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General News    H2'ed 2/1/10

Prop 8 Trial Week 3: The Cliffhanger

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The fabled trial to overturn Proposition 8 in California is wrapping up after almost three weeks of testimony, and it's looking good for the plaintiffs who support same-sex marriage. (The defense is backing Prop 8, the initiative that defines marriage as between a man and a woman, denying that same right to gay people.)

The attorneys working to overturn Prop 8 concluded most of their evidence and testimony last week, and this week the supporters of the gay marriage ban presented only two witnesses, pared down from a much larger number.

By the way, you can see video re-enactments of the Prop 8 trial at: http://www.marriagetrial.com


Attorneys David Boies and Theodore Olson, who argued on opposite sides of the Bush v. Gore case before the Supreme Court back in December 2000, kicked off the week by showing some videos to give the court an idea of the type of advertising run during the 2008 campaign for Prop 8. The idea was to show that the motivation behind the initiative was not to save marriage, but rather to discriminate against gay people, largely for religious reasons. The videos included Ron Prentice, CEO of the California Family Council and executive director of ProtectMarriage.com, saying things like, "what gays and lesbians do in private does not bother me, but I do not want children exposed to it."

Then the defense introduced their first witness, Claremont McKenna College professor Kenneth Miller. Before he could say a word, however, plaintiff's attorney Boies objected on the grounds that Miller is not an expert on the subject of gay and lesbian political power, and that he has done no research on the subject. Boies was overruled and Miller took the stand.

Miller pointed out that the opponents of Prop 8 raised $43-million dollar in opposition to the initiative, $3-million more than supporters. (He willfully ignored the fact that this did them no good; the initiative denying marriage rights passed anyway") Miller's point is that gays and lesbians are gaining acceptance in society, and that they have amassed political power. He cited the fact that companies like Yahoo, Cisco, and eBay organized to defeat Prop 8 during the 2008 campaign. Miller also claimed that newspapers, the entertainment industry, churches, and labor unions also support gay rights. Miller noted that gays and lesbians have powerful vocal supporters in Congress, including Senators Boxer and Feinstein, as well as President Barack Obama.

Upon cross-examination, Prop 8 plaintiff Boies got Miller to admit that he had not done much reading on the subject of gay and lesbian power; mostly he was quoting from material given to him by the attorneys defending the initiative in court. Boies then tried to get Miller to admit that Prop 8 amounts to discrimination against an entire class of people; reluctantly, Miller did concede that Prop 8 does "create a distinction between the two groups," that is, hetero- and homosexuals.


Boies continued hammering away at Miller's testimony on Tuesday morning, producing some of Miller's own writing in which he opines that "initiatives can be used to circumvent legislatures to get issues before the voters, and that it has been used in various instances to repeal benefits for minority groups." Whoa!

Boies attacked Miller's claim that churches support gay rights by citing the involvement of the Catholic and Mormon churches in pushing Prop 8 to ban same-sex marriage. Miller was forced to admit that religion was "a factor" in the resulting vote in 2008, and that religious groups were the primary ones supporting the gay marriage ban. Boies also got Miller to state in court that a religious majority should not be able to use the law to deprive a minority of rights"but he did not mention Proposition 8 in specific.

Federal District Judge Vaughn Walker stepped in at this point, asking Miller if judges have the right to intervene in the initiative process; Miller said judges should intervene only if a constitutional principle is being violated.

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Eric Malone has been writing about politics with a sardonic sense of humor through more than one apocalyptic Administration. He is a subversive dedicated to revolution through thoughtful laughter.
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