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Liveblogging Day 10: Part III Back from lunch

Liveblogging

By Rick Jacobs

1:15 and we are back.

Thompson (T) (defense lawyer): What role have progressive religious groups played with LGBT community?

Professor Kenneth Miller (M): California Council of Churches supported no on 8. Lists off a bunch of the 51 members.

T: What role, if any, did these churches play in the Prop. 8 campaign?

M: Many were active in the effort to defeat Prop. 8. Phone banked. Actively involved in opposition to 8.

T: In addition to 8, what have they done to support political goals of gays and lesbians?

M: Supported Leno’s bill, filed Amicus Brief for state Supreme Court.

T: What is your view of the intensity of support for lgbt agenda?

M: For many, has become a social justice, civil rights issues so it’s important to support. Increasing support, but some division inside some of the churches. Some see as primary work, for some, major issue of day.

Judge Walker: Which of the 51 do perform same sex marriages?

M: United Methodist Church is divided. I’d have to look at each. Not sure what Episcopal Church is doing. Situation where some in CA have more progressive or liberal view. All have taken publicly supportive view.

[In short, Miller just proved what Boies said this morning. He has no clue what he is talking about. He’s read a few articles and brushed up, but he’s far from an expert.]

M: Pew Research says CA one of ten least religious states.

[But there are a lot of Californians, so there are a lot of religious people here.]

T: Allies of professional groups?

[UPDATE] 1:40

M: Many, such as Psychiatric and medical associations and professors support LGBT movement.

T: How can professors help the LGBT movement?

M: They teach and they are well respected. They often go into government and then come back to the academy.

T: How about lawyers?

M: Lawyers often run for political office and they have influence.

T: How does persuasion play a role in political power?

M: If you have an idea and you are able to persuade a person in power that your idea is, should be acted upon, your ability to persuade that lawmaker or in initiative process is key.

T: Can you provide example of persuasive idea is favorable to outcome?

M: AA had very little political power. One of the primary instruments was the power of ideas. Used the power of ideas to persuade lawmakers of their case.

[This is really lightweight stuff. Compare and contrast with the real experts over the last two weeks.]

M: Increasing success of the LBGT movement to endorse candidates that win elections. EQCA regularly assesses success they have at electing candidates of their choice. “Californians voted into legislature 95% of candidates endorsed by EQCA Pac. 59/62 candidates elected/endorsed.

T: How much of a price did those who endorsed same sex marriage pay for their support of ss?

M: None.

T: Turning to California legislative victories, how successful, if at all, were LGBT in legislature?

M: Okay, I have reviewed over time the success. Over past decade, laws passed to prohibit discrimination in a range of areas from employment to adoption, business services. Just some of the highlights. Some other examples are hate crimes committed based on sexual orientation. Domestic partnership legislation. Over 50 legislative victories for lgbt community in CA state legislature.

T: What is history of legislation for legalizing ss couples by legislature?

M: After Prop. 22 that recognized by statute that marriage only between man and woman, CA legislature nevertheless passed two bills that made marriage gender neutral. Schwarzenegger vetoed both bills. Said that under initiative law, legislature cannot amend initiatives adopted by the people.

T: When was recognition of same sex couples first achieved as a legal matter?

M: 1999, was first in series.

T: First local laws?

M: 1984 City of Berkeley passed this state’s first same sex ordinance. Then 1985 West Hollywood, then fifteen other municipalities.

T: To what did AB 849 refer?

M: I don’t remember for sure, but it was same sex marriage through legislature, I think.

(Puts up slide that says what it does.)

M: AB 849 received support from 224 organizations including labor unions, civil rights groups, etc. Gov. vetoed.

T: How do you respond to Prof. Segura that gays and lesbians are particularly vulnerable to the initiative process?

M: This is my particular area of expertise. It is true that LGBT movement has lost twice: Prop. 22 and Prop. 8. They were unsuccessfully in direct democracy. California voters have not used initiative process to revoke other rights granted by the voters. It cannot be said that those were stripped away by voters in election process.

[WEO! The initiative process did not take our rights away—always!]

M: 1978 Briggs Initiative. Would have fired teachers for promoting or otherwise engaging in homo acts.

T: What was vote?

M: Contested campaign, after mobilization, vote was decisive: 58% no.

T: What about 1980s? Which measures?

M: Three measures that 64, 1986 and 66 1988, sought to make people subject to quarantine and isolation for HIV. 70% and 68% no on those two, which were put on by LaRouche. Prop. 102 would have forced doctors and blood banks to report people who had HIV. Thought of as discriminatory for people with HIV and the gay community. All defeated.

[So he thinks that HIV is a gay disease. Nice.]

T: Which ones did not get on ballot?

M: If conservatives thought they could win on domestic partnerships, they could have gone to the ballot. But there was not one.

[This is seriously embarrassing.]

[UPDATE] 1:55

T: How many states have hate crimes legislation?

M: 22 + lots of local.

T: How about LGBT candidates who win office?

M: GLVC said 80/111 in 2008 elected to office. More in 2009 (49/79).

Boies (B): Objects, but we cannot hear why.

T: I cheerfully agree that M did not know about election results, but Segura testified so we want to put ours up. And I reject that he did not know about laws.

B: Keeps at it.

Judge Walker: Is this not a matter we should take up on cross-examination? Proceed, Mr. T.

T: How do you respond to Segura’s saying that gays and lesbians are powerless?

M: I believe that is incorrect. One example is that hate crimes was passed this past year and has been on agenda for LGBT for some time, but was passed over considerable objection.

M: Describing upward trajectory. Priorities have been and are: DADT, DOMA and ENDA. In each area, increased support of congress members for this objective. Hate Crimes and DP Partners Act (he had to look that one up)… in each, there has been increasing support.

T: Let’s focus on President Obama. What if anything has President Obama done?

[Good question!]

M: Signed Matthew Shepard Act. Appointed homos to major positions in admin. Went to HRC dinner and made commitments about willingness to support their objectives and agree to support repeal of DADT. Gay Pride Month.

In the first year in office, he has given some evidence of support. Some members of GLBT community think he has not given enough support, but by objective standards, he has.

T: Pelosi?

M: She’s an ally.

T: Now I’d like to shift gears and ask you about trends and trajectories?

T: What was the reaction of the opponents of Prop. 8, the leaders?

