.

B: You say in this email that Tam is playing major role to limit marriage to one man and one woman. You say that you worked closely with PM.com to collect 1.2 million signatures.

T: Yes. I played a major role. I spent a lot of time setting up petitions and collecting them. Worked with PM.com to get petitions off to Chinese churches. True statement, working closely with them (PM.com).

T: This document contain a lot of sensitive numbers that I would not like to disclose to public.

Thompson: I object. Attorneys eyes-only. Salary numbers. Budget numbers. Information about Dr. Tam’s family. Falls strictly into attorneys’ eyes-only.

T: This letter is my letter to pastors and leaders. Most of the things I’m talking is my personal information and they will be offended if this is in the public eye.

B: We’ll be happy to redact everything after those two sentences. I’m not sure I agree with Mr. Tam’s counsel, but in the spirit of cooperation, we’ll agree to redact.

Judge: Very well. That should take care of the problem.

B: You are responding to an email that Lynn Fishel sent you. You ask her, “who is Brian Brown and why is he speaking for us?”

[Brian Brown is from NOM and the Gathering Storm. Here it is, just in case anyone thought NOM was not directly involved.]

T: Those people in PM.com.

B: That included you and TFC?

T: Yes.

[UPDATE] 2:18

B: Shows document in which Tam says that we cannot lose 8 because it is god’s definition of marriage.

T: yes.

T: Other reasons it is very important that next generation understands the meaning of marriage. That our children not grow up fantasizing about should I grow up to marry John or Jane when I grow up. This is very important for the stability of Asian families.

B: You want the next generations to be educated about the historical meaning of marrying?

T: Yes

B: To prevent gays and lesbians from marrying?

T: I did not think of it that way.

B: You support civil unions, equal rights in house for gays?

T: Yes.

B: Adoption?

T: I have not come to a conclusion on that.

B: You consider yourself hostile to gays and lesbians.

T: No, I don’t.

B: let me ask you about website Onemanonewoman.net

T: You are familiar with that?

Thompson: Object.

Judge: Lay foundation?

B: Dr. Tam, may I have your attention? What is your connection to this website?

T: Part of group called America Return to God Prayer Movement.

B: Your relationship to that group?

T: I’m secretary of that group.

B: Who else is in that group?

T: Various Chinese pastors.

B: If you saw something on the website that you did not approve of, you’d tell them?

T: Yes, but they might not listen.

B: What did you want to put on or take off that they did not do?

T: I objected to mention of bestiality on website?

B: And they left it on the website?

T: I don’t know.

B: Why did you object to this reference to bestiality?

T: Because it is not related to homosexuality.

[UPDATE] 2:26

[Prop. 8 objects to questions about this website because it does not have anything to do with Prop. 8.]

B: Your honor, this was already admitted in the testimony of Ms. Zia. This website says that homosexuality leads to pedophilia. Do you believe that?

T: Yes, I do.

B: Reads: Homosexuals 12 times more likely to molest children. Appropriate for your organization to tell people that?

T: Which organization?

B: The organization of which you are secretary that puts out this website!

T: Yes. From what we see here, those are not the statements of the organization. Those are just links to other websites. My position is that if there is something like this that people want to read about, organization has the right to link it.

B: You are not just linking. Your website says that homosexuals are 12 times more likely to molest children.

T: It’s in that website. It’s not from the organization.

B: Mr. Tam, this is print out from your website!

T: From the organization. But I’m only secretary. There are presidents and vice presidents.

B: Do you believe that homosexuals are more likely to molest children?

T: Yes, I do.

B: Based on what?

T: From academic papers.

B: Which academic papers?

T: Some could be news and some could be journalists.

B: I’m not asking you what it could be. Was it a book? An article? Who wrote it?

T: I don’t remember. I don’t know.

[Boies is really, really good. You could hear a pin drop up here and based on the judge’s facial expressions, in the courtroom. Boies is establishing the nexus with ProtectMarriage.com that they use this stuff as the reason for Prop. 8, which fits in with the stigma and all the great stuff we learned last week. By the way, I’m really nauseated. Truly.]

[UPDATE] 2:37

[Okay, I’m sweating. And sick. This is the crux of it all. Please read this. Please.]

David Boies (B): You say here that if we lose Prop. 8 “they” will lose no time to push the gay agenda?

William Tam (T): Yes. They will.

B: You say here that the City of SF is under the rule of homosexuals. Do you believe that?

T: Yes.

B: Who?

T: Tom Ammiano was supervisor.

B: Was the mayor homosexual?

T: I don’t think so.

B: I don’t think so either.

B: You said that you thought Prop. 8 would lead to legalizing prostitution. Why?

T: Measure K in SF. I saw some homosexuals hanging around there.

B: You know that Measure K has nothing to do with Prop. 8.

T: Yes.

B: You told people that next will be legalizing sex with children. That’s the homosexual agenda. Do you believe this?

T: Yes.

[Up above, Tam says that Boies is using his legal expertise to pin my words in way I did not intend.]

T: Asks and B gives permission to talk. “I’m afraid of the liberal trend. Canada and Europe are liberal and they allow age of consent 13 or 14 and children can have sex with adults and each other.”)

B: You did not mention age of consent in the fourteen words you wrote?

T: No.

B: Age of consent has nothing to do with this [But Tam admitted that he told people that’s what would happen if 8 lost.]
Age of consent did not change because of passage of ss marriage in Canada or Europe, right?

T: Canada right. I cannot say about Europe.

B: You said that if Prop. 8 passes, California will fall into Satan’s hands.

T: Yes, I said that. (and that refers to ss marriage).

[UPDATE] 2:46

[Prop. 8 objects to several pages of exhibit because some of them appear to relate to articles that were written years before Prop. 8 and not particularly relevant to this case.]

Judge: Prop. 8 mentioned throughout.

P8: Yes, but this appears to have been produced by plaintiff. Some of these articles that are written in Chinese and translated and were written many years before Prop.8 and are not relevant. Appears there is Chinese article entitled “Homosexuality is not Equal Right.” (She’s having trouble finding her way through the documents.) Article written by witness before Prop. 8 so not germane.

Judge: Article written by witness?

P8: Yes. I believe its article they pulled down off of his website, his Bill Tam website. Not prop. 8 website. Article he wrote years ago.

Judge: I gather this is a document that came from the witness? Mr. Boies can you explain how this was put together and all that?

B: The first three pages of this are affidavits of accuracy from the translator. Fourth page says Why should we Support Prop. 8?

T: I did not write that.

B: That’s your testimony?

B: Look at document and handwriting. Organization of which you are secretary, right?

T: I did not write it. Someone who was in charge of printing and putting this together.

B: What was the purpose?

T: Well, to support Prop. 8.

B: So this is the organization of which you are secretary and it was written to support Prop.8?

T: Yes.

B: Did you write this document (that is translated from Chinese)?

T: Yes.

B: When?

T: 2004.

B: What was the purpose in writing?

T: In response to I think Mayor Newsom’s passing out of the same sex marriage licenses.

B: Was this also distributed by onemanonewoman.net.

T: No. This was Chinese article I wrote and put on my website among 60 other Chinese websites. BillTam.org

B; I would offer the uh four pages that we begins why should we support Prop. 8 as 2343A and then I would offer the remainder of the document that begins with Harm to Children of SS Marriage as plaintiff’s 2343B.

Prop. 8 objects; Judge overrules.

[UPDATE] 2:54

[This room has about thirty people in it now. It's very quiet. Tam is the source of the real thought of whole campaign.]

B: Document says, “Science proves that homosexuality is a changeable sexual preference.” What science were you referring to?

T: I did not write this.

B: Do you know what science is being referred to?

T: Yes. Have you heard of Dr. Spitzer? Used to very prominent physician who in 1973 who was one of persons who promote that homosexuality is not a disease. Because of that, what I learned is that homosexuality is not a disease, just a part of normal human behavior. That’s what I learned. Later on, the same Dr. Spitzer produced evidence that some homosexuals did turn back and return to heterosexuality. Changeable sexual preference. It is not genetically wired.

B: Did you understand that Dr. Spitzer not genetically wired?

T: No. Francis Collins said that. He’s the one who mapped the human genome.

B: Does Collins believe that sexual orientation can be changed?

T: I saw it on the NARTH site [that’s where Ryan from yesterday went to have conversion therapy)]

B: You think NARTH is an objective website?

T: Yes. It’s reliable.

B: What does American Psychological Association say about this?

T: I don’t know.

B: You never tried to find out?

T: No.

B: You believe that NARTH is a good source?

T: Yes. I rely on the NARTH.

[UPDATE] 3:12

[It’s a pleasure to watch David Boies at work. He is persistent and consistent and knows precisely what he is doing. I’m really glad we have him on our side.]

