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Liveblogging Day 7: Daily Summary

Daily Summary Liveblogging

By Julia Rosen

It’s that time of the day, where we compile the massive liveblogging into one thread for those who have broken F5 keys, or kids that demand their attention, or professors, or bosses and couldn’t stay obsessively refreshing all day long.

Today, Rick Jacobs and Brian Leubitz took turns again posting. Tomorrow, Rick will be there throughout the day. We are getting close to the end of the plaintiff’s witnesses. They might be able to wrap up tomorrow, but it could bleed into Friday.


[UPDATE] 9:05] By Rick Jacobs

By Rick Jacobs

[Now we get into the issue of choice. This is key stuff. See what the judge says below. Today will be fascinating.]

[Don’t forget there is a guide to the key names/players over here if you need some help figuring all of these names out at the top]

0840: We begin.

Judge: We have cleared the calendar and can continue the trial tomorrow. Mr. Thompson got the message but did not inform other counsel and the clerk did not call Mr. Boutrous. Mr. Thompson apologized. We will be in court tomorrow.

Two rulings on discovery:

Magistrate’s order is not clearly erroneous which is standard, so discovery order remains. Second order is before Magistrate Judge Spiro to add four people to core group in the discovery process. If he’s unavailable to hear that matter by noon, I’ll rule. Clerk will try to reach him and see what his availability is and at least one lawyer.

Mr. Criswell, Mr. Wirthlin, Mr. John Doe and Richard Peterson

Judge: Why do we need to depose Mr. Prentice again? Why can’t you just examine him on the stand?

Boutrous: Voluminous amount of documents. We thought deposing him would save the court time so we can walk through documents, streamline things in the court.

Moss: We filed our opposition to this this morning. We oppose reopening Prentice depo. He was deposed for thirteen hours. Papers suggest that they have 25 documents to go over with him on the stand. It would be highly prejudicial for us to have to prepare him after depo with him on stand next day.

Boutrous. We’ll take two hours (not seven). It’s the proponents’ who suffer here because Prentice has been trying to block us. We have had teams reviewing the documents for the last week. Documents should have been released weeks ago.

Judge: I’m inclined to agree with Miss Moss. I have not forgotten what it’s like to try case and depose at same time. You should be able to handle this on the stand, just as effectively here at the trial, just take a bit more time. We’re in trial; let’s proceed.

Cooper: Mr. Boies wanted to enter two documents into evidence. My friends at the plaintiffs have provided confirmation that those documents are authentic. So we accept them.

James Campbell (Prop.8): Mr. Kendall is from Colorado. His parents forced him to go through some sort of involuntary forced conversion therapy. Irrelevant testimony. Should be covered by expert if at all. No any more relevant than if defendants found a person who could say that he had a positive experience. Mr. Herrick, plaintiffs are calling him, is expert on this. Finally, Herrick has said that individual reports are unhelpful. Dr. Herrick’s commentary on study he did on self-reporting on conversion therapy. “Even if respondent tried to give true responses of say 12 years ago experience, people are not reliable because their memories and emotions change.”

Judge: Isn’t this an issue that the proponents themselves have raised in opening the case?

Campbell: Not forceful conversion.

Judge: Reads from proponents’ opening brief to court that says that sexual orientation may change. An individual’s sexual orientation may change over a lifetime. Women’s orientation particularly fluid. Seems to me you have raised the very issues to which this witness is going to testify.

Campbell: We never talked about forced structured therapy. Bottom line is that sexual orientation does change.

Judge: What evidence are you going to present on this? Are you going to show that people’s orientation does change?

Campbell: Through cross-examination.

Judge: Other than through cross what do you intend to use as evidence?

Campbell (gets a note): And studies.

Judge: Thank you. You did take a good deposition (as opposed to Herrera’s office that got lambasted by the judge yesterday). It does seem to me this is an issue raised by the proponents themselves. It is very helpful to have first hand testimony. The testimony by the witness can be very helpful. He has after all been deposed. Mr. Campbell has had the chance to depose. Therefore, the motion to exclude him will be denied.

Judge: Just got a note that Magistrate Judge Spiro can hear the matter now. So if you will designate a lawyer from each side and hightail it to Judge Spiro, we’ll move along.

[UPDATE] 9:22

[Boies puts up a video of depo of a DEFENSE witness. It’s stunning. No wonder he dropped out as an expert for their side! N is Nathanson, who was deposed in November by Boies in Montreal.]

Boies: What is position of American Anthropological, Psychological, Physicians, Psychiatric, Pediatric (he does not know who they are) on gay marriage?

Prop. 8: All support.

Does Catholic Church today say that homosexuality is immoral?

Yes. They say it is immoral and outside of the order of God? That’s what the Catholic Church teaches.

B: Biggest protestant church in US?

N: Southern Baptist Convention.

B: How does it describe homosexual behavior?

N: Sinful.

B: Do they describe it as evil?

N: Some do.

B: As a perversion, abomination, deviant behavior, manifestation of a depraved nature?

N: Yes.

B: Does teaching of Southern Baptist Convention include hostility to gay people?

N: Yes.

B: “God hates gay people.” Where does that come from?

N: Picture from the newspaper of protestors carrying a placard that says, “God hates gay people?”

B: What is proportion of those who voted yes on Prop. 8 were motivated by religious reasons?

N: About half.

B: Would you agree over the past fifty years, religion and society have been hostile to homos? And has it led to discrimination? And violence against homos?

N: Yes to all.

B: Any studies that attitude of society toward homos has harmed homos has psychologically damaged homos?

N: Yes. It has been bad for people.

B: What proportion of Roman Catholics accept the church’s teaching that homosexuality is a disorder?

N: Not more than half.

B: What is hatred?

N: Culturally propagated hostility. Not emotion; a cultural force.

B: Is there culturally propagated hostility toward gay people?

N: Some, yes.

B: Historically exits?

N: Yes.

B: Familiar with term gay bashing?

N: Yes. (Witness cites murder of gay man outside of bar.)

B: Is it true that the religions that supported Prop. 8 larger than ones that support?

N: Yes.

B: Religions that supported Prop. 8 provided many more volunteers than the religions that oppose?

N: Yes.

B: Do you believe that the teaching of certain religions that homosexuality is a sin and abomination leads to gay bashing?

N: Yes.

B: Do you believe that the primary cause of gay bashing is religion?

N: In a direct sense yes. Religious hostility to homo behavior has roots other than religion.

B: Was religion used to justify hostility and prejudice against blacks?

N: Yes.

B: Was this prejudice used to “protect families?”

N: Yes.

B: Were the same arguments used against women (family protection)?

N: Yes.

[UPDATE] 9:42

[Boies deposes another one of their witnesses. Her name is Dr. Young. I’ll call her here W for witness.]

B: Any cultures that accept homosexual relationships?

W: Hidra Indians. It is a community today. It has existed for at least a few centuries.

B: Based on everything you know about Hidra, how long have they existed?

W: For couple of centuries at least.

B: Other exceptions in other cultures that support homo/same sex marriage?

W: Verdash is a general category of people where there would be same sex relations and in some context same sex marriage. They were in the US, Lakota tribe, some plains Indians groups, religious groups that had shaman tradition often Verdash. I believe it’s only in North America.

B: Same exist in North America under other name?

W: Subcultures in West Africa and among silk workers in China lesbian marriage. In Roman culture around emperors there were some same sex marriages. Many other examples of same sex relationships, but I’m using examples of formal relationships that we could call marriage. If we just talk about same sex relationships, it would be quite a long and large anthropological study.

B: What is gay bashing?

W: Taunting to physical assault.

B: Bigotry and prejudice in US substantially religious-based?

W: Yes.

B: Religious component to bigotry against gays and lesbians in US?

W: Yes.

B: Do certain religions teach that homosexuality is a sin?

