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.

“My view is that Proposition 8 makes distinctions,” Miller said. “In that sense it discriminates …. Whether it’s invidious discrimination, that’s a different question.”

Boies likely knew he would hit this wall with Miller, so he turned to the work of scholars Miller considers “important” and “well-regarded” in his field. Miller admitted that these scholars have “implied clearly” that Prop 8 is invidious discrimination. He also agreed with these scholars’ conclusion that gays and lesbians are a minority that has been the object of prejudice and stereotyping in the past. That has changed in recent years, however, Miller said.

These changes feed Miller’s conclusion that gays and lesbians have adequate power to protect their rights within the political system. However, last week Stanford University professor Gary Segura called this view the “political science equivalent of malpractice.”

Boies made it plain that he agrees with Segura’s characterization. He attacked Miller’s expert report as the product of lawyers rather than scholarship. Miller admitted that defense counsel provided some of the sources he relied upon in preparing his report. Boies asked Miller to review the index of his expert report and circle the sources Miller himself tracked down. Twenty-two minutes later, Miller had circled 100 of 427 sources. The rest he either left blank, indicating they came from Prop 8 lawyers, or marked with a question mark to show that Miller could not remember if he or defense counsel discovered them.

Three other elements of Miller’s cross-examination testimony stood out. First, Miller agreed with Boies that lesbians face more prejudice and stereotyping than women generally. Boies also asked Miller to compare prejudice against gays and lesbians to what women and African Americans deal with. Miller, who teaches a course on the politics of race, did not have an answer.

Second, Boies pointed out that Prop 8 passed despite the fact that gays and lesbians have “allies” among Democrats, labor groups, some faith-based organizations, and others. He also noted that these “allies” support rights for African Americans, women, and other groups deemed by the courts as worthy of increased constitutional protection.

Finally, Boies asked about Miller’s scholarly criticism of the initiative process—the same process by which Prop 8 amended California’s constitution. On direct examination, Miller said that gays and lesbians have generally fared well under California’s initiative process. While they lost battles over marriage rights in 2000 and 2008, voters have left other rights, such as domestic partnerships, intact. However, thirty states have constitutional bars to same-sex marriage, and all passed by initiative or statewide popular vote. Of these kinds of votes, Miller wrote:

“It is ironic that initiatives have the reputation of being a more pure form of democracy when the process undermines democratic opportunities and violates procedural guarantees observed by almost every freely elected legislature in the world.”
WHY POLITICAL POWER MATTERS
Miller testified about the political power of gays and lesbians in order to counter plaintiffs’ expert testimony that they are powerless to protect their rights within the political system. Political powerlessness is a factor courts have considered when deciding whether to grant “protected class” status to a group of people with a history of dealing with prejudice and discrimination. Women and racial minorities are protected classes, designations that make it much easier for them to win discrimination lawsuits. If gays and lesbians were granted protected class status, plaintiffs would not have to prove that Prop 8 was motivated by hatred or ill will. And this kind of victory at the Supreme Court would make it easier for plaintiffs nationwide to attack laws that turn on sexual orientation.

Tags: Kenneth Miller, political power
Posted in General | No Comments »