NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 11

January 26, 2010

cross-posted from Pam’s House Blend

Today was one of the most dramatic days of the trial, with startling admissions by the proponents’ two expert witnesses: Professor Kenneth Miller, testifying about the political power of gay people, and David Blankenhorn, testifying about the purposes of marriage.

The morning began with the conclusion of David Boies’s cross-examination of Professor Miller. Boies confronted Prof. Miller with several of Prof. Miller’s own earlier writings, which were highly critical of the ballot initiative process and particularly highlighted the risk that majorities will use the initiative process to target minority groups. Prof. Miller admitted that ballot measures can, and have, drawn upon anti-minority sentiment. Indeed, one of Prof. Miller’s own articles cited Proposition 22, the California initiative prohibiting marriage for same-sex couples that passed in 2000, as an example of such an anti-minority initiative.

Following the conclusion of Prof. Miller’s testimony, the afternoon was taken up by questioning of the proponents’ final witness, David Blankenhorn, the president of a private think tank called the Institute for American Values. Blankenhorn is best known as the author of a book called Fatherless America, in which he argued that fatherlessness is “the most harmful demographic trend of this generation” and the leading cause of “our most urgent social problems, from crime to adolescent pregnancy to child sexual abuse to domestic violence against women.” Blankenhorn is also one of the most visible and culturally influential opponents of marriage for same-sex couples.

The Prop 8 proponents asked Judge Walker to accept Blankenhorn as an expert in marriage, fatherhood, and family structures. But as plaintiffs’ attorney David Boies quickly made clear in his initial questioning, Blankenhorn lacked the usual qualifications for an expert witness in those areas. He has a bachelor’s degree in social science from Harvard and a master’s in the unrelated field of labor history from the University of Warwick in Coventry, England. He has no academic affiliation and has never taught at a college or university, and he has authored only two peer-reviewed publications, neither of which addressed marriage for same-sex couples. Judge Walker permitted Blankenhorn to testify, but noted that he might have ruled differently if this were a jury trial.

Charles Cooper (the lead attorney for the proponents) led Blankenhorn through what seemed to be a highly scripted presentation. Blankenhorn argued that the concept of marriage as “a socially approved sexual union between a man and a woman” is a “universal” definition that exists in every culture. He said the primary purpose of marriage is to make it as likely as possible that children will be raised by their biological parents.

Blankenhorn testified that he is opposed to allowing same-sex couples to marry because, in his view, that would promote the idea that the purpose of marriage is to serve the needs of adults rather than children. He also claimed that permitting same-sex couples to marry will lead to reduced rates of marriage by heterosexual people, higher rates of divorce, and more children born out of wedlock.

Blankenhorn did not claim to have any scientific data supporting that belief. Instead, he argued that letting same-sex couples marry might contribute to the “deinstitutionalization” of marriage, which he defined (rather vaguely) as any change that weakens “the rules” of marriage. He testified that marriage is a social institution, like baseball, and that when the rules are changed, fewer people will want to play. Blankenhorn stressed that he could not be sure that letting same-sex couples marry would have that effect, but he feared that it would.

Blankenhorn also noted that he supports domestic partnerships for same-sex couples as “a humane compromise.” In the past, he explained, he had not given the issue of domestic partnership much thought. But after being challenged by Jonathan Rausch (a conservative gay author) in 2007, he concluded that even if providing domestic partnership for same-sex couples might also contribute to the deinstitutionalization of marriage, considerations of fairness made it worth the risk.

For the last hour of the day, plaintiffs’ attorney David Boies began what is sure to be a dramatic and grueling cross-examination. Repeatedly, Blankenhorn bridled at Boies’s questions and often refused to answer them, leading to several interventions by Judge Walker instructing Blankenhorn to respond. The bulk of the cross-examination is still to come tomorrow, but thus far, Blankenhorn has acknowledged that letting same-sex couples marry would be beneficial to the couples and their children. He also admitted that there are no studies showing that children of same-sex couples are worse off than children raised by heterosexual parents.