W: Yes.

B: Does Catholic Church have a view of homosexuality outside of the priesthood?

W: Continuing view that homosexuality is wrong.

B: Does church continue to assert that homo activity among lay people is wrong?

W: Yes.

B: Are children advantaged by increasing the durability of the relationship of the couple raising them?

W: Yes.

B: Durability for gay people enhanced by allowing them to marry?

W: Yes.

B: Increasing durability of gay couples’ relationship beneficial to children?

W: Yes.

B: Is it case that love and commitment are reasons that most people give for wanting to get married?

W: Today, probably yes.

B: Studies you have seen support that and do not indicate to the contrary?

W: Yes.

B: Do you believe that love and commitment are the reasons gay people give for wanting to marry?

W: Yes.

B: Arranged marriages are declining?

W: Yes. Arranged marriages have declined a bit, but have not been overtaken by love marriages.

B: Where arranged marriages have declined, have you seen an increase in divorce rates?

W: Yes.

B: Have you also found that divorce rates are correlated with female literacy?

W: I cannot refer to specific studies, but there may have been something to that effect.

B: Are you aware of the correlation between declining birthrates and female literacy?

W: Yes.

B: Shows her statement of American Psychoanalytic Association of 2008. “Whereas homosexuality is a normal variant of adult sexuality.”

W: I would prefer to have a working definition of homosexuality here, but I have no basic problem.

B: Whereas g and l have same potential and desire as hetero and have same potential and desire as couples to raise kids as hetero. Agree?

W: Yes.

B: Is it your view that because something was the norm in the past it should be continued in the future?

W: Not necessarily. Just because it was in the past, has to be reassessed in contemporary context to see if that norm should remain.

B: Talked about homo prejudice. Women have also been subject to prejudice and discrimination?

W: Yes.

[She says that there is doctrine of separation of church and state so this sort of religious persecution should not be allowed.]

0940 break for ten minutes.

[UPDATE] 10:20

0950: Kendall on stand. Grew up in Colorado Springs, Colorado, born in 1983. Went to Evangelical Christian Academy (ECA). Remember parents talking about homosexuals being evil, seeking special rights. I did not know what it was, but was scared by term.

What is your sexual orientation?

K: I am a gay man! (made me tear up the way he said it.)

C: When did you find out?

K: Always knew I was different. Looked up word at about 12. Knew that was me. Kept it a secret because I was scared. Boys called me names in seventh grade: homo, faggot, queer or just gay. I wore glasses. They played monkey in the middle, keep away, until they broke my glasses.

K: Hated to go to school. Remember getting in car, crying and told parents what was going on. Parents took me out of that school. When I was 13 years old, I wrote to myself that I was gay and my parents found it and read it. Parents flipped out, very upset, yelling. I don’t remember a lot of what they said, but it was pretty scary the level of their reaction. I remember my mother telling me I was going to burn in hell.

K: Religious family. Church and God every day part of our lives. It was shocking (what mother said). I was totally stunned. After my parents found out, my home life changed a lot. My mother called me names.

K: Shortly after this incident, I was sent to a Christian therapist for reversal therapy. I was told that the goal was to make me a hetero. I went two or three times. I remember the therapist telling me homosexuality inconsistent with Christian teaching, that my parents did not want me to be gay and that homos were bad people.

K: Therapy did not make me feel better. I was always a good kid, wanted to make my parents proud. Suddenly, they took me to this guy who told me I was a bad person and my parents said I was a bad person. I felt terrible. The therapy did not work. I was still gay. I knew I was gay just like I’m short and half Hispanic and knew those facts would not change.

K: My parents were referred by Focus on the Family, a Christian based org in Colorado Springs. National Organization for Reversal Therapy in Encino. I went to NORTH (Not sure I have this all correct) from 14-16. My entire life changed. Before NORTH, parents put notes in my lunch, made my lunch. After, they abused me emotionally. Mother told me she hated me, that I was disgusting, repulsive. She wished she’d had an abortion rather than having a gay son. She said she wished I’d had Down’s syndrome or been born retarded.

K: Met with Dr. Nicolosi. I’d do over the phone sessions with him for 90 minutes and sometimes flew to CA for in person. I don’t recall much, but remember that Nicolosi said homosexuality is bad for you, your parents want you to change. As a general admonishment, but not specific technique (to convert).
K: I remained religious throughout. At NORTH I was told I had to reject what I was because it was dirty and bad. I reconciled my faith and homosexuality on my own. NORTH was not successful; I was just as gay as when I started. (Stopped at 16). My life had fallen apart. I did not have the world in which I grew up. My faith and family which were both very important to me. I realized that if I did not stop going I would probably have killed myself.

K: When I was 16, I surrendered myself to the Department of Human Services in Colorado Springs. I went in and told caseworker about family and reversal therapy, that if I went back home I’d kill myself. They started separation proceedings.

K: I was a sixteen-year-old kid. I had just lost everything. I walked in and out of jobs and schools. I was extremely suicidal. Turned to drugs to escape. Things did not get better (he’s very choked up). Period lasted 4 or 5 years. Struggle for survival; not able to support myself. When my healthcare ran out, I went to emergency rooms.

K: Now work for Denver PD for over two years. It’s been a long hard journey, but I have fought with every bit of myself to take care of myself, get a job, get a place to live. I have been able to do that.

K: Member of Log Cabin Republicans, Current Chair of Denver GLBT Commission that advises mayor’s office and city. Not here to testify for those orgs. I am here to testify for myself as Ryan Kendall. Nothing here in court shaped by my personal advocacy for gay and lesbian rights. I just told my story.

Campbell Cross examines.

C: You were contacted by SF attorney’s office regarding this trial?

K: Yes.

C: You have never read a study that shows that people can change their sexuality?

K: Yes.

C: You know of anyone who changed sexual orientation?

K: In public, yes.

C: You were compelled to go to conversion therapy, not asked to consent, you communicated your objections to your family and those objections made no difference because your parents forced you, your only goal was to survive. You did not have a goal of changing your sexual orientation, oh let me change that, to change your sexual attraction? And you did not want to change your sexual attraction? Family experience just as damaging as therapy itself?

K: Yes to each in series. (I just wrote out the questions, but they were asked one at a time.)

C: At one point in time after you turned 18, you lived with your parents for a time?

K: Yes.

C: Is it your position that no one has ever gone to conversion therapy willingly?

K: I do not know everyone, but I know no one who went willingly.

C: You acknowledged in your depo that some people claimed they successfully converted?

K: Yes.


K: During the group session, Nicolosi introduced us to a guy named Kelly who claimed to be cured. When Nicolosi stepped out of the room, Kelly told me he was going to a gay bar that night that he was just pretending for his family and therapy. Lived with family for a few months after that. I don’t speak to my mother now.

[UPDATE] 11:15] By Rick Jacobs

1020: Dr. Segura. Boutrous is examining.

S: Stanford for 18 months at Stanford Center for American Democracy. Newly established center to examine data about American electorate. Biggest project is American National Election Study. Been run consistently since 1948 (polling has been done since then). I’m currently on Ed Board of American Journal of Poly Sci, was on Ed Board of other stuff.

S: I’m a student of political representation. Look at mass opinions and actions in society. See how they subsequently connect to policy makers. Representation theorist. One of the vexing questions in poly sci is whether public changes how elites view and act. While my work began as a broad understanding of political behavior, I have spent recently a lot of time looking a minorities, particularly Latinos. I have also looked G and L. Have a new book. Latino Lives in America, just came out this month.

B: Turns to his CV. Peer review articles?

S: I have about 42 total publications, 25 of which are peer reviewed articles meaning that articles submitted for peer review before published. 15 or so chapters of books. Over last decade, I have probably attended and presented at 20-40 conferences. I present constantly.

B: Your work on G and L policy and issues?

