Box Turtle Bulletin

Perry v. Schwarzenegger: day eleven summary

Thanks to Courage Campaign and FireDogLake

Today started with the continued cross-examination of Professor Ken Miller. Attorney David Boies further proved that Miller was ill informed and that his stated opinions did not seem to be consistent with the facts.

Boies provided exit polling that revealed that the third of Californians who attend church weekly voted 84% for Proposition 8 and in all other category of Californians the majority voted “no”. And while Miller had claimed that gay people have power due to union support, the exit polls show that union households supported the proposition. (which, I suppose, means that union households are disproportionately religious)

Boies provided a poll that showed that Americans were much less willing to vote for a presidential candidate that was gay (55%) than they were for a Catholic (95%), an African American (94%), or Hispanic candidate (85%).

He went on to illustrate that Miller had not familiarized himself with workplace discrimination, school bullying, or stereotypes about gays preying on children, or the extent to which such stereotypes impacted voters. (In short, the proponents’ expert witness isn’t very expert at all. But considering what he might have found had he bothered to look, ignorance may have been their best option.)

Miller admitted that some people voted for Proposition 8 based on stereotypes, but he could not say to what extent.

Then it got unpleasant for Miller. He has a new book that came out in 2009 in which he argues that initiatives that disadvantage minorities “can easily tap into an anti-minority sentiment”. He even gave examples including initiatives directed towards restricting the rights of homosexuals. One of Miller’s examples of initiatives that tapped into anti-minority sentiment and disadvantaged homosexuals was Proposition 22, the original ban on gay marriage that was overturned by the California Supreme Court.

Miller argued in his book that courts needed to strictly scrutinize initiatives and not be lenient because their role was to protect minorities from such initiatives. He had written in an article that “Once this majority puts its preference into the state constitution, the legislature and state courts can\’t take it out. Only federal courts are the remedy.”.

A year later, Miller “no longer believes” his own book. In fact, he “did not believe all of it” when he wrote it. (Miller has just torpedoed his own career.)

Miller had earlier presented the support of the California Council of Churches as evidence of large religious support for gay rights. In cross-examination he reveals that he really doesn’t know what the CCC is or even if they were a group organized to oppose Proposition 8 (they trace their history back to 1913). His earlier position was that if a church belonged to the CCC then they supported gay marriage.

After all of Miller’s testimony about support from the Democrat Party, he was presented with an article in which he said that Democrats splintered along religious lines. Miller had already written that the issue, the primary determinant was religion: In order for gay people to have marriage rights, “They need to persuade those Christian voters that extending marriage rights to the gay community is consistent with their religious beliefs, not undermining them.” He had written that blacks and Latinos had been taught in church that sexual orientation was a matter of scripture and thus could vote for Barack Obama as a civil rights issue and for Prop 8 as a religious issue without conflict.

Boies got Miller to agree, as a social scientist, that “it is a general principle that it is undesirable for a religious majority to impose its views on a minority”. While Miller was babbling trying to find an out for the religious oppression of gay people, Boies announced that he had no more questions.

Thompson tried to recover in redirect. He had Miller reiterate that the Briggs initiative (to ban gay school teachers) and the LaRouche initiatives (to quarantine AIDS patients) did not pass.

Miller testified that he used to think that initiatives did not well serve democracy but since Massachusetts legalized marriage he changed his views and now sees them as a way for people to express their popular sovereignty. The exception he now sees is marriage. (In short, he found that his prejudices disagreed with his principles, so he made an exception. I can’t see how this will help either his credibility or his argument.)

In the afternoon, the defendants presented their second witness, David Blankenhorn. He is president of the Institute for American Values, a non-profit think tank that focuses on fatherhood, marriage, child rearing, child well being, and family structure.

He testified that to write his book, The Future of Marriage, he sought to learn about the anthropology of marriage across cultures.

