Plaintiffs used withdrawn defense witnesses to make their case

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The plaintiffs ended up using two of the withdrawn witnesses, Paul Nathanson and Katherine Young of McGill University, to make their case for same-sex marriage.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.


In his video testimony, Nathanson agreed that same-sex marriage would increase the stability and commitment of gay and lesbian relationships. Gays and lesbians make fine parents, he said, noting that studies of same-sex marriage and children “don’t detect problems, and they don’t predict problems.”

Nathanson’s testimony focused on religious views of homosexuality. Religion motivated about half of the people who voted in favor of Prop 8, he said. When asked if the Catholic Church teaches that homosexuality is “immoral and outside the order of God,” Nathanson said yes. The Southern Baptist Convention views homosexuality as “sinful,” “evil,” “a perversion,” “an abomination,” “deviant,” and “depraved,” Nathanson confirmed. He identified an anti-same-sex marriage protestor carrying a sign that read, “God hates gay people,” and agreed that gays and lesbians are in physical danger because they are gay.

In the past, people used religion to justify discrimination against African Americans and women, Nathanson said. Boies asked Nathanson whether the primary cause of anti-gay hostility is religious teaching. “In a direct sense, yes,” Nathanson said. “But I think religious hostility to homosexuality in turn has roots other than religion.”


Young testified about the history of gay marriage. While the historical prevalence of heterosexual marriage is one of the defense’s central themes, Young pointed to several historical examples of same-sex marriage. A centuries-old caste in India has a tradition of male-to-male relationships and rituals that lead to marriage, Young said. It was never the norm, she said, but same-sex marriage was a “well-known phenomenon” among Plains Indians, as well as religious groups with a shaman tradition. Other exceptions to the norm of straight marriage include lesbian marriages in West Africa, lesbian marriages among silk workers in China, and gay marriages during the Roman Empire, including among emperors.

Young also agreed that same-sex marriage would increase the durability of gay relationships, and that this benefits children. Marriage rates among straight couples were decreasing before gay marriage became legal in the United States, she said.

She also acknowledged bigotry against gays and lesbians. It has “a religious component to it,” Young said.


Boies’s videotaped questions of Nathanson and Young were likely aimed at showing that opposition to same-sex marriage is rooted in bigotry and religion rather than facts. And by evoking religious opposition to racial integration and women’s rights, Boies pointed out that discrimination can be held unconstitutional even if it has religious roots.


6 Responses to “Plaintiffs used withdrawn defense witnesses to make their case”

  1. Fromthebowelsofhell Says:

    Looks like Prop 8 is going to take a bath…unless the judge decides that bigotry is grounds for denial of civil rights.
    And they have made judgments like that before.

  2. Sean Michael Says:

    Ok I just want to say I love this website makes me proud to be from the bay area and makes me regret on some level leaving law as my dream, now I am in arts and trying to make my change that way. So nice to know people like u are doing this. Sucks the Supreme court thinks we are little kids and can’t handle reality. Man that Supreme court is just out of control and in another time. So kudos to u all. And thanks

  3. I served in the Navy for 10 years, and retired as a Lieutenant Commander. I met my partner in the Navy, and we have been together 11 years.

    All I can say is that prop 8 is a disgrace, and stands against every value I fought to defend with my life…..

    I will never forget those who have taken my rights away…and history will never forget them either.. and I will spent my entire life making sure those people are publicaly held accountable

    I promise you that much……

  4. Based on your blog posts (which I have really enjoyed btw) the defense seems to be putting on a very shoddy case. I wonder if there is a strategic reason for this. They know that the Supreme Court will not (unless there is a radical change in their membership in the next few years) overturn Prop 8. Perhaps they expect a District Court judge in SF to rule against them and they are hoping it will spark an enormous backlash and energize their base.

  5. Man, I wonder why the defense didn’t want to use those “expert witnesses!” “Hi, I’m an ‘expert witness’ for the defense, and I have no problem with gay marriage aside from my religiously- engendered view that it is ‘evil’.”

  6. I admire and respect the talent of these Berkeley law students to engage the hard legal topics of the day and to provide a means for easy understanding and analysis.Seems to me there is no factual basis for denial of this right to same sex couples. More important, there is zero evidence that anything needs to be “protected” except common sense and sanity.

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