At a press conference following the tenth day of the Prop 8 trial, plaintiffs’ attorney David Boies smiled cheerfully into the lights atop television cameras. Boies had spent the afternoon cross-examining Kenneth Miller, an assistant professor at Claremont McKenna College and one of two witnesses called by the defense. Miller “did a great job for us,” Boies said. “[The defendants are] walking away from their experts. I suspect they’ll be walking away from this guy.”

The defense did not walk away from Miller, who continued testifying the next day. Another defense witness, David Blankenhorn of the Institute for American Values, also took the stand. But it remains unclear why the defense called only two witnesses. Prop 8 proponents initially blamed their shrinking witness list on the fact that the trial would be broadcast on YouTube. However, the defense did not change course after the Supreme Court halted outside broadcast of the trial. Other witnesses refused to testify, the defense said. Not so, according to plaintiffs, who suggested, instead, that defendants simply dropped experts that would undermine their position.

The plaintiffs ended up using two of the withdrawn witnesses, Paul Nathanson and Katherine Young of McGill University, to make their case for same-sex marriage. On the seventh day of the trial, plaintiffs’ attorneys played clips from Nathanson’s and Young’s videotaped depositions, which Boies conducted before the trial began. Nathanson and Young are religious studies professors and co-authors of books about misandry, a form of prejudice and discrimination against men.

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The defense this week called the long-awaited David Blankenhorn, an expert who attorneys had promised would help articulate why traditional marriage should be protected as such.  Blankenhorn’s name was highlighted in the defense opening, and as one of only two defense witnesses, he seemed to shoulder many of the party’s evidentiary hopes.

However, by the time Blankenhorn finished at least seven hours of testimony on Wednesday, it was not clear that he had aided the defense cause.  Not only had he conceded several plaintiff points, including that same-sex marriage would potentially reduce the divorce rate.  He had also given the impression that his testimony was largely the fruit of deep soul-searching, not the articulation of scientific conclusions.

Watching Blankenhorn was fascinating, if only because he seemed to embody the personal struggle that many Americans are navigating with regard to same-sex marriage.  Blankenhorn seemed to have weathered reconciling his own mind, heart, and statements on the matter.  But in a peculiar stance for an expert witness, he offered the sincerity of his journey as proof of the persuasiveness of his conclusions.

For more on this unusual episode, read on.

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Speaking to reporters after the close of testimony yesterday, plaintiff and defense attorneys summarized their takes on Perry v. Schwarzenegger thus far.  Their remarks might also give clues about how legal arguments will proceed in the coming months.  Here are some of their comments:

Plaintiff attorney David Boies:

“The American public has gotten a sense of what the facts are, and what we have done is lift the veil.  We have exposed the paucity of the arguments on the other side.  We’ve exposed publicly the fact that there simply is no basis for preventing gays and lesbians from getting married.  It doesn’t help anyone.  They’ve had an entire trial to come forward with a single witness who would testify that there was any harm, who would show any harm, and they could not do that.”

“The witnesses that they brought admitted that what was at work here [in passing Proposition 8] was a religious divide based on prejudice and stereotype and that there was no justification – none, zero – for depriving gays and lesbians from the right to marry.”

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The Perry v. Schwarzenegger defense rested yesterday.  The parties now have until February 26 to digest the trial evidence and to tell Chief Judge Vaughn Walker what they think it shows.

Prop 8 on Trial will continue to post blog entries in the coming weeks, as we have a chance to reflect on the trial’s testimony and legal issues.   We will also closely follow closing arguments, likely to take place in March or April.  And Prop 8 on Trial will be there when Judge Walker announces his findings in the case – such as what marriage is, whether gays and lesbians experience prejudice, and whether Proposition 8 is constitutional.

Please continue to check the blog, and we look forward to seeing you here.

Amanda Beck & Sarah Ruby

State laws discriminate when they limit marriage to straight couples, said Kenneth Miller, an associate professor at Claremont McKenna College, who testified in defense of Prop 8 on Monday.

“If we’re looking at the institution of marriage, then the state does treat heterosexual couples differently than same-sex couples,” he said during cross-examination.

Miller also conceded that restrictions on gays’ and lesbians’ ability to serve in the military “could be described as discrimination against gays and lesbians.” Another example “would be the [federal Defense of Marriage Act] policy,” he said.

At this, plaintiffs’ attorney Boies did not suppress his enthusiasm. “There you go!” he exclaimed.
Miller’s admission is more of a sound bite than a legal conclusion. All laws discriminate. Tax laws treat childless people differently than parents raising children. Environmental laws mandate that some businesspeople handle chemicals as hazardous waste while others pour theirs down the drain. The constitution has no problem with government discrimination as long as it is based on constitutionally permissible criteria. Race distinctions are almost never okay. Courts rarely allow gender classifications. Miller fell short of admitting that sexual orientation is an invidious, or impermissible, basis of discrimination.

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The Perry v. Schwarzenegger defense opened its case Monday with testimony from Claremont McKenna College Associate Professor Kenneth Miller, who contended that gay and lesbian Californians hold significant political power that belies their single-digit percentage of the population.