In voir dire, Boise noted that none of Blankenhorn’s marriage writing was peer reviewed. Nor has he taught courses about marriage, fatherhood, family structure or anything else. Blankenhorn’s examinations of the results of same-sex marriage are limited to discussions with colleagues and reading articles. His only peer-reviewed work was on cabinet makers and black fathers. Judge Walker indicated that were this a jury trial Blankenhorn might not be qualified to testify as an expert but that he can testify.

Blankenhorn testified that marriage is the socially approved sexual relationship between a man and a woman which establishes the parenthood of the children. Marriage brings about the social, the legal, and the biological consequences of parenthood. “East, West North, South, 1000 years ago, it always does this thing.” As marriage changes, this aspect never does.

This is based on a broad consensus of scholars and anthropologists. For his “broad consensus”, Blankenhorn relies on a number of quite old books, the most recent of which is from 1985.

Blankenhorn read from some who say that marriage is an adult relationship but stated that he disagrees. Earnestly. He testified that he could not find any animus or hatefulness of gay people as the reason that people get married. (I dare say he’s correct. No one marries to spite gay people. And the original definitions were not designed to exclude but rather to allow society to know which man owns which woman and is responsible for her care. But the new definitions as applied by anti-gay amendments are absolutely intended to exclude gay people and to spite them.)

He testified that research shows that the ideal family relationship for a child is a biological mother and father in low-conflict marriage. (Again, he’s likely correct. And a principled argument could be made that these are the only family forms that society should reward with marriage. But it doesn’t. It rewards remarriage of widows and widowers, divorced people with children, the childless, the elderly, and indeed absolutely every other less-than-ideal coupling provided that they are opposite-sex. The question is not whether biological parents are a smidgen better than two mothers (a position that could probably be made), but why two mothers (who are better than, say, a mother and stepfather) are not provided with marriage.)

Blankenhorn testified that changing the rules of an institution results in weakening, what he calls deinstitutionalization. He notes that the deinstitutionalization has been the fault of heterosexuals: out of wedlock childbirth, divorce, assisted reproductive technology, and the very idea of same-sex marriage. He claims that “Scholars are telling us that process of weakening will be accelerated significantly by same sex marriage.” Transferring the institution from a child centered one to an adult-pleasure centered one would erase the institution.

It would become impossible to opine that a child needs a father. It could lead the public to consider polygamy. In short, Blankenhorn believes that allow same-sex couples to marry would remove the core purpose for marriage and leave it essentially meaningless and valueless. An institution that doesn’t define heterosexual couples tied to their biological children would have no purpose and would eventually die off.

Blankenhorn supports domestic partnerships and civil unions. He just wants to protect the privilege of marriage. (This is, in my thinking, the weakest argument. If one truly wants to “think of the children” then any structure that “denies a child their biological mother and father” would be equally disadvantageous. It matters little whether this deprived child’s same-sex parents are civilly unioned or civilly married.)

He co-authored an article supporting civil unions (and implies that Jonathan Rauch agrees with him that they are better – he does not). In reality the article supported a temporary compromise in which the federal government would recognize state marriages as civil unions provided that there were robust religious-conscience exceptions.

He argued that marriage is bigger than just the legal incidences of marriage (a point that our side has made repeatedly). Domestic partnerships are comparable but not the same as marriage. Then he said something perplexing: “It is discriminatory and morally wrong to call two things that are the same by different names.”

Boies then led cross-examination.

Boies showed that Blankenhorn’s institute treats biological and adoptive families the same. Blankenhorn testified that adoptive families are just as good. And he is not aware of any study that shows that children of gays and lesbians have different worse outcomes than straight.

If I understand the liveblogging correctly, Blankenhorn believes that the adoption of same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children. And he believes that America would be more just by allowing same-sex marriage. But he thinks it would lead to fewer marriage between heterosexuals.

(Odd, it never occurred to Blankenhorn that he would actually have to tie his opinions back to those who did research. I get the impression that he thought it would be similar to the polite debates in which everyone’s opinion is considered to be valid and that real research was treated as no more valuable than opinions based on “thinking about it for a long time” or writing a book.)