Tomorrow will be the last day on which evidence will be presented. Judge Walker has announced that he will then take a few weeks to review the evidence before scheduling closing arguments in the case.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 10

January 25, 2010

cross-posted from Pam’s House Blend

Today was another exciting day as the Prop 8 trial heads into the home stretch. The plaintiffs finished their case today, and defendants got started with their first witness, Professor Kenneth Miller.

The plaintiffs’ attorneys closed their case by playing excerpts from two simulcasts that were broadcast to gatherings of evangelical voters during the Prop 8 campaign. These simulcasts were sponsored and paid for by ProtectMarriage.com, the official Yes on 8 campaign organization. In the portions shown, one speaker said, “The polygamists are waiting in the wings, because if a man can marry a man and a woman can marry a woman, the polygamists are going to use that exact same argument and they probably are going to win.” Another speaker referred to a man marrying a horse, and a third speaker compared the impact of permitting same-sex couples to marry to the 9/11 attacks.

The videos of these outrageous statements, made in a forum sponsored and paid for by the official Yes on 8 campaign, provided a fitting end to the plaintiffs’ case. It brought the focus back to the long history of demonization the LGBT community has faced in the public sphere– from the grim historical events described in Professor George Chauncey’s testimony two weeks ago to the themes of the Yes on 8 campaign, as shown in today’s videos and the highly inflammatory testimony of Prop 8 proponent Dr. Bill Tam. The plaintiffs have done an admirable job of laying out the case that Prop 8 was a product of the same kind of prejudice that has driven many other anti-gay laws throughout our nation’s history.

After the plaintiffs rested their case, the Prop 8 proponents called their first witness, Prof. Kenneth Miller, who is a professor in the Department of Government at Claremont McKenna College. He was offered as an expert on the political power of gay men and lesbians in California and nationally. Prof. Miller defined political power as the ability to get the attention of lawmakers. In support of his conclusion that gay men and lesbians have significant power, he cited the support for LGBT causes in California among allies such as the Democratic Party and organized labor, the number of LGBT elected officials in California, and the number of LGBT-friendly laws that have been passed by the California legislature in recent years.

This simplistic analysis contrasted sharply with the nuanced approach adopted by the plaintiffs’ expert, Professor Gary Segura, in his testimony last week. Prof. Segura emphasized that to understand a group’s political power, one has to consider not only the number of legislative victories or the number of elected officials, but also the broader context-including factors such as the incidence of anti-gay hate violence, the number of initiatives attacking the civil rights of gay people and our persistent inability to defend ourselves against them, and the long history of government-sponsored discrimination against gay people in employment, which continues to the present day in the military’s ban on openly gay servicemembers. This rigorous attention to detail was notably lacking from Prof. Miller’s testimony.

In fact, under Prof. Miller’s definition of power as the ability to attract any favorable legislative attention, it’s hard to think of any group that would not qualify as politically powerful. Certainly, neither race nor gender would be a suspect classification under the Constitution, since many federal and state laws prohibited discrimination on those bases before the United States Supreme Court held that women and racial minorities were sufficiently politically powerless to merit constitutional protection. In contrast, we still do not have a single federal law that prohibits sexual orientation discrimination, and, most states still permit employers to fire workers because of their sexual orientation. If Prof. Miller’s analysis were correct, no type of discrimination would be subject to heightened constitutional scrutiny.

In addition to offering a surprisingly superficial account of political power, Prof. Miller made several admissions that undermined his credibility as an expert. Under a withering cross-examination by David Boies, Prof. Miller admitted that, at the time of his deposition, he did not know how many states prohibited sexual orientation discrimination. He did not recognize many of the leading scholars on gay politics and history, and acknowledged that he had not read their work. He could not offer an opinion on whether gay people have more political power than African-Americans, even though much more of his scholarship has dealt with the African-American community than the LGBT community. He also declined to comment on the level of prejudice and negative stereotyping LGBT people face compared to other groups such as African-Americans or women. Prof. Miller did concede that lesbians must face more prejudice than other women, however, because they experience discrimination on the basis of both gender and sexual orientation.