M: Some said we had to step back and look at the progress we have made. Quotes Leno as saying that we have advanced 18 points from Prop. 22, this time we only lost by 4 points. They’ll never get those points back. We are going to win.

T: Trends in political public opinion for LGBT?

M: Increasing acceptance. On a wide range of issues, increasing public support for ss marriage?

T: What has policy institute of NGLTF found?

M: Major lgbt rights organization. In a report analyzing the national election data in 2000. Showed that public support for adoption rights, right for gays to be in military and lack of discrimination all improving.

No evidence that it has dropped in last ten years.

M: Political powerlessness is no ability to attract lawmakers’ attention.

T: What is your view of that as an appropriate test for Supreme Court?

B: Object. Beyond his scope.

(Everyone laughs)

T: Very well, what is your view of their ability to attract attention of lawmakers in CA and nationally?

M: They can do that.

T: No further questions.

[UPDATE] 2:10

[Here’s why we have David Boies. This is really, really good.]

B: Do you have opinion as to whether legislature and gov would, if they could, make marriage legal?

M: Hypothetical, but hard to tell without 22 and 8.

B: Asking your opinion as expert.

M: Easier to answer for legislature for governor. Harder to say with governor. Given his public statements, probable he would have signed legislation.

B: Is it fair to say that you have had time to get a lot more information about these matters since your depo?

M: Yes, in past six weeks.

B: At your depo, you did not know how many states had laws that protect gays and lesbians against discrimination.

M: I did not know definition. Realize that some localities in states provide legislation.

B: Look at your depo, page 197, lines 18-23. Q I was asking about protections, to be more specific public housing, accommodation and work. A Put that way, I don’t know. You had not taken a closer look to know what is what before your depo?

M: Correct?

B: Q: IN how many states is their no state law re: discrimination on the basis of SO. M: I think that was answered? Q: I may have forgotten your answer. You don’t know the number? A: I don’t know the number, ya.” Was that your testimony?

M: Part of problem was that I did not know about state and local laws.

B: I’m asking what you investigated.

T: He opened the door. He said this was my work product.

B: Did you discuss this with your counsel?

T: Object. Attorney discussion prohibited to make public.

Judge Walker: If you are going to what he investigated himself, that’s okay.

T: No objection.

B: Everything you testified to you investigated yourself?

M: I believe that’s true, yes.

B: For example, in your rebuttal report, at the end you have index materials considered. Were some of these materials provided to you by counsel or did you find all of them yourself?

M: Most myself, some by counsel.

T: Would you on the index of materials considered, would you just go down and they are numbered and just circle the ones that you found yourself and were not provided by counsel?

(M: Looking nervous.)

[UPDATE] 2:16

[Professor Miller is taking a lot of time to go through each document listed in the appendix to try to figure out which were provided by counsel and which he found himself. It’s slow going. Note that Prop. 8 never even tried this with one of our witnesses, because they were indeed experts. This is very embarrassing for Prop. 8. It looks like the lawyers did the work for their would-be remaining expert, which is a no-no of the first order. It ‘s as if the Prop. 8 side brought the guy in and said, “here are a bunch of documents. Can you testify that the prove our case?”

The judge is standing up, waling around, pouring himself water. He undid his robe and got some air in there. He’s watching the “witness” work through the list….slowly.)

Now the judge refastened his robe and is bouncing up and down. It’s silent. I have to believe that this whole exercise will not increase anyone’s confidence in this witness, especially that of the witness himself.]

[NOTE] Now that Prof. Miller is ready to talk again I have moved to a new thread.

Tags: , , ,

162 Comments

  • 1. Alan E.  |  January 25, 2010 at 6:25 am

    Quick Note, it's Part 3

  • 2. David  |  January 25, 2010 at 6:31 am

    "In short, Miller just proved what Boies said this morning. He has no clue what he is talking about. He’s read a few articles and brushed up, but he’s far from an expert.]"
    Yeah, that's what I have been getting too, yet it is obvious in his field of expertise he is eminently qualified, but since the D.I. has called him as a witness, I am interested to see where this is going.

  • 3. Dave T  |  January 25, 2010 at 6:33 am

    I'm looking forward to the cross – I expect to see a lot of "I don't know" and "I'm not really qualified to say".

  • 4. Barb  |  January 25, 2010 at 6:35 am

    Can't wait for cross.

    BTW, about Andy Pugno and his blogs. All I have seen is hype and rhetoric on his blog about how we are losing and his side is winning. When he loses, how is he going to explain it on his blog? WHO is he going to blame?

  • 5. jayjaylanc  |  January 25, 2010 at 6:37 am

    The DFHs who subverted justice by having the more rational legal argument.

  • 6. Brian  |  January 25, 2010 at 6:37 am

    I think he'll get smashed on cross. Regardless of our interpretation, I can't wait to find out how much weight Walker gives this guy. I can't see him getting much weight, in light of what's already been offered as evidence and testimony, and this guy's obvious lack of knowledge in particular areas.

  • 7. trineb  |  January 25, 2010 at 6:38 am

    Pugno will pull a Maggie Gallagher of NOM and say it is a kangroo court with a RINO as a judge…

  • 8. Kendall  |  January 25, 2010 at 6:38 am

    Some small churches don't discriminate, so GLBT have lots of political power? We raised more money and were still defeated, so we have political power? And why do people keep confusing access with influence? They're not the same. I am so looking forward to the cross by our side!!! This should be so easy to rip apart.

    Fascinating stuff, anyway, and I applaud (and donated last night toward) the work y'all are doing on this site!

  • 9. Robert  |  January 25, 2010 at 6:38 am

    Taking all bets on "Activist judges"! I think their side has proved their method, if you can't win fair lie.

  • 10. Ann S.  |  January 25, 2010 at 6:38 am

    Clearly he's going to blame Walker, who Pugno has been accusing of bias from the get-go. He wouldn't want to blame the shoddiness of the defense work or the fact that his witnesses got cold feet (oh, wait, that's Walker's fault, too) or that so many of his witnesses don't base any of their conclusions on those troublesome things called FACTS.

    Love,
    Ann

  • 11. robert K wright 1 of  |  January 25, 2010 at 6:39 am

    The "activist" Judge. That has been their goal, to blame it on him. All the early press releases from their side have talked about he is showing his blatant support for the No on 8 side.

