Perry v. Schwarzenegger: day ten summary

Timothy Kincaid

January 25th, 2010

Thanks to Courage Campaign and FireDogLake

Today the day started with plaintiffs (those seeking to overturn Proposition 8) entering a large quantity of items into the record. They began by playing a video of a simulcast of religious supporters of Proposition 8. (Were there any other kind? Yes, there were non-religious voters, but I’ve yet to find a prominent non-religious advocate for denying marriage equality.) This are rather nasty and claims:

  • same-sex marriage will lead to polygamy, bestiality, and incest
  • gays are trying to “hijack the civil rights movement”
  • race is inborn and homosexuality is “deviant behavior” and a choice
  • children in Massachusetts are “being taught homosexuality”
  • same-sex marriage is comparable to the 9/11 terrorist attacks
  • children raised without fathers will not learn how to be leaders

Boutros presented a document that, in the words of Ron Prentice, illustrated that he wanted to keep the simulcast off the Dr. Phil Show because such imagery “shows religious bias to a national audience”. He also showed Prentice telling pastors that the way to flip a No vote was to tell voters that “children will be taught about homosexuality”. Prentice also told pastors how involved the Mormon Church was in the campaign and how they were instrumental in Hawaii (as Fred Karger has revealed).

Boutros provided a flyer prepared by Prentice which claimed that the goal of the community was not to get married but the full annihilation of the institution of marriage. He showed that NOM cleared everything with the campaign.

There were also a lot of documents that related to or supported earlier testimony but which had not been specifically discussed.

This is the completion of the case for the plaintiffs. (However, because they received 7,500 documents at 11:30 last night, they are reserving the right to reopen testimony based on their review.) Boies: “The plaintiffs rest.”

The first witness for the defendants is Prof. Kenneth Miller, an attorney who also teaches constitutional law in powers and civil liberties on a graduate and undergraduate level. Boies objected to Miller being presented as an expert on gay and lesbian political power. Before deposition he had never heard of the Mattachine Society and he still doesn’t know about a number of important events during the 70s, the period Miller presents as an expert. Miller said that since the deposition he’s read more and could probably write an article now. The judge allowed Miller to testify about current gay political power as he knows American and Californian politics.

(Miller may not have been a good choice. In addition to a lack of knowledge about gay history, he was nervous and kept confusing whether Prop 8 supported gay marriage or opposed it. Additionally, the Prop 8 attorneys continued to commit the cardinal sin of trials: they asked questions when they did not know the answers.)

Miller testified that the keys to political power are money, access to lawmakers, ability to persuade, size and cohesion, and allies. He testified that opponents of Prop 8 raised $43 million, more than supporters; that gays have influential allies including the Democratic Party, labor unions, and newspapers.

Miller testified that many churches opposed Proposition 8. However, he was unaware which churches actually conducted them. He wondered about the United Methodist and the Episcopalians. (at the time of Prop 8, the only sizable churches in California to do so were the Univeralist Unitarians and the United Church of Christ).

He testified that educators and professional organizations often support gay causes. Miller provided examples of when California voters chose not to quarantine HIV positive persons as evidence gay political power. Additional evidence was “increased support” for ENDA and overturning DADT and DOMA.

David Boies led the cross-examination. He illustrated how Miller was unfamiliar with laws and history impacting the gay community (he didn’t even know that the term “gay-bashing” could include physical violence). He then had Miller identify the subsequent research he did himself and the documents which were provided to him by the attorneys. It took him twenty minutes. (This is why Boies is so respected. Illustrating that the expert was told what to say by the attorneys is breathtaking.) Boies went on to show that his testimony relied not on his own documents but on what he was fed.

And then. Oh my. Oh my, oh my, oh my. Boies got Miller to describe the Defense of Marriage Act as “official discrimination” against gays and lesbians. He even said that speaking as a political scientist, Proposition 8 is discrimination (There is not adequate agreement between FireDogLake, Courage Campaign, and the Mercury News. He definitely said it “creates a distinction” and tried to say it was not invidious discrimination but we’ll have to defer to the transcripts whether he said “discrimination”.)