S: Three pieces.

(I had to stop briefly because Chad Griffin came by. If you don’t know Chad, you should. He’s my hero. He is the mastermind of AFER and has orchestrated this whole unbelievably powerful trial and effort for our side. He’s unsung, but smart as hell, unflappable and just brilliant.)

Boutrous: I tender prof. Segura for political power and powerlessness of gays and lesbians in process.

Admitted as expert witness.

S: First thing I did was to read. Growing body of literature on g and ls in politics. Then went through statutory protection or disadvantage in each state. Looked at very recent attitudes toward g and l, absence or not of g and l in elective office, looked at ballot measures, which is subject here.

B: Asks if you attended would-be expert witness depos from other side and if wrote rebuttals.

S: Did. Here are the three over all conclusions:

1. Gays and lesbians are not able to protect their interests because they do not possess meaningful political power.

2. They are not subject to political exclusion and suffer political disabilities greater than other groups that have received suspect class protection.

3. The opinions of the Proponents expert Dr. Kenneth Miller are fundamentally flawed and incorrect.

S: Define political power as A getting B to do something. I’m a New Orleans Saints fan. I don’t have power over them, but I can agree to support them. Thought by Madison in Federalist Papers and then in 20th Century Robert Dahl (sp) who is icon of political theory. They worried about factions. Concerns that without plurality, one group can control power for too long. 20th century theory presupposes there is no such thing as permanent majority and that things will be fair.

S: By Madison’s definition, g and ls are small faction. We frequently refer to our system of government as Madisonian as distinguished from majoritarianism. Certain that society responds to majority rule, but there are limitations, such as a majority having the power to take voting rights away from a minority.

S: Lots of news recently about newly elected lesbian mayor of Houston. Media says “holy cow, a lesbian in Houston.” White lesbian against black man. Racial and economic and social and partisan fracture lines in Houston. That she was elected is great for g and l power. I have to look at context. Just a few years back, voters in Houston voted down Houston providing benefits to ss partners. So we have a lesbian mayor whose partner of 19 years cannot get city coverage.

S: Positive news about hate crimes leg is that it was 20 years in the making. We’re looking at a piece of legis that criminalizes crimes against g and l. It does not provide, for example, g and l spots at service academies. Passed by attaching to defense authorization bill. Even so, 75% of Republicans in senate voted against the defense authorization bill which is not what Republicans do. So even though it was passed, it is not a big move forward because it just criminalizes heinous acts against homos.

S: Laws passed are frequently able to overruled by plebiscites and people can just put these things on ballot. Since 1990, about 150 measures not include marriage and g and l lose about 70% of time.

S: When we want to focus on measure of political power, want to focus on markers that are important to that group. The first type of marker is manifestation and the second is causes or factors.

B: Start with manifestation of political powerlessness of g and l in US.

S: First thing I’d look at is absence of statutory protection.

[Puts up map of up with blue states and white states. Shows states that have some form of statewide protection for non-discrimination. 29 states do not include such protections.]

B: Heard Nathanson mention Matthew Shepard case.

S: Since then, Wyoming still has no protection and no hate crimes laws.

S: No federal level housing and employment anti discrimination. No federal level protection except for hate crimes. Exclusion of g and l from military. DOMA prevents g and l from getting federal benefits/protections. Eisenhower started the policy of overt discrimination, only lifted in 70s.

S: History of homophile movement. Frank Kameny regularly sent letters to government asking why no federal protection. Much more likely to engage federal government than Matachine Society in LA and NY.

B: CA’s protections for g and l?

S: Presence of statutory protections better than not. Want to see why they were passed, etc. If we look at hate crimes or anti discrimination, purpose to ameliorate a wrong. Difficult to conclude that is measure of political power itself. Have anti discrimination ordinances because there is discrimination. Some of laws passed because of court orders, such as employment and housing protections, but very hard to get it passed. Gov vetoed. Only put in place in labor law which is less strong than housing discrimination.

S: DP in Ca does not protect spouse who travels to Las Vegas or New Orleans. Also, props are nationalized, which builds more harsh treatment of gays.

S: Measure 1 in Colorado stunning. Took lots of protections from gays.

S: No group in American society, including undocumented aliens who are a distant second, that has been targeted by ballot measures than g and l. Since 1970s, over 200. Lost 70%. Lost all same sex marriage initiatives. Propositions nationalize. “The initiative process has been the Waterloo of gay and lesbian politics.”

S: (Slide that shows how badly we have been beaten at the ballot). Culture war in the country. Initiative process has been used to get people hot under the collar. They expand the scope of conflict. If your side is not doing well in the legislature, you move to ballot and inflame momentary passions. Ballot measures puts g and l in bad position. At end, need 50% + 1. In CA, particularly problematic, because we allow simple majority to pass constitutional amendment. Voters do not look like CA, while legislature does. Allows the issues to be nationalized.

S: I believe g and l have failed 33/34, because lost in AZ and then passed it.

S: Talks about Prop. 187 that passed in CA but was struck down by court and state did not appeal. Would have been open season on Latinos because law said services do not have to provided to undocumented people and have to prove documented before they could get services. Also, anti-fair housing prop. that was passed was overruled by court.

S: Initiatives also chill legislators because they know money will be spent to fight them.

S: 500th of 1% of local officeholders are gay. 1% of legislators are gay. Only 6 in history have ever served in congress (openly) and only four ever elected as openly gay. Effect is that without g and l at legislative table, voice is not there. The presence of g and l and other minority groups to constrain bad behavior. (Ask former CA senator Sheila Kuehl, the first openly gay person ever elected to a state office in CA, how big a difference it made to have her in the “boys’ club” of politics.)

S: Gives example of Carol Mosley Braun (former Illinois senator) giving an impassioned speech from well of senate to get senate to stop giving money to DAR which is openly racist.

S: By not having g and l present in legislature, people can say amazing stuff. Coburn says that gays and lesbians are the greatest threat to American civilization today. Some public officials have compared gay marriage to marrying a box turtle. Cannot imagine any other group that receives such animus in public. When someone in position of authority communicates that this is okay. When two US senators compare gay marriage to bestiality, that is not the fringe, that is the US senate.

S: Gays and lesbians are not sufficiently present in any jurisdiction of any size to shape outcomes.

[UPDATE] 11:47

Prop. 8 Trials Professor Segura: Obama is not a reliable ally for the gay and lesbian community. Read on.

S: Prejudice and hostility toward gays and lesbians negates political power. Dr. Nathanson (on earlier tape today) agrees. A lot of people are repulsed by same sex sex.

B: Puts up slide that talks about “feeling thermometer” used to measure sentiment in public opinion research. Eg, how warmly do you feel about Evangelical Christians or African Americans.

S: Concluded re: gay and lesbians is that the American public is not very fond of gays and lesbians. On scale of 0-100, any demographic that had room for contestation (religion, etc.), scored in 60s. For AAs, Jews and Hispanics, have 30-40% who hate them. Mean score for homos 49%. Hispanics and AA held in higher esteem than homos.

B: Did those measurements have anything to do with ballot measures?

S: Yes. Religion is the chief obstacle for gay and lesbian political power. After government, difficult to think of more powerful institution than religion in America. Allows people to meet every week. Largely arrayed against gays and lesbians. Different than for AAs, because except for Baptists, nearly every religion favored civil rights.

S: Nathanson testimony confirmed what I already believed, that its really difficulty for gays and lesbians to achieve political power. Dr. Young freely admits the religious hostility to gays and lesbians builds hatred toward homos and leads to prejudice and discrimination.

S: Can’t think of any other group that has such round hatred from religious groups. In fact, it has served to make the evangelical movement more powerful because they ally around this issue.

