Perry v. Schwarzenegger: day eight summary

Timothy Kincaid

January 21st, 2010

Thanks to Courage Campaign and FireDogLake

Cross-examination of Professor Gary Segura continued.

The result was evidence that many politicians opposed Proposition 8; that some churches supported marriage equality but that they were in the minority. Established a very strong correlation between those who believe in Biblical literalism and those who supported Proposition 8.

Thompson provided evidence that many gay groups supported domestic partnerships and hailed their passage. Segura agreed but pointed out that this was not in contrast to marriage but rather in contrast to nothing at all.

(The Prop 8 side seems to be encouraging testimony that shows that religion was the reason many voted for the proposition. I’m not sure where they are going with this other than perhaps arguing that religion, as a suspect class, is entitled to discriminate? Or that religion is by definition not animus?)

Thompson brought up the “violent” reaction after Prop 8 passed. (For the record, there was very little violence, “vandalism” seemed to be limited to spray paint, and “intimidation” seemed to consist mostly of boycotts of those who funded Prop 8 but sought gay or gay supportive customers for their business ventures.)

Judge Walker asked an interesting question. He asked whether there were times in which violence did not result in reduced support but rather in increased support. Segura said that happened when it was perceived as acts of desperation by an otherwise powerless group. However, he hesitated to make that leap.

Then Thompson brought up everyone’s favorite Mormon boycott victim, Marji of El Coyote. He referred to Steve Lopez’ column which claimed that police in riot gear were there. (For the record, that is not true. I was there, police were there, Steve Lopez was not. But they were NOT in riot gear and the ONLY interaction they had with the crowd – other than friendly chatting – was to direct people out of the street if they got too far.) Thompson is seeking to argue that the public rejected marriage equality because they heard media reports (or anti-gay exaggerations) about gays behaving badly after the vote. He tried to suggest that any lack of political power that gay people may have was due to a handful of incidences of bad behavior.

In redirect, Theodore Boutrous showed how boycotting is a tool that is employed by the otherwise powerless. He showed how it has a long history in our country and was used by colonialists colonists and by African Americans in the South during civil rights efforts. Segura noted that bad acts were not limited to the gay side but that vandalism and theft of signs also occurred on the pro-8 side. Such behavior, while counterproductive, does not influence many voters.

Because Thompson had brought up after-the-vote events, video, and articles, this opened the door for the ookie-spookie “Gathering Storm” video created by National Organization for Marriage. While it is preposterous and ridiculous, it is a good example of the effort by anti-gays to demonize gay people and portray them as a threat. Segura says that this reinforces disparity in power.

Segura finished by saying that any individual vote or political gain by gay people can be held up as an indication that gays have political power, he has to look at the broader scope of all bills and conclude that gays are indeed unable lacking in influence. To do otherwise would be malpractice.

Next up to the stand is Hak-Shing William “Bill” Tam, as a hostile witness. He is one of the five proponents of Proposition 8 who tried to drop out of the case.

After having previously petitioned the court as a deeply involved party, Mr. Tam now tried to downplay his connection to (Frankly, his reluctance to answer honestly – even when the answer is obvious – does not credit his position.) Boies was able to show that Tam was involved with the Proposition 8 campaign since 2007 and before the proposition itself was written.

Tam testified that he believes that homosexuality is linked to pedophilia and that gays are 12 times more likely to molest children than heterosexuals and that gays want to legalize sex with children. Boies had to drag every admission from him. It was nasty.

Tam testified that he said that homosexuality is mutable based on what he had read at about Dr. Francis Collins on the NARTH website that “homosexuality is not hardwired” and has no genetic basis. (I hope that the plaintiffs have read Dr. Throckmorton’s website where he confirms that Dr. Collins said no such thing.) Tam said he never tried to find out what the APA says because NARTH is a better source.

Tam seemed to have consistently undermined his own integrity. In one example, Boies asked him about a rally and Tam tried to downplay his involvement. Then Boies showed documents proving that Tam was the one who brought in Ron Prentise as a speaker and was one of the two press contacts for the rally.

Boies also cleverly got Tam to show that his objection to gay marriage was really an objection to anything gay, supporting Prop 8 would oppose social moral decay including polygamy and incest. He testified that after the Netherlands legalized same sex marriage they legalized polygamy and incest. He testified that after Sweden passed Civil Unions, they allowed siblings to marry.

Boies showed that Tam was ready to believe and repeat anything negative about gay people, no matter how bizarre or heinous. Also, Tam says that he supports domestic partnerships, but it’s pretty clear that this is just a talking point and that he really opposes anything positive for gay people.

Tam testified that his statements were not representative of the campaign and that “Mr. White” called and asked him not to make them. (Based on Tam’s earlier, umm, mistaken testimony which had to be corrected by documents which proved him to have, umm, misspoken, I doubt the veracity of that claim).

Boies pretty much illustrated that everything that was coming out of Tam’s mouth was contrary to evidence. Tam claimed that the campaign was unaware of his OneManOneWoman website in an effort to separate the outrageous claims on the website from the motivations of the campaign.

Boies: Let\’s do more than infer, let\’s look at that August 22, 2008 memo from Mr Schubert\’s firm. What did Schubert\’s firm do again?
Tam: He ran the campaign.

Boies: Now look at the last page? Third bullet? Read that please?
Tam: “A website is up,”

In redirect, Moss tried to show that Tam was insignificant, a rogue, someone who did not clear his messaging with anyone or have his fliers approved.

(There was moment when Tam said he didn’t recognize the voices on the conference calls because English isn’t his first language and they all sound the same. Yikes.)