Boies gets Blankenhorn to admit that few (perhaps none) of his listed sources actually discuss either disinstitutionalization or same-sex marriage and that none make the two part linkage: same-sex marriage leads to deinstitutionalization which then leads to fewer heterosexual marriages. (This may be simply an extrapolation on the part of Blankenhorn, and he simply is not qualified to make such an extrapolation. He has not done research and it appears that he cannot back up his positions with the research of others. It’s difficult to understand why Cooper allowed two very unprepared witnesses to take the stand.)

That was it for today and cross-examination will continue tomorrow. The case is scheduled to end around noon, after which the judge will go ponder the evidence before the attorneys make their closing statements some time in February. Then Judge Vaughn Walker will make his decision.

Pugno’s illogical complaint about documents

Anthony Pugno is the general counsel for ProtectMarriage.com and is posting his daily perspectives and arguments about Perry v. Schwarzenegger on the ProtectMarriage.com website. As such, Pugno is responsible for spinning the story in the way that the supporters of Proposition 8 wish and one of his themes has been Judge Walker’s “bias” against his side.

In a commentary posted yesterday he expresses a complaint that reveals the lack of logic, principle, or purpose behind the team seeking to defend Proposition 8:

Before resting their case, plaintiffs began Week Three this morning with a “document dump,” which means they admitted into the trial record a slew of documents they view to be evidence to support their case. Nothing earthshaking in and of itself, but the subtext is utterly astounding.

Despite supposedly winning our appeal in the Ninth Circuit to protect the privacy of our internal Prop 8 campaign records, the trial judge has still forced us to hand over literally tens of thousands of pages of sensitive campaign memos, emails and other documents to the plaintiffs. After sifting through our internal documents for facts they think aid their case, they had them labeled as trial exhibits and added to the court record.

So if the Yes on 8 campaign has been forced to open up its internal campaign records for this court trial, then shouldn\’t also the No on 8 campaign have to do so, too?

Well, although we filed a motion some time ago asking the court to order the “No on 8” campaign to disclose to us the same types of documents as those we had to disclose to them, the court has refused to rule on our request and thus we have been prevented from examining even one single document from the opponents of Prop 8. [emphasis in original]

This argument betrays that either Pugno is completely lacking in logic and knowledge of the purpose of the case, or else he believes that his readers are not too bright.

Perry v. Schwarzenegger seeks to prove that animus and bias were the bases for the initiation, collection of signatures, strategy, marketing, and implementation of the campaign to pass Proposition 8. As such, Pro-8 campaign correspondence is relevant in that it can reveal whether, indeed, animus and bias were motivators.

But the correspondence of the Anti-8 side would tell us nothing about the motivations for passing Proposition 8. It would add no value, answer no questions, and provide no insight. Pugno and company would have to argue for a reason to see this material based on its relevance to the question at hand, and there is none.

But in Pugno’s us-v.-them Culture War mentality, if you can read my email then I should be able to read yours. It’s not about the legal principles behind the constitutionality of discrimination, it’s all about waging war on a culture that doesn’t privilege the religious beliefs of his faith.

Perry v. Schwarzenegger: day ten summary

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.

Nepal to be first Asian nation to legalize same-sex marriage

In November we noted that the Supreme Court of Nepal had determined that sexual minorities were entitled to all the rights and remedies all other Nepali citizens enjoyed. Now they are a step closer to enacting that decision.

Reports from the Himalayan nation reveal that a new constitution will be adopted in May which will include equality provisions allowing for same-sex marriage. And Nepal wants to capitalize on the change to attract gay tourists. (Telegraph)

Sunil Babu Pant, a Communist legislator and leader of the country’s homosexual rights movement, has launched a travel company dedicated to promoting the former Hindu kingdom to gay tourists in an effort to tap the so-called “Pink Pound” and dollar.

The company will offer elephant-back bridal processions, Everest base camp ceremonies and weddings in remote Tibetan enclaves in the Himalayan republic.

Mr Pant is hoping to build on the government’s new determination to maximise income from tourism by targeting all potential markets. The country’s tourism minister wrote a welcome statement for the International Conference on Gay and Lesbian Tourism in Boston last October, in which he said he believed Nepal will benefit from an increase in gay visitors.