T: Homosexuals are not minority.

B: How many are there?

T: I am a minority. Minority is based on skin color.

B: How many are there?

T: 2-4% of population.

B: So they are a minority?

T: yes.

B: Do you believe that homosexuals should be discriminated against?

T: No.

B: You wrote below that homosexuals are not a minority.

T: Let me check Chinese. I said homosexuals are not a racial minority.

B: Let’s offer the Chinese as 2343C.

B: San Jose News has quote that is attributed to you. Is that in fact what you said?

T: Yes.

B: (paraphrase of quote, but really close) You hope to convince Asian Americans that if Prop. 8 fails, kids will be attracted to homo lifestyle and “that lifestyle comes with all sorts of disease.”

B: Exhibit 2601A.

[The judge’s head is practically in his binder. He has silver gray hair, a red tie today over white shirt beneath his robes. He’s highlighting with his yellow highlighter and making notes on separate paper. He’s paying concerted attention.]

T: This is document I received from medical Dr. named Lao Han Kit. He sent me an article that he wrote. (Article attached as 2601B).

T: Identifies another article he wrote. 2601C seems to be a translation of 2601B.

B: This is translation from your file?

T: Could be. I don’t remember. Let me read this article.

B: It’s headed “Reasons Why we Do not Support SS Marriage” by presence Ministry.

T: Chinese Christian organization in LA. I know their president and went to one of their conferences. I was a guest there.

B: This was rally as part of the campaign that you as Protect Marriage dot com was waging to pass Prop. 8. You say, “It’s time the church rises up to face the forces of evil.”

T: I did not write it. I don’t know who are the forces of evil.

B: Did you invite Mr. Prentice to attend the rally?

T: Yes.

B: And you did not see this document at the time?

T: Many people were working on the rally. My role was pretty small. I had my own organization to attend to.

B: Your organization TFC was a sponsor and you asked Mr. Prentice to attend?

T: Other people.

B: Who?

T: Chairman invited. I did not know any of these speakers, Tony Perkins.

B: What was your role?

T: My role was very small. I invited Ron Prentice because I know them.

B: Did you meet the speakers?

T: Yes, I met them but they would not even let me speak.

B: Did they tell you why you could not speak?

B: And just to be clear, Dr. Tam, is that before today you have never seen this flyer?

T: It might have gone in front of my eyes. It might have passed by my desk. So many came by that I did not pay attention to all of them and this is one of them.

[UPDATE] 3:27

B: Shows press invitation to this rally. Who sent it out?

T: I did.

B: Says on this press invitation that you were one of the two contacts. Is that correct? Does this refresh your memory as to how involved you were?

T: I’m one of the contacts because I have Chinese press contacts.

B: This press invitation did not go out without your knowledge.

T: I knew about it.

B: You personally sent out an email about this rally?

T: Yes.

B: You listed who the speakers were despite the fact that you say you did not know the speakers?

T: Yeah, that’s true. I did not know some of the speakers.

B: Here’s a flyer that says Prop. 8 protects against social, moral decay. What is the social, moral decay?

T: Well, from Christian angle, homosexuality or sex between two persons of the same sex is a sin.

B: You were saying that Prop. 8 protects against homosexuality?

T: No. But I agree with this. If same sex marriage is legal, it would encourage children to explore same sex as their marriage partner. From Asian as well as Christian angle, we think this is social, moral decay.

B: Second document which is from 1man1woman dot net, more specific. Says that if same sex marriage passes it will lead to incest, pedophilia and polygamy. Do you agree with that?

T: Yes.

B: That’s what you told people to get them to vote for Prop. 8?

T: Yes.

B: Your paper says that after Netherlands legalized SS marriage, Netheralands legalized incest and polygamy. Do you believe that?

T: Same sex marriage may not have led to legalization of incest and polygamy, but it happened.

B: Who told you that?

T: I found it on the Internet. I did not write this that polygamy was legalized in 2005.

B: You put it out there to convince people to vote for Prop. 8. Did you ever look up the law?

T: Yes, there was different documents that shows that’s true.

B: So after Netherlands legalized same sex marriage, legalized polygamy and incest.

T: I’m not sure about incest. That may have been legal before same sex marriage passed.

B: If that’s the case, then it has nothing to do with same sex marriage.

T: Yes, but it shows that if countries are loose with sex it leads to this…

[UPDATE] 3:42

[The direct exam of former Defendant-Intervenor Dr. William Tam by David Boies continue]

David Boies (B): Your document here says that civil unions were passed in Sweden in 1994 and now siblings can marry.

William Tam (T): Yes.

B: You said you support civil unions but here siblings can marry after it was passed in Sweden.

T: Yes.

[Back and forth about difference between civil union and domestic partnerships.]

T: I believe if marriage is beyond a man and a woman that any person can come to ask for marriage for incest and polygamy. If this is a civil right what would stop anyone from using marriage.

B: Can two siblings become DPs? Can man and girl of young age become DP?

T: No.

B: DPs exclude people of certain age and relationship.

T: Right.

B: You know that?

T: Yes.

B: So you see that DP does not lead to incest.

T: Yes. Oh I see your logic.

B: Yeah, logic, logic?

B: Is it your position that if we change the name that we’ll all of a sudden start having sex with 13-year-old girls?

T: Know. The name of marriage is so important. If marriage is not limited to above age of 18 our children will fantasize about marrying either man or woman. To us parents, you may say I’m a paranoid Chinese parent, I get very upset about. However, if DP we can exchange to our children that some sex people want to live committed life together, it’s very easy to understand. But if you mix up the sexes with marriage, it’s confusing.

B: Finished?

T: Yes.

B: Just because you allow g and l to marry don’t have to allow brothers and sisters to marry

T: Yes.

B: And don’t have to allow sex with children?

T: Yes.

B: You also realize that it’s important to gays and lesbians that they be allowed to marry?

T: Yes.

B: Just as children of you and your wife benefit from knowing you are married, the children of gays and lesbians will benefit from knowing their parents are married?

T: No.

B: You don’t think children want their parents to marry?

T: Laughs… I don’t know what they are trying to get at.

B: Gays and lesbians want the same rights that you have and they think it’s important even I you don’t think they should have it. Can you understand that?

T: I understand.

B: Produces email from Andy Pugno which is statement of unity from Protect Marriage dot com. Says at bottom that organization and I I represent join in this statement of unity. You signed it on behalf of yourself and Traditional Family Coalition. Says “victory depends on commitment of each partner to work in a unified campaign.” You agreed to work in the service of unified campaign to help PM.com

T: Yes.

B: You agreed that multiple campaign committees and independent messaging and independent strategies and fundraising and membership building are counterproductive?

T: Yes. But later on I forgot about this document and made some statements that were independent of PM.com.

B: Do you consider yourself an honest man?

T: yes.

B: You would not sign something in which you did not agree?

T: No.

B: It says here under message discipline that all messaging/public statement s must be approved by campaign manager.

T: I agreed to that but later on I did some things on my own.

[UPDATE] 3:46

B: You did not start violating this agreement the next day did you?

T: No, but I did later.

B: When?

T: I don’t remember.

B: What did you say?

T: I think I said to SJ Mercury News that same sex marriage can lead to all kinds of diseases.

B: Did anyone from ProtectMarriage.com contact you to say anything about this?

T: Mr. White called me and said I should not have said that.

B: Do you have that in writing anywhere?

T: No.

B: So this Mr. White or someone contacted you, you did not have anything in writing?

T: No.

B: Was there another time you violated your pledge?

T: I said something to a Chinese newspaper that some European countries allow sibling marriage.

B: Did anyone from ProtectMarriage.com come to you and tell you to stop?

T: No. It was in Chinese, so I don’t think they read that. After Mr. White contacted me (after that 15 October 2008 SJ Merc News story), “I kept my mouth shut.”

[UPDATE] 3:58

[Why They Do Not Want ANYONE To See This Trial.]

B: Did anyone from ProtectMarriage.com contact you ask you take off of 1man1woman.com the statements that homosexuals are 12 times more likely to molest children?

T: No because it was in 2007.

B: Correct that this website was in operation during the campaign?

T: Yes. This website does not belong to TFC. Only TFC signed pledge. 1man1woman never signed the pledge.

B: I’m focusing in on a different question. This website was up during the campaign?

T: This page was not up during the campaign?

B: If I represented to you that a prior witness saw this page before the election, would that reflect your recollection?

T: Maybe it is, but then, uh, well I cannot remember correctly when, but that’s what I thought. That’s what I thought.

B: PM.com was well aware of 1woman1man website, right?

T: I am not aware.

B: (Back to press invitation). See what the website is? (For rally that Ron Prentice attended)

T: 1man1woman.net.

