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Into the second week of the Prop 8 trial
Extended for the Online Edition of Windy City Times
by Lisa Keen, Keen News Service

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SAN FRANCISCO—Defenders of Proposition 8, the 2008 initiative that amended California's constitution to ban same-sex marriage, began their effort Jan. 25 to defend the measure in a U.S. federal district court.

The court, presided over by Chief Judge Vaughn Walker, has already heard nine days of testimony put on by the legal team challenging the constitutionality of the law—including 17 witnesses. This week, with only a few reporters still watching and the courtroom audience thinning out, the defense prepared to bring just two expert witnesses to the stand.

First up was Kenneth P. Miller, a professor of government at Claremont McKenna College, a private college outside Los Angeles. The defense offered Miller Jan. 25 as an expert in the political power of gays and lesbians—a designation that plaintiffs' attorney David Boies attacked even before Miller's testimony began.

Using a trial procedure known as voir dire, Boies formally challenged Miller's credentials, showing, among other things, that Miller has to his credit only one peer-reviewed journal article on the topic and was so unfamiliar with the gay movement that he did not know what the Mattachine Society was. The peer-reviewed article was in a French journal of U.S. studies. The Mattachine Society was one of the earliest gay political groups in the country.

Miller acknowledged that he was "not an expert on the full history of the gay and lesbian rights movement," but said he had "read about it." But when Boies pressed him on what books he had read, Miller could not confirm having read any notable histories. When Miller suggested his "deeper knowledge" of the movement was from the mid-1970s on, Boies quizzed him about two of the first openly gay people elected to office—Elaine Noble in 1975 and Allan Spear in 1976—neither of whom he knew.

Boies asked the judge to limit Miller's qualification for expert testimony, and Judge Walker did so—to the role of gay and lesbian Americans and California politics.

Under questioning by Yes on 8 attorney David Thompson, Miller told the court that, although gays were a tiny portion of the population, they gained considerable political power through their affiliation with the Democratic Party and labor unions and that they benefit from the support of newspapers, corporations, and celebrities.

In California, especially, said Miller, the Democratic Party is a dominant force and can "basically do whatever they want" politically. Although Republican Governor Arnold Schwarzenegger has twice vetoed legislation to provide marriage equality in the state, Miller said he is generally supportive of equal rights for gays and opposed Prop 8. Many leaders in the state opposed Prop 8, said Miller, as did every newspaper, numerous corporations, and 51 mainline religious denominations.

"Do all those denominations perform same-sex marriages?" asked Judge Walker.

"No," said Miller.

"Which do and which do not?" asked Walker.

"I would have to take a closer look at that," said Miller.

Miller's testimony seemed to suggest he had only cursory knowledge in any area regarding gay political power. When asked about gay political power nationally, he spoke about the "upward trajectory of power" for the movement in its efforts to repeal the Defense of Marriage Act ( DOMA ) and "Don't Ask-Don't Tell" ( DADT ) . And he testified that President Obama has given "significant support" to the community during his first year in office. And he talked about the Gay & Lesbian Victory fund having boasted that most openly gay candidates are elected.

Boies objected on a number of occasions, pointing out that Miller "didn't know any of this during deposition," and suggesting he had been spoon-fed the facts sometime between deposition and the trial. On cross-examination, he asked Miller to look over a list of the materials he had purportedly considered in preparing his expert testimony and circle the ones that he had not been given by defense counsel. The process took consider time and Walker began rapping his finders on the bench after about five or ten minutes while the courtroom waited for Miller to finish marking up the list. Miller indicated that there were some that he couldn't remember whether he found himself or defense counsel had provided them to him.

Boies spent all afternoon Jan. 25 shooting down Miller's testimony concerning gay political power. The team challenging Prop 8 needs to establish that gays are politically powerless in order to have Judge Walker give his toughest scrutiny to the stated purpose for the same-sex marriage ban. If gays are considered to be a powerful minority, then Walker can accept a simple rational reason for the law.

Power, of course, is relative and Miller tried to avoid answering some of the more difficult questions from Boies. For instance, when Boies asked Walker which group has the more political power—women or gays—Miller said he wouldn't be able to answer that questions without doing more analysis. But Boies is decidedly relentless in his cross-examinations and asked Miller which group has the more political power—women or lesbians. Miller then acknowledged that, yes, lesbians probably have less political power than women.

There was another significant tussle in court—this time, over whether Yes on 8 campaign manager Frank Shubert can be called to the witness stand by the legal team defending the constitutionality of California's same-sex marriage ban.

Plaintiffs had sought, during deposition, to elicit testimony from Shubert—who was also instrumental in putting together both the Yes on 8 campaign and the campaign to repeal of Maine's marriage equality law. But during that deposition, defense attorneys repeatedly instructed Shubert not to respond.

"We asked Shubert over and over" about various campaign documents, said plaintiffs' attorney Ted Boutrous to Judge Walker. "Everything we asked, they blocked our inquiry. Now, [ defense ] is saying it wants [ Shubert ] to testify for first time on the stand and to give the explanations we were seeking in deposition." Boutrous said the behavior of defense attorneys was "extraordinary" and hindered their ability to adequately cross-examine him.

Yes on 8 attorney Nicole Moss defended the move, saying her team was concerned about documents which the plaintiffs might introduce and notified them that they might call Shubert to the stand just in case they needed him to respond to any claims made by plaintiffs concerning various Yes on 8 campaign materials or involvement.

Walker said he would wait to see what documents plaintiffs introduced before making his ruling on whether Shubert can take the stand, should defense attorneys choose to do so.

That evidence included a number of videotapes and documents that were introduced to demonstrate the tactics and messages of the Yes on 8 campaign. It included videotapes of Prop 8 proponents making often shocking claims against gay people—that gays were attempting to "indoctrinate" children to homosexuality, promote pedophilia, and aim for the "annihilation of marriage."

One video showed a young man from an ex-gay group claiming that, if Prop 8 failed in California, it would have a "domino effect throughout the country." A young woman sitting next to him said it would mean "pedophiles could marry six, seven, and eight-year olds." She claimed that marriage equality in Massachusetts enabled a man there to petition for the right to marry a horse.

"Mothers could marry sons," she said. "…Any combination would be allowed." The videotape did not identify the two young people but the bottom of the videotape screen indicated the program was affiliated with the ex-gay ministry Exodus.

The purpose of the evidence is to establish that the motive behind Prop 8 was to promote a message of hatred against gay people. The U.S. Supreme Court has ruled—in Romer v. Evans—that animus cannot be a driving force behind a law.

Plaintiff attorney Christopher Dusseault also introduced documents showing instances of federal government discrimination against gays, including documents from the files of D.C. activist Frank Kameny—documents from the 1960s and 1970s. Dusseault referred to them as "ancient" files, a designation that prompted a challenge from the judge. Dusseault explained that court rules—not he—designates documents more than 20 years old as "ancient."

Dusseault noted that the documents were also part of an archive at the Library of Congress.

"The Library of Congress maintains files such as this?" asked the judge.

"Apparently so," replied Dusseault.

Among such ancient documents submitted was a 1974 letter from the U.S. Internal Revenue Service rejecting an application for a gay-rights group to receive tax-exempt status. The letter said the group's existence posed a "serious risk of contributing to more widespread development of homosexual tendencies … and deviant sexual behavior," and thus could not be approved.

©2010 by Keen News Service. All rights reserved.

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