Miller is an attorney educated at Harvard Law School and now a specialist in the history of Californian and U.S. politics.  He focuses on the power of political groups, especially in direct elections, and summoned a number of rubrics to demonstrate the sway that California’s gay lobby holds.

First, he pointed to the fact that gay marriage proponents raised $43 million for the “No on 8” campaign, an amount that Miller said was “exceptionally rare” given that the election involved a social issue without corporate interests or backing.   Gay marriage opponents raised $40 million for the election.

Second, Miller pointed to a laundry list of political allies sympathetic to gay rights causes.  Miller said this list could include something as broad as the Democratic Party and reminded the court that nearly 61 percent of California’s voters supported Democratic presidential candidate Barack Obama in 2008.  This strong showing created the largest California margin in any presidential election since the days of Franklin Delano Roosevelt.  “This is a blue state.  That’s the way I would put it,” Miller said.

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The Perry v. Schwarzenegger plaintiffs closed their case Monday by playing clips from two video conference rallies funded by Proposition 8 supporters and broadcast over the Internet before the November 2008 election.

The conferences featured attorneys, ministers, and other Proposition 8 supporters discussing same-sex marriage and the import of the pending election.  One speaker said that permitting same-sex marriage would open the door to incest, bestiality, and the ability of pedophiles to marry children.

Another compared the potency of the Proposition 8 election to the terrorist attacks of September 11, 2001 and said that even people who did not know a married gay couple would be affected by expanding the definition of marriage – just as Americans who did not know one of the terrorists’ victims were still affected by the attacks.

These rallies “were conducted as part of a grass-roots campaign,” plaintiff attorney Christopher Dusseault said.  He produced ProtectMarriage.com emails that showed campaign managers Jeff Flint and Frank Schubert had alerted supporters about the conferences.

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Plaintiffs’ attorney David Boies examined Hak-Shing William Tam on Thursday afternoon. The exchange was exhilarating to watch—a reward for enduring defendants’ five-hour cross-examinations, which slice big, important points into hundreds of tiny questions. For example, a defense attorney might run through all the definitions of homosexuality an expert has ever used to point out a lack of consensus as to what sexual orientation is. Or we might follow painstaking questions about American population statistics and Dutch marriage rates to arrive at the claim that straight folks will stop getting married if gays and lesbians start. In the end these points get made, sometimes very well. And long cross-examinations likely cannot be avoided where, as here, the defense calls two witnesses of its own. But in the gallery it can feel like we’re talking about protons and neutrons in preparation for a lesson on giraffes in Africa.

Thursday afternoon was different. Boies lived up to his reputation as a fearsome examiner. He started off gently, peering over glasses at the end of his nose. He never yelled, but his voice rose when he did not believe something Tam told him. It was effective. The timbre of his voice let the audience know when to pay attention—the next question would explain why his voice had changed.

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In anticipation of the Perry v. Schwarzenegger defense slated to begin on Monday, Prop 8 on Trial thought we might review the testimony of Michael Lamb, who has offered the plaintiffs’ most direct challenge to the defense case thus far.

Lamb is a British psychologist who has studied developmental psychology for nearly 40 years and won recognition from the Association for Psychological Sciences for his lifetime contribution to the field.  In testimony last week, he attempted to undercut the central defense contention that marriage between homosexual partners would threaten the well-being of children.

Indeed, if most of Perry’s witnesses have offered the raw material upon which plaintiff attorneys hope to build legal arguments, Lamb might qualify as the lone plaintiff expert called to launch a preemptive strike against the defense.

“I’m going to offer two broad opinions,” he told the court on January 16.

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Hak-Shing William Tam, who intervened in Perry to defend Prop 8, believes that gay people are twelve times more likely to molest children. He said so Thursday on the stand, endorsing a statistic posted on the internet by a group of Chinese pastors. He is the group’s secretary.

Plaintiffs’ attorney David Boies questioned Tam on this and other public expressions of his views. The point seemed to be that Tam is prejudiced, and that he wielded this prejudice on behalf of the Prop 8 campaign. The legal question is whether this amounts to impermissible moral disapproval or animus, a constitutionally forbidden form of ill will.

Boies asked Tam about a San Jose Mercury News article quoting him as saying that “the gay lifestyle … comes with all kinds of disease.” Boies focused on a letter Tam wrote during the Prop 8 campaign warning that San Francisco is already “under the rule of homosexuals,” and that the “gay agenda” involves legalizing prostitution and having sex with children. Tam said he referred to prostitution because of Proposition K, a failed San Francisco ballot measure seeking to decriminalize sex work. By “having sex with children,” Tam meant lowering the age of consent to thirteen or fourteen. He fears the “liberal trend” in Canada and some European countries, where he believes same-sex marriage has given way to incest and polygamy.

“Where did you hear that? Who told you that?” Boies asked, raising his voice, incredulous.

“It’s on the internet,” Tam said. He sounded reasonable, matter of fact. Like an expert relying on a peer-reviewed study.

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