B: Flyer refers to 1man1woman.net

T: Yes.

B: Flyer for open-air rally to protect children? Right at the top is 1woman1man.net? Does that refresh memory that ProtectMarriage.com knew?

T: I’m not ProtectMarriage.com, so you can infer that they know.

B: Well, let’s see if we can do more than infer. (Points to document that went out on August 28, 2008, sent from Mr. Shubert’s firm). What was Mr. Shubert’s responsibility?

T: To run the campaign.

B: This was sent from Mr. Shubert to a number of people, many of which have been redacted. Reads off orgs that have not been redacted. Attached are the project marriage weekly grassroots minutes from yesterday.

T: Yes.

B: Did you attend those meetings?

T: Yes.

B: Who else attended those meetings?

T: Leaders of grassroots teams.

B: What team were you the leader of?

T: Asian American.

B: Read minutes sent by the man who ran the campaign. What does that third bullet point say?

T: A website is up, 1man1woman.com.

B: Pauses. Your honor, I have no further questions.

[UPDATE] 4:11

[Miss Moss of Prop. 8 is now trying to prove that Mr. Tam is a rogue.]

Miss Moss for ProtectMarriage.Com: Do you agree that you worked most closely with PM.com during petition phase?

T: During petition phase I worked closely with Mr. Pugno.

M: How frequently did you talk with Mr. P?

T: We spoke six or seven times on the phone and one time I met him to pick up petitions. We discussed technicalities.

M: What do you mean by technicalities?

T: To file papers with Sec of State. He’d send me the paper work, I’d sign it and send it back and forth.

M: Were you involved with Pugno or ProtectMarriage.com in messaging?

T: No.

M: Did you write language for prop. 8?

T: No.

M: Of the over 1 million signatures ProtectMarriage.com gathered, how many were you responsible for?

T: About 20,000.

M: Do you recall that you said to Mr. Boies that you had signed a pledge? Who drafted?

T: Yes.

M: Who drafted?

T: Mr. Pugno.

M: Was he your attorney at that time?

T: Yes.

M: You testified that you were told by ProtectMarriage.com to do that debate. Could you have said no?

T: Yes.

M: Asks if Campaign Manager approved your language for messaging?

T: No.

M: Did you get any of the messaging that you or your organization sent out approved by Shubert Flynt or PM.com?

T: No.

M: 1man1woman approved by campaign?

T: No.

M: Every time you were contacted by the press, did you refer to ProtectMarriage.com or S-F?

T: No.

M: Did you post this Dear Friends letter to the Internet yourself?

T: No.

M: Shows update stamp of September 4, 2009. Was it posted before that?

T: I do not know. I did not know that it was posted.

M: Rally flyer says PM.com on flyer.

T: I don’t know. I did not pay attention to this flyer.

M: Did ProtectMarriage.com pay for this flyer?

T: I don’t think so.

M: Was this flyer created, approved or distributed by ProtectMarriage.com [I think she’s referring to the flyer that says that homosexuality leads to disease, etc.]

T: No.

M: How many visitors to your website?

T: About 1,600.

[What a difference between Miss Moss and David Boies. She’s weak and tentative and scared. As the judge said the other day to one of the lawyers, “experience matters.”]

M: Do you know how many of those visits were lawyers involved in this trial?

[Judge smiles]

T: I don’t know.

M: How many on your mailing list?

T: Email list small, about 100.

M: Did you share any of your emails with campaign manager before you sent them out?

T: No.

[UPDATE] 4:17

M: How many times did you talk to ProtectMarriage.com?

T: Four times maybe on the phone?

M: How many times did you communicate with S-F?

T: Maybe one or two.

M: Did you have any involvement in developing messaging strategy for campaign?

T: No. I was acting independently.

M: Did ProtectMarriage.com have any involvement in the messaging strategy of TFC or1man1womancom?

T: No.

M: when you communicated with TFC or others in your dear friends letter, were you doing so on behalf of ProtectMarriage.com?

T: No, not at all.

M: When you said you were working with ProtectMarriage.com, what were you referring to?

T: During the campaign phase, conference calls. During the petition phase, I was dealing with petitions.

M: Did you at any time during or after the campaign share your views with S-F or ProtectMarriage.com?

T: No.

T: Break?

Judge: Five minutes.

[UPDATE] 4:45

B: You say that you worked stopped working closely with the campaign after the petition phase?

T: Yes.

B: When was that?

T: Fall, 2008.

B: Here’s an email in which you wrote about opportunity to publicize an ad for “our initiative.” Was that during the campaign phase?

T: No, because if it had been part of the campaign phase everyone would have known about it.

B: You said you did the debate that they asked you to do. Was that part of the campaign phase?

T: Yes. I think it was in October 2008.

B: July 21, 2008 on this document. Is this part of the campaign phase?

T: Yes, that is the starting point of the campaign phase.

B: Exhibit 2631 shows you attending weekly grassroots conference. Was this part of the campaign phase (August 2008)?

T: Yes.

B: You testify that you did not communicate with Schubert-Flint, but they run the calls?

T: I did not know who runs this. I attended 6 or 7 meetings, not all of them.

B: Well, the email is from S-F?

T: Yes.

B: And you know S-F ran the campaign?

T: Yes. I did not know who was on the calls. They all sound the same. English is not my first language.

B: Invitations came from S-F. Minutes of calls (already entered as exhibits) from S-F.

B: You see these minutes that include notes of you and note that website 1woman1man.com [I think they mean dot net. I make that mistake all the time.]

T: Yes.

B: October 29, 2008. This is campaign phase?

T: Yes.

B: Communication between you and ProtectMarriage.com

T: Yes.

Judge: There have been some redactions here. Are they material?

B: I recommend that the court review this in camera.

M: I did not redact.

B: We will work with counsel to make sure court gets an unredacted document.

B: TFC News Bulletin that follows the passage of Prop. 8.

T: Yes.

B: See on page where it says TFC 2008 historic events. First event is “Allied with PM.com?”

T: Yes.

B: Offer as exhibit.

Judge: Very well.

B: With respect to your assertion that you were not closely working with ProtectMarriage.com during the campaign phase. October 2008 clearly during campaign phase?

T: Yes.

B: This is flyer of event at which you asked Mr. Prentice appeared?

T: Yes.

B: During the campaign phase, ProtectMarriage.com reimbursed you for your expenses for ads on their behalf?

T: They did not reimburse me. They reimbursed some people who ran some TV and newspaper ads.

B: Is this TFC they reimbursed?

T: No. Chinese Christians who offered to put some advertisements for Prop. 8 but then they do not know how to do it, so yeah.

B: This is an email that you got from Mr. Pugno of PM.com, dated October 27, 2008. This is addressed to multiple people but one of them is TFC. Dear Bill and Peter. You are the Bill?

T: Yes.

B: Your organization spent $50,000 on TV ads in Chinese community. Your organization is TFC?

T: I introduced Peter to Andy because I did not want to get involved.

B: Do you have anything in writing that says you did not participate?

T: It is wrong. It says “organizations” but should say “organization.” I’m Chinese and don’t know that I would have to face a lawyer one day to talk about this.

B: I’m just trying to understand if you have any contemporaneous documents that show that you did not get involved in the ads. You were very close to Peter?

T: Yes, but he did most of the work for the rally and the flyers.

B: But you worked closely with him?

T: Not really.

B: But you worked together on the rally and the flyers?

T: Yes.

B: You testified that you were not part of formulating strategy for ProtectMarriage.com?

T: Yes.

B: You testified that you were not part of the core group as you have picked it up in this courtroom?

T: Yes.

B: Whom did you talk to during the break?

T: My lawyer.

B: What did you say to your lawyer?

T: That I felt like a naughty boy being put in front of the classroom being mocked.

B: What did he say?

T: He laughed.

B: Did you know that in American history there were extremely unfortunate times when Asian Americans were limited as to whom they could marry?

T: Yes.

(Moss objects)

B: He gave his answer your honor. I have no further questions.

Judge: You may step down, Mr. Tam.

What do we have on for tomorrow?

B: We have I believe our final witness, Dr. Herrick. And we have some document issues.

It’s that time of the day, where we compile the massive liveblogging into one thread for those who have broken F5 keys, or kids that demand their attention, or professors, or bosses and couldn’t stay obsessively refreshing all day long.

Today, Rick Jacobs and Brian Leubitz took turns again posting. Tomorrow, Rick will be there throughout the day. We are getting close to the end of the plaintiff’s witnesses. They might be able to wrap up tomorrow, but it could bleed into Friday.

—
DAILY SUMMARY

[UPDATE] 9:05] By Rick Jacobs

By Rick Jacobs

[Now we get into the issue of choice. This is key stuff. See what the judge says below. Today will be fascinating.]