After disappointments in New York and New Jersey at the end of last year, it looks as though this spring will bring us the eighth (Portugal) and ninth (Nepal) nations to adopt marriage equality.

Perry v. Schwarzenegger: day nine summary

Thanks to Courage Campaign and FireDogLake

On stand today is Dr. Greg Herek, a leading authority on the psychology of sexual orientation. Herek will discuss three opinions:

• Nature of sexual orientation and how it is understood in sociology and psychology
• The immutability of sexual orientation
• Stigma and prejudice against gays and lesbians and how that intersects with Proposition 8

First Herek clarified that there are three different ways of observing sexual orientation: behavior, attraction, and identity. Because their focus is on STDs, health professionals use behavior. But when psychologist study discrimination, they focus on identity, since that is how people are singled out for prejudice. They measure in terms of relationships and attachments as these are a core part of human behavior.

Herek testified that the APA has considered reparative therapy many times, most recently in 2009, and found it ineffective. Further, there was anecdotal evidence that such efforts may cause harm.

Herek discussed how structural stigma give permission to discriminate against and to mistreat gay people. He presented studies that showed that gay people believe they had no choice of very little choice in their orientation.

In cross-examination, Neilson, attorney for Prop 8, distinguishes between social identity and personal identity (ie some persons may not want to identify with the gay community). Neilson tried to break the assertion that sexual orientation can be a distinct category by suggesting that different measures get different collections of people. Herek testified that there are small numbers of people for whom that might be true (ie those who have same-sex behavior but don’t call themselves “gay”), but that for most, the population is the same.

This is a very important aspect of the trial as this is where the Prop 8 supporters seek to attack one of the four qualifications for being a suspect class: the group is a discrete or insular minority. If a group is not a class, then they cannot be a suspect class. (However, while I’m not an attorney I seem to recall that Romer v. Evans established that gay people are a class – or rather Amendment 2 set them as a class and the SCOTUS didn’t disagree. This establishment of a class of people was, I believe, reinforced in Lawrence v. Texas).

In one fascinating interplay, Neilson tried to get Herek to agree with a statement from one of Lee Badgett’s books that there’s a “heated debate” over the definition of sexual orientation. Neilson kept asking and Herek kept saying that he’s not read the book and doesn’t know what she meant by that sentence. The Prop 8 supporters kept trying to enter the whole book based on questions asked to Herek even though they did not ask Badgett about her own book. This appears on the surface to be an exercise in deception.

He continued quite a bit in that vein, pulling a sentence from a book and demanding to know if Herek found it “unreasonable” (obviously going for the idea that it is “reasonable” that there’s no definition of homosexuality). Herek kept consistent, insisting that studies have different goals and thus different measurement criteria but that does not mean that we have no understanding of how to define sexual orientation: “It could be understood as an ongoing pattern of attraction, sexual behavior, or self-identification.”

Neilson is also very fond of old sources, the older the better. His quotes tend to come from books or articles from the 80s, and even include Kinsey’s research in the 50s.

One of Neilson’s gotchas is that most people who engage in same-sex behavior before 18 do not identify as gay. Thus “only 24 percent of men fit in all three categories” (attraction, behavior, and identity). He showed Venn diagrams. But Herek illustrated that those who identify as gay experience both behavior and attraction and that other measures are so vague that they can be meaningless (e.g. would having sex with another woman be “somewhat appealing”?)

(At one point in the afternoon Neilson may have erred in discussing social construction (the way that culture defines how people view reality). He and Herek got in a bit of a debate about whether it was appropriate to see sexual orientation and race only as social constructs and without merit as definitions. Neilson allowed sexual orientation to be equated with race.

Yet we know, without quibbling or arguing or looking for exceptions at the fringe, that most people can be clearly identified by race. Only a fool or a bigot would argue that discrimination against Aretha Franklin cannot be illegal because we can’t define her race.)