  • 12. Russ C  |  January 25, 2010 at 6:39 am

    According to a phone call my Parent's got days before the vote, Yes on 8 had the support of Obama. I'm surprised nothing of that type of campaigning has come out in this trial.

    In all this talk about the political power of homosexuals, what about the fact that we continue to be used as a wedge issue? If anything, we're more powerful to the conservatives than we ever will be to the liberals or the progressives.

  • 13. fiona64  |  January 25, 2010 at 6:39 am

    Yeah, gimme a break. My local MCC has a congregation of *60.* That's not exactly what I'd call a politically powerful group.

  • 14. Pearl  |  January 25, 2010 at 6:40 am

    He'll spin it as
    1. activist judge
    2. denial of our freedom of speech
    3. denial of our freedom of religion

  • 15. fsb  |  January 25, 2010 at 6:41 am

    Are there any rules regarding what participants in the case can and can't say about the court/the judge? If they go all over town bashing Walker showing contempt for the legal process are there any ramifications for that if the case ends up before the full court? Or can they pretty much say whatever they want?

  • 16. Steffi  |  January 25, 2010 at 6:41 am

    don't they keep saying that the judge is biased in favour of the plaintiffs? so they'll say that the Judge wasn't objective and that if he was they would have won. that they should have won seeing that the trial went so well for them as they constantly posted…

  • 17. fiona64  |  January 25, 2010 at 6:41 am

    Except that phone call was a blatant lie.
    http://www.calitics.com/showDiary.do?diaryId=6307

    Quote:

    And that is why I oppose the divisive and discriminatory efforts to amend the California Constitution, and similar efforts to amend the U.S. Constitution or those of other states.

  • 18. Barb  |  January 25, 2010 at 6:43 am

    Or the fact that it is just right to allow us the same equality that heterosexuals have.

    I do agree that he will blame Walker. Which i believe is why Walker is going to go thoroughly through each and every binder before he weighs in his decision.

    I was reading the 07-02-2009 AFER Hearing Transcripts this weekend and on page 27 Judge Walker stated, "Well, I'm not sure that this is like an antitrust case, where we are going to have reams and reams and reams of documents."

    He should have knocked on wood after saying that :)

  • 19. Bonobo  |  January 25, 2010 at 6:44 am

    Barb, all he's going to say is basically "The fix was in from the start. We've all ready to take this to the Supremes, where we can get a fair trial." They've already layed the groundwork for this excuse.

  • 20. sugarbritches  |  January 25, 2010 at 6:46 am

    The defense keeps coming back to HIV funding as proof of GLBT political power. I wonder if someone would take the the time to explain to them that HIV isn't a gay disease?

  • 21. Ann S.  |  January 25, 2010 at 6:46 am

    Did their witness just testify that conservatives would take away domestic partnership by ballot initiative if they thought they could get it to pass?? That's some admission, I think.

  • 22. Dan  |  January 25, 2010 at 6:47 am

    Wait, is this witness saying that two ballot measures put forward by LaRouche were defeated by THE GAYS instead of because they were ballot measures put forward by the insanity that is LaRouche?

  • 23. David  |  January 25, 2010 at 6:48 am

    I wish this trial were happening in Virginia. It would be very easy to demonstrate the political powerlessness of LGBT and the animus against them, not to mention the way in which our constitutional amendment banning same-sex marriage prevents us from receiving due process.

  • 24. Ann S.  |  January 25, 2010 at 6:48 am

    This witness is going to get nailed on cross when they ask him about the many initiatives in other states.

  • 25. Callie  |  January 25, 2010 at 6:48 am

    Well, we all know that's the case. They don't care one iota about the word "marriage." They just don't want us to have any acknowledgement and place in society AT ALL. They'll stop at nothing to keep us as disenfranchised as possible.

  • 26. evenevan  |  January 25, 2010 at 6:50 am

    You and me both!

  • 27. Ray Harwick  |  January 25, 2010 at 6:50 am

    "If conservatives thought they could win on DP, they could have gone to the ballot. But there was not one."

    Yes. We know.

  • 28. Ann S.  |  January 25, 2010 at 6:50 am

    Callie, I know, but they usually don't admit that they want to take away civil unions and DPs as well. They usually claim that LGBTs don't "need" marriage because of CUs and DPs. Then they quietly attack CUs and DPs.

  • 29. Alan E.  |  January 25, 2010 at 6:51 am

    Also, they addressed the comparison of sizes and power of these churches already. Makes it look pretty weak when a point is brought up by the "expert" that was refuted already.

  • 30. Barb  |  January 25, 2010 at 6:51 am

    Can they ask him any questions about any other states since they already determined he could only act as an expert witness for glbt power in california?

  • 31. Callie  |  January 25, 2010 at 6:53 am

    Exactly, Ann! They put up smoke to their supporters that it's "about marriage" when it's nothing of the sort.

    The fact is they can't win these things by going in and saying "keep the queers from marrying because the thought of them having sex gives me the willies" so they make up lies and appeal to irrational fears.

  • 32. abbe  |  January 25, 2010 at 6:54 am

    Yes. So obviously we hold all the political power in our gay little hands.

  • 33. robert K wright 1 of  |  January 25, 2010 at 6:54 am

    This blog quotes him as saying:

    "M: If conservatives thought they could win on domestic partnerships, they could have gone to the ballot. But there was not one."

    But FiredogLake has the quote as:

    "M: Conservatives opposed the DP legislation, and conservatives thought the public might repeal. They could have gone to the ballot to repeal, but they never did."

    So he basically said we coulda but we didn't…

  • 34. VT YANKEE  |  January 25, 2010 at 6:55 am

    Going back to an earlier discussion about “love the sinner, but hate the sin” a quote from the bible comes to mind. Matthew 7:1 – “Do not judge, so that you may not be judged”. It goes on from there to say “Why do you see the speck in your neighbor’s eye, but do not notice the log in your own eye? You hypocrite first take the log out of your own eye, and then you will see clearly to take the speck out of your neighbor’s eye”. I just wish we Christians could actually do this!

  • 35. Kevin_BGFH  |  January 25, 2010 at 6:57 am

    "T: Can you provide example of persuasive idea is favorable to outcome?

    M: AA had very little political power. One of the primary instruments was the power of ideas. Used the power of ideas to persuade lawmakers of their case."