[Don't forget there is a guide to the key names/players over here if you need some help figuring all of these names out at the top]

0840: We begin.

Judge: We have cleared the calendar and can continue the trial tomorrow. Mr. Thompson got the message but did not inform other counsel and the clerk did not call Mr. Boutrous. Mr. Thompson apologized. We will be in court tomorrow.

Two rulings on discovery:

Magistrate’s order is not clearly erroneous which is standard, so discovery order remains. Second order is before Magistrate Judge Spiro to add four people to core group in the discovery process. If he’s unavailable to hear that matter by noon, I’ll rule. Clerk will try to reach him and see what his availability is and at least one lawyer.

Mr. Criswell, Mr. Wirthlin, Mr. John Doe and Richard Peterson

Judge: Why do we need to depose Mr. Prentice again? Why can’t you just examine him on the stand?

Boutrous: Voluminous amount of documents. We thought deposing him would save the court time so we can walk through documents, streamline things in the court.

Moss: We filed our opposition to this this morning. We oppose reopening Prentice depo. He was deposed for thirteen hours. Papers suggest that they have 25 documents to go over with him on the stand. It would be highly prejudicial for us to have to prepare him after depo with him on stand next day.

Boutrous. We’ll take two hours (not seven). It’s the proponents’ who suffer here because Prentice has been trying to block us. We have had teams reviewing the documents for the last week. Documents should have been released weeks ago.

Judge: I’m inclined to agree with Miss Moss. I have not forgotten what it’s like to try case and depose at same time. You should be able to handle this on the stand, just as effectively here at the trial, just take a bit more time. We’re in trial; let’s proceed.

Cooper: Mr. Boies wanted to enter two documents into evidence. My friends at the plaintiffs have provided confirmation that those documents are authentic. So we accept them.

James Campbell (Prop.8): Mr. Kendall is from Colorado. His parents forced him to go through some sort of involuntary forced conversion therapy. Irrelevant testimony. Should be covered by expert if at all. No any more relevant than if defendants found a person who could say that he had a positive experience. Mr. Herrick, plaintiffs are calling him, is expert on this. Finally, Herrick has said that individual reports are unhelpful. Dr. Herrick’s commentary on study he did on self-reporting on conversion therapy. “Even if respondent tried to give true responses of say 12 years ago experience, people are not reliable because their memories and emotions change.”

Judge: Isn’t this an issue that the proponents themselves have raised in opening the case?

Campbell: Not forceful conversion.

Judge: Reads from proponents’ opening brief to court that says that sexual orientation may change. An individual’s sexual orientation may change over a lifetime. Women’s orientation particularly fluid. Seems to me you have raised the very issues to which this witness is going to testify.

Campbell: We never talked about forced structured therapy. Bottom line is that sexual orientation does change.

Judge: What evidence are you going to present on this? Are you going to show that people’s orientation does change?

Campbell: Through cross-examination.

Judge: Other than through cross what do you intend to use as evidence?

Campbell (gets a note): And studies.

Judge: Thank you. You did take a good deposition (as opposed to Herrera’s office that got lambasted by the judge yesterday). It does seem to me this is an issue raised by the proponents themselves. It is very helpful to have first hand testimony. The testimony by the witness can be very helpful. He has after all been deposed. Mr. Campbell has had the chance to depose. Therefore, the motion to exclude him will be denied.

Judge: Just got a note that Magistrate Judge Spiro can hear the matter now. So if you will designate a lawyer from each side and hightail it to Judge Spiro, we’ll move along.

[UPDATE] 9:22

[Boies puts up a video of depo of a DEFENSE witness. It’s stunning. No wonder he dropped out as an expert for their side! N is Nathanson, who was deposed in November by Boies in Montreal.]

Boies: What is position of American Anthropological, Psychological, Physicians, Psychiatric, Pediatric (he does not know who they are) on gay marriage?

Prop. 8: All support.

Does Catholic Church today say that homosexuality is immoral?

Yes. They say it is immoral and outside of the order of God? That’s what the Catholic Church teaches.

B: Biggest protestant church in US?

N: Southern Baptist Convention.

B: How does it describe homosexual behavior?

N: Sinful.

B: Do they describe it as evil?

N: Some do.

B: As a perversion, abomination, deviant behavior, manifestation of a depraved nature?

N: Yes.

B: Does teaching of Southern Baptist Convention include hostility to gay people?

N: Yes.

B: “God hates gay people.” Where does that come from?

N: Picture from the newspaper of protestors carrying a placard that says, “God hates gay people?”

B: What is proportion of those who voted yes on Prop. 8 were motivated by religious reasons?

N: About half.

B: Would you agree over the past fifty years, religion and society have been hostile to homos? And has it led to discrimination? And violence against homos?

N: Yes to all.

B: Any studies that attitude of society toward homos has harmed homos has psychologically damaged homos?

N: Yes. It has been bad for people.

B: What proportion of Roman Catholics accept the church’s teaching that homosexuality is a disorder?

N: Not more than half.

B: What is hatred?

N: Culturally propagated hostility. Not emotion; a cultural force.

B: Is there culturally propagated hostility toward gay people?

N: Some, yes.

B: Historically exits?

N: Yes.

B: Familiar with term gay bashing?

N: Yes. (Witness cites murder of gay man outside of bar.)

B: Is it true that the religions that supported Prop. 8 larger than ones that support?

N: Yes.

B: Religions that supported Prop. 8 provided many more volunteers than the religions that oppose?

N: Yes.

B: Do you believe that the teaching of certain religions that homosexuality is a sin and abomination leads to gay bashing?

N: Yes.

B: Do you believe that the primary cause of gay bashing is religion?

N: In a direct sense yes. Religious hostility to homo behavior has roots other than religion.

B: Was religion used to justify hostility and prejudice against blacks?

N: Yes.

B: Was this prejudice used to “protect families?”

N: Yes.

B: Were the same arguments used against women (family protection)?

N: Yes.

[UPDATE] 9:42

[Boies deposes another one of their witnesses. Her name is Dr. Young. I’ll call her here W for witness.]

B: Any cultures that accept homosexual relationships?

W: Hidra Indians. It is a community today. It has existed for at least a few centuries.

B: Based on everything you know about Hidra, how long have they existed?

W: For couple of centuries at least.

B: Other exceptions in other cultures that support homo/same sex marriage?

W: Verdash is a general category of people where there would be same sex relations and in some context same sex marriage. They were in the US, Lakota tribe, some plains Indians groups, religious groups that had shaman tradition often Verdash. I believe it’s only in North America.

B: Same exist in North America under other name?

W: Subcultures in West Africa and among silk workers in China lesbian marriage. In Roman culture around emperors there were some same sex marriages. Many other examples of same sex relationships, but I’m using examples of formal relationships that we could call marriage. If we just talk about same sex relationships, it would be quite a long and large anthropological study.

B: What is gay bashing?

W: Taunting to physical assault.

B: Bigotry and prejudice in US substantially religious-based?

W: Yes.

B: Religious component to bigotry against gays and lesbians in US?

W: Yes.

B: Do certain religions teach that homosexuality is a sin?

W: Yes.

B: Does Catholic Church have a view of homosexuality outside of the priesthood?

W: Continuing view that homosexuality is wrong.

B: Does church continue to assert that homo activity among lay people is wrong?

W: Yes.

B: Are children advantaged by increasing the durability of the relationship of the couple raising them?

W: Yes.

B: Durability for gay people enhanced by allowing them to marry?

W: Yes.

B: Increasing durability of gay couples’ relationship beneficial to children?

W: Yes.

B: Is it case that love and commitment are reasons that most people give for wanting to get married?

W: Today, probably yes.

B: Studies you have seen support that and do not indicate to the contrary?

W: Yes.

B: Do you believe that love and commitment are the reasons gay people give for wanting to marry?

W: Yes.

B: Arranged marriages are declining?

W: Yes. Arranged marriages have declined a bit, but have not been overtaken by love marriages.

B: Where arranged marriages have declined, have you seen an increase in divorce rates?

W: Yes.

B: Have you also found that divorce rates are correlated with female literacy?

W: I cannot refer to specific studies, but there may have been something to that effect.

B: Are you aware of the correlation between declining birthrates and female literacy?

W: Yes.

B: Shows her statement of American Psychoanalytic Association of 2008. “Whereas homosexuality is a normal variant of adult sexuality.”

W: I would prefer to have a working definition of homosexuality here, but I have no basic problem.

B: Whereas g and l have same potential and desire as hetero and have same potential and desire as couples to raise kids as hetero. Agree?

W: Yes.

B: Is it your view that because something was the norm in the past it should be continued in the future?

