January 21, 2010
By Rick Jacobs
I’m back up in the overflow room on 19, where I’ve been for the entire trial. Sitting behind me in the jury box are the folks from Prop. 8/Protect Marriage. I’m at what would be the plaintiff’s table in this ceremonial courtroom. In the front row, which is like a big church pew (yes, I have been into a church!) are Andrew Harmon from Regent Media/Advocate and Dave Dayan from Firedoglake. There are only a couple of others in here today even though I think Mr. Tam will be up today, which should be fascinating.
The news just delivered from DC that Citizens United won its Supreme Court case is a jolt, but in this bubble of the Prop. 8 trial, it carries two messages. The first, which is very scary, is that corporations can spend unlimited amounts of money for election purposes. As Eden James, Courage’s Managing Director just said, welcome to California, brought to you by Chevron. But there’s a twist. Ted Olson argued the case on behalf of Citizens United. And he won. Again. Ted has an amazing success rate with the Supreme Court. Let’s just hope that he his odds continue in our favor on this trial.
We should start any minute with Prof. Gary Segura being cross-examined by Mr. Thompson. Prof. Segura was up nearly all day yesterday. If you have not caught up from then, take a look. It was a revealing, powerful day in which we learned about the difference between political power and simple influence. By Prof. Segura’s definition, with which I wholeheartedly agree, LGBT people are powerless in the political context.
And that’s what this case is all about. Are gays and lesbians a “suspect class” worthy of protection under the Constitution? So far, the plaintiffs have made an incredibly powerful case that we are.
0840: Judge: Very well. Any matters to take up? If not, I remind Prof. Segura you are still under oath. Mr. Thompson, your witness.
T: May I approach the witness?
Judge: More binders, eh?
T: Just one.
T: Sen. Feinstein[he says Fine-steen, which is not how she pronounces her name. Thompson loves talking about Jews. Loves it.] opposed Prop. 8. And she is very popular.
S: Yes, although her popularity waxes and wanes.
T: And Boxer.
T: And Schwarzenegger?
S: But he vetoed same sex marriage twice.
T: Because it contradicted Prop. 22?
S: I don’t know.
T: And President Obama opposed the passage of Prop. 8?
S: Yes, but his support for that was muted by other things he said.
T: You refer to his appearance at Saddleback Church at which he said marriage is between a man and a woman?
S: I suppose so.
T: And president Clinton and he’s very popular in California?
S: Yes, but I’m not sure that he’s still so popular here.
T: Did any former presidents support passage of Prop. 8?
S: I don’t know.
T: Reads press release from EQCA that says that Levi Strauss and PG&E joined business council against 8 and gave money. Points out that Levi gave $250,000. Is this an asset to LG?
S: It’s a financial asset, but not sure how much political asset.
T: Stars, like Ellen DeGeneres and Brad Pitt opposed 8?
S: Ellen DeGeneres is like a political party in that she is part of the class that is under question here.
T: Do you know of any corporations that donated $250,000 to yes on 8?
S: Not corporations, no.
T: Lists hundreds of congregations that supported same sex marriage and opposed Prop. 8.
S: Yes, but it’s misleading. The groups you mention such as Universalists and Church of Christ (getting these wrong I think) constitute less than 2% of the US population vs. Roman Catholic 30% and protestant faiths that also supported Prop. 8 that are much larger.
T: Shows ad that appeared in San Jose Merc News with 25 ministers who signed ad for no on 8.
T: UCC Church takes stand against California’s Prop. 8 referring to first cong church of Berkeley. “In addition to voting to oppose Prop. 8, we’ve been actively working to defeat Prop. 8. Formed phone banks…” It’s true that churches formed phone banks?
S: Less than 1% of population and not surprised that a church in Berkeley would do this.
T: St. Francis Lutheran Church photo in newspaper agreeing to accept donations for no on 8.
S: Yes, but tiny.
T: Keeps listing churches, and rabbis who oppose Prop. 8.
S: Reads the release fro NGLTF in which they claim lots of religious support. Then reads paragraph T does not want him to read that says from NGLTF that “we have a problem with religion.”
T: Says that CA has the largest population.
S: There’s more of everything in California; one out of 8 Americans lives here.
T: Nevertheless, CA has the highest per cap of homos?
S: Not sure.
T: LGBT move to CA because they are protected here.
S: More than in other states.
T: LGBT supported Domestic Partnership laws?
S: Yes, as opposed to nothing.
T: Reads statement from Kors that says that AB 205 being signed by Davis “honored all families and shows that intolerance stops at CA’s borders.” Shows that LGBT community supports DP?
S: As opposed to nothing.
T: Reads NCLR (National Center for Lesbian Rights) that says we “hail” the passage of AB 205. Lots of LG “hailed” the passage?
S: Appears so.
T: You also talked about initiatives and the number that have passed or not targeting gays and lesbians. Number that were held in CA?
T: Percentage of initiatives that targeted gays and lesbians in CA and passed?
S: No, since I don’t know how many occurred here.
T: “Lose, Win or Draw: Effects of Direct Democracy…” this is an article you used in preparation for this testimony? Have you attempted to determine whether gays and lesbians have been winning more initiatives recently?
S: No, I did not disaggregate.
T: Puts in as evidence with this appendix that shows the specific number of elections.
T: Reads from Dall’s book suggesting that majorities are inherently unstable. That’s the protection against the Madisonian concern about tyranny of the majority. Don’t you see that the majority is not monolithic and some are in favor of ss marriage like in New Hampshire? (Dahl or Dall is the authority on majoritarianism cited many times yesterday and part of S’s main education.)