Miller testified that he had written that initiatives are less democratic than legislatures because there is no ability to have transparency, compromise and consensus building. He tried to argue that frequently initiatives are pulled back and reworked after the signatures were gathered but couldn’t name a single instance of it occurring (neither can I).

Miller’s cross-examination will continue tomorrow. I don’t think he will get a good night’s sleep.


January 25th, 2010

“Additionally, the Prop 8 attorneys continued to commit the cardinal sin of trials: they asked questions when they did not know the answers.”

When did this happen?


January 25th, 2010

I appreciate the reviews and the various groups that are tweeting. From all I’ve read the Prop 8 crowd are simply incompetent. This raises questions in my mind: are they really that incompetent? is it that I’m relying on the lgbt community for my information and so the bias is in the reporting? are we finally getting to see the emperor’s lack of clothes? are they purposely throwing the trial so that they can further declare the “curse of the activist judges”, all the while relying on the Supreme Court, which they perceive as friendly, to ultimately set back lgbt rights for decades?


January 25th, 2010

“He tried to argue that frequently initiatives are pulled back and reworked after the signatures were gathered but couldn’t name a single instance of it occurring (neither can I).”

That’s because it’s illegal – you have to use the original text when you present the initiative to the ballot, otherwise you just got a bunch of signatures for something that isn’t actually what people voted on. If you did this, you’d have to collect the signatures all over again. I’m no expert, but that’s my understanding of the process anyway.

Timothy Kincaid

January 25th, 2010


I’m trying to recall what left me with that impression. I think it was questions about specific bills which Miller was having difficulty keeping straight. This may have been more of a situation of Miller not knowing his material than it was of Thompson asking unprepared questions. I don’t want to change it… but I also don’t want to re-read two websites full of testimony to find it. :)


January 25th, 2010

No wonder the “Yes on Prop. 8” crowd fought tooth and nail, all the way to the United States Supreme Court, to BLOCK broadcast of his historic trial!

Because then the entire world would witness that the “Yes on Prop. 8” crowd used BOLD FACED LIES about gay people with the FULL and COMPLETE backing (political and financial) by the Mormons, Catholics and other religions to strip a minority of their constitutional right!


January 25th, 2010

“all the while relying on the Supreme Court, which they perceive as friendly, to ultimately set back lgbt rights for decades?”

Something to think about:

If Prop 8 loses here, it only directly effects California, and any application in other states would require the time and expense of court cases that might, or might not, find in support of same-sex marriage.

If prop 8 is struck down by the SCOTUS as well, it applies across the country.

If NOM and comrades lose in California, they still have bans in place in other states, and other states to implement bans, but if they lose at SCOTUS – their careers, the “Pay us to save you from teh gays” gravy train, comes to an inglorious end.

If they lose in California, they may not take it to SCOTUS at all, preferring to maintain and try to build on what existing systemic discrimination exists elsewhere, work to get a federal Constitutional ban in place instead. Even if they eventually lose that, they’ll won’t have to work real jobs for years.

Emily K

January 25th, 2010

wow. Boies eviscerated him.


January 25th, 2010

“but if they lose at SCOTUS – their careers, the “Pay us to save you from teh gays” gravy train, comes to an inglorious end.”

I disagree in part. I think the Pro 8’s will eagerly push it all the way to SCOTUS. Furthermore a Supreme Court ruling in favor of equal rights won’t bring their pro-discrimination campaigns to an end. I expect that quite the opposite will happen in fact. The sadistic glee they feel over being “persecuted” will reach its apex.

My mate and I disagree as to the possible outcome of this particular trial. We both agree its headed to the SCOTUS. He believes the Pro 8’s appear to be floundering because they are trying to demonstrate a rational basis for a completely irrational amendment. He expects this judge to overturn Prop 8. BUT he is a cautious optimist whereas I am a full-blown cynic.

I believe this judge will uphold Prop 8 for fear of political retribution. You really have to wait till at least the circuit court level before the judges can no longer be influenced by the unwashed masses of Nascar watchers.

Lindoro Almaviva

January 26th, 2010

I am starting to believe that the Lawyers for Pro H8 are throwing the case in purpose. No self respecting lawyer will continue to make the mistakes they are making. This is smelling more and more like they are expecting to loose in CA so they can take the loss to a national level and create more anti-gay initiatives.