    And yet African Americans still faced discrimination and thus, rightly so, were afforded court protections as a suspect class.

  • 36. Andrew  |  January 25, 2010 at 6:58 am

    Doesn't really matter. They've already established in cross that gays cared about HIV politically. If they can show that HIV-related legislation/policy/initiatives were influenced by gays, they can demonstrate at least some political influence.

    None of this is affected one whit by HIV's actual status as a "gay disease" or not.

  • 37. sugarbritches  |  January 25, 2010 at 6:59 am

    M: Political powerlessness is no ability to attract lawmakers’ attention.

    So anyone who gets lawmakers' attention is politically powerful? The white house party crashers have got a LOT of lawmakers' attention recently, and I'd like to think they don't have a great deal of political power (if they had, they would have been invited!!!).

  • 38. Ann S.  |  January 25, 2010 at 7:00 am

    So Robert, the testimony is that conervatives thought the public would go against DPs but didn't? Therefore LGBTs are sooooo powerful?

  • 39. abbe  |  January 25, 2010 at 7:00 am

    I think the idea that powerlessness = inability to attract attention of lawmakers is bogus.

  • 40. Andrea  |  January 25, 2010 at 7:00 am

    Tomorrow's PM/NOM press release, today:

    "Activist Judges have disregarded the will of the people in order to force the homosexual agenda on your family. That's why today we are introducing the Federal Defense of Marriage Amendment."

    IMO, Pugno is trying to lose and this is why. He has to get this to USSC and lose, soon, while there's still time to potentially get 75% of states to ratify such an Amendment. It would explain everything we're seeing here.

  • 41. Barb  |  January 25, 2010 at 7:00 am

    Made me laugh! So true.

  • 42. Brian  |  January 25, 2010 at 7:00 am

    That's it? Compared to the other witnesses, it doesn't seem, IMHO, that this guy had anything to offer! At least, nothing of any substance.

  • 43. Anthony N  |  January 25, 2010 at 7:01 am

    Ok here is my question: If this case makes it to the US Supreme court, which I think it will. Will this case force the overturning of the other marriage amendments that are in the USA in other states?

    Thx

  • 44. Callie  |  January 25, 2010 at 7:02 am

    It sounds like this last part is basically saying that the GLBT community is doing better as far as representation and political effectiveness compared to say the 70s. Well, hell, that doesn't say much now does it!!!! There were pockets of progressiveness and generally improved situations for AA's prior to the courts acting as well. All in all, what this guy is trying to allude to is that it's getting better so we just need to shut up and wait. And if Pelosi is an ally, I'll gladly give her back to the other side. Those aren't allies I need.

  • 45. David  |  January 25, 2010 at 7:03 am

    I think you are correct – he is not an expert witness on other states, great point!
    Love,
    David

  • 46. Callie  |  January 25, 2010 at 7:03 am

    Guess I should amend and say that if you're not a full-blown, raving lunatic against gay rights, they consider you a GLBT ally.

  • 47. abbe  |  January 25, 2010 at 7:03 am

    Isn't it the case that if a group of people needs and gets laws or policies in place to protect them from discrimination (employer-based discrimination, etc) that they should qualify as needing protection under the Constitution? I don't think this guy's argument is very compelling. Can't wait to read the cross!

  • 48. Bill  |  January 25, 2010 at 7:03 am

    Heterosexuals account for nearly 80% of HIV/AIDS cases worldwide.

    Their fondness for classifying this a 'gay disease' could be the reason for that.

    Just sayin.'

  • 49. Callie  |  January 25, 2010 at 7:06 am

    Thing is, even here in TN, the GLBT community can get a sitting with our politicians (we even have a day on the hill), but that doesn't mean they're going to do jack about our concerns. You know you're powerless when they just look at you and say "yeah, we know but the other side out votes and out fundraises you."

  • 50. Ronnie  |  January 25, 2010 at 7:06 am

    Not to mention a lot of "move to strike" from the cry baby defense!…….. hehehehe

  • 51. JiminMN  |  January 25, 2010 at 7:07 am

    his entire summation is this:
    1) Gays are powerful because we have elected officials who SAY they'll support us but really havent. But saying is enough.
    2) Gays are powerful because HIV belongs to us, alone, and, yet, somehow thru our money and political connections we prevented Californians from putting us into internment camps.

    NIiiiiIIIiiice.

    It is of absolutely NO wonder why Prop 8 wanted to hide this testimony from America. Between this bozo and Tam we've nailed the absolute bigoted nature of their whole campaign. FEAR AND LIES.

  • 52. Callie  |  January 25, 2010 at 7:07 am

    Good question, I was wondering that too.

  • 53. Ann S.  |  January 25, 2010 at 7:07 am

    He doesn't really seem to be an expert on much of anything, as far as I've seen.

  • 54. David  |  January 25, 2010 at 7:08 am

    In short, Miller just proved what Boies said this morning. He has no clue what he is talking about. He’s read a few articles and brushed up, but he’s far from an expert.]
    Chuckles – thans Callie – I needed some humor for the day, yet I agree completely!
    Love,
    David

  • 55. Brian  |  January 25, 2010 at 7:08 am

    indifference = support? not actively opposing = ally?

    great logic!

  • 56. sugarbritches  |  January 25, 2010 at 7:08 am

    This oughta be a really interesting cross.

  • 57. Callie  |  January 25, 2010 at 7:11 am

    T: Very well, what is your view of their ability to attract attention of lawmakers in CA and nationally?

    M: They can do that.

    *head desk* OMG, for years we had marches on Washington and we got the "attention" of lawmakers. Exactly ZILCH was done! Getting their attention is NOT the problem, getting them to do something IS!!!

    God, I can't wait for cross!!!

  • 58. Ann S.  |  January 25, 2010 at 7:12 am

    Well, I am not an expert, but my view is that (assuming that we win, of course) a victory in the SCOTUS, depending on how it's worded, could probably be used to overturn other similar laws and the DOMA.

  • 59. rpx  |  January 25, 2010 at 7:13 am

    Forgot to Post- France is belted in and watching, and has been every single day of the trial. Have to admit, with the time difference, it is pretty late by me and the day that the economist testified, I fell asleep and had to read it the next day. Other than that I stay up and follow every word. Over the weekend I read a lot of the trial transcripts over at AFER. Just want to support the group and the effort.