Next Neilson, the Pro-8 attorney, sought to attack the fixed nature of orientation. To prove that sexual orientation is mutable, they pointed out all of the gay people who used to be heterosexually married. (While that might work well in a high-school debate class, I doubt anyone really believes that this proves that gays can become straight).

Herek did agree that women’s sexuality can be fluid and change over time. But he pointed out that the much-touted studies that showed mutation in orientation of women was between the “bisexual” and the “no identity” categories and reflected change in labeling, not attraction.

Neilson pointed out that many of those who identify as gay have had heterosexual intercourse. (Shocking!! Surely, oh surely no gay folk here have ever had heterosexual intercourse at some point in their life!! Meh.)

Next the discussion revolved around the ex-gay studies. First was Dr. Spitzer’s sad little telephone survey. Then Freud’s 1935 letter. But he didn’t want to talk about Exodus, it seems.

Then much of the afternoon was spent trying to prove that women’s orientations are whimsy, undefinable, and due to education.

In redirect, Detmer walked Herek back over the very very lengthy cross-examination to see if it changed any of his views. It did not.

Herek pointed out that all of the pro-8 discussion was about those persons who fall on the edges, the exceptions. He reiterated that other groups (like race and ethnicity) have difficulty with definitions.

Herek reiterated that most gay and lesbian people are consistent within their orientation and that very few indicated any choice in the matter. And then Detmer brought the whole argument back into perspective:

Detmer: If two women want to marry, are they lesbians?
Herek: Yes
Detmer: If two men want to marry, are they gay men?
Herek: Yes

On Monday morning the plaintiffs will show ninety minutes of video and then the Prop 8 proponents will begin their testimony.

Hawaii Senate votes for Civil Unions

The Hawaii Senate just voted to pass the civil unions bill by 18 to 7. Some in the House were arguing that unless it was veto-proof that it may not be brought up there. It’s veto proof. (Honolulu Advertiser)

The House passed a civil-unions bill last year that only applies to same-sex couples. The House came one vote short of a two-thirds’ majority — with one Democrat absent — but leaders do not want to go through the exercise again in an election year unless there is a realistic chance the bill will become law.

Gov. Linda Lingle has not said whether she would veto the bill, but has urged lawmakers to put off the issue and focus on the state’s budget deficit and job creation.

Perry v. Schwarzenegger: day eight summary

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 ProtectMarriage.com. (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, OneManOneWoman.com”

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.

A Hawaiian argument for marriage equality

I can’t guess the number of articles I’ve read in papers about which I though, “They almost got it… but not quite.” Today I read a very simply piece in the Maui News that was as compelling, as direct and succinct as I can recall reading.

It’s a short piece, less than 750 words, about Kevin Rebelo and Frank Miholer, a local couple who make a living planning, arranging, and conducting marriages for heterosexual couples. And yet it hits on all the issues: long-term relationships, discrimination, denied recognition, taxation, immigration, implied deviance, insurance, inheritance, medical care, tradition, family, faith, and the hope that comes from recognizing this as a civil rights struggle.

“I feel frustrated about the lack of understanding by some people of the discrimination that we face,” he said.

But Miholer said he’s confident marriages and/or civil unions eventually will be allowed in Hawaii for gay and lesbian couples.

“Every group that has struggled for equal rights has obtained it,” he said.

Today the Hawaii State Senate will decide whether to allow Rebelo and Miholer to enter a civil union.

Hak-Shing Tam To Be Called As Hostile Witness

Expect some dramatic fireworks today at the Prop 8 trial:

A proponent of California’s same-sex marriage ban who warned that gay rights activists would try to legalize sex with children if Proposition 8 did not pass is expected to be called as a hostile witness Thursday for two same-sex couples suing to overturn the measure.

Lawyers for the couples said they planned to call San Francisco resident Hak-Shing William Tam to testify even though he has asked to be dismissed as a defendant in the case, the first in a federal court to examine if state bans on same-sex marriage illegally discriminate against gay Americans.