Boies also questioned Prof. Miller at length about articles Prof. Miller has authored or coauthored that are critical of the initiative process. In fact, at times, it almost seemed that Prof. Miller might have been offered as an expert by the plaintiffs on the dangers of the initiative process. For example, Prof. Miller has written that initiatives violate the democratic norms of openness, fairness, and accountability and tend to preclude compromise and informed deliberation. When asked if he still agreed with those statements, Prof. Miller agreed that he did. He also acknowledged that initiatives are particularly troubling when they target disfavored minorities.

Tomorrow, Boies will continue his cross-examination of Prof. Miller in the morning, and the proponents then intend to call their final expert, David Blankenhorn, who is expected to testify about parenting by gay men and lesbians.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 8

January 21, 2010

cross-posted from Pam’s House Blend

Today was another blockbuster day in the Perry trial, with more razor sharp testimony from Professor Gary Segura, followed by disturbing testimony by one of the official proponents of Prop 8, Dr. Hak-Shing William (“Bill”) Tam.

Yesterday closed with expert testimony from Professor Segura, an authority on political representation. The plaintiffs called Professor Segura to provide evidence that LGBT people lack sufficient political power to effectively protect their own interests through the political process. This will help to establish that laws discriminating based on sexual orientation, like Prop 8, should receive heightened constitutional scrutiny.

Professor Segura returned to the stand this morning for a long, drawn-out cross-examination by the proponents’ attorney David Thompson.  Thompson’s strategy seemed to be to ask questions addressing the ways in which LGBT people have made some political progress, as if any evidence of progress indicates that LGBT people do not face discrimination.

Despite repeated promptings from Judge Walker to move things along, Thompson presented Professor Segura with repetitive examples of celebrities, prominent politicians, religious organizations, and businesses that have expressed support for LGBT people.  On redirect (brilliantly conducted by Ted Boutrous of Gibson Dunn), Professor Segura demolished Thompson’s attempt to paint a false picture of LGBT people as politically powerful.  In a few short strokes, Professor Segura explained that it is meaningless to compare only the number of groups on each side, without looking at their size, influence, and ability to mobilize voters.  For example, while hundreds of churches opposed Prop 8, literally thousands supported it.  By any reasonable measure, Professor Segura explained, the Prop 8 proponents were able to garner a magnitude of support that dwarfed that given to the other side.

Thompson also asked Professor Segura a series of questions about stories of alleged violence against Prop 8 supporters, including a particularly sensational interview of one alleged victim by Bill O’Reilly.  This is part of the defense’s (absurd) effort to show that voters enacted Prop 8 for reasons other than bias against LGBT people.  On redirect, Professor Segura testified that it was “doubtful in the extreme” that any significant portion of the Yes on 8 vote was based on alleged violence against Prop 8 supporters.  He also testified that there were significantly increased rates of anti-LGBT hate violence in California in 2008, and that any meaningful analysis would consider the incidence of violence on both sides.

Thompson’s cross-examination displayed a surprising lack of knowledge regarding the current state of laws affecting LGBT people. Continuing his attempt to show that LGBT people have political power, for example, Thompson asserted that LGBT have had “great political success” securing adoption rights. Professor Segura corrected him, noting that LGBT people have in fact suffered recent setbacks in several states that have enacted discriminatory adoption laws.

In a powerful final statement, Professor Segura testified that to conclude that gay people have political power after considering all the relevant evidence – from the incidence of anti-gay hate violence to the national juggernaut of anti-gay initiatives would be the equivalent of “political science malpractice.”

After lunch, the plaintiffs called Dr.  Tam, an official proponent of Prop 8.  Dr. Tam, a leader in the Chinese evangelical Christian community, was actively involved in the signature gathering effort and the Yes on 8 campaign.

Dr. Tam originally intervened in this case as a party to defend Prop 8, but recently sought to withdraw from the case, claiming that he fears harassment from having his name publicly  associated with the trial. Judge Walker decided to defer any ruling on whether Dr. Tam will be allowed to withdraw until after his testimony, noting that “there have to be some consequences to joining a case, making the other party litigate against you, and then dropping out.”