S: Hate crime sends message to entire group, which is why must be extenuating circumstance to show that it’s a hate crime. Says to group that you are not supposed to be here, not supposed to be free in public. Fear of violence yields fear of self-identification. If there is violence, you don’t want to go outside of a gay bar alone because it’s not safe.

S: 2003-2008 FBI hate crimes and LA hate crimes stats have been reviewed by me. No real improvement in hates crimes; last five years, they got worse. Substantial increase in hate crimes and g and proportion increased from 14% to 17.7% of 1,171 to 1,617 (2005 v 2008). 2008 highest hate crime year in decade. Also want to look at intensity. Not just number, but type. Gays and lesbian are far more likely to be victims of violence. 2008, 71% of all hate-motivated murders and 55% of all hate-motivated rapes against gays and lesbians. No other group that comes close to being a target for their identity.

S: LA Hate Crime Report for 2008. Hate crimes on basis of ethnicity, race and national origin declined over decade by 16%, but increase in crimes against gays and lesbians. LA County showed increase due to Prop. 8.

B: Did you see the defendants try to show in Sander’s testimony that Prop. 8 supporters were targeted for hate crimes?

S: I did not know what to make of it. I think such acts of vandalism are abhorrent. Their video (prop. 8’s) did not mention any hateful things done to anti-prop. 8 but that was not in their interest.

S: I think that the psychology of closet are so relentless and insidious. They do vary across country and racial and economic groups and social status. Self-identification in lower status job, living in plains state or south, still detrimental. If you can’t self-id, you are not available for political mobilization. If you are in the closet, you won’t go to a gay rights march. If you are in the closet, it’s harder to have information about what to do. Harder to mobilize because you can’t find each other.

S: Public sees only gays and lesbians in larger cities. Public thinks that all gay men have advanced degrees. People who are in the closet are likely to be lower status. Public has a misperception of the level of treatment of gays and lesbians. Not every gay man is Will from Will and Grace. Will is an attorney in NY with a large apartment. When people see this, they think gays don’t need protection. Makes public less sympathetic. Makes public view numbers of gays and lesbians as smaller, which diminishes their political power.

S: Over last 25 years, has been statutory forbiddance of discussing homosexuality in health classes. Ban on funding for homoerotic art for a time by feds. Even some times when ban on discussing same sex for prevention of STDs.

B: Anything on Prop. 8 campaign that adds to this censorship?

Thompson: I object. He was not deposed on this.

Judge: Not disputing that it was discussed in depo?

Thompson: No.

Judge: Then it’s appropriate to proceed.

S: One of the campaign ads said that at school today, I was told that I could marry a princess, too. Underlying is that people are being told that if 8 does not pass, will be taught in school. Underscores that homosexuality is not to be talked about positively or even neutrally because it is evil.

S: Lowers familiarity with gays and lesbians. If public does not know what gays and lesbians have done or who they are, reduces political power because they are not taken as seriously when they speak up, not seen as desirable coalition partners. Easier to target people who never do anything (perceived).

B: Have allies in CA. Isn’t that power?

S: It’s nice to have allies and if those allies are reliable, even better. There is sense that those allies retreat when it’s tough. If you think of major groups in society outside of commercial enterprises, you think of military, church, Republican and Democratic Party. Dems say they support homos, but Democrats passed DADT and DOMA. Current president has refused an order from the chief judge of the ninth circuit to provide domestic partner benefits to court employees. Also, filed briefs that support DOMA and has done nothing to repeal DOMA or DADT. This is not a reliable ally.

[UPDATE] 12:22

S: AIDS crisis undermined political power because gays were trying to stay alive. That’s all they could do.

[It’s kind of odd, but the guys from Protect Marriage who are suing Courage for our logo on this blog are sitting behind me in the witness chairs in this upstairs courtroom where we’ve been for two weeks. They are always there. We are always polite to each other, but they seem not to like me or Courage or any of you.]

S: I generally familiarized myself with the campaign, but not with the organizations behind each side, so I don’t know about volunteerism.

B: Puts up recently obtained document about the campaign. Reads “LDS Church Takes Active Role in Supporting Prop. 8.” First presidency of LDS sent letter to California LDS leaders to take position on Prop. 8, which this Protect Marriage document says, is very rare.

C: Illustrates that LDS church was very active not just on the financial side, but on the grass roots side. Shows that gays and lesbians are powerless relatively.

C: On June 17, 2008, Jim Garlow, senior pastor of Skyline Church in San Diego…led to a total of 1,700 pastors located across the state to kick-off an aggressive grassroots campaign for Prop.8” Rev. Garland organizes a team that became Protect Marriage CA that took a strong role in passing Prop. 8. I was particularly struck by that number 1,700 pastors. Any campaign at all would be thrilled to have 1,700 volunteers on a conference call. Enviable number.

C: Centerpiece of pluralist democracy to take positions. What takes me aback here is sheer breadth of organization.

“Protect Marriage dot com is a broad based coalition of … leaders from all walks of life to pass Prop. 8.” Impression I got was that there was an organized effort rather than a group of people who happened to agree. When I evaluate the power or powerlessness of gays and lesbians, important to see strength of opposition.

S: Screen capture of website called “The Pastors Rapid Response Team” which sounds fun. Headed by Jim Garlow of Skyline Church.

S: NO political science definition of “rapid response.” I assume that this is so they can respond quickly. Taken aback that there was an organization that was monitoring everything.

Thompson: Would like to take lunch break so that we can work with plaintiff’s counsel to work through the documents that we have stamped as confidential.

Lawyer for Garland and McPherson: Have motion for protective order. We have argued that there are first amendment implications to introduction of speeches, sermons all of which are protected by first amendment.

Judge: Mr. Boutrous, there are two suggestions. One is Mr. Thompson’s suggestion for lunch. The other is from this attorney.

Boutros: We provided DVD to this lawyer so he could show documents to his clients over the weekend. He sent an email back saying that it would be too burdensome to his clients, so he refuses to cooperate. Next document I was going to discuss was document we obtained in discovery without restrictions. Also, other documents are public. They were shared with 3,000 people on the phone, so hardly possible to say they are not public. All documents are public. We did redact some names. We took our best good faith effort to redact names of those that we have not agreed upon.

Judge: You are representing that those documents were public.

Lawyer for pastors: I don’t think that one hand of the plaintiff’s team does not know what the other is doing. Ms. Lazarus from the plaintiff attorneys offered us a deal so that we did not have to have our clients be subpoenaed and appear if we review.

Argument back and forth with judge. Judge asks if there is privilege attached to statements, which are public. Seems not to be. Court is asking a pastor to testify as to his view of traditional or same sex marriage.

B: This is a pastor who was on political rapid response team, so he injected himself into the political arena.

Judge: I guess he did not respond rapidly in this case! (Huge gales of laughter).

Magistrate ruled that one of the people they want to consider as outside of depo will be, but three others including Wirthlin (who sits behind me), John Doe and one other can be the subject of discovery.

Adjourned for lunch until 1:10.

[This was fascinating. Prof. Segura made me think very differently about political power. He makes the point clearly that gays and lesbians have very little of it. And if you think of what we have not gotten done, even under Obama, he appears to be right. My friend Steve Hildebrand, who was Deputy Campaign Manager for Obama, asked if I could think of one politician who wakes up even once a year and thinks about pressure from the gays that he or she cannot withstand. The answer is clearly no.

And that’s another crux of this trial. It’s time to rethink how we organize and “do” political power. Courage’s research shows us a path to changing hearts and minds, which will be necessary, even for the Supreme Court to rule in our favor and then to prevent any backlash. And we must get this to scale. That’s why you all reading this and sharing are important. It’s also why we have to build a huge grassroots effort with straight folks as well as gay folks, to demand equality now and to mean it. We have to change the way we do business.

And it’s why this court case is so crucial. It does change the dynamic. It puts the lie to what the other side always says, which is that the gays are rich and powerful. If that’s right, why are we second or third class citizens?]