Part of the case by lawyers seeking to overturn California’s ban on same-sex marriage is being built on the fact that the proponents of Prop 8 acted out of malice toward gay people. Tam had been an intervenor-defendant in the case but dropped out last week because he didn’t like being subjected to the discovery process. No wonder, because attorneys discovered written statements saying that “other states would fall into Satan’s hands” if same-sex marriage weren’t halted in California. With Tam on the stand today, I’m sure that other similar statements will come to light.

Indiana Senate committee votes for ban on marriage and civil unions

The Indiana Senate Judiciary Committee has just passed SJR 0013 to be presented as a referendum to amend the state constitution:

Only a marriage between one (1) man and one (1) woman shall be valid or recognized as a marriage in Indiana. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized.

The bill passed on a 6-4 party line vote and could go for a vote to the full Senate next week. The Senate has a 33 to 17 Republican majority.

What struck me about this is that those legislators who vote for these forms of discrimination know that their behavior is shameful and that history will soundly condemn them. (WIBC)

Republicans on the panel remained silent throughout the two-hour hearing before voiting for the amendment. Democrats challenged witnesses to distinguish the ban from laws once on the books in Indiana and other states against interracial marriage.

It is possible that this bill will have difficulty in the Indiana House where similar legislation has been stuck in committee. Democrats have a 52 – 48 advantage there.

And if it does go to a vote of the populace, it is possible that a effective argument can be made that banning civil unions is just downright unfair and bigoted.

Prop 8 Trial: Mormons Sought “Plausible Deniability”

And when you seek “plausible deniability,” we know that’s code for denying what is true. In this case, it was the Church of Jesus Christ of Latter-Day Saints’ extremely heavy and essential involvement in their successful efforts to strip LGBT Californians of their right to marry.

During this afternoon’s session in the suit to overturn California’s Proposition 8, Dr. Gary Segura of the Stanford Center for Democracy read some key memorandums from LDS leaders to the Prop 8 campaign. According to Prop8TrialTracker:

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…

That was interrupted by objections from the Prop 8 defense team. And while they argue, let’s review some background. Gary Lawrence was the State Grass Roots Area Director for Prop 8. He also said that to get a sens of what the war in heaven was like (in which Satan was expelled), you need to look no further than the Prop 8 campaign. “That battlefield is now California and the parallels between that pre-mortal conflict and the battle over the definition of marriage are striking,” he wrote. Part of the Prop 8 defense in the trial is that their campaign wasn’t driven by animus against gay people. Comparing the battle to cast gays out of marriage with the battle to cast Satan out of heaven looks like, well, animus to me, don’t you think?

There’s more!…

Perry v. Schwarzenegger: day seven summary

Thanks to Courage Campaign and FireDogLake

Today the ex-gay movement was on trial. This may seem like it is a long way from the question of marriage, but in reality it sits at the heart of whether anti-gay discrimination is legal.

Olson and Boies are trying to convince the court that gays and lesbians are a “suspect class”. If so, then any laws that distinguish by orientation and discriminate against gays and lesbians would be subject to strict scrutiny (ie the presumption is that such laws are illegal).

The considerations that generally go into whether a group of people are a “suspect class” are:

• Is the group a “discrete” or “insular” minority?
• Do they possess an immutable trait (except in the case of religion)?
• Is there a history of discrimination?
• Are they powerless to protect themselves via the political process?

For this reason we have heard the defense try and argue that, unlike race, sexual orientation is hard to define (so is race, actually). They’ve attempted to show that gay people are politically powerful and that discrimination against gay people is all a thing of the past.

But the plaintiffs’ testimony has been pretty solid in confirming that gays and lesbians are a discrete minority with a history of discrimination and they lack the ability to achieve equality and protection though the political process. Today their focus was to show that sexual orientation is an immutable trait.