W: Not necessarily. Just because it was in the past, has to be reassessed in contemporary context to see if that norm should remain.

B: Talked about homo prejudice. Women have also been subject to prejudice and discrimination?

W: Yes.

[She says that there is doctrine of separation of church and state so this sort of religious persecution should not be allowed.]

0940 break for ten minutes.

[UPDATE] 10:20

0950: Kendall on stand. Grew up in Colorado Springs, Colorado, born in 1983. Went to Evangelical Christian Academy (ECA). Remember parents talking about homosexuals being evil, seeking special rights. I did not know what it was, but was scared by term.

What is your sexual orientation?

K: I am a gay man! (made me tear up the way he said it.)

C: When did you find out?

K: Always knew I was different. Looked up word at about 12. Knew that was me. Kept it a secret because I was scared. Boys called me names in seventh grade: homo, faggot, queer or just gay. I wore glasses. They played monkey in the middle, keep away, until they broke my glasses.

K: Hated to go to school. Remember getting in car, crying and told parents what was going on. Parents took me out of that school. When I was 13 years old, I wrote to myself that I was gay and my parents found it and read it. Parents flipped out, very upset, yelling. I don’t remember a lot of what they said, but it was pretty scary the level of their reaction. I remember my mother telling me I was going to burn in hell.

K: Religious family. Church and God every day part of our lives. It was shocking (what mother said). I was totally stunned. After my parents found out, my home life changed a lot. My mother called me names.

K: Shortly after this incident, I was sent to a Christian therapist for reversal therapy. I was told that the goal was to make me a hetero. I went two or three times. I remember the therapist telling me homosexuality inconsistent with Christian teaching, that my parents did not want me to be gay and that homos were bad people.

K: Therapy did not make me feel better. I was always a good kid, wanted to make my parents proud. Suddenly, they took me to this guy who told me I was a bad person and my parents said I was a bad person. I felt terrible. The therapy did not work. I was still gay. I knew I was gay just like I’m short and half Hispanic and knew those facts would not change.

K: My parents were referred by Focus on the Family, a Christian based org in Colorado Springs. National Organization for Reversal Therapy in Encino. I went to NORTH (Not sure I have this all correct) from 14-16. My entire life changed. Before NORTH, parents put notes in my lunch, made my lunch. After, they abused me emotionally. Mother told me she hated me, that I was disgusting, repulsive. She wished she’d had an abortion rather than having a gay son. She said she wished I’d had Down’s syndrome or been born retarded.

K: Met with Dr. Nicolosi. I’d do over the phone sessions with him for 90 minutes and sometimes flew to CA for in person. I don’t recall much, but remember that Nicolosi said homosexuality is bad for you, your parents want you to change. As a general admonishment, but not specific technique (to convert).
K: I remained religious throughout. At NORTH I was told I had to reject what I was because it was dirty and bad. I reconciled my faith and homosexuality on my own. NORTH was not successful; I was just as gay as when I started. (Stopped at 16). My life had fallen apart. I did not have the world in which I grew up. My faith and family which were both very important to me. I realized that if I did not stop going I would probably have killed myself.

K: When I was 16, I surrendered myself to the Department of Human Services in Colorado Springs. I went in and told caseworker about family and reversal therapy, that if I went back home I’d kill myself. They started separation proceedings.

K: I was a sixteen-year-old kid. I had just lost everything. I walked in and out of jobs and schools. I was extremely suicidal. Turned to drugs to escape. Things did not get better (he’s very choked up). Period lasted 4 or 5 years. Struggle for survival; not able to support myself. When my healthcare ran out, I went to emergency rooms.

K: Now work for Denver PD for over two years. It’s been a long hard journey, but I have fought with every bit of myself to take care of myself, get a job, get a place to live. I have been able to do that.

K: Member of Log Cabin Republicans, Current Chair of Denver GLBT Commission that advises mayor’s office and city. Not here to testify for those orgs. I am here to testify for myself as Ryan Kendall. Nothing here in court shaped by my personal advocacy for gay and lesbian rights. I just told my story.

Campbell Cross examines.

C: You were contacted by SF attorney’s office regarding this trial?

K: Yes.

C: You have never read a study that shows that people can change their sexuality?

K: Yes.

C: You know of anyone who changed sexual orientation?

K: In public, yes.

C: You were compelled to go to conversion therapy, not asked to consent, you communicated your objections to your family and those objections made no difference because your parents forced you, your only goal was to survive. You did not have a goal of changing your sexual orientation, oh let me change that, to change your sexual attraction? And you did not want to change your sexual attraction? Family experience just as damaging as therapy itself?

K: Yes to each in series. (I just wrote out the questions, but they were asked one at a time.)

C: At one point in time after you turned 18, you lived with your parents for a time?

K: Yes.

C: Is it your position that no one has ever gone to conversion therapy willingly?

K: I do not know everyone, but I know no one who went willingly.

C: You acknowledged in your depo that some people claimed they successfully converted?

K: Yes.

Redirect:

K: During the group session, Nicolosi introduced us to a guy named Kelly who claimed to be cured. When Nicolosi stepped out of the room, Kelly told me he was going to a gay bar that night that he was just pretending for his family and therapy. Lived with family for a few months after that. I don’t speak to my mother now.

[UPDATE] 11:15] 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.

[UPDATE] 11:47

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?

Thompson: No.

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.

[UPDATE] 12:22

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 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?]

[UPDATE] 1:28] By Rick Jacobs

By Rick Jacobs

1:10PM. We’re baaaaaaaaaack!

[The judge said he’d referred Mr. McCarthy’s motion to quash (the documents that are public by the two pastors) to Magistrate Judge Spiro.]

Back to Boutrous examining Prof. Segura.

B: Asking questions carefully about documents. Wants to be careful not to mention anything that B does not direct him to do.

S: Document subject line: Go to Confession. November 4, 2008 at 9:20AM.

B: I propose that this document be entered into evidence subject to redaction. I still believe this document is not covered by privilege.

Judge: Mr. Pugno?

P: Thank you for pronouncing my name correctly. Everyone gets it wrong. This is correspondence between executive director of Catholic Conference of Bishops and we think it’s privileged, but we are willing to put redacted version.

Judge: Okay.

B: Puts up redacted version with lots of stuff blacked out.

S: Reads part that says that this has been the longest presidential campaign in history and now we are almost done with Prop. 8. The direct involvement of the Catholic Conference (CCC) has been unusual—although not unprecedented.

The CCC has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating. Leg by the Knights of Columbus national donation of $1.5 million, other million dollar donors, and the countless major donor and with a significant percentage of the 90,000 online donors, the Catholic community has stepped up. Of course this campaign owes an enormous debt to the LDS Church . I will comment specifically at a later time (under separate cover) about their financial, organizational and management contributions to this success of this effort.

[UPDATE] 2:28

B: Puts up document that is marked highly confidential, attorneys’ eyes only. This document shows that Ron Prentice is saying that the main funding to put 8 on the ballot was from Auxiliary Bishop Corleone of San Diego’s efforts, other Catholics.

B: Puts up email from Prentice showing that Prentice is CEO of California Family Council and volunteer chairman of Protect Marriage.

S: Never seen a coalition of this sort arrayed against a minority group. Only similar thing is anti-abortion.

Pugno: Fighting over whether a document that was at one time a church official communicating with other church officials. Very troublesome to say that church loses ability to communicate with each other because of communication with other churches.

Judge: But this document was in that person’s file?

Pugno: Yes, but he was both a member of the executive committee of the campaign and he communicated with his own church. This is not a document from ProtectMarriage.com.

Judge: How can this document have some kind of privilege attached to it if it was in the file of someone from Prop. 8? It falls outside of the 9th circuit’s definition of 1st amendment.

Pugno: But it is a church official.

Butrous: I don’t think that he has standing to object.

Judge: Well he can object on behalf of a client, in this case Mr. Janssen [He’s the one who wrote the blackmail letters to Sal Rosselli and others saying that if they did not give the same amount of money to yes on 8 as they gave to no on 8, Janssen would publish ads about their lack of support for families.]

Boutrous: I think I can read this first sentence without bringing down the first amendment. Jansen communicates about public relations for campaign.

Pugno: But he was a member of the LDS organization at the time so this is not to be made public.

Judge: Jansen intervened to serve as party in the case. The document discusses messaging of campaign. I’m not aware of any privilege that attaches to his religious affiliation. This is material to the case. Your objection is overruled.

[Again, Prop. 8 is desperate to hide their machination]

S: Reads document from Jansen who says since first Presidency of LDS church wrote letter, what will be our role? “As you know from the First Presidency this campaign is entirely under the direction of the priesthood…”

“What is the next step in this campaign? I understand all grassroots organizing efforts in OC will be led by Gary Lawrence, who will report directly to the Protect Marriage.com Coalition leaders. He has also been hired…

Pugno: Object. Lawrence is protected.