[UPDATE] 1:28] By Rick Jacobs

By Rick Jacobs

1:10PM. We’re baaaaaaaaaack!

[The judge said he’d referred Mr. McCarthy’s motion to quash (the documents that are public by the two pastors) to Magistrate Judge Spiro.]

Back to Boutrous examining Prof. Segura.

B: Asking questions carefully about documents. Wants to be careful not to mention anything that B does not direct him to do.

S: Document subject line: Go to Confession. November 4, 2008 at 9:20AM.

B: I propose that this document be entered into evidence subject to redaction. I still believe this document is not covered by privilege.

Judge: Mr. Pugno?

P: Thank you for pronouncing my name correctly. Everyone gets it wrong. This is correspondence between executive director of Catholic Conference of Bishops and we think it’s privileged, but we are willing to put redacted version.

Judge: Okay.

B: Puts up redacted version with lots of stuff blacked out.

S: Reads part that says that this has been the longest presidential campaign in history and now we are almost done with Prop. 8. The direct involvement of the Catholic Conference (CCC) has been unusual—although not unprecedented.

The CCC has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating. Leg by the Knights of Columbus national donation of $1.5 million, other million dollar donors, and the countless major donor and with a significant percentage of the 90,000 online donors, the Catholic community has stepped up. Of course this campaign owes an enormous debt to the LDS Church . I will comment specifically at a later time (under separate cover) about their financial, organizational and management contributions to this success of this effort.

[UPDATE] 2:28

B: Puts up document that is marked highly confidential, attorneys’ eyes only. This document shows that Ron Prentice is saying that the main funding to put 8 on the ballot was from Auxiliary Bishop Corleone of San Diego’s efforts, other Catholics.

B: Puts up email from Prentice showing that Prentice is CEO of California Family Council and volunteer chairman of Protect Marriage.

S: Never seen a coalition of this sort arrayed against a minority group. Only similar thing is anti-abortion.

Pugno: Fighting over whether a document that was at one time a church official communicating with other church officials. Very troublesome to say that church loses ability to communicate with each other because of communication with other churches.

Judge: But this document was in that person’s file?

Pugno: Yes, but he was both a member of the executive committee of the campaign and he communicated with his own church. This is not a document from

Judge: How can this document have some kind of privilege attached to it if it was in the file of someone from Prop. 8? It falls outside of the 9th circuit’s definition of 1st amendment.

Pugno: But it is a church official.

Butrous: I don’t think that he has standing to object.

Judge: Well he can object on behalf of a client, in this case Mr. Janssen [He’s the one who wrote the blackmail letters to Sal Rosselli and others saying that if they did not give the same amount of money to yes on 8 as they gave to no on 8, Janssen would publish ads about their lack of support for families.]

Boutrous: I think I can read this first sentence without bringing down the first amendment. Jansen communicates about public relations for campaign.

Pugno: But he was a member of the LDS organization at the time so this is not to be made public.

Judge: Jansen intervened to serve as party in the case. The document discusses messaging of campaign. I’m not aware of any privilege that attaches to his religious affiliation. This is material to the case. Your objection is overruled.

[Again, Prop. 8 is desperate to hide their machination]

S: Reads document from Jansen who says since first Presidency of LDS church wrote letter, what will be our role? “As you know from the First Presidency this campaign is entirely under the direction of the priesthood…”

“What is the next step in this campaign? I understand all grassroots organizing efforts in OC will be led by Gary Lawrence, who will report directly to the Protect Coalition leaders. He has also been hired…

Pugno: Object. Lawrence is protected.

Judge: 9th circuit protects core group. The mere fact that individual is in core group does not mean that the name cannot come out in another way. This is not one of his protected communications.

Pugno: Well, Judge Spiro protected Lawrence Research.

Boutrous: Lawrence is publicly associated with this campaign. Fact that religious organizations participate in campaign is perfectly fine, but once they do, they are public in that involvement. I see no 1st amendment issue here.

Pugno: His company played a role. He did not play that role.

Judge: This was a public campaign, out in the open. The people who were out front on it inevitably subject themselves to public scrutiny and to litigation that follows. There is no privilege that attaches to this document as distinct with communication among core group. Continue, Mr. Boutrous.

S: Continues reading. “Priesthood leaders will call each stake and leaders by zip code within each ward—potentially working not only with LDS but also non-LDS volunteers.”

S: Very close coordination with church, with statements like “this entire campaign is under priesthood direction” is notable. Customary within LDS for volunteers to be approached for support, but here it appears that there is an LDS volunteer in every zip code which is an enviable political organization.

[The Mormons actually rank this campaign with the Catholic Church! It’s here. It‘s clear. They worked the church to beat the queers.]

Pugno: Standing objection; it’s a church meeting document.

Judge: Can witness lay a foundation for this document?

B: This was produced by defendant interveners after they complied with Spiro’s order.

Judge: Does appear to be the minutes of a stake meeting. I gather, Mr. Pugno, it is correct that this document came from files of or one of the defendant interveners.

Pugno: I’m also sure that this came from Mr. Jansen’s file. He’s the only one of the interveners who was part of the Mormon. There really is no 1st amendment protection here if your correspondence is available.

Judge: That’s rather like attorney client privilege. If it’s outside of the mutual possession, that privilege is abrogated.

Pugno: Only reason it’s here is because Mr. Jansen took it out of his shoebox to comply.

Judge: Shoebox? (Laughter).

Pugno: Illustrates the point.

Judge: Appears to deal with Prop. 8. No one is questioning the right of public association.

Pugno: Object then on lack of foundation.

Boutrous: I can lay that foundation. Remaining portions of this document can be redacted. This is the key part. Mark Jansen reported on campaign activities.

Judge: Very well, the objection is overruled.

S: Reads document. Says Brother Jansen said LDS not to take lead, but to work through Protect Marriage. SLC had teleconference with 159 of 161 stake leaders in CA. Goal is $5million at $30 minimum donation per head.

S: Director Holland highlighted the luxury of having Mark Jansen key committees and that eh will received direct communicate (sic) from him.

S: With respect to Prop. 8 campaign, key talking points will come from campaign, but cautious, strategic, not to take the lead so as to provide plausible deniability or respectable distance so as not to show that church is directly involved. We might look at religious belief as source of opposition and think that some folks would vote their religious conscience, but we would not know that this sort of direct church power is engaged. I have never seen this level of coordination in a political campaign.

Pugno: Objects because document will be revealing.

Judge: Not to make light of this, but the reason people want to produce documents is that they are revealing.

Boutrous: It’s from an outsider to the core group. We are attempting to show the level of coordination with groups that Protect Marriage says were not even affiliated with the campaign.

Pugno: This is from a member of the core group.

Judge: This is a post-campaign trial and defendant represents it’s from a core group member, so objection is sustained.

Boutrous: Document not under objection.

Judge: Music to my ears.

S: “You may know that Mormons have been out walking neighborhoods with about 20,000 volunteers.” Speaks to breadth and size of power arrayed against gays and lesbians.

Boutrous: Another document produced by proponents over the past week.

S: Document appears to be an email from Chair of to others with some issue of how designated gifts to campaign are to be made.

B: Anything caught your eye about expression of political power?

S: 1. Teleconference calls:
1,700 participants in June/
Nearly 3,000 in July in CA alone.
5 more teleconferences planned with goals for training and final call of more than 5,000 CA pastors participate in one of these calls.

Shows huge array of political power.

[If you thought there was no vast right wing conspiracy, look again. HERE IT IS!]

S: Appears to be fundraising letter to someone who has given generously to Family Research Council in the past. Interesting because it is a sharing of donor bases to get people who can give to give to the campaign. “We have Arlington Group, FRC, Focus on the Family and others. “

Taken together or separately, these are extremely powerful groups.

