Dr. Linda Hirshman

Day 10 opens with a very long argument about the admission of evidence. The whole trial has taken place against the backdrop of a dispute over how much plaintiffs could discover about defendants’ campaign strategy for pass Prop 8. Plaintiffs are particularly interested in the documentation of the role of conservative political strategist Frank Schubert and his firm, who heavily managed the ProtectMarriage campaign. The defendants got the Court of Appeals to intervene in the middle of the proceedings to stop the trial judge from opening up the files of their communications with their partners in the campaign and their internal communications.

Then a larger group of the Court, called “en banc,” seemed to be considering reviewing the panel opinion en banc, and the panel modified its opinion to allow discovery of more of the disputed material. The judge wisely assigned a magistrate to preside over the collateral discovery disputes which continued throughout the trial, and the first hour or so of the trial today reflects a rare eruption of the dispute into the trial itself.

The judge has been, on the whole, pretty permissive about the admissibility of evidence, as you will see, but we won’t know the full effect of the magistrate’s administration of this part of the case until we get to the parties’ closing briefs and arguments, which are still forthcoming. The real agenda here is that plaintiffs must be hoping to catch defendants in one of those lipstick-on –this-pig emails, revealing a hateful homophobia, as the Supreme Court has previously ruled that legislation cannot be defendant if it is merely the expression of hatred or animus toward the target group.

Defendants, who had withdrawn most of their witnesses from testifying, present the first of their two remaining witnesses, Claremont-McKenna political science professor Kenneth Miller. Miller specializes in state and local government and has specifically taught classes on the political and legal issues raised by the battle over gay marriage in California. He also teaches about the role of minorities in American history and, most to the point, he has been thinking about initiatives, like Prop 8, and the judiciary, like the court he is sitting in, since he wrote his PhD dissertation.

Miller testifies that gays and lesbians are powerful in the American political system. Although they lost the Prop 8 fight, they raised a boatload of money, they gained the alliance of the Democratic party, organized labor, corporations, newspapers, celebrities and even--surprise--churches. Statewide officials, including Repubican Governor Schwarzenegger and many executives and legislators, local, state and federal, express support for gays and lesbians’ interests.

Specifically on Prop 8, Miller recites the unions, newspapers, corporations, high tech companies, liberal churches, professional associations, and the like who opposed Prop 8. Candidates gays endorse often win elections, he continues, and the legislature has handed gays and lesbians a virtual basket of victories: “employment, housing, public education, and labor organizations, adoption, foster care, public contracting, insurance, state-funded programs and business services. . . in a series of different victories leading up to the broad domestic partner protections that we have in California today.” Miller specifically rejects the testimony of Plaintiffs’ witness Gary Segura that gays and lesbians lack political power, even at the national level, citing the “increased” support in Congress for various gay legislative initiatives, including efforts to repeal "Don’t Ask, Don’t Tell" policy. “To put it in general terms, I would say that the public has demonstrated increasing support for political objectives of LGBT persons.”

Even in the dreaded initiative process, Miller continues, gays only lost in California when they tried to get married.

Since Miller is famous for his recent publication of a powerful criticism of courts reversing the outcomes of voter initiatives like Prop 8, you would expect to see him advising the court in which he sits to mind its p’s and q’s. This behavior, by an expert witness, is a little unusual, so it’s interesting to see how it plays out. The first glimpse occurs when his lawyer asks Miller what he thinks about a line of Supreme Court decisions on political power and the Equal protection clause:

THOMPSON: What is your definition of political powerlessness?

MILLER: So, this definition is drawn from the Supreme Court's decision in Cleburne, from 1985. And by that definition, political powerlessness indicates no ability to attract the attention of the lawmakers.

THOMPSON: What is your definition of political powerlessness?

MILLER: So, this definition is drawn from the Supreme Court's decision in Cleburne, from 1985. And by that definition, political powerlessness indicates no ability to attract the attention of the lawmakers.

THOMPSON: What is your opinion about the appropriateness of the Supreme Court's use of that test?

MILLER: Well, this was...

David Boies begins to stand.

JUDGE WALKER: Sustained.

(Laughter in the courtoom.)

Oops.

Cross-examining, Plaintiff’s lawyer David Boies follows two lines to undercut Miller’s testimony. One, he presses Miller to admit that he did not know much of what he just said when he gave his deposition earlier. Boies strongly implies that Miller is no expert, but merely a funnel for material the defendants’ lawyers have fed him since he performed so badly during deposition. Second, Boies confronts Miller with examples of gay and lesbian powerlessness – no statewide officials, the federal Defense of Marriage Act, Don’t Ask, Don’t Tell and finally forces Miller to admit that he can’t say whether gays and lesbians are more or less powerful than African-Americans, who are, of course, unassailably the beneficiaries of the Equal Protection Clause.

Boies returns to Miller’s opinion of the referendum process by confronting him with his own writing criticizing it: "In sum, it is ironic that initiatives have the reputation of being a more pure form of democracy when the process undermines democratic opportunities and violates procedural guarantees observed by almost every freely elected legislature in the world." Boies is pressing Miller to admit that Prop 8 discriminates against gays and lesbians when the judge calls it a day.

~Dr. Linda Hirshman, Author and retired Professor of Political Philosophy

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