  • 60. Stephen Sallis  |  January 25, 2010 at 7:13 am

    So let me get this straight. Gays and Lesbians have power as evidenced by their upward trajectory in rights. So rather than take a shortcut and have us declared a suspect class, we should be forced to continue the fight to creep ever closer to full equality. What a crock of s#*t.

  • 61. Ronnie  |  January 25, 2010 at 7:13 am

    If he spins that way…..then Iw ill spin it back and say:

    1. I'm an American too
    2. You(Pugno) are denying my freedom of speech by (a) not having comments on your blog and (b) not allowing me to marry who i choose too. or something like that.
    3, You are denying me my freedom to not follow a religion by dictating law based on "christian" values.

    Oh SNAP!

  • 62. Bill  |  January 25, 2010 at 7:14 am

    "The fact is they can’t win these things by going in and saying “keep the queers from marrying because the thought of them having sex gives me the willies” so they make up lies and appeal to irrational fears."
    ___________________________________________

    The thought of straight people having sex might give me the willies, but I do not try and get laws passed against them because their sexuality grosses me out.

  • 63. Happy  |  January 25, 2010 at 7:16 am

    (M: Looking nervous.)

    I LOVE it!!

  • 64. James  |  January 25, 2010 at 7:17 am

    Am I mistaken or did Gov. Schwarzenegger veto marriage equality before Prop. 8? Or at least I remember him saying that he thought it should be decided by the courts instead?

  • 65. fiona64  |  January 25, 2010 at 7:17 am

    The largest growing patient population with HIV/AIDS is heterosexual women of color.
    http://www.cdc.gov/hiv/topics/women/resources/fac

  • 66. Callie  |  January 25, 2010 at 7:18 am

    So, how many want to bet that he didn't look this stuff up himself but counsel printed out a bunch of their propaganda and said "here, brush up before you make a fool of all of us."

  • 67. fiona64  |  January 25, 2010 at 7:18 am

    Finding someone "icky" (or not being able to stop fantasizing about what they may do in the bedroom) really is not justification for making laws that discriminate against them.

    Of course, we all know this …

  • 68. Steffi  |  January 25, 2010 at 7:19 am

    yep, one of my favourite quotes too!

  • 69. Andrea  |  January 25, 2010 at 7:19 am

    Funny you should mention the 1970s.

    "It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution"
    Lawrence v Texas (2003), Justice Kennedy writing for the majority.

  • 70. Ann S.  |  January 25, 2010 at 7:20 am

    I thought he did that not once but twice, actually.

  • 71. fiona64  |  January 25, 2010 at 7:20 am

    I won't take that bet … I'll wind up with cider in my ear.

    (Gratuitous "Guys and Dolls" reference …)

  • 72. Richard  |  January 25, 2010 at 7:20 am

    I can hear the Jeopardy theme song from here!

  • 73. fiona64  |  January 25, 2010 at 7:21 am

    He did indeed.

  • 74. Ann S.  |  January 25, 2010 at 7:21 am

    Yep, in 2005 and 2007. Google is my friend.
    http://articles.sfgate.com/2007-10-13/bay-area/17

  • 75. Chris  |  January 25, 2010 at 7:21 am

    The thing is this is false. There was not one in 2008, but even setting aside that there were in other states (see Washington), domestic partnerships were revoked by ballot in SF multiple times. It took 5 votes before they finally were secured for good IIRC.

  • 76. Callie  |  January 25, 2010 at 7:21 am

    LOL, I made my comment before even reading the update. Seems I wasn't the only one thinking that. Miller must sweating bullets right about now!

  • 77. Callie  |  January 25, 2010 at 7:22 am

    Just thinking the same thing! Judge Walker needs a buzzer when time's up.

  • 78. sugarbritches  |  January 25, 2010 at 7:22 am

    10 minutes is a looooooong time for a courtroom to go entirely silent. No pressure there, huh? :-)

  • 79. M.E. Graves  |  January 25, 2010 at 7:23 am

    It's going to depend on how narrow the scope of their decision is. They can say that in the case of CA, since the right for GLBT to marry was already granted, then they people cannot vote to take away that right. However, that can become interpreted so as to say that if a state passes a DOMA before the right is obtained, then no right was necessarily taken away and is therefore constitutional. In that case, you would see DOMAs passed in the remaining states that have no passed them, leaving us with 43 states with DOMAs, and the 5 current states and DC with SSM, and then re-adding ME and CA since GLBT had the right before the initiatives went to the people. That's just my optimism showing through, though.

  • 80. Ziad  |  January 25, 2010 at 7:24 am

    I'm not sure if this is a proper way of expressing what I'm thinking right now:

    Owned…

  • 81. PM, in the UK  |  January 25, 2010 at 7:24 am

    Aww; this is a little mean… but for a good cause.

    A savvy witness surely couldn't have walked into such an obvious trap?
    The list doesn't even matter now, since even accepting such a task was an admittance of cluelessness and coaching.

  • 82. sugarbritches  |  January 25, 2010 at 7:25 am

    I suspect Boies has made his point quite eloquently….

  • 83. michael  |  January 25, 2010 at 7:25 am

    OMG…Checking in here folks…..This is what they have to present as their expert???

    LMAOROTF

  • 84. Steffi  |  January 25, 2010 at 7:25 am

    One example is that hate crimes was passed this past year and has been on agenda for LGBT for some time, but was passed over considerable objection.

    Ok did I get this right? the attempt to make hate-crimes against gays illegal faced "considerable objection" even though crimes as such are illegal and surely no one would seriously argue differntly?
    and that the fact that it did nevertheless pass shows power for lgb people even though all they achieved was legal protection against crime where there should be some anyway? I mean this as a real question, is that what this says?

  • 85. Callie  |  January 25, 2010 at 7:25 am

    They're kind of screwed either way. Miller says he knows a bunch about those docs and then flubs his testimony on them or he doesn't know many of them, if any at all, and it shows inappropriate direction of counsel.

  • 86. Andrew  |  January 25, 2010 at 7:25 am

    Depends on what the SCOTUS does, exactly.