B: Based on seeing all of this, what is your opinion of the relative powerlessness of gays and lesbians?

S: Taken together we see the absence of legislative victory, lack of ballot measure success, clear array of integrated power against, gays and lesbians have relatively little power.

B: You compared gays and lesbians with relative political power of AAs or women in the 1970s?

S: Relative to women in the 1970s, gay men and women are far more disadvantaged today than women then, because so many women. Being a woman is not inherently controversial. Women are loved by very many people. (Laughter). Certain provisions of 1964 civil rights act extended to women, so they enjoy statutory protection.

S: Comparison with AAs more complicated to explain. Let me begin by saying that being an AA before civil rights act passed was very difficult. Life in the south was terrible. At the time that suspect classification was extended to racial and ethnic minorities, there were three constitutional amendments that extended equality. Granted that there was lots of legislative nonsense. Immediately prior to WWII, Exec Order 8802 by Roosevelt prohibited war department from discriminating against AAs and 1948, Truman integrated military.

Lives of blacks was bad, but there was a number of constitutional and legal protections. The civil rights movement was an attempt to bring full equality.

In 1990, there was not a single state law that discriminated against gays. Now, 35 states have them. Opposite of what happened with AAs.

AA population 13%, some states 40%. Some jurisdictions have AA majority. No jurisdictions, except for small resort town, in which g and l are majority.

60 people of color have served in Congress; 4 in senate, although some have left to join administration. Significant that there is the first Hawaiian president (laugh). Huge that there is an AA president.

B: Comment on Prof. Miller (the would be witness for Prop. 8 who has been destroyed and dropped out).

Thompson: We have not had a chance to depose S about this and why is he familiar with Miller?

B: He attended Miller’s depo!

Judge: Overruled.

S: Miller had no idea about history of gay and lesbian history. Unfamiliar at all with political science work on prejudice of which there is a great body. I thank it’s fair to say that Prof. Miller did not look beyond the boundaries of California. When asked about other states, he had no knowledge. He even said he would be shocked if he learned that a majority of states have no protection for gays and lesbians, which is true. He also did not know about history of CA legislation. In starkest terms, in 29 states there is no protection for gays and lesbians and Prof. Miller said gays and lesbians have political power without being aware of that fact.

Couple of problems with Miller’s definition of political power. Vague definition. In case of statutory enactment, he did not know that court cases forced legislation. Attorney on his side asked if court cases can be considered political power and he said yes. Impossible to say that court rulings for a minority are an example of political power.

Miller said in his research that ballot initiatives are bad legislation because there is no time for reflection and bad for minorities. I agree with him.

[Brian is taking over now and will start on a new thread.]

[UPDATE] 3:03] By Brian Leubitz

David Thompson (T): Of ten largest cities, how many have protections for gays and lesbians

Gary M. Segura (S): About 8 or 9

T: You gave money to Prop 8?

S: Yes

T: You participated in a course with Simon Jackman at Stanford?

S: Yes

T: You said you believe very strongly in marriage equality?

S: Yes

T: When you hear the term gay or lesbian, what does it mean. It may be sexual behavior, It may be identity, etc.

S: Yes, it could be a limited range of options

T: Definition of power, the exercise of power is moving people from fence-sitting into your column?

S: Yes, that could be it, it could be getting people to stand down.

T: If the group had power, it could cajole the Legislature to produce outcomes that were not ordinarily

S: Yes, that’s part of it, also means securing it

T: You believe there are allies, that the LGBT community has to rely on political power, and allies

S: Yes, some are more or less reliable.

T: You believe the NAACP has political power, even when Newt Gingrich was speaker.

S: yes, they had power, but a little less than when Dems are in power.

T: Shows HRC materials stating that the National Journal called them very effective. You don’t believe that gays have a meaningful power despite that.

S: No, they don’t

T: Goes through a list of powerful people who are gay: Speaker-elect John Perez, other LGBT leaders. Not politically powerful?

S: No, they aren’t.

T: Looking at domestic partnerships. LGBTs won over bibilical literalists, correct?

S: Yes.

T: Again, in 2003, AB 205 expanded DP rights. LGBT win, right?

S: Yes

T: If a group has achieved a great deal of legal protection, that would be a positive element in political power?

S: yes.

T: Can you identify any state w/ more political power for LGBTs than California?

S: No.

T: Can you ID any examples of Latinos using political power?

S: Yes.

T: New Hampshire allowed marriage equality by legislation, as did Vermont. Do gays and lesbians not have power there?

S: It would be difficult for me to say, b/c I don’t know the full situation. I would point out that my issue of political power as a national issue, but also across layers of government.

T: Massachusetts. Able to defeat a measure to repeal it?

S: Yes, gays and lesbians did, but to the extent that they cannot travel with their marriage. They don’t have power. (And Iowa)

T: DC?

S: No gays and lesbians

T: Houston has a lesbian mayor. Power there?

S: No. They do not. No DPs there.

T: San Diego. Mayor Sanders is a supporter, any power there?

S: No. LGBT community isn’t sufficiently powerful to change power.

T: New York Times article about LGBT leaders. Goes through elected leaders who are gay, and asks about each city about whether they have power.

S: No, they live in Wayne County, Michigan, and the United States.

T: Charles Pew in Detroit didn’t face many attacks. Doesn’t that mean there’s political power?

S: I would look to the City of Houston, where the Mayor’s sexuality was a big issue in the campaign.

T: Story in Atlanta J-C: “Gay votes can make a difference.” Interview with Georgia Equality, he says that the LGBT vote was a powerful effect. But gays and lesbians don’t have power in Atlanta?

S: Yes, this claim has a number of problems. This is being made by an advocate of an organization, and this was something of an ad here. They would always aggrandize their power. Atlanta was one of the locations that doesn’t have protections.

T: Money is a political resource?

S: Yes, but the power varies by groups. Money is the power of trade groups, but in others votes are more important.

T: Some groups have power b/c of their financial resources?

S: Size of the group is an important factor, as is financial resources?

T: Yes.

S: No on 8 outraised Yes on 8, 43-40, right?

T: That’s my understanding

S: Total revenue of HRC (about $45 mil) is greater than that of NAACP

T: You don’t have an opinion about the income of gays and lesbians? And gay men are less likely to have children, and children absorb resources, meaning gay men have more resources.

S: Seems reasonable

T: Goes through economic resources. The number of gays and lesbians that give money are quite high?

S: Yes, I think gays and lesbians are more likely. A very small group of people though would have to give

T: You believe the internet has made it easier for gays and lesbians to organize? And particularly for people that might want to stay private.

S: Yes, for all groups. But also makes a difference for private people.

T: No on 8 was able to send out a message on TV.

[This guy is speaking fast. Very fast.]

[UPDATE] 4:12

T: You believe access is important for political power. You believe that access shows that a politician favors someone? You believe that access shows power?

S: No, because LGBT

T: You can’t identify a single issue that gays and lesbians were refused to speak about gay issues.

S: I don’t know the workings of Pelosi’s office, but she is resisting bringing some things to vote.

T: You talk about the feelings of the public towards a group, you have a “feelings tmperature.”

S: Yes

T: In 1984 the mean temperature was 30 degrees. Recently, it was around 49 degrees. There is a trend

Yes, I would want to analyze the

T: Allies can be a source of power?

S: yes, depends on the time. Some allies are more helpful, more often.

T: An ally is somebody who repeatedly embraces the gay position?

S: I would say it is somebody who expands political power for the group.

T: Looking at a chapter of a book that S wrote. The value of coalition building is not lost on the LGBT groups, and have been working for years to build coalitions.

S: That’s true.

T: HRC Annual Report 2009. “Finally, with strong allies in the White House and in Capitol Hill” Would you agree that the Obama administration is more favorable than Bush?

S: Yes, but I wouldn’t say Obama is a strong ally.

