Prop 8 Trial Coverage Day 10: Prop 8 Supporters Get A Walloping in Court

Yesterday, attorneys for the plaintiffs challenging Prop 8 submitted incendiary evidence linking ProtectMarriage.com (aka Yes on 8 campaign) to campaign messaging that claimed same-sex marriage would lead to polygamy, incest and bestiality. Proving this was part of campaign messaging is essential in providing proof that animus toward LGBT was a motivation for voters to take away marriage rights from gays and lesbians.

Plaintiff's attorney Chris Desseaux played video of simulcast rally hosted by ProtectMarriage.com, a rally that excited many of Prop 8 supporters to volunteer and vote against LGBT rights. Following are quotes pulled from the rally:

"Then pedophiles would have to be allowed to marry 6-7-8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He'd have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed."

"Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they're probably going to win."

"We are seeing the people of Massachusetts being desensitized day by day concerning homosexuality and becoming more and more adjusted to the idea of homosexual marriage being the law of the land and the homosexual agenda becoming more and more of a powerful element in the life of our society."

"I think a helpful way to think about this is to compare it to 9/11 cuz a lot of us are asking-How does this directly affect us? Well I wasn't directly affected by 9/11 and my guess is most of you weren't either in the sense I didn't know somebody who crashed the plane in the building. I didn't know somebody who was in the building. But after 9/11 the world was a fundamentally different place and that has affected me. The change in the redefinition of marriage is the same type of thing."

Chad Griffin Board President of the American Foundation for Equal Rights (AFER) the group responsible for the Prop 8 federal challenge, responded to yesterday's evidence by saying, "We saw again today how the Prop. 8 campaign sought to link marriage equality to incest, polygamy, bestiality and pedophilia to justify the restriction of people's civil rights. This clearly points to the discriminatory motivations and unconstitutionality of the initiative."

Rick Jacobs of the Courage Campaign, whose quick typing has kept everyone abreast of the going-ons in court by liveblogging at Prop 8 Trial Tracker, responded to the video, remarking, "This evidence is not just a smoking gun. It was an arsenal of incendiary devices directed at the LGBT community and voters. This is how the Prop 8 side won -- through fear and lies."

The day did not get better for the defendants. After plaintiffs rested their case, Prop 8 proponents called the first of possibly only two witnesses to the stand. Kenneth Miller, a professor at Claremont McKenna College who teaches California politics and researches ballot initiatives, testified that LGBT citizens have political power and therefore do not need "suspect class" constitutional protection and therefore justifies ballot initiatives targeting them.

Miller defined political power as access to large amounts of money and to political leaders. He pointed to the fact that the No on 8 campaign raised $43 million compared to Yes on 8's roughly $40 million. He also listed allied politicians and political leaders, such as Attorney General Jerry Brown and California Governor Arnold Schwarzenegger, both whom refused to defend Prop 8.

However, David Boies first questioned the witnesses' "expert" status.

From Prop 8 Trial Tracker:

B: At your depo [sic] not aware of what Mattachine Society was.

M: Yes, I did some research and found out that it was founded by Harry Hay in 1950.

B: Role in 1970s period in which you say an expert.

M: Yes.

B: But you did not know about them when you wrote your report?

M: Yes.

B: In depo you were not aware of general social survey?

M: No, but no know. [sic]

B: You did not know who Alan Speer or Elaine Goldman were and that they were elected as first openly gay in 1976 and 9175 respectively?

M: No. I did not know and do not. Know some were elected in1970s.

B: We object to his testimony as expert out of area of initiatives. He does not even know the key facts.

And later, during cross-examination, Miller experienced a further bruising.

B: When do initiatives provide for compromise and building consensus in society?

M: I cannot say specifically, but in general it’s better to have informed deliberation, consensus building and compromise.

B: How many would you give where initiatives fit the above?

M: Maybe 3 or 4 or 5. Would have to do serious investigation to see how drafting done and campaign run.

B: You have done no such research?

M: Yes. I did large study of outcomes. Idealized picture of legislature. Legislatures do not always live up to those four opportunities. The institutional structure of the legislature set up for those four things, not initiative process.

B: If there is going to be any refinement, it will be in drafting because it cannot be amended once it’s out there?

M: In California, there is no opportunity to amend unless they pull it back.

B: How often has that happened in California?

M: Not infrequently.

B: When was last time?

M: I guess.

B: I’m not asking you to guess. I’m asking you to tell me the last time.

M: Many times it’s pulled back.

B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?

M: Discussed in 2005 special, but did not happen.

B: Give me last time in California?

M: I can give you example in Colorado.

B: We’re talking about Ca. You wanted to talk about CA.

T: Objection, He’s badgering the witness.

Judge Walker: Overruled. This is cross-examination.

B: Good God man.

"Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples," Miller testified under cross-examination. He also admitted that lesbians face greater bias than straight women, and directly stated a federal law that defines marriage as an opposite-sex union as well as Prop.8 as discriminatory.

Miller was further harangued when he was asked to point out research that he had done himself versus what the defendant's attorneys had given him.

Of yesterday's hearing, AFER says, "On Monday, Miller admitted that he based his testimony in part on materials provided to him by the attorneys defending Prop. 8, instead of relying on his own "expert" research. Beyond that, he testified that he could not remember whether attorneys provided at least 65 percent of the materials he based his research on, totaling well over 200 documents, articles, etc."

AFER further states, "Miller made several admissions while on the stand that were damaging to the defendants and strengthening to the plaintiffs' case. He also repeatedly revealed his lack of knowledge of key information and research related to his area of purported expertise and this case."

The cross-examination of Miller will continue today in court.

Image: Kenneth Miller