Judge: 9th circuit protects core group. The mere fact that individual is in core group does not mean that the name cannot come out in another way. This is not one of his protected communications.

Pugno: Well, Judge Spiro protected Lawrence Research.

Boutrous: Lawrence is publicly associated with this campaign. Fact that religious organizations participate in campaign is perfectly fine, but once they do, they are public in that involvement. I see no 1st amendment issue here.

Pugno: His company played a role. He did not play that role.

Judge: This was a public campaign, out in the open. The people who were out front on it inevitably subject themselves to public scrutiny and to litigation that follows. There is no privilege that attaches to this document as distinct with communication among core group. Continue, Mr. Boutrous.

S: Continues reading. “Priesthood leaders will call each stake and leaders by zip code within each ward—potentially working not only with LDS but also non-LDS volunteers.”

S: Very close coordination with church, with statements like “this entire campaign is under priesthood direction” is notable. Customary within LDS for volunteers to be approached for support, but here it appears that there is an LDS volunteer in every zip code which is an enviable political organization.

[The Mormons actually rank this campaign with the Catholic Church! It’s here. It‘s clear. They worked the church to beat the queers.]

Pugno: Standing objection; it’s a church meeting document.

Judge: Can witness lay a foundation for this document?

B: This was produced by defendant interveners after they complied with Spiro’s order.

Judge: Does appear to be the minutes of a stake meeting. I gather, Mr. Pugno, it is correct that this document came from files of ProtectMarriage.com or one of the defendant interveners.

Pugno: I’m also sure that this came from Mr. Jansen’s file. He’s the only one of the interveners who was part of the Mormon. There really is no 1st amendment protection here if your correspondence is available.

Judge: That’s rather like attorney client privilege. If it’s outside of the mutual possession, that privilege is abrogated.

Pugno: Only reason it’s here is because Mr. Jansen took it out of his shoebox to comply.

Judge: Shoebox? (Laughter).

Pugno: Illustrates the point.

Judge: Appears to deal with Prop. 8. No one is questioning the right of public association.

Pugno: Object then on lack of foundation.

Boutrous: I can lay that foundation. Remaining portions of this document can be redacted. This is the key part. Mark Jansen reported on campaign activities.

Judge: Very well, the objection is overruled.

S: Reads document. Says Brother Jansen said LDS not to take lead, but to work through Protect Marriage. SLC had teleconference with 159 of 161 stake leaders in CA. Goal is $5million at $30 minimum donation per head.

S: Director Holland highlighted the luxury of having Mark Jansen key committees and that eh will received direct communicate (sic) from him.

S: With respect to Prop. 8 campaign, key talking points will come from campaign, but cautious, strategic, not to take the lead so as to provide plausible deniability or respectable distance so as not to show that church is directly involved. We might look at religious belief as source of opposition and think that some folks would vote their religious conscience, but we would not know that this sort of direct church power is engaged. I have never seen this level of coordination in a political campaign.

Pugno: Objects because document will be revealing.

Judge: Not to make light of this, but the reason people want to produce documents is that they are revealing.

Boutrous: It’s from an outsider to the core group. We are attempting to show the level of coordination with groups that Protect Marriage says were not even affiliated with the campaign.

Pugno: This is from a member of the core group.

Judge: This is a post-campaign trial and defendant represents it’s from a core group member, so objection is sustained.

Boutrous: Document not under objection.

Judge: Music to my ears.

S: “You may know that Mormons have been out walking neighborhoods with about 20,000 volunteers.” Speaks to breadth and size of power arrayed against gays and lesbians.

Boutrous: Another document produced by proponents over the past week.

S: Document appears to be an email from Chair of ProtectMarriage.com to others with some issue of how designated gifts to campaign are to be made.

B: Anything caught your eye about expression of political power?

S: 1. Teleconference calls:
1,700 participants in June/
Nearly 3,000 in July in CA alone.
5 more teleconferences planned with goals for training and final call of more than 5,000 CA pastors participate in one of these calls.

Shows huge array of political power.

[If you thought there was no vast right wing conspiracy, look again. HERE IT IS!]

S: Appears to be fundraising letter to someone who has given generously to Family Research Council in the past. Interesting because it is a sharing of donor bases to get people who can give to give to the campaign. “We have Arlington Group, FRC, Focus on the Family and others. “

Taken together or separately, these are extremely powerful groups.

B: Based on seeing all of this, what is your opinion of the relative powerlessness of gays and lesbians?

S: Taken together we see the absence of legislative victory, lack of ballot measure success, clear array of integrated power against, gays and lesbians have relatively little power.

B: You compared gays and lesbians with relative political power of AAs or women in the 1970s?

S: Relative to women in the 1970s, gay men and women are far more disadvantaged today than women then, because so many women. Being a woman is not inherently controversial. Women are loved by very many people. (Laughter). Certain provisions of 1964 civil rights act extended to women, so they enjoy statutory protection.

S: Comparison with AAs more complicated to explain. Let me begin by saying that being an AA before civil rights act passed was very difficult. Life in the south was terrible. At the time that suspect classification was extended to racial and ethnic minorities, there were three constitutional amendments that extended equality. Granted that there was lots of legislative nonsense. Immediately prior to WWII, Exec Order 8802 by Roosevelt prohibited war department from discriminating against AAs and 1948, Truman integrated military.

Lives of blacks was bad, but there was a number of constitutional and legal protections. The civil rights movement was an attempt to bring full equality.

In 1990, there was not a single state law that discriminated against gays. Now, 35 states have them. Opposite of what happened with AAs.

AA population 13%, some states 40%. Some jurisdictions have AA majority. No jurisdictions, except for small resort town, in which g and l are majority.

60 people of color have served in Congress; 4 in senate, although some have left to join administration. Significant that there is the first Hawaiian president (laugh). Huge that there is an AA president.

B: Comment on Prof. Miller (the would be witness for Prop. 8 who has been destroyed and dropped out).

Thompson: We have not had a chance to depose S about this and why is he familiar with Miller?

B: He attended Miller’s depo!

Judge: Overruled.

S: Miller had no idea about history of gay and lesbian history. Unfamiliar at all with political science work on prejudice of which there is a great body. I thank it’s fair to say that Prof. Miller did not look beyond the boundaries of California. When asked about other states, he had no knowledge. He even said he would be shocked if he learned that a majority of states have no protection for gays and lesbians, which is true. He also did not know about history of CA legislation. In starkest terms, in 29 states there is no protection for gays and lesbians and Prof. Miller said gays and lesbians have political power without being aware of that fact.

Couple of problems with Miller’s definition of political power. Vague definition. In case of statutory enactment, he did not know that court cases forced legislation. Attorney on his side asked if court cases can be considered political power and he said yes. Impossible to say that court rulings for a minority are an example of political power.

Miller said in his research that ballot initiatives are bad legislation because there is no time for reflection and bad for minorities. I agree with him.

[Brian is taking over now and will start on a new thread.]

[UPDATE] 3:03] By Brian Leubitz

David Thompson (T): Of ten largest cities, how many have protections for gays and lesbians

Gary M. Segura (S): About 8 or 9

T: You gave money to Prop 8?

S: Yes

T: You participated in a course with Simon Jackman at Stanford?

S: Yes

T: You said you believe very strongly in marriage equality?

S: Yes

T: When you hear the term gay or lesbian, what does it mean. It may be sexual behavior, It may be identity, etc.

S: Yes, it could be a limited range of options

T: Definition of power, the exercise of power is moving people from fence-sitting into your column?

S: Yes, that could be it, it could be getting people to stand down.

T: If the group had power, it could cajole the Legislature to produce outcomes that were not ordinarily

S: Yes, that’s part of it, also means securing it

T: You believe there are allies, that the LGBT community has to rely on political power, and allies

S: Yes, some are more or less reliable.

T: You believe the NAACP has political power, even when Newt Gingrich was speaker.

S: yes, they had power, but a little less than when Dems are in power.

T: Shows HRC materials stating that the National Journal called them very effective. You don’t believe that gays have a meaningful power despite that.

S: No, they don’t

T: Goes through a list of powerful people who are gay: Speaker-elect John Perez, other LGBT leaders. Not politically powerful?

S: No, they aren’t.

T: Looking at domestic partnerships. LGBTs won over bibilical literalists, correct?

S: Yes.

T: Again, in 2003, AB 205 expanded DP rights. LGBT win, right?

S: Yes

T: If a group has achieved a great deal of legal protection, that would be a positive element in political power?

S: yes.

T: Can you identify any state w/ more political power for LGBTs than California?