T: The president increased HIV power. That’s power

S: No, but Bush did a good job at HIV prevention, but it’s not necessarily a big step.

T: HRC wants to eliminate HIV travel ban.

S: Scientific community and LGBT wanted that.

T: That’s a sign of LGBT community?

S: Not really. A letter writing campaign isn’t that big of a deal. There was also a lot of public pressure from the scientific community.

T: We advocated for the administration to ban gender identity discrimination

S: LGBT community did seek it. I’m not sure if it will survive this administration.

10 minute break

And, we’re back from the break

T: We’re going to play a speech from Pres. Obama

Judge: Well, it is the 20th of January, isn’t it.

(Obama): Story of HRC. I’m here with you in your fight. Goes on to talk about HRC’s checklist.

T: Using your definition, does Obama count as an ally?

S: I think President Obama is an ally who cannot be counted on. An ally whose rhetoric goes further than his action.

T: You believe Obama is lukewarm, even indifferent?

S: Yes, he has defended DOMA. ENDA isn’t law. OFA sent emails to Maine for New Jersey, but didn’t mention Question 1. Most gay activists feel that President Obama has been particularly disappointing. He did sign the hate crimes legislation.

T: You would look to whether Obama has spoken publicly?

S: President Obama is a very good speech maker.

T: You would look at what legislation he’s introduced.

S: Well, strictly speaking, the administration doesn’t introduce legislation

T: Sen. Feinstein is only a soft ally?

S: Yes.

T: you would describe a true ally as somebody who will put other goals aside for the goals.

S: Well, yes.

T: You would describe ACLU as an ally?

S: Well, they do sail into stiff winds.

T: We were looking into the definition of reliability in your deposition.

S: Yes, ACLU is a probably ally.

T: Pelosi?

S: She is a decent ally, but not very reliable.

T: That could be a sound strategy?

S: Perhaps. But there is evidence that “living to fight another day” loses your base.

T: The importance of the media. Television news could be important?

S: Yes

T: John Zawler, the nature of mass opinion. The thesis is that the public responds to lead cues. The media leads on issues

S: Yes, there is a correlation, it’s not perfect, but generally, media reports matter.

T: “Minority group interests and political organizations” You considered this article.

S: Yes

T: Look at p. 575, article states, “Gay political support isn’t as important as Elite support for marriage.” You would agree that gay and lesbians media coverage has increased. And saliency on that issue has increased

S: Yes, on that dimension.

T: 2005 HRC report showing 90 % of population has seen quote.

S: Well, 90% don’t read newspapers, well below 50%. Areaas where 90% of the population have been reached, but not 90 % of the nation. I think we have the HRC advertising its own work.

T: You don’t recall SF Chronicle and NY Times advocating against LGBT causes?

S: NO, I Don’t.

T: HRC Says that their opinions as “common sense.” ?

S: I would say that newspaper editorial boards generally favor LGBT rights. I would think there would be variation by issue and by region.

T: Editorial from NYTimes: “Preserving California’s Constitution” Third sentence strongly opposed Prop 8. Is it fair to state that the New York Times ferverently supports gay marriage?

S: I would think that they support marriage equality across the states in the absence of an editorial.

T: LA Times, Prop 8 added discrimination to California Discrimination

S: It would show that the LA Times opposed Prop 8. And that newspapers are too fond of the word “ferverent.”

T: Cohesion and size of the group?

S: There is a broad scholarly disagreement on the size of the LGBT community. It is my opinion that between 4-7% are openly gay.

T: Bisexuals?

S: 2% or even less. There are some problems with definition on bisexual.

T: 23% of gays and lesbians are estimated to have voted for GW Bush, less cohesive than African-Americans?

S: Yes, African-Americans are the most cohesive group.

T: A small group can be political powerful?

S: Depends what you mean.

T: The Jewish community has political power

S: My initial opinion shows that the Jewish community has a lot of representation.

T: In close elections, small groups can make a difference

S: yes, that’s true

T: Both Obama and Clinton paid attention to LGBT community in the primary?

S: I don’t that they were more focused on the LGBT community than just anyone on the street.

Both Sen. Obama and Clinton, actively courted all the groups. The term special appears to suggest that they paid more attention than to other constitutency. Gay and lesbians are majority Democratic consitutency

T: Persuasion?

S: Persuasion is more than saying please pass our legislation. Persuasion means that you can point to a deeply held norm. Persuasion means how much they hold deeply held norms and then how much they are willing to act on them.

T: You believe that a group could change a legislator by making claims on norms of fairness?

S: yeah, they usually do that?

T: You think that abolitionists used the norms of fairness?

S: Yes, it was one strategy. They engaged in strikes, boycotts, freedom rides, far more than just appealing to the norms of fairness.

T: You’ve read press reports that the No on 8 people didn’t feel that they did a good job of reaching out to blacks and latinos.

S: yes, I’ve read that.

T: Let’s talk about violence?

S: It’s usually frowned upon.

T: And it isn’t very effective?

S: No, it’s not very democratic.

T: Sympathy?

S: Sympathy isn’t really a tactic that isn’t used very often.

If a group is trying to engage norms of fairness, do they lose that when they engage in violence?

S: To an extent. Not always true, look at civil rights struggle.

T: You said in your depo: that you lose appeal when you engage in violence

S: yes

T: One resource you have is good will?

S: yes.

T: Disenfranchisement of gay and lesbian voters?

S: Not recently, maybe in the 1950s.

T: Recently?

S: Nothing off the top of my head.

T: Let’s talk about the indicia of political power. One reflection would be to allocate funds that are important to the group.

S: Yes, if the group brought their resources to bear.

T: You would also look at the presence of statutory protections? And to elect candidates of their choice?

S: Yes

T: Not only gay candidates would be first choices.

S: yes

T: 4 out of 120 legislators

S: Ok

T: Equality California is a big gay rights group?

S: yeah, probably.

T: 2009 legislative scorecard for EQCA. Despite a tough legislative session, this has been one of EQCA’s best years. We passed 11 pieces of legislation. Is it true that 11 pieces of legislation were passed?

S: Ok. Some of them were non-binding resolution.

T: Would a legislator getting an EQCA rating of 100% mean they are supportive?

S: Depending on

T: Can you point to one of the 100% rating is not an ally of the LGBT community?

S: I cannot. There are a lot of zeroes, so if the majority lost control, much could be reversed.

T: Senate

S: I don’t know all the legislature’s activities

T: Can you identify where the LGBT community supported the Republican rather than the Democrat?

S: No

T: Can you identify a Democrat who won the nomination without the support of the LGBT community?

S: I lived outside the state, so I don’t know all the primary politics

T: You would call Boxer an ally?

S: yes

T: What about labor unions?

S: I can’t say. I don’t know how labor members voted in 2008 just because the union opposed Prop 8.

T: EQCA press release citing UNITE-HERE donation of $1900

[UPDATE 4:42] By Rick Jacobs

[I’m back in the hot seat for the rest of the day.]

Prof Segura: Not surprised that UNITE HERE gave $100,000 to campaign. UNITE HERE represents hotel and restaurant workers as well as needle trades. Both are frequented by LGBT folks.

S: Geoff Kors (EQCA) comment in press release that this shows long standing relationship with organized labor reflect his view, not sure it’s accurate.

Thompson: $1.7 million from unions to No on 8. Do you know of any to yes?

S: No.

T: Story dated Oct. 26, 2008 from Sac Bee. Influential Latinos including the Los Angeles mayor and can you help me with the pronunciation—

S: Villaraigosa.

T: Yes, that’s it! [Wants to make the point that Villaraigosa is Latino. Really racist.]

T: All tech companies support gay rights. And they have power?

S: They do and so do other companies have power, but they may not be influential or powerful on all issues. Silicon Valley and large corporations are powerful in that they make large campaign contributions and have lots of lobbyists.