David Boies examined Dr. Tam as an adverse witness, meaning that leading questions were allowed as in a cross-examination.  It was a privilege to see him in action.  At a speedy pace, Boies led Dr. Tam through a series of documents showing that Dr. Tam was a leader in the Yes on 8 campaign and that he coordinated his activities closely with ProtectMarriage.com, the official campaign organization.  Boies’s skilled examination, with its laser-like precision, kept everyone in the courtroom on the edge of their seats for much of the afternoon.

Boies’s examination focused on several highly offensive and inflammatory statements that Dr. Tam and organizations in which he is involved have made about homosexuality and the so-called “gay agenda.”  By the end of the day, Boies had offered powerful evidence that the official Yes on 8 campaign organization and its campaign manager, Schubert Flint Public Affairs, were well aware of Dr. Tam’s outrageous statements before the election.

Dr. Tam testified that he is the Secretary of an organization, 1man1woman.net, whose website states that “studies show that homosexuality is linked to pedophilia,” and that “homosexuals are 12 times more likely to abuse children.” Dr. Tam testified that, to this day, he believes those statements are true.  Dr. Tam acknowledged that another document he authored in support of Prop. 8 claimed that after winning marriage equality, LGBT people intended to “legalize having sex with children.” Dr. Tam also acknowledged saying, as reported in the San Jose Mercury News, “We hope to convince Asian-Americans that gay marriage will cause more children to experiment with the gay lifestyle, and that lifestyle comes with all kinds of disease.”

Boies wrapped up Dr. Tam’s testimony by establishing that the Yes on 8 campaign had a tightly coordinated public messaging policy, that the campaign coalition was well aware of Dr. Tam’s 1man1woman.net website, and that the campaign never asked him to take down any of the material on his website linking homosexuality with pedophilia.

It was clear by the end of Boies’s questioning that no matter how hard the official Prop 8 campaign might try to distance itself from Dr. Tam’s shocking anti-gay rhetoric and lies, Dr. Tam spoke as an official proponent who was also a day-to-day leader with real influence in the campaign.  Today’s testimony revealed the true face of the anti-marriage-equality movement, despite its current attempts to portray itself in a more moderate, media-friendly light. Those who actively campaign to deny equality to same-sex couples deliberately exploit the most vicious and false anti-gay stereotypes and create a climate of fear and hostility in which LGBT people are seen as less than fully human.

Tomorrow we will hear from Dr. Gregory Herek, an expert on sexual orientation, who will be the last witness for the plaintiffs.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 5

January 15, 2010

cross-posted from Pam’s House Blend

Today, in the final day of the first week of trial, we got to see more riveting, detailed testimony from the plaintiffs’ expert witnesses, who have truly proven to be “experts” in the fullest sense of the word. We also heard the moving personal story of a woman who has seen firsthand the incredible transformative power that the simple act of marrying can have.

A tremendous body of social science has been laid out in this trial so far, and it has shown the irrationality of discrimination against LGBT people and our families in a truly unprecedented way. This morning’s first witness was Dr. Michael Lamb of Cambridge University. He is an expert in child and developmental psychology and has authored or edited more than 40 books and 500 articles on the subject. Dr. Lamb testified that there is substantial evidence showing that the children of same-sex couples would be better adjusted if their parents could marry, because children in general do better when their parents have adequate social support.

Dr. Lamb also testified unequivocally, based on the vast body of social science research in the field, that children of LGBT parents are just as well off psychologically as other children. Dr. Lamb did testify that there is one difference between children of LGBT parents and other children – on average, they grow up with less sex-stereotyped attitudes.

Dr. Lamb strongly refuted the Prop 8 proponents’ claim that it is necessary for children to have a male biological parent and a female biological parent in the home, undercutting one of their primary arguments. He testified that there is an “overwhelming consensus” among developmental psychologists today that gender is irrelevant to parenting. Dr. Lamb confirmed that the most significant factors for children’s psychological well-being are the love and support they get from their parents, and the stability of their relationships with both parents. Those factors do not favor different-sex parents over same-sex parents – rather, they suggest the importance of providing all families with the social and legal support needed to ensure that they can provide a stable, loving environment for their children, such as through marriage.