The day started with the defense (the Prop 8 guys) adding four witnesses to their list:

• Mr. Criswell – this is probably Bill Criswell, a principal in Criswell Associates, the firm that produced the Prop 8 ads.
• Mr. Wirthlin – Joseph Wirthlin is the Mormon in Massachusetts who sued when his son Joey was read the book King and King in second grade. The Wirthlins, along with David Parker (another darling of the MassResistance hate group), sued the school claiming that it was attempting to indoctrinate their children about an “immoral lifestyle.” They lost, and the US Supreme Court chose not to grant a writ. They were featured in at least on Prop 8 ad.
• Richard Peterson – this is likely be one of two people: either the Richard Peterson who was fired from Hewlett-Packard after he posted Bible verses condemning homosexuality at work, or Pepperdine’s professor Richard M. Peterson, the Mormon who was the face of Prop 8’s ads lying about the consequences of same-sex marriage. I’m guessing the latter.
• John Doe – obviously we don’t know who this is. I’m going to make a wild guess that it’s an ex-gay.

David Boies started with a taped deposition of Dr. Paul Nathanson and Katherine Young, two Prop 8 witnesses that dropped out.

On tape Boies got Nathanson to admit that the Catholic Church and the Southern Baptist Church use terms such as sinful, evil, a perversion, abomination, deviant behavior, manifestation of a depraved nature in talking about homosexuality. Dr. Nathanson said that half of the Prop 8 voters may have supported the initiative due to religion.

This guy comes off sounding like a witness for the plaintiffs. And, indeed, there is word that he may be gay and supports marriage even though he was called as a witness for the proponents.

Boies: Do you believe that the teaching of certain religions that homosexuality is a sin and abomination leads to gay bashing?

Nicholson: Yes.

Next was taped deposition of Katherine Young. She gave a long list of cultures in which same-sex relationship comparable to marriage were tolerated: Hidras in India, Berdache in a number of American Indian tribes, cultures in West Africa and China, Romans during the Emperors. In addition there were many cultures that tolerated non-marriage same-sex relationships.

She also testified about the link between anti-gay religious teaching and hate crimes, that marriage would be beneficial to gay couples and their children, and that religion had been used as a basis for discrimination and bigotry against women and blacks.

(I can see why they “dropped out”)

Next to the stand was Ryan Kendall, a man who unsuccessfully went through ex-gay therapy. The Prop 8 proponents sought to keep him off the bench, but the Judge pointed out that they introduced reorientation to the case.

Kendall was raised in a very religious family. When they found out at age 13 that he was gay (his journal), they sent him to a counselor to make him heterosexual. Focus on the Family recommended that he be sent to NARTH and his parents began systematic emotional abuse. After a few years of this, at 16, he couldn’t take it any more and asked the Department of Human Services to help him become emancipated.

He went through a rough patch, jobs, school, drugs for about four years until he pulled himself together. He’s been working for the police department now for about two years.

(In yet another demonstration that this is a bi-partisan trial and not the ‘conservatives v. liberal radical homosexuals’, it turns out that Kendall is a member of Log Cabin Republicans.)

In cross-examination, James Campbell for Prop 8 asked him if he’d ever met anyone who had been successful. Kendall said, “publicly yes”. In redirect, Boies had him clarify:

Q: Have you met anyone who succeeded in conversion therapy?

A: Yes, Nicolosi trotted out his perfect patient, named Kelly, who (when the doctor left the room) told me that he was going to a gay bar that night and was pretending success in conversion for his family.

Next up was Dr. Gary Segura, a political science prof at Stanford, president of the midwest political science association, and head of the Stanford Center for Democracy, which studies American elections.

He looks at how the public influences decision makers. His focus is minorities, particularly Latino and gay. One of his article dealt with self-identification of those minorities who can ‘pass\’ as others. He was there to speak about the powerlessness of gays and lesbians in American politics.

Segura had three opinions:

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.

Segura explained how a favorable outcome may still lack political power. For example, Houston just elected a lesbian as mayor but had also just voted against allowing partners of city employees to get benefits, so the new mayor cannot provide benefits to her partner of 19 years.

He pointed out that in those few states where there are protections, generally these are not designed to advance the interests of gays and lesbians but rather to correct harsh discrimination against them. “You have laws against discrimination because there IS discrimination.” Segura testified that no group has been the target of punitive or discriminatory initiatives more than gay people.