S: No.

T: Can you ID any examples of Latinos using political power?

S: Yes.

T: New Hampshire allowed marriage equality by legislation, as did Vermont. Do gays and lesbians not have power there?

S: It would be difficult for me to say, b/c I don’t know the full situation. I would point out that my issue of political power as a national issue, but also across layers of government.

T: Massachusetts. Able to defeat a measure to repeal it?

S: Yes, gays and lesbians did, but to the extent that they cannot travel with their marriage. They don’t have power. (And Iowa)

T: DC?

S: No gays and lesbians

T: Houston has a lesbian mayor. Power there?

S: No. They do not. No DPs there.

T: San Diego. Mayor Sanders is a supporter, any power there?

S: No. LGBT community isn’t sufficiently powerful to change power.

T: New York Times article about LGBT leaders. Goes through elected leaders who are gay, and asks about each city about whether they have power.

S: No, they live in Wayne County, Michigan, and the United States.

T: Charles Pew in Detroit didn’t face many attacks. Doesn’t that mean there’s political power?

S: I would look to the City of Houston, where the Mayor’s sexuality was a big issue in the campaign.

T: Story in Atlanta J-C: “Gay votes can make a difference.” Interview with Georgia Equality, he says that the LGBT vote was a powerful effect. But gays and lesbians don’t have power in Atlanta?

S: Yes, this claim has a number of problems. This is being made by an advocate of an organization, and this was something of an ad here. They would always aggrandize their power. Atlanta was one of the locations that doesn’t have protections.

T: Money is a political resource?

S: Yes, but the power varies by groups. Money is the power of trade groups, but in others votes are more important.

T: Some groups have power b/c of their financial resources?

S: Size of the group is an important factor, as is financial resources?

T: Yes.

S: No on 8 outraised Yes on 8, 43-40, right?

T: That’s my understanding

S: Total revenue of HRC (about $45 mil) is greater than that of NAACP

T: You don’t have an opinion about the income of gays and lesbians? And gay men are less likely to have children, and children absorb resources, meaning gay men have more resources.

S: Seems reasonable

T: Goes through economic resources. The number of gays and lesbians that give money are quite high?

S: Yes, I think gays and lesbians are more likely. A very small group of people though would have to give

T: You believe the internet has made it easier for gays and lesbians to organize? And particularly for people that might want to stay private.

S: Yes, for all groups. But also makes a difference for private people.

T: No on 8 was able to send out a message on TV.

[This guy is speaking fast. Very fast.]

[UPDATE] 4:12

T: You believe access is important for political power. You believe that access shows that a politician favors someone? You believe that access shows power?

S: No, because LGBT

T: You can’t identify a single issue that gays and lesbians were refused to speak about gay issues.

S: I don’t know the workings of Pelosi’s office, but she is resisting bringing some things to vote.

T: You talk about the feelings of the public towards a group, you have a “feelings tmperature.”

S: Yes

T: In 1984 the mean temperature was 30 degrees. Recently, it was around 49 degrees. There is a trend

Yes, I would want to analyze the

T: Allies can be a source of power?

S: yes, depends on the time. Some allies are more helpful, more often.

T: An ally is somebody who repeatedly embraces the gay position?

S: I would say it is somebody who expands political power for the group.

T: Looking at a chapter of a book that S wrote. The value of coalition building is not lost on the LGBT groups, and have been working for years to build coalitions.

S: That’s true.

T: HRC Annual Report 2009. “Finally, with strong allies in the White House and in Capitol Hill” Would you agree that the Obama administration is more favorable than Bush?

S: Yes, but I wouldn’t say Obama is a strong ally.

T: The president increased HIV power. That’s power

S: No, but Bush did a good job at HIV prevention, but it’s not necessarily a big step.

T: HRC wants to eliminate HIV travel ban.

S: Scientific community and LGBT wanted that.

T: That’s a sign of LGBT community?

S: Not really. A letter writing campaign isn’t that big of a deal. There was also a lot of public pressure from the scientific community.

T: We advocated for the administration to ban gender identity discrimination

S: LGBT community did seek it. I’m not sure if it will survive this administration.

10 minute break

And, we’re back from the break

T: We’re going to play a speech from Pres. Obama

Judge: Well, it is the 20th of January, isn’t it.

(Obama): Story of HRC. I’m here with you in your fight. Goes on to talk about HRC’s checklist.

T: Using your definition, does Obama count as an ally?

S: I think President Obama is an ally who cannot be counted on. An ally whose rhetoric goes further than his action.

T: You believe Obama is lukewarm, even indifferent?

S: Yes, he has defended DOMA. ENDA isn’t law. OFA sent emails to Maine for New Jersey, but didn’t mention Question 1. Most gay activists feel that President Obama has been particularly disappointing. He did sign the hate crimes legislation.

T: You would look to whether Obama has spoken publicly?

S: President Obama is a very good speech maker.

T: You would look at what legislation he’s introduced.

S: Well, strictly speaking, the administration doesn’t introduce legislation

T: Sen. Feinstein is only a soft ally?

S: Yes.

T: you would describe a true ally as somebody who will put other goals aside for the goals.

S: Well, yes.

T: You would describe ACLU as an ally?

S: Well, they do sail into stiff winds.

T: We were looking into the definition of reliability in your deposition.

S: Yes, ACLU is a probably ally.

T: Pelosi?

S: She is a decent ally, but not very reliable.

T: That could be a sound strategy?

S: Perhaps. But there is evidence that “living to fight another day” loses your base.

T: The importance of the media. Television news could be important?

S: Yes

T: John Zawler, the nature of mass opinion. The thesis is that the public responds to lead cues. The media leads on issues

S: Yes, there is a correlation, it’s not perfect, but generally, media reports matter.

T: “Minority group interests and political organizations” You considered this article.

S: Yes

T: Look at p. 575, article states, “Gay political support isn’t as important as Elite support for marriage.” You would agree that gay and lesbians media coverage has increased. And saliency on that issue has increased

S: Yes, on that dimension.

T: 2005 HRC report showing 90 % of population has seen quote.

S: Well, 90% don’t read newspapers, well below 50%. Areaas where 90% of the population have been reached, but not 90 % of the nation. I think we have the HRC advertising its own work.

T: You don’t recall SF Chronicle and NY Times advocating against LGBT causes?

S: NO, I Don’t.

T: HRC Says that their opinions as “common sense.” ?

S: I would say that newspaper editorial boards generally favor LGBT rights. I would think there would be variation by issue and by region.

T: Editorial from NYTimes: “Preserving California’s Constitution” Third sentence strongly opposed Prop 8. Is it fair to state that the New York Times ferverently supports gay marriage?

S: I would think that they support marriage equality across the states in the absence of an editorial.

T: LA Times, Prop 8 added discrimination to California Discrimination

S: It would show that the LA Times opposed Prop 8. And that newspapers are too fond of the word “ferverent.”

T: Cohesion and size of the group?

S: There is a broad scholarly disagreement on the size of the LGBT community. It is my opinion that between 4-7% are openly gay.

T: Bisexuals?

S: 2% or even less. There are some problems with definition on bisexual.

T: 23% of gays and lesbians are estimated to have voted for GW Bush, less cohesive than African-Americans?

S: Yes, African-Americans are the most cohesive group.

T: A small group can be political powerful?

S: Depends what you mean.

T: The Jewish community has political power

S: My initial opinion shows that the Jewish community has a lot of representation.

T: In close elections, small groups can make a difference

S: yes, that’s true

T: Both Obama and Clinton paid attention to LGBT community in the primary?

S: I don’t that they were more focused on the LGBT community than just anyone on the street.

Both Sen. Obama and Clinton, actively courted all the groups. The term special appears to suggest that they paid more attention than to other constitutency. Gay and lesbians are majority Democratic consitutency

T: Persuasion?

S: Persuasion is more than saying please pass our legislation. Persuasion means that you can point to a deeply held norm. Persuasion means how much they hold deeply held norms and then how much they are willing to act on them.

T: You believe that a group could change a legislator by making claims on norms of fairness?

S: yeah, they usually do that?

T: You think that abolitionists used the norms of fairness?

S: Yes, it was one strategy. They engaged in strikes, boycotts, freedom rides, far more than just appealing to the norms of fairness.

T: You’ve read press reports that the No on 8 people didn’t feel that they did a good job of reaching out to blacks and latinos.

S: yes, I’ve read that.

T: Let’s talk about violence?

S: It’s usually frowned upon.

T: And it isn’t very effective?

S: No, it’s not very democratic.

T: Sympathy?

S: Sympathy isn’t really a tactic that isn’t used very often.

If a group is trying to engage norms of fairness, do they lose that when they engage in violence?