During the aggressive and lengthy cross-examination by attorney David Thompson, which lasted well into the afternoon, Dr. Lamb held firmly to those conclusions. Thompson relied on offensive stereotypes about men, attempting to press Dr. Lamb into agreeing that gender does matter in parenting and that children of LGBT parents are at a disadvantage. But Dr. Lamb calmly, politely, and consistently testified that when it comes to the traits that a good parent needs, gender makes no difference. He refuted every one of the sources that Thompson cited purporting to show that children raised by same-sex parents have more difficulties. For instance, when Thompson mentioned studies allegedly showing that children who grow up without a father in the home have more difficulties, Dr. Lamb patiently explained that those studies actually demonstrate the detriment that the trauma of divorce or the loss of a parental figure have on children’s emotional well-being. It was clear by the end of Dr. Lamb’s testimony that there is simply no credible evidence to suggest that the gender or sexual orientation of a child’s parents makes a bit of difference to mental health outcomes.

Asian-American author and activist Helen Zia was the final witness of the week. Under direct examination by Danny Chou, deputy city attorney with the City and County of San Francisco, she testified about a number of encounters with hurtful homophobic prejudice that kept her closeted for years. Zia described some of the shocking abuse she experienced from strangers during the Prop 8 campaign, including being called a “f—ing dyke” and being told she would “rot in hell.”

Zia also shared the love story of her courtship and marriage with her wife, Lia. Zia described how they registered as domestic partners with the City of San Francisco years ago at a window in City Hall that “also gave out dog licenses.” When they registered as domestic partners with the state of California a few years later, she said, they didn’t even get to go to a “dog-license window” – they simply filled out a form and mailed it in. But it was when the couple finally legally married in 2004 – though that marriage was invalidated by the California Supreme Court five months later – that they finally experienced, for the first time, a taste of true equality. (Zia and her wife subsequently re-married in 2008, during the period before Prop 8 passed.)

Zia testified that once they married, both of their families finally recognized them as part of the family, rather than, for example, referring to Lia as “Helen’s friend.” She described the moving scene just a few months ago when the couple visited Lia’s father, who has since passed away, in hospice. The hospice staff asked, “Are these your daughters?” and he replied proudly, “No, this is my daughter, and this is my favorite daughter-in-law.”

Stories like Helen Zia’s make it impossible to ignore the pain that anti-LGBT bigotry, exacerbated by legal inequality, causes every member of our community. It’s difficult to listen to these stories and be reminded of the hurt and shame that we often try to suppress. But Zia’s story also carries in it the seeds of hope – the genuine joy that wells up when LGBT people experience true acceptance. Every person deserves that feeling of acceptance and support. That is what this case is fighting for.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 4

January 14, 2010

cross-posted from Pam’s House Blend

The morning opened with Judge Walker’s announcement that he is withdrawing the Perry case from the pilot broadcasting program.  Judge Walker’s decision followed the Supreme Court’s order preventing any broadcast of the Perry trial even to other federal courtrooms, which has been roundly and rightly criticized as an unwarranted intrusion on lower courts.  Video will continue to be streamed to an overflow courtroom so that members of the public can watch the proceedings live, as is already done in many civil trials.

In light of the court’s decision, Judge Walker did the right thing by taking the issue off the table -ensuring that what is now an entirely moot point will not distract from the constitutional issues in the case.  But Judge Walker’s gracious approach apparently did not satisfy the defenders of Prop 8.  Just before the morning break, Charles Cooper, the lead lawyer defending Prop 8, requested again that the judge to stop all video recording and destroy all tapes of the first few days of the proceedings. He had requested this earlier in writing. Judge Walker said that recording would continue, so that he can review the video in chambers while writing his decision.

It is heartbreaking that a video record of this groundbreaking trial will not be broadcast to the public.  Watching this trial has been tremendously educational, even for those of us who have spent our careers studying and litigating these issues.  The public has lost a unique and invaluable opportunity to see the leading experts in their fields talk about the real-world impact of denying marriage equality, and to learn about how our courts really work in the context of a civil rights case that millions of people deeply care about.