Segura talks about under-representation and how that impacts the discussions about people who are not present. “Some public officials have compared gay marriage to marrying a box turtle.” (you go, Segura!!)

Segura testified that the incidences and the intensity of hate crimes against other groups has decreased, but not for gays. He ties a recent surge in hate crimes to Proposition 8.

He testified that government censorship of sex ed classes, HIV prevention efforts, and even bans on funding for gay-themed art all add to the disempowerment of gays. He said the “mommy, I heard in school that I can marry a princess” ad was part of the continued theme of seeking to censor out gay people.

Segura dismissed the idea that gays have powerful allies. He pointed out the failure of the Democratic Party to do anything meaningful and listed the many instances in which Our Fierce Advocate has filed briefs and defied courts in order to keep anti-gay positions in place and has done little to nothing to address our needs.

He said that if two groups were about the same size, the one with no opponents has a real significant advantage. He then was asked about the Mormon involvement in the campaign. He laid out the organization and power of the supporters of Proposition 8, especially the involvement of Jim Garlow, pastor of Skyline Church.

(An attorney for Jim Garlow and Miles McPherson sought to keep their sermons, speeches, and statements from being presented as evidence. The pastors want on one hand to be political but they want that political activism to have the protections of religious speech. The decision goes to Magistrate Judge Spiro.)

Boies put up a redacted correspondence from the Catholic Conference of Bishops:

The Catholic Conference has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating. Led 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 the success of this effort.

Segura reviews other documents noting that the campaign was very early focused on religion, was national in scope, and contained unusual coalitions of churches who seldom align.

Andy Pugno for Prop 8 then fought tooth and toenail (unsuccessfully) to keep out documents that would demonstrate the intense involvement of the Mormon Church. Documents were entered which showed that the LDS Church was very active in the campaign, especially in funding and grassroots organizing but sought to keep plausible deniability about their involvement. Documents showed that the church actively sought to have its members individually donate to the campaign and used the church structure to do so.

Segura discussed the deposition of Dr. Miller, a witness of the proponents who dropped out. Miller lacked knowledge of gay history, social work, and anything outside of California laws. He knew nothing about the lack of protections in most states.

In cross-examination, Thompson lists a bunch of accomplishments that gay people have been able to achieve in terms of legislation. He uses New Hampshire as an example, but Segura notes that there are currently efforts to reverse marriage in that state.

Expert is asked about certain politicians (eg Nancy Pelosi is an ally but not one who moves legislation forward on gay issues), union support, ACLU, high tech companies, etc.

The case will continue until tomorrow or perhaps Friday.

MarriageTrial.com reenacts Perry v. Schwarzenegger

On Monday we told you that filmmaker John Ireland would be posting reenactments of the testimony for Perry v. Schwarzenegger. Now he has a website, MarriageTrial.com, to host the reenactments.

Nothing has been posted yet. Maybe the actors are skurrred that gay folk will hunt them down and make frowny faces at them.

Cindy McCain supports gay marriage

The household of Republican Presidential Candidate John McCain is divided on the issue of marriage. During his campaign, McCain tried to avoid talking about gay issues as much as possible, but when cornered he spoke in opposition to marriage equality.

But after the campaign his daughter Meghan has become, in many ways, the face of young straight marriage equality supporters. And she has been a constant voice in the Republican Party seeking to change the position of the party on gay issues.

Now another member of McCain’s family has come out publicly in support of marriage, his wife Cindy. She and Meghan have joined the No H8 campaign.

There is no way that this decision was made without the full knowledge and approval of the Senator. What this means for gay rights in the Republican Party is as yet not fully known, but it is definitely a good sign.

Charts from day six

The Courage Campaign’s Brian Leubitz found charts on the marriage rate and divorce rate in the Netherlands for the past few decades. They add clarity to yesterday’s testimony.

Prop 8’s Chuck Cooper wanted to spend a lot of time talking about the period from 1994 to present where it might appear that enacting marriage correlated to (and perhaps caused) a decline in the marriage rate. But viewing the larger graph shows that this was a false and fraudulent argument.