    Just by way of example, they could find gays a suspect class, that marriage to a partner of one's choice is a fundamental right, and that prohibiting this is at all is a violation of the equal protection clause. That would legalize SS marriage everywhere in the US, at least until the states started dreaming up ways to narrowly-tailor a prohibition. It would also overturn DOMA at the same time. This seems unlikely.

    On the other hand, they could find we are *not* a subject class for federal purposes. There's a chance that might even undo what Iowa did, but I doubt it. They could still find prop 8 illegal, because it fails the rational basis test, because there is no rational basis to deny the word marriage but grant all other priveledges. In other words, separate is not equal.

    In this case, it's conceivable that their ruling would mean any state that has a DP or CU that is equal in all but name has to grant marriage too, but a state that does not have such an institution does not.

  • 87. MJFargo  |  January 25, 2010 at 7:27 am

    This. Is. Un. Be. LEAVE. a. bull.

  • 88. Kendall  |  January 25, 2010 at 7:27 am

    Interesting, but I hope that Boies continues to rip apart the rest of his testimony, bit by juicy little inaccurate bit. It's fine to say "see he's not so expert" but IMHO it's good to specifically rebut or else an overall impression "GLBT have powerz" may remain.

    Am I wrong? Am I just waaaaay too impatient?

  • 89. Callie  |  January 25, 2010 at 7:27 am

    I think that is a suscinct way of putting it.

  • 90. Alan E.  |  January 25, 2010 at 7:27 am

    This must be the only time that Twitter and the liveblogs had caught up with each other.

  • 91. Andrea  |  January 25, 2010 at 7:28 am

    During the initial special election campaign, Schwarzenegger said that he thought that the proper place was in the Legislature, not the Courts. He also said (on the NBC Tonight Show with Jay Leno) that he'd sign an equality bill if the Legislature passed it.

    When the legislature did so, he vetoed, reversed his position, and said that the proper place was the Court, not the Legislature.

    When the Court struck down Prop 22, he changed again and said that the proper place was neither the Court nor the Legislature, but the Ballot Box.

    Now that the ballot initiative passed, he's refusing to defend it. No coherent explanation for this has been offered.

  • 92. robert K wright 1 of  |  January 25, 2010 at 7:28 am

    I'm not sure, but it looked like he was trying to say that conservatives thought it could be repealed, but they didn't do it. Could be trying to buttress their argument that they have nothing against gays, just that they don't want marriage to be extended.

    I just wanted to point out the difference in what it seems that he was saying when you read the transcript here, and what it seemed he was saying when you read the transcript from Firedog. Here it seemed to say IF they thought they coulda they woulda. Over there it sounds like he said we could have, but didn't.

  • 93. l8r_g8r  |  January 25, 2010 at 7:30 am

    I agree. Even though SCOTUS will be very careful to word their decision to not implicate DOMA, I just don't see any way around it.

  • 94. Bill  |  January 25, 2010 at 7:30 am

    Or, we could actually obey the laws of the Constitution, and let 'Christians' believe whatever the heck they wish as long as they stop punching LGTB citizens.

  • 95. Callie  |  January 25, 2010 at 7:30 am

    Does anyone else want to scream, "DUDE, STOP STALLING!!!"

  • 96. Ann S.  |  January 25, 2010 at 7:31 am

    Making something that is already a crime into a hate crime can reasonably and legitimately be opposed, for what it's worth. I know people who oppose are extremely supportive of LGBT rights who still were not in favor of hate crimes legislation on the grounds that it criminalizes speech. I am in favor because it can bring federal resources to bear on what would otherwise be local crimes. The Matthew Shepard prosecution nearly bankrupted Laramie. Imagine if the feds had taken it over.

    But those opposed to hate crimes legislation argue that a murder is not more of a murder because of what the murderers said — so it shouldn't be necessary, and it punishes people for their speech.

    I don't agree, but that is a reasonable argument.

    So the fact that we got something passed over "significant objection" is supposed to show that LGBTs are powerful? Why would the group with the power need the protection of hate crime laws, anyway? It's downtrodden minorities that need protection from hate crimes. This line of questioning is, of course, ridiculous.

  • 97. Steffi  |  January 25, 2010 at 7:32 am

    *lol* yeah, that fits the picture in my head 😀 thanks for the soundtrack 😀

  • 98. Bonobo  |  January 25, 2010 at 7:32 am

    David, they don't have to drive all the way to Virginia, all they have to do is go above Sacramento to the country to see how powerless the glbt have it here.
    No one ever remembers about us. Not even us.

  • 99. Kevin  |  January 25, 2010 at 7:32 am

    *white knuckles*

  • 100. Ziad  |  January 25, 2010 at 7:33 am

    "cricket sounds"
    "ball of hay rolls in front of Judge Walker"
    "random coughs"
    "baby crying voices"
    "echoing tapping of fingers"

  • 101. waxr  |  January 25, 2010 at 7:33 am

    I would like hear how the witness would explain court decisions which are in favor of glbt?

  • 102. l8r_g8r  |  January 25, 2010 at 7:33 am

    Anybody else hear crickets?

  • 103. w11USA  |  January 25, 2010 at 7:34 am

    ADFmedia on twitter is making tweeting some f'ed up comments:

    ADFmedia

    David Boies inquired re: Dr. Miller's prep of his report. Appears Boies can't take issue w/ Dr.'s opinions, so attacking personally. #prop8

    reply and tell them what you think.

  • 104. Ziad  |  January 25, 2010 at 7:34 am

    yep … a second before you did 😛

  • 105. Bill  |  January 25, 2010 at 7:34 am

    We are always placated. Never listened to. Never respected.

  • 106. Barb  |  January 25, 2010 at 7:35 am

    Why argue points/take issue if there are none to argue. And I thought expert testimony was beyond opinions.

  • 107. Ann S.  |  January 25, 2010 at 7:35 am

    Only in crazy-land does taking issue with preparation of report = personal attack.

  • 108. Ronnie  |  January 25, 2010 at 7:36 am

    rolling,rolling,rolling……RAW HIDE!!!!

  • 109. MJFargo  |  January 25, 2010 at 7:36 am

    What was it that Walker said earlier about having trust in the lawyers before him?

  • 110. Ray Harwick  |  January 25, 2010 at 7:36 am

    Mucho THANKS to Robtish for CAPTIONING HIS VIDEO "Protect the Children".

    This video is the ONLY Prop 8 video EVER to be captioned by EITHER SIDE.