S: I’m not aware of large corporations working against LGBT?

T: HRC 1996 annual report, page 13. “Big businesses like Microsoft support state legislation that would help GLBT people.” Nike also supported GLBT legislation in 1996. Do you doubt this?

S: I would clarify the statement. First this is the advocacy organization speaking about how wonderful they are so that they can raise more money. Second, it says that more and more businesses are supporting fair-minded legislators, which makes clear we need to change. Third, not clear that corporations are donating

Judge: Does losing elections or failing to obtain favorable legislation show political powerlessness?

S: Losing elections do not necessarily mean that. Initiatives are different. It’s the only means by which voters vote on the rights of others. We have 150 elections in which LGBT have lost. That’s extraordinary. Does each act warrant judicial intervention? No. If we have passage of a bill where a majority party votes for and minority against, when power changes, could be reversed. And we could see it all reversed by initiative. I would want to look at the range of events. Loss rate shows that long standing prejudice is shaping political outcomes.

Judge: How much time do you have left with Prof. Segura? Perhaps you can do as you have done before and spend this evening honing those questions.

T: I will endeavor to do that.

Professor Herrick will go on if he is not ill as he was today. Otherwise, we’ll just put Mr. Tam on. Then we have documents. Those are our two live witnesses. Possible we may have to call Mr. Prentice to authenticate some documents.

Judge: Okay. I understand Magistrate Judge has resolved the matter discussed before the break with some of the documents. Can counsel inform me of the outcome? Mr. McGill, you were involved. Can you inform us?

McGill (Lawyer for our side): Says we are working it out.

Judge: Is it plaintiff’s intention to introduce some of those documents?

Boies: Yes, if we can authenticate some of the documents.

Judge: Unduly optimistic that plaintiff could rest tomorrow?

Boies: Challenging, but possible to finish tomorrow, but certainly Friday.

Judge: Defense should be ready tomorrow or at the latest Friday morning.

T: We’ll have Prof. Ken Miller here on Friday morning.

Boutrous: Judge Magistrate ruled against the motion to quash.

Judge: Very well. See you bright and early at 8:30 tomorrow morning.

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  • 1. Gage  |  January 20, 2010 at 1:58 pm

    Thank you so much for keeping us informed. Cameras may not be allowed, but WE are watching!

  • 2. Brian  |  January 20, 2010 at 2:20 pm

    These daily summaries have been so wonderful, thank you so much! I'm very busy at work all day, but each morning I have a 45 minute subway commute in NYC. I can load the previous day's summary on my iPhone and not have to worry about needing signal underground. And it's the perfect length for my commute. 🙂 Thank you all SO MUCH for all your hard work!!

  • 3. Alice  |  January 20, 2010 at 3:54 pm

    Thanks so much for all your hard work!

  • 4. John  |  January 20, 2010 at 3:59 pm

    Thank you so much. This has been very informative. Looks like it will be a decently long trial, I only hope that the judge will see that Prop 8 has no standing and will throw the hateful, prejudiced, bigoted piece of trash out of law.

  • 5. Misha  |  January 20, 2010 at 4:22 pm

    Your (very) fast fingers have become the cameras that were denied: reading the words you write is a very visual experience, curious. ( reading for a l-o-n-g time tonight. ) Thank you for the keyed-in images and for the explanations that help so much in understanding.

  • 6. Dieter M.  |  January 20, 2010 at 5:04 pm

    Here it is everyone, the TRAILER for the youtube broadcast re-enactment of the prop 8 trial…full sessions starting tomorrow.

    and check out my "don't divorce us" video on youtube to see where this all began: at

  • 7. Dieter M.  |  January 20, 2010 at 6:27 pm

    Here it is everyone, the TRAILER for the youtube broadcast re-enactment of the prop 8 trial…full sessions starting tomorrow.


  • 8. Bill Garnett  |  January 20, 2010 at 7:02 pm

    I am an American living in Malaysia with my same sex partner (in a loving, monogamous, committed relationship). Were we a man and a woman, we could be married and live as a legally married couple in America, (with the attendant rights and responsibilities). However, I do not have this option as would a similarly situated heterosexual couple. This is unfair and unjust discrimination largely based on an ignorance of homosexuality and an encroachment of religious beliefs into civil governance.

  • 9. Bob  |  January 20, 2010 at 10:59 pm

    Yep, she went there (again). Maggie's latest blast to excite the peasants.

    Putting Christianity on Trial
    Trial Watch Update/Maggie Gallagher

  • 10. Craig Steiner  |  January 20, 2010 at 11:39 pm

    Rick, and everyone at the Courage Campaign, there are so many of us that are immensely grateful for what you are doing. I cannot imagine going through the day not being able to find out what is happening in that court room. It feels like the trial of the century is happening and it's thanks to you that we are even aware of what's going on.

    There are some others we need to be thanking too: the incredible lawyers who took this case on for us. I know the gay community was very skeptical at first, and some organizations were very slow to come to the table about this trial, but I have to say, it's pretty amazing to have such fine advocates in our collective behalf. Rick, PLEASE, be sure to thank the Plaintiff team and the Plaintiffs themselves for being willing to go through this process. I feel like our community will forever be deeply indebted not only to the Courage Campaign, but to the team of outstanding individuals bringing truth to light, and exposing the depths of bigotry against us. Regardless of the outcome, it is historic to feel like we are having our day in court.

    It struck me yesterday that literally NOT ONE POINT the "yes on H8" people brought up and pounded home during the campaign was based on anything even vaguely resembling the truth. Every single argument they made was based on viscous and intentionally-distorted lies.

    Reminds me of a quote from Ghandi: "When I despair, I think that – all through history, the way of truth and light has always won. There have been tyrants, and murderers, and for a time they can seem invincible, but in the end they always fall. Think of it. Always."

    Thanks for helping the tyrants and the lies to fall before the Truth.

  • 11. abbe  |  January 21, 2010 at 1:49 am

    I think that if you can call out each example of politicians supporting the LGBT cause then you're proving the point that there is not a large power base. I hope Judge Walker sees that, too.

  • 12. Randy  |  January 21, 2010 at 3:15 am

    Is anyone doing courtroom sketches like you used to see on TV?

    I can't believe the Supremes did not allow the videos to be shown, especially after we all witnessed the Clarence Thomas v. Anita Hill trials. What a mockery and injustice that he even sits there.

  • 13. Eric  |  January 21, 2010 at 5:18 pm

    Today drives home the fact that we ARE polically powerless, and that we've ONLY made progress due to people's realization that A) we do not control our sexuality and B) these discriminations are just plain unfair and unAmerican. What power we have is only because we have won the hearts and minds of fair-minded Americans, not because we have political seats or representation.
    Today also drives home the HUGE, MASSIVE and completely COORDINATED efforts of the Yes on H8 folks. Our efforts at organization and fund-raising are pathetic when compared to what went on leading up to Nov '08 election. I'm glad to see their effort being exposed- no group in history has been so well-organized in fighting a politcal cause.
    And yet, even after all of that, we lost by a few percentage points. God, if there is one, truly is on the side of equality and fairness to all people, even LBGT's.
    I'm nearly in tears over it all. Thanks for covering this.

  • 14. Craig Ferrier  |  January 22, 2010 at 4:51 am

    After reading this passage from Kendall: "Mother told me she hated me, that I was disgusting, repulsive. She wished she’d had an abortion rather than having a gay son. She said she wished I’d had Down’s syndrome or been born retarded." … tell me .. who do you wish to protect your children from?

    Kendall, you are a hero to this cause and I for one appreciate you telling your story.

  • 15. Prop 8 Trial Coverage&hellip  |  January 24, 2010 at 6:14 pm

    […] 6 – Day 7 – Day 8 – Day 9 – Week 2 […]

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