In redirect, Boies showed that contrary to his claim about being involved only in the “petition phase” and not the “campaign phase”, Tam could be proven to be involved a few days before the election.

Boies concluded the day by reminding Tam of the time in which Asian Americans could not marry the person they loved. He asked if Tam would have felt aggrieved. Yes, Tam said that he would have. Sad.


January 21st, 2010

I would love to hear the recording. Will it ever be made available to the public?


January 21st, 2010

Tam’s claiming that English isn’t his first language?

Who does he think he is, Sammy Sosa?


January 21st, 2010

“Tam said he never tried to find out what the APA says because NARTH is a better source.”

I literally started bawling with laughter when I read that.

R Holmes

January 22nd, 2010

“He testified that after the Netherlands legalized same sex marriage they legalized polygamy and incest. He testified that after Sweden passed Civil Unions, they allowed siblings to marry.”

I can go away and research this, but does anyone here know if this has any basis in reality? It’s still a slippery slope fallacy, but I’m interested.


January 22nd, 2010

As someone that lives in Sweden and actually read the law text concerning marriage I can say that his claim about Sweden allowing siblings to get married isn’t true, although siblings with different parents can get married if they get an exception from the government. (Äktenskapsbalken (1987:230) 3§)


January 22nd, 2010

That should be: Äktenskapsbalken (1987:230) kap 2 3§

R Holmes

January 22nd, 2010

Thanks Andreas. Why, I’m utterly shocked that Prop 8 defenders would distort the truth like that. /sarcasm


January 22nd, 2010

Good to see them argue that gay men and women have no political power. Of course anyone with a functioning brain can see that – Tony Kushner is funny and trenchant about this in Angels in America – but it has long been denied by the for-profit anti-gay crowd. They have to talk up our influence to maintain their fundraising. Yes, Maggie Gallagher, I’m looking at you.


January 22nd, 2010

[Boycotting] has a long history in our country and was used by colonialists and by African Americans in the South during civil rights efforts.

I think you meant “colonists” not “colonialists.” Big difference.

Dave Wyman

January 22nd, 2010

If it’s logical to think that allowing gays to marry would lead inexorably to allowing siblings to marry, or lead to legalized polygamy, then it’s as logical – or more so – to assume that granting the right of two people to marry – no matter what their sexuality – is the real problem.

Of course, both positions are illogical, but the first – that allowing gays to marry opens the door to moral mischief – must lead inexorably to the second position, that marriage between even heterosexual couples leads to moral mischief.


January 22nd, 2010

I would love to hear the recording. Will it ever be made available to the public?


Generally federal courts release recordings of oral arguments once the arguments have concluded (ie, before an opinion is issued). This varies by court and case, but check with the clerk of court.

Fees are pretty nominal, and you generally can’t ask for a specific part of the case – you either get everything or nothing.

Timothy Kincaid

January 22nd, 2010


thanks. corrected.

Timothy Kincaid

January 22nd, 2010


The court transcripts are available on the AFER website. You may verify any misunderstandings there.

Dick Mills

January 22nd, 2010

“Tam said he never tried to find out what the APA says because NARTH is a better source.”

Well, of course NARTH is a better source… for bogus propaganda, anti-gay hate-speech and pseudo-sciencey / resoundingly-discredited rhetoric!


January 22nd, 2010

Why would anyone be surprised that right-wing, anti-gay bigots are lying sacks of feces?


January 22nd, 2010

Polygamy and incest are still illegal in the Netherlands.

David Roberts

January 22nd, 2010

I hope that the plaintiffs have read Dr. Throckmorton’s website where he confirms that Dr. Collins said no such thing.

Just to be accurate, it was XGW that contacted Collins on two occasions to clarify his stance on both the issue and the misuse of his book by NARTH (and then later by Quinlan).  I asked him to cc Warren on the last one to make sure there was another party outside the "gay activist" label who could confirm his response.  I’m not sure why Warren’s post doesn’t mention the full details — they make for a more solid case.

Quinlan had questioned the validity of our original claim after we called him out on his distorted remarks in a One News Now article (one which remains inaccurate to this day). The web soon filled with the Quinlan quote and only Bob Stith and the Baptist Press had the integrity to apologize and make the correction.  It doesn’t surprise me that it made it into the Prop 8 hearing, even if I’m am no less disgusted by it.  Lies seem to spread far faster than the truth in that arena. 

This also illustrates why bad, inaccurate articles should not simply be taken down — an explanation or correction should be made. Listening, Exodus?

Timothy Kincaid

January 22nd, 2010

Well, David, I think it should go without saying that I hope someone with Olson/Boies has read every commentary at Ex-Gay Watch.


Sorry about the misattribution.


January 22nd, 2010

Timothy and Joel,

Joel asked about recordings not transcripts. I’m interested in hearing Tam’s actual testimony, myself. I want to hear the desperation in his voice.

Click here to go the court’s website for this case.


January 24th, 2010

I am following the ADF through twitter and the summary of the last day sounded very positive for them… among the things they said was that the expert psyc of the plaintiffs, ” 5) their expert on marriage admitted that major historic purpose of marriage was to meet the child’s need to be emotionally, morally, practically, and legally affiliated with the woman and man whose sexual union brought the child into the world….7) Their developmental psych admitted differences between men/women that affect child dev, there is evid that absence of father has greatest/predictable effect earlier in child’s life, and that it’s important for infants to attach to both their father + mother.”

Ive seen no trace of the argument for the broken father figure being discussed so i would assume this is true, and that as for the historic purpose theres only a hint of it being discussed here

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