    Further, it is only the SECOND captioned video I've seen in the past THREE YEARS!

    THANK YOU SO VERY, VERY MUCH!!!!!!!!!

  • 111. Frank  |  January 25, 2010 at 7:37 am

    LOL – you all are killing me! Too damn funny!!

  • 112. Barb  |  January 25, 2010 at 7:37 am

    He must not be able to circle many.

  • 113. Calvin  |  January 25, 2010 at 7:37 am

    All last week, I was hoping we'd get to the defense's witnesses soon. I wanted to see the cross-examinations by the Plantiffs' attorneys. This is SO worth the wait. I kinda feel bad for Miller. (But only kinda).

  • 114. Ronnie  |  January 25, 2010 at 7:37 am

    "CHIRP"

  • 115. sugarbritches  |  January 25, 2010 at 7:38 am

    Two words: Adult Diapers

  • 116. Steffi  |  January 25, 2010 at 7:38 am

    Ok, I still didn't get it :) might be cause of my unfamiliarity with the terms
    so if a crime is made into a hate crime against a certain group this inclues that one does additionally not talk offensive i.e. hateful of this group? like here in germany it is prohibited to speak openly hateful against jews or non-arians (or any other group as it comes to it) because it is considered nazi behaviour and is against the constitution.
    sorry for my lack of knowledge :)

  • 117. Ben  |  January 25, 2010 at 7:39 am

    *whistle*

    Chick-a-Chick-ahhh

    waaah, whaa, whaaaaaaaa

    (The Good, The Bad and The Ugly, anyone?)

  • 118. Frank  |  January 25, 2010 at 7:39 am

    ZZZZZZZZZZZZZZ

  • 119. Happy  |  January 25, 2010 at 7:39 am

    There should be no need to specifically rebut, because all of our actual experts gave testimony that is a) truly expert, and b) in effect, rebuttal before the fact if you will.

    Boies is getting at the root of the matter. If this guy isn't even truly an expert, nothing he has to say is of any consequence anyway.

    Not that it would hurt to remind the judge of some key points our experts made, and that the defense had no "expert" testimony to offer, but that might be able to be done in closing.

  • 120. l8r_g8r  |  January 25, 2010 at 7:39 am

    Attacking the basis for an opinion is a personal attack? But saying that gays' and lesbians' mere existence is harmful to children is mere "belief"?

    I am astonished.

  • 121. robert K wright 1 of  |  January 25, 2010 at 7:40 am

    Over at Firedoglake they have a description of him marking, unmarking, marking and unmarking what he thinks he found, and what was provided. Obviously did all that research himself!! 😉

  • 122. Carl E.  |  January 25, 2010 at 7:40 am

    What are the ramifications of a witness getting information from counsel (other that embarassment and discreditation)?

  • 123. hearsay  |  January 25, 2010 at 7:40 am

    So out of 50 articles you investigated 5. That's 10%. 10% and you're an expert? Now, a moment ago you testified to… but that's NOT one of the articles you investigated, is it? No? Didn't think so. Now what did you base your testimony on then? WHAT? I couldn't hear you. Pulled out of your ass? That's what I thought…

  • 124. Happy  |  January 25, 2010 at 7:41 am

    one loud "CRACK" from someone popping their bubblegum bubble….. then looking around to see if anyone knows who did it.

    This is gruelling.

  • 125. David  |  January 25, 2010 at 7:42 am

    I am not certain, but it could mean he has perjured himself – anybody else?

  • 126. Ziad  |  January 25, 2010 at 7:42 am

    lol … My RPM ( Refresh Per Minute) is about 10.

  • 127. Steffi  |  January 25, 2010 at 7:42 am

    if I read this correctly the other side is currently arguing that since our side has nothing to argue we're just attacking the PERSON in the stand….

  • 128. Charles  |  January 25, 2010 at 7:42 am

    I agree with bill. that's the wrong strategy to argue from a religious point of view: The bible can say anything and anything if you want it to. That's besides the point.

    The point is that they can be Christian if they want, but it doesn't mean other people have to live according to their own little beliefs. The 1st amendment is both freedom of religion and FROM religion!

  • 129. Ben  |  January 25, 2010 at 7:42 am

    Exactly. Setting him up as an "expert" like the defense did made it such that his statements should be reflexive of the researched knowledge of the area in which he purports expertise. It's how we get sociology, psychology, political science, anthropology into the courtroom: we can't expect the judge and jury to take up training in these areas for the purposes of a single case, so we bring in experts. If you can show that one of the "experts" brought in doesn't actually have a damn clue what they're talking about, the judge has to throw out all of his opinions anyway. It's a much more efficient way to attack the opinions.

  • 130. hearsay  |  January 25, 2010 at 7:43 am

    The judge should go lean on the witness box and whisper in the witnesses ear, "You know you done fucked up, right?"

  • 131. Ronnie  |  January 25, 2010 at 7:44 am

    And now somebody is mumbling the words to baby got back because they are bored out of their minds!!!!!

    "And I can not Lie……..!"

  • 132. Ann S.  |  January 25, 2010 at 7:44 am

    Let's pretend that aliens from Mars are an oppressed minority. It's illegal to murder them (pretend they have the same rights as humans).

    If someone murders them while yelling, "F you, stupid Martians!", that could be considered a hate crime in addition to murder. If they yell nothing while murdering them, unless it can be proven that the murderer had a special hate for Martians (perhaps he blogged about his hate and his plan to go out and murder one), then it's just plain murder.

    If he simply yells, "F you, stupid Martians!" at some random Martians on the street, that is not usually a crime in the US (there are exceptions for certain acts considered especially intimidating such as burning crosses on people's lawns).

    Hope that helps.

  • 133. jerek  |  January 25, 2010 at 7:44 am

    How long IS this list?

  • 134. Ronnie  |  January 25, 2010 at 7:45 am

    hahahahahahahaahahahahahahahahah……..move to strike!

  • 135. MJFargo  |  January 25, 2010 at 7:45 am

    One outcome will be his testimony in future cases will be inexpensive.

  • 136. Frank  |  January 25, 2010 at 7:45 am

    Anyone feel like doing a quick location roll call while we are waiting ?