S: You miss the point. One of the critiques of Dall’s pluralist theories is that there are some majorities that do not fade, that do not break down, that persist for a long time such as the majority opposed to gay rights and even what happened with AA people that took an exceedingly long time. You take this paragraph out of context.
S: Are legislators more or less likely to adopt policies; not clear that policy will endure.
T: Many times gays and lesbians are successful in keeping measures off of a ballot.
S: That implies an agency to which I cannot attest. Some measures do not go on ballot, but not sure that gays and lesbians did it.
S: Prop. 8 is a factor in demonstrating political powerlessness. As I said in response to His Honor’s question yesterday, one election is not dispositive.
S: Repeats that gays and lesbians have a “religion problem.”
T: Some people voted for Prop. 8 because they feared their churches would be forced to bless ss marriages?
S: I’ve heard that, so makes sense.
T: Some voted for 8 in reaction to judicial activism?
S: Political scientists lament the lack of information voters have. Doubt many voted due to judges.
T: We have decades of information that show how religion impacts voters, such as abortion. Religion is regularly cited as influencing voters? Everything shows that religious people vote based on religion?
S: Mr. Thompson, have you switched sides? Yes. Increasing levels of religious observance are more likely to dislike same sex marriage, then we might logically conclude they voted yes on 8 because of religion.
T: Hard to estimate who voted yes based on religion?
S: Could do surveys, polling, campaign messaging, language people use, lab experiments, variety of scientific methods we could use to look at distribution of votes if we had time and money.
S: I don’t have numerical basis to conclude why people voted. I don’t have a basis to make an estimate of whether its greater, less than or equal to 50%.
T: Goes through Muslims, Hindus, and Buddhists to say their religious views informed their votes on SS marriage.
S: Yes, but tiny.
T: 100% of Quakers?
S: All three of them, yes.
T: It’s your data set. Jews? Many voted against same sex because of religion?
S: Not sure that’s true.
T: Is it true that some percentage of religions in CA honestly believed 8 had more to do with children than anything else?
T: How much money came from RC church?
S: Not sure.
T: How many Mormons campaigned?
S: Document that I read into evidence yesterday said church claimed 20,000. I have no reason to doubt them.
T: Don’t know how many Episcopalians, Jews and Catholics campaigned?
S: No. I don’t know how many people showed up for public events, but the event Qualcomm stadium was quite large.
[This is in the context of rebuttals S did to Prop. 8’s expert.]
T: Some individuals who themselves are not religious believe that marriage is religious so they could have voted for Prop. 8?
S: I suppose.
Judge: Please explain this table that breaks down religion and voting.
S: Tells judge that survey question asked do you favor full marriage, civil unions or no legal recognition. That’s from what these data are derived.
Judge: 47%+ of Protestants favor no recognition, 21% marriage and 27% civil unions (reading chart out loud to be sure he understands what data mean).
[Judge Walker asked a lot of questions about data, including whether any questions were asked about which people think the bible was written by man vs. God and how their beliefs influence their views of same-sex marriage.]
T: Wants to move in document that shows number of acts of violence in campaigns?
Boutrous: Object. Hearsay.
Judge: Didn’t he talk about vandalism and violence in campaigns?
T: S said in his testimony that “the moment you resort to violence the ability to persuade is lost.”
T: With approval of Judge, showing video.
[Video from SD showing that there was a physical fight over Prop. 8. An old lady shows up with bruises on her face because she had a yes on 8 sign. Proud to show their support on their front lawn. “When I put up my sign, I noticed that my neighbor put up his little sign. That probably provoked him…” Arrested 53 year old man who did.]
T: Wouldn’t a video of an old woman with a bandage over her eye because she put up a Prop. 8 sign hurt the no side?
S: I can’t say what happened, but such a video is inflammatory.
B: Objects; not relevant.
Judge: Not here to adjudicate what happened in SD. But this is part of what witness talked about, so it’s relevant.
T: Reads news report about fight in Carlsbad, CA between people who were “stealing” prop. 8 signs and then fought with yes side and had dog bite person. Would this hurt no side?
S: (over objection) Yes.
T: Reads another report, “Prop. 8 supporter, Jose Nunez, assaulted for giving out Prop. 8 signs at church…” He was punched in his eye and the assailant ran off with the signs. (From int’l biz review.)
S: Not sure how many people read that paper and note that source is Protect Marriage dot com.
Judge: Pauses to check that citation. “Oh, I see. You may proceed.”
T: “The homeowners had Yes on 8 Protect Marriage signs on their yards…” Had garage doors spray-painted “no on 8” The rear window also hit with red spray paint. Does this sort of activity diminish support for gay marriage?
S: Yes, but see above that campaign disavowed it.
T: Reason they disavowed it is politically “it’s kryptonite.”
S: I cannot say why they did that;.
T: Plays video entitled vandals target downtown Fresno church. From ABC 30. Pictures of church that was egged. Pastor told supporters that his home was also egged.”
T: Were you aware that mayor of Fresno received death threats? If that were true, would you say that would diminish the ability of the LGBT to appeal to norms of fairness?
S: From PR point, not helpful.
Judge: Before we take our break, if counsel from this matter could step aside, we have another matter which is happy.
[Inducts two lawyers into Western District of Texas. A young man and woman. Both attractive. Swears them in. Says, “very well, good luck in Texas.”]
Break until 1010. Judge tells T to “streamline things.”
[Note]: Following the break I moved to a second thread.