Prop. 8 Judge Proposes Closing Argument Date

April 28, 2010

from The Advocate

A federal judge on Wednesday proposed a June date for closing arguments in the Prop. 8 lawsuit, three months after evidentiary testimony concluded in the trial.

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Opponents of Gay Marriage Ban Must Release Memos

March 23, 2010

by Lisa Leff | Associated Press

Civil rights groups that campaigned against California’s same-sex marriage ban must surrender some of their internal campaign memos and e-mails to lawyers for the other side, a federal judge ruled Monday.

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Live Chat: Prop 8 Trial Recap and Discussion with NCLR

January 28, 2010
Join NCLR Legal Director Shannon Minter and Senior Staff Attorney Chris Stoll for a recap and analysis of the Prop 8 trial. Join the live chat today at Pam’s House Blend at 5 p.m. Pacific/8 p.m. Shannon and Chris have been in the courthouse everyday, live tweeting, and providing daily summaries and legal analysis of the proceedings.
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Day 11
Day 12

NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 12

January 27, 2010

cross-posted from Pam’s House Blend

Today was the final day of testimony in Perry v. Schwarzenegger. Like every day before it, today was remarkable.

The majority of the day was spent on finishing up the cross-examination of David Blankenhorn, an expert witness for the defendants. As he did yesterday, renowned attorney David Boies absolutely nailed the examination. Blankenhorn did nothing to help himself, fighting Boies’s yes-or-no questions at every turn even when Boies was simply laying a basic foundation with uncontroversial points. Blankenhorn’s defensive behavior verged on the histrionic, contrasting sharply with Boies’s calm, matter-of-fact approach. At one point, Judge Walker stepped in and instructed Blankenhorn to keep in mind that a fact-finder, meaning a judge or jury, can consider a witness’s demeanor when deciding how credible that witness is and how seriously to take his or her testimony. Although Judge Walker delivered it with great diplomacy and tact, this was a fairly sharp rebuke.

On cross, Boies established a couple of key points that gravely undermined Blankenhorn’s authority as an expert on marriage. First, Boies elicited testimony that Blankenhorn had not read many leading scholarly articles addressing the question of how society would be affected by allowing same-sex couples to marry. For example, of the dozens of articles cited in policy statements supporting marriage equality for same-sex couples by leading professional organizations, Blankenhorn admitted that he had read scarcely more than a handful.  In contrast, all of the plaintiffs’ expert witnesses were demonstrably well-versed in the entire range of scholarly literature on the topics about which they testified.

Second, Boies elicited extensive testimony from Blankenhorn acknowledging that permitting same-sex couples to marry would “almost certainly” benefit those couples and their children.  Blankenhorn also testified that  the most important dimensions of marriage (as defined by Blankenhorn in one of his publications) are the same for same-sex and opposite-sex couples.  In short, by the end of Blankenhorn’s cross, his own testimony had provided multiple powerful reasons to permit same-sex couples to marry, and his opposition to marriage equality seemed virtually inexplicable.

It has been an amazing two and a half weeks.  This trial has been a truly historic moment for our community.  It is the first time a federal court has heard, first hand, from real live witnesses, about the harm that the denial of marriage equality causes lesbians, gay men and their families every day.  It’s also the first time a federal court has heard the arguments in favor of marriage equality presented live in court by an array of internationally renowned scholars who are truly experts in their respective fields.

What stands out the most after having seen all the witnesses on both sides is how overwhelmingly one-sided the evidence in this case turned out to be.  The plaintiffs, represented by some  of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by the testimony of half a dozen of the most respected historians, psychologists, economists, and political scientists who study marriage, sexual orientation, and child development.  Using the Prop 8 proponents’ own outrageous and inflammatory words, ads, and emails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering, and demonization of lesbians and gay men.  And through the deeply moving testimony of the plaintiffs and other members of our community, they proved beyond question that denying same-sex couples the right to marry causes great harm to LGBT people and their children.

Stacked up against this mountain of facts, scholarship, and science, the Prop 8 proponents – though represented by fine attorneys – were not able to come forward with a case of their own.  Before trial, they dropped nearly every witness they had planned to present and relied entirely on two poorly qualified, ill-prepared expert witnesses, neither of whom was able to establish that banning same-sex couples from getting married has any rational or legitimate purpose relating to procreation, child rearing, tradition, or any of the other justifications that have been offered in the past in support of anti-gay discrimination.  In fact, nearly all of the defendants’ experts agreed with the plaintiffs that marriage equality would benefit same-sex couples and their families in many real, tangible ways.

It should not have come as a surprise that the defense’s case turned out to be so weak.  As our executive director Kate Kendell is fond of saying, the arguments against marriage equality have always been “all hat and no cattle.”  This trial showed more powerfully than ever that there truly is no substance to the arguments of those who would deny equality to our families.  It has been extremely gratifying to see those arguments aired out in public, before a smart, independent-minded judge, in a way that’s never been done before.  It is a shame that the public was unable to see the trial in video, but the transcripts, available at http://www.equalrightsfoundation.org/our-work/hearing-transcripts/, are fascinating reading for anyone interested in learning more about this important chapter in our civil rights struggle.

Judge Walker will now take some time to review all the evidence that has been presented.  The lawyers for both sides will return to court in a few weeks (on a date still to be determined) to present their closing arguments


Watch Kate Kendell on the Last Day of the Prop 8 Trial Testimony & this Evening’s State of the Union

January 27, 2010

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.