Today’s first witness was Edmund Egan, the chief economist in the Office of the Controller for the City of San Francisco.  Dr. Egan analyzed how Prop 8 has affected the San Francisco economy and the City budget.

A quick bit of backstory: Shortly after this case was filed by the couples, Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, Judge Walker allowed the City of San Francisco to intervene in the case on their side. Judge Walker did so because the City argued that Prop 8 has harmed the City in a way that is different from the harms suffered by the other plaintiffs.

Today’s testimony by Egan detailed those harms. For example, fewer weddings means less economic activity.  The City’s budget suffers because married couples tend to be both healthier and wealthier than unmarried people.  Denying same-sex couples the right to marry also reduces the City’s tax revenues, and the City’s public health costs are higher because many LGBT people do not have health insurance through a spouse and are forced to depend on the City as health care provider of last resort.  It is a challenge to assign a precise dollar value to these effects, but to the extent that it can be done, Dr. Egan showed that it is clear that the City loses millions of dollars annually because of Prop 8.

Peter Patterson, one of the attorneys defending Prop 8, cross-examined Egan for what seemed like an eternity, quizzing him on the minutiae of his analysis in an attempt to show that the economic impact of Prop 8 is less than Egan concluded.  But the relentless nitpicking did nothing to overcome Egan’s larger point:  Prop 8 damages the economy and costs the City money in numerous real, tangible ways.  Unless the defenders of Prop 8 are prepared to present a more persuasive alternative analysis that shows Prop 8 has no negative economic impact, it’s hard to see the relevance of this morning’s cross-examination.
Today’s only other witness was Ilan Meyer, an expert in the health consequences of anti-LGBT discrimination and stigma.  Dr. Meyer had the courtroom riveted throughout his testimony. He detailed the harms LGBT people suffer from the relentless daily stress of living in a society that stigmatizes not just our lives, but our very being.

I bet I’m not the only LGBT person in the courtroom who listened to Dr. Meyer’s testimony with pained recognition of how deeply so many of us have internalized the limitations placed on our dreams and aspirations by homophobia. As plaintiff Kris Perry said in her moving testimony on Monday, she never dreamed she would be able to marry, and it is painful and humiliating to want something you know you can never have.  Listening to today’s testimony rekindled my anger at the damage we all have suffered – and that LGBT youth continue to suffer-by being deprived of the same basic human opportunities others have to belong, and to love.   I am so grateful to the couples who are opening up their lives in this suit on our behalf, and to the brilliant team of attorneys from Gibson Dunn and the City and County of San Francisco who are standing up for all of us in this case.

Join Shannon Minter in a liveblog on Pam’s House Blend on Friday, January 15 at 5 p.m. Pacific/8 p.m. Eastern for a recap of this week’s proceedings.


The Marriage Test

January 14, 2010

Los Angeles Times editorial

In what ways would same-sex marriages be the same as or different from heterosexual marriages? Answer: It’s nobody’s business.

Yet the matter was explored at length in court this week by an expert for the plaintiffs — the pro-gay-marriage group challenging Proposition 8. Homosexual couples are much the same as heterosexual couples, Letitia Peplau, a UCLA professor of social psychology, testified. They form relationships in which the closeness and stability measure as high.

read more


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 2

January 12, 2010

cross-posted from Pam’s House Blend

The Perry plaintiffs had another great day in court. Professor Nancy Cott wrapped up her powerful testimony, which made three crucial points. First, Professor Cott provided a detailed historical account of how marriage restrictions based on race, ethnicity, and immigration status have been used “punitively” – to stigmatize and demean disfavored groups – in the same way that Prop 8 now stigmatizes same-sex couples. When these kinds of laws are enacted, she explained, many people believe they simply reflect “common sense” or God’s will. Only later is it fully apparent that they are in fact based on a failure to appreciate the full humanity of certain groups. The same is true of Prop 8.