Lastly, I believe this case to be like Roe v. Wade in how polarizing it is. I believe that if the SCOUTS (actually, let’s not say if, let’s say when)rule that all those Save my marriage from my gay neighbors amendments are unconstitutional we will have a battle very much like the abortion debate that we still have. Supreme Court Judge candidates will be grilled on 2 topics: What is your view on abortion? and What is your view on Gay marriage?

I believe that just like we have today with the abortion debate, we will have entire presidential elections and candidacies made on the promise of selecting judges that will eventually overturn gay marriage and send the gays back into the closet. In a not very distant future, some governor from TX will be elected president under the premise that God has anointed him to right the horror that abortion and gay marriage have inflicted on all those God fearing Christians. (if they truly feared God, they would mind how they treat their neighbor, but apparently God is not that powerful after all.)


January 26th, 2010

You nailed it, Lindoro. I think the defendants are definitely trying to throw the case. If they lose, they get to complain about yet another “activist judge” and will gain the support and sympathy of their anti-gay peers, furthering their resolve to legislate us back into the closet. Our opponents may be dishonest, prejudiced, and irrational, but they are not stupid.


January 26th, 2010

I have been wondering whether the live-blooging and recaps of the trial by progressive sites are accurate, or shaded by pro-gay bias. I am taking everything I read with a few grains of salt, because there is no way to remove such bias from reporting, but that still leaves me hopeful, mainly because the anti-gay sites don’t seem to have a lot to crow about in their (minimal) coverage of the case.

I don’t think the Prop 8 defense is deliberately throwing the case, I think the problem is that they don’t have a case to argue. We all know that there is no real threat to straight relationships from equal marriage rights, that animus drives the leadership of the anti-gay movement, that discrimination against LGBT people is very real, and that orientation is immutable. The anti-gay side counts on their ability to exploit fears among the electorate and, to a greater extent, their donors, and fear-mongering does not require a whole lot of factual basis. Now that they have to defend those actions in court, without a jury to manipulate, they flounder.

We know that NOM already basically predicted their loss in CA and are counting on SCOTUS, and that does bother me. We have to rely on Kennedy as the swing vote and it is hard to say where he will go. I wonder whether SCOTUS will side-step the whole issue by merely declaring the referendum process as the problem, and overturning Prop 8 solely on those means (based on Romer v. Evans).


January 26th, 2010

Eddie89 and CPT_Doom: Just because the oral arguments are not being broadcast live doesn’t mean we’ll never see/hear them. Hopefully the court will release audio recordings of the oral arguments once that part of the trial is over. Even if they don’t release the audio, they will release the official transcripts – these are made by professional court reporters who will have access to the audio recordings; these transcripts will be used by both sides when the case is appealed.

Regan DuCasse

January 26th, 2010

I have to agree that it’s not so much throwing the case, it’s that they didn’t really have one that could hold up to the scrutiny the courts require.

I don’t have much faith that SCOTUS will do the right thing. Even if they looked to the precedent that the IOWA court set.
That court decision was the most intellectually honest and unbiased ever.

Because so many cases concerning gays and lesbians never reached court, there were few precedents to work with.
Now SCOTUS has it.
There have been several ways that marriage equality was reached, but was stymied by bias along the way.

And in the middle, the actual marriages that took place, didn’t have the NEGATIVE impact that was predicted as rationale for the bans in the first place.
Either that, or they couldn’t discriminate on the basis of other rationales put forth.
Like discrimination on the basis of procreation, for example.

Equal rights and protection under the law has had few if any, negative side effects.
But discrimination surely has.

So why uphold any against gay people?
All you have left is bias, and unprincipled hypocrisy.
And no Constitutional amendment should EVER, and hasn’t been, implemented for that reason.

If anything, the reasonable condition of protection from the tyranny of a majority is another tenet SCOTUS should consider.
It certainly applies in this case.


January 26th, 2010

Just FYI, The American Foundation for Equal Rights has posted transcripts of the Prop8 trial at the following link:

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