S: To an extent. Not always true, look at civil rights struggle.

T: You said in your depo: that you lose appeal when you engage in violence

S: yes

T: One resource you have is good will?

S: yes.

T: Disenfranchisement of gay and lesbian voters?

S: Not recently, maybe in the 1950s.

T: Recently?

S: Nothing off the top of my head.

T: Let’s talk about the indicia of political power. One reflection would be to allocate funds that are important to the group.

S: Yes, if the group brought their resources to bear.

T: You would also look at the presence of statutory protections? And to elect candidates of their choice?

S: Yes

T: Not only gay candidates would be first choices.

S: yes

T: 4 out of 120 legislators

S: Ok

T: Equality California is a big gay rights group?

S: yeah, probably.

T: 2009 legislative scorecard for EQCA. Despite a tough legislative session, this has been one of EQCA’s best years. We passed 11 pieces of legislation. Is it true that 11 pieces of legislation were passed?

S: Ok. Some of them were non-binding resolution.

T: Would a legislator getting an EQCA rating of 100% mean they are supportive?

S: Depending on

T: Can you point to one of the 100% rating is not an ally of the LGBT community?

S: I cannot. There are a lot of zeroes, so if the majority lost control, much could be reversed.

T: Senate

S: I don’t know all the legislature’s activities

T: Can you identify where the LGBT community supported the Republican rather than the Democrat?

S: No

T: Can you identify a Democrat who won the nomination without the support of the LGBT community?

S: I lived outside the state, so I don’t know all the primary politics

T: You would call Boxer an ally?

S: yes

T: What about labor unions?

S: I can’t say. I don’t know how labor members voted in 2008 just because the union opposed Prop 8.

T: EQCA press release citing UNITE-HERE donation of $1900

[UPDATE 4:42] By Rick Jacobs

[I'm back in the hot seat for the rest of the day.]

Prof Segura: Not surprised that UNITE HERE gave $100,000 to campaign. UNITE HERE represents hotel and restaurant workers as well as needle trades. Both are frequented by LGBT folks.

S: Geoff Kors (EQCA) comment in press release that this shows long standing relationship with organized labor reflect his view, not sure it’s accurate.

Thompson: $1.7 million from unions to No on 8. Do you know of any to yes?

S: No.

T: Story dated Oct. 26, 2008 from Sac Bee. Influential Latinos including the Los Angeles mayor and can you help me with the pronunciation—

S: Villaraigosa.

T: Yes, that’s it! [Wants to make the point that Villaraigosa is Latino. Really racist.]

T: All tech companies support gay rights. And they have power?

S: They do and so do other companies have power, but they may not be influential or powerful on all issues. Silicon Valley and large corporations are powerful in that they make large campaign contributions and have lots of lobbyists.

S: I’m not aware of large corporations working against LGBT?

T: HRC 1996 annual report, page 13. “Big businesses like Microsoft support state legislation that would help GLBT people.” Nike also supported GLBT legislation in 1996. Do you doubt this?

S: I would clarify the statement. First this is the advocacy organization speaking about how wonderful they are so that they can raise more money. Second, it says that more and more businesses are supporting fair-minded legislators, which makes clear we need to change. Third, not clear that corporations are donating

Judge: Does losing elections or failing to obtain favorable legislation show political powerlessness?

S: Losing elections do not necessarily mean that. Initiatives are different. It’s the only means by which voters vote on the rights of others. We have 150 elections in which LGBT have lost. That’s extraordinary. Does each act warrant judicial intervention? No. If we have passage of a bill where a majority party votes for and minority against, when power changes, could be reversed. And we could see it all reversed by initiative. I would want to look at the range of events. Loss rate shows that long standing prejudice is shaping political outcomes.

Judge: How much time do you have left with Prof. Segura? Perhaps you can do as you have done before and spend this evening honing those questions.

T: I will endeavor to do that.

Professor Herrick will go on if he is not ill as he was today. Otherwise, we’ll just put Mr. Tam on. Then we have documents. Those are our two live witnesses. Possible we may have to call Mr. Prentice to authenticate some documents.

Judge: Okay. I understand Magistrate Judge has resolved the matter discussed before the break with some of the documents. Can counsel inform me of the outcome? Mr. McGill, you were involved. Can you inform us?

McGill (Lawyer for our side): Says we are working it out.

Judge: Is it plaintiff’s intention to introduce some of those documents?

Boies: Yes, if we can authenticate some of the documents.

Judge: Unduly optimistic that plaintiff could rest tomorrow?

Boies: Challenging, but possible to finish tomorrow, but certainly Friday.

Judge: Defense should be ready tomorrow or at the latest Friday morning.

T: We’ll have Prof. Ken Miller here on Friday morning.

Boutrous: Judge Magistrate ruled against the motion to quash.

Judge: Very well. See you bright and early at 8:30 tomorrow morning.

We are back from the long holiday weekend and had a short day today, with Judge Walker adjourning early to deal with some other business.

Today Brian Leubitz liveblogged the morning, with Rick Jacobs taking over the duties for the afternoon.

Thanks to everyone who introduced themselves this morning in the welcome thread that now has more than 300 400 comments. Our Trial Trackers are amazing. The stories you have been sharing have been painful and inspiring to read.

We are now over 700,000 views, 5,000 comments and 80 blog posts in a week and a half. Just incredible.

The daily summary is below. All of the livebloggers today seemed to think that the defendants were hurting themselves with their line of questioning on the statistics during the cross-exams this afternoon. What do you think? How did the day go?

——
DAILY SUMMARY:

Had the trial begun today rather than last Monday, the anti-science folks on the other side would have said that the rain meant that the elements were conspiring against the gays because last week we began with the vigil under clear, crisp skies.

We begin today at 0830. Brian Leubitz is taking it from here. I’m in the room, but not doing the live blog right now.

Boutrous: Proponents filed a motion to expand the core groups for discovery so that it would now reach to Massachusetts. We have opposed. Proponents are withholding documents until the group is expanded. We object. We also want to open depo with Prentice (ED Protect Marriage) since we got 20,000 pages. We would like to reopen depo. Some of documents cast doubt on his prior claims that he had no connections to various groups. We’d like to have Magistrate Judge Spiro open depo.

Judge: First part is doc 474 re: John Doe and TV commercial. And there is a motion challenging Mag. Judge general discovery order. I am ready to rule on the latter order. Have you had opportunity to reply to query re: doc 474? I’ll look at that and either decide myself or refer to Spiro.

Two matters, then. Prentice depo and 474.

Cooper: I’ll reply by tomorrow.

Judge: First witness?

Herrera: Mayor Jerry Sanders of SD.

8:45 by Brian Leubitz: SF City Attorney Dennis Herrera calls San Diego Mayor Jerry Sanders

Judge: You need to review Mr. Flynn’s deposition, he needs to learn proper objection form

Jerry Sanders: States Name:

H: You are mayor of San Diego. You are Republican. What term are you in? Description of career:

Yes. I am a Republican in my second term. Before becoming mayor I signed up as a recruit in the San Diego PD. I rose through the ranks of the SDPD. In 1986, promoted to captain, and commander in 1990. Command of half of the city and in charge of Internal Affairs. He was promoted to Chief of police in 1993 and retired in 1999. Between 1999 and 2005, I was president/CEO of San Diego United Way. He then reconstituted the American Red Cross San Diego Chapter.

H: Are you gay/married?

S: Not gay, am married. I have two daughters. One daughter is straight the other is lesbian.

What was your relationship with the older daughter, Lisa.

S: Lisa was basically my shadow. We had a very close relationship. We were pretty much inseperable on the weekends.

How did you learn Lisa was a lesbian.

Lisa called me in her sophomore year in college, and said that she wanted to talk to wife and I. She told us that she was a lesbian, and in a lesbian relationship.

Reaction?

I felt overwhelming love. I understood how difficult it was for her. I told her that we loved her more than ever. I would support her. I told her that it was very tough on gay people in society.

I was concerned because I seen what had happened to people who were openly gay. I saw a sargeant who came out in the 1970s who was driven out of the police department. I have seen violence against the gay community simply because they were gay. We had a series of gay bashings in San Diego. I had heard the slurs and the comments that people made.

Herrera: Did you take a position in your first campaign on marriage equality?

Sanders: I took a position that domestic partnership was a fair alternative. I took the position because San Diego was in a tough spot. I thought civil unions were fair.

H: Did you change your position?

S: I changed my position in September 2007. The city council passed a resolution on behalf of the City of San Diego to file an amicus on behalf of marriage equality in San Francisco’s marriage case.

H: Did you make an announcement at that time? And was it widely available?

S: Yes, I did. I believe it was on YouTube.

The Court plays this video:

9:19AM