Second, Professor Cott explained that in the past, marriage law imposed strict gender roles that sharply distinguished the legal rights and duties of wives and husbands. For example, at one time, married women were unable to sign legal documents or testify in court, because they were not considered to be individual citizens – once married, a woman had no legal identity apart from her husband. But today, the law recognizes that all adults should be given equal rights regardless of gender and should be able to choose for themselves how to allocate duties in a marriage. Because modern marriage law is gender-neutral in this way, permitting same-sex couples to marry doesn’t change the law’s basic structure.

Finally, Professor Cott showed that marriage has changed significantly over the years, and that most of those changes involve “shedding inequalities.” But the central function and purpose of marriage – to enable adults to create stable families that provide enormous benefits to the couple, to children, and to society – has endured. Professor Cott testified that based on the historical evidence, permitting same-sex couples would not undermine marriage, but instead would strengthen it. Both couples and the larger community would benefit.

The remainder of the morning was taken up by the cross-examination of Professor Cott by David Thompson, one of the lawyers defending Prop 8. Thompson’s approach was to take statements out of context from Professor Cott’s deposition testimony or from her publications, and to ask her if she agreed with them.

Even at then end of two grueling days of testimony, however, Professor Cott was a model of composure and sophistication. She was not rattled by Thompson’s aggressive questioning, and was particularly firm in stating her opinion that the fundamental purpose of marriage is to create stable families, not to require that all children be raised by both of their biological parents.

Overall, Thompson’s cross-examination strategy did not succeed in undermining Professor Cott’s testimony, and toward the end Judge Walker encouraged Thompson to speed it up. From a legal strategy perspective, it’s not clear why the defense chose to spend so much time asking Professor Cott about books and articles she had written, when all of those materials had already been put into evidence. While that approach might occasionally win some points in a jury trial, in this case the judge will decide the facts. In a nonjury case, it’s sufficient (and usually preferred) for the lawyers simply to read from articles and other documents that are in evidence in their closing arguments to the judge. Given that reality, the cross-examination of Prof. Cott seemed mostly to be a waste of time that did very little, if any, good for the defenders of Prop 8.

Last up today was expert witness Professor George Chauncey, a social historian from Yale University who specializes in lesbian and gay history. He is best known for his book Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (Basic, 1994), which won a number of scholarly awards. He is also the author of Why Marriage? The History Shaping Today’s Debate over Gay Equality.

Professor Chauncey testified about how government discrimination has created and perpetuated anti-gay stereotypes like those relied on by the Yes on 8 campaign. He described how criminal laws have been used to penalize same-sex intimacy and to stigmatize gay people as inherently criminal. Professor Chauncey also detailed the long history of discrimination against gay people in public accommodations – for example, for much of the twentieth century, bars were legally prohibited from serving gay patrons and often sported signs saying, for example, “gays go away” or “it is unlawful to serve homosexuals.”

Perhaps most chillingly, Professor Chauncey described deliberate government campaigns in the 1950s to demonize gay people as dangerous sexual deviants and child molesters. Those campaigns included an executive order by President Eisenhower directing the federal government to identify and fire all gay federal workers – and also requiring private businesses with government contracts to do the same. In the words of one federal publication from the 1950s, “one homosexual can ruin an entire government office.” State governments – including California — adopted similar campaigns, churning out official reports and “public education” materials labeling gay men as violent, psychopathic predators who posed a grave threat to children and families.

Toward the end of the afternoon, Professor Chauncey analyzed several videos and printed brochures used by the Yes on 8 campaign to show how they incorporated many of the same demonizing messages – particularly about the supposed need to “protect” children from gay people. For example, he explained that some of the Yes on 8 campaign messages were “a strong echo of the idea that simple exposure to gay people and gay relationships is somehow going to cause a whole generation to become gay.” Professor Chauncey’s testimony provided a powerful historical validation of yesterday’s testimony from Paul Katami and Jeff Zarrillo, both of whom described their personal experience of feeling vilified by the Yes on 8 campaign messages.

Judge Walker continues to keep this case moving, repeatedly urging counsel on both sides to “pick up the pace,” while making sure that all witnesses have ample opportunity to share their views. He deserves considerable credit for giving this enormously important and complex case the close attention and careful managing it deserves. Tomorrow, we will hear more from Professor Chauncey and additional witnesses for the plaintiffs’ side.


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