    Denver CO here

  • 137. JC  |  January 25, 2010 at 7:46 am

    Here is a "proposed" code of ethics for expert witnesses (provided by a firm that specializes in this–still looking for a neutral legal definition)…. Interesting.
    http://www.ims-expertservices.com/newsletters/feb

  • 138. Kendall  |  January 25, 2010 at 7:46 am

    Groovy; thanks for going into that. I was really wondering.

  • 139. Ziad  |  January 25, 2010 at 7:46 am

    In case you are still refreshing, there's a new liveblog post

  • 140. Steffi  |  January 25, 2010 at 7:47 am

    yep, now I got it ;D I'm a bit slow today 😀

  • 141. Alan E.  |  January 25, 2010 at 7:47 am

    I love these gems by ADF:

    DB asked Dr. Miller to put checkmarks by certain things in his report. Given the length, taking a long time.

    "certain things" is very ambiguous.

    or:

    Midst of 10-min delay nothing but silence as Dr. Miller does what David Boies requested him to do.

    in other words, our witness is being a good little boy by going along with these tedious jobs.

  • 142. Ronnie  |  January 25, 2010 at 7:47 am

    New Fu<k!ng Joisey here…..and crickets are heard all the way over here as well….CHIRP!

  • 143. Andrew  |  January 25, 2010 at 7:48 am

    The federal hate crimes law doesn't do that though. It doesn't actually change the penalties for those found guilty, it just lets the federal government help prosecute local crimes that are deemed hate crimes. Or take over entirely, if the local authorities decline to prosecute at all.

    That or I've badly misunderstood the act, which is perhaps likely.

  • 144. Ben  |  January 25, 2010 at 7:48 am

    I know Georgia civil procedure MUCH better than the Federal Rules (or California, or the 9th District), but there are rules here (Atlanta) against counsel feeding "experts" the bulk of their testimony. For instance, if I'm litigating a divorce for the wife, I can't just go out and pay a psychologist to testify that the children would be better off with the mother. He has to come to that conclusion by his own, professional, method. This business of feeding this guy articles and such on which to base his testimony seems to fall into the same category. Furthermore, it would seem to me that basing his testimony only (or the vast majority of it) on the documents provided to him by defense counsel makes him merely an expert on THEIR CASE, not in the field of political science.

  • 145. rpx  |  January 25, 2010 at 7:48 am

    Do you remember Miller saying, "This is my particular area of expertice" memba that? Well he sure doesn't look much like an expert getting his data from the defendents attorneys. Circle…Question mark, "Ah now wait, maybe not, well maybe? Darn this is harder than I thought it would be." Can barely wait for the next update.

  • 146. JC  |  January 25, 2010 at 7:49 am

    Carmel Valley, CA

  • 147. Calvin  |  January 25, 2010 at 7:49 am

    ADF Media's twitterfeed is REALLY infuriating.

  • 148. Ben  |  January 25, 2010 at 7:49 am

    Atlanta, GA

  • 149. Devon  |  January 25, 2010 at 7:49 am

    For some reason I always get nervous when the defendants start questioning, but that's officially over.

    Our side has officially owned any witness on the defense side, while the defense confuses the hell out of me with there questions (Not to mention they are boring as hell).

    Poor prop8!

  • 150. rf  |  January 25, 2010 at 7:49 am

    been forced to head to twitter. this is quite brutal what Boies is doing to him. Funniest thing are the ADFMedia tweets (funny but not)–so remind me of that guy in Iraq on TV who kept saying the Americans were on the run. something Bob, maybe

  • 151. Ray Harwick  |  January 25, 2010 at 7:50 am

    I'm thinking perjury, too, David, but no on this account since they witness admitted in depo that he didn't know about certain thing. Where perjury comes in is if he CIRCLES THE WRONG THING. In other words, he going to have to circle MOST of the index as things he didn't testify to having knowledge of because he's already been asked in this cross. If he circles MOST, he's not an expert. If he circles something he now says he had knowlege of but didn't in depo, he's a liar. Perjury. His head is in a loose right now. Let's see if Boies springs the trap door.

  • 152. Anne in Tennessee  |  January 25, 2010 at 7:50 am

    Memphis

  • 153. Ann S.  |  January 25, 2010 at 7:50 am

    Andrew, I agree that bringing in the resources of the Feds is a big factor, perhaps the biggest. I do believe though that there are punishment "enhancements" for hate crimes, but I could be wrong about that. Or maybe that's some state laws. Sorry, not an expert, so I could be wrong.

  • 154. Charles  |  January 25, 2010 at 7:52 am

    I hadn't thought about it like that, but now I totally agree. He's humiliating himself. Poor guy…

  • 155. Ben  |  January 25, 2010 at 7:54 am

    Bless his heart

  • 156. Kevin_BGFH  |  January 25, 2010 at 8:00 am

    They could also declare LGB to be a "quasi-suspect" class, worthy of a higher level of scrutiny, like women, but not strict scrutiny like race. Which might require that DOMA and other discriminatory legislation be challenged (and defended) separately.

  • 157. truthspew  |  January 25, 2010 at 9:25 am

    Miller is their expert? Christ on a stick, he's not very sharp!

    I'm getting the sense that we can wrap up the defense in about 3 hours.

  • 158. Bob  |  January 25, 2010 at 9:32 am

    Steffi, they're just establishing credibility. Not much to find, poor guy.

    I hope the defense didn't lead with their strongest witness.

  • 159. Richard  |  January 25, 2010 at 11:34 am

    This is exactly why they did not want this broadcast. They did not want anyone who has half a brain to see just how illogical their arguments are, and how ill-prepared their attorneys and witnesses are.

  • 160. Ronnie  |  January 25, 2010 at 12:26 pm

    I have admit….to truthspew…..I read your comment and i spit grape soda all over my monitor……. and some came out my nose……LMAO!

  • 161. Liveblogging Day 10: Part&hellip  |  January 25, 2010 at 1:31 pm

    […] Liveblogging Day 10: Part II Back from lunch […]

  • 162. James Sweet  |  January 26, 2010 at 12:47 am

    Some members of GLBT community think he has not given enough support, but by objective standards, he has.

    Eh, which objective standards are that, exactly? I think what Dr. Miller means to see is that by his subjective standards, Obama has. And by my subjective standards, Obama hasn't. But in order to have an objective standard, you have to define what it is; you can't just assert it. That's retarded.

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