Dr. Linda Hirshman

Day 8 continues with Defendants’ cross-examination of Professor Segura. David Thompson makes what looks like a pretty basic mistake asking Segura to acknowledge a long list of churches that opposed Prop 8, as evidence of gay and lesbian political power. But though the list is long, the memberships are short, amounting to 2% of the American public. The Catholics and Southern Baptists, who supported Prop 8 amount, by his testimony, to a third of Americans.

It is unclear to me why Thompson, who must have known this, is making the argument. It’s a little like the defendants’ charts about the Dutch marriage rate, which simply pluck the year 1995 out of data that runs from 1960 to 2008 to make their calculations. Do they think the plaintiffs won’t check the numbers?

For the rest of his cross of Segura, Thompson builds an interesting argument that religion drives all sorts of political behavior, on a wide range of subjects, some of them not involving minorities at all. Therefore, he would have the court imply, the heavy involvement of religions against gay and lesbian interest doesn’t make them any more a disadvantaged minority than, say, people who oppose social welfare or favor the death penalty.

Thompson then spends a longish time asking the witness what he thinks of various media reports of violence against supporters of Prop 8, supposedly to show that the gay supporters’ violence must reduce their ability to invoke moral support for their cause, possibly contributing to their defeat. Since this argument actually bolsters the plaintiffs’ case for the reduced political power of gays and lesbians, at one point the witness tells Thompson directly that he’s making the witness’s case, not normally the role of cross-examination.

Segura makes an interesting point when Thompson tries to stretch the definition of harmful pro-gay violence to include boycotts of establishments whose owners supported Prop 8. Boycotts, Segura contends are NOT comparable to violence, but represent a method of acting outside of politics by the politically disempowered that goes back to the Americans’ boycotts of British tea in 1775.

Thompson tries to get Segura to acknowledge that political power for gay people has gotten much better in the last twenty or so years, quoting media authorities like Time and Newsweek, but Segura won’t budge. He does admit, however, that he himself said in 2005 that the change in attitudes toward civil unions was astounding.

On redirect, he explains that the change might actually be a defensive posture against a growing pressure for marriage itself. As the day goes by, the connection between the testimony and the narrative required by the constitutional claims at issue gets more and more tenuous. Plaintiff’s attorney Theodore Boutros is reduced to asking the witness to read aloud from the Supreme Court decision in an NAACP boycott case, apparently to rebut any implication that gay people did something wrong in refusing to patronize the prop 8 supporter’s restaurant. He also elicits testimony from Segura that he doesn’t believe any of the defendants’ stories of victimization, especially the ones that come from the magazine of the conservative think tank, the Heritage Foundation.

Things get more on track when Boutros solicits Segura’s opinion about the spate of gay triumph articles that appeare d around the election of 1992, which put a Democrat in the White House after a twelve years. You see, Segura says, things are not getting steadily better. People thought they would, in 1993, and that was before all the anti-gay marriage, military and even anti-anti-discrimination legislation that Colorado passed, which was later thrown out as unconstitutional.

Segura ends his testimony by summing up his rebuttal to the now non-testimony of defendants’ witness that gays and lesbians are powerful: “to conclude that gays and lesbians have the political power to protect their basic rights in the political system would be the political science equivalent of malpractice.”

Plaintiffs then call Hak-shing William Tam, the only human defendant intervenor who did not withdraw in time to avoid being called. There has apparentl y been a battle going on with defendants’ lawyers trying to get plaintiffs to allow Tam to withdraw and plaintiffs resisting. The judge orders him to testify, withholding ruling on whether it would be as a party or just as a witness. There is, almost from the outset, a hesitancy about Tam’s testimony; whether it is unfamiliarity with every nuance of the English language or with the court proceedings is unclear.

But David Boies, who is infinitely patient in cross-examination, slowly gets him to make the admissions Boies seeks--that Tam was a part of the Prop 8 coalition, took part in their debates, invited them to his rallies of Asian-americans, collecting signatures, instructing church leaders on messaging, allowing himself to be described as one of the leaders. Then Boies leads Tam to admit that he is the secretary of an organization which generated a website accusing gays among other things of being linked to pedophilia, being twelve times more likely to molest children, push a gay agenda, control the city of San Francisco, legalize prostitution and lower the age of consent!

Tam gets these ideas, he mostly responds, from articles on the internet. Boies just drapes Tam with the statements from his leaflets and his website – that the Netherlands allows incest and polygamy, that calling gay relationships marriage leads to moral decline, and more.

Not surprisingly, much of the defendants’ examination, which plays the role of redirect in this topsy turvy relationship, is directed to distancing Tam from ProtectMarriage.com, mostly establishing that he did not run his pronouncements by them before producing and distributing them. At last, Mr. Tam, who told his lawyers at break that he felt like a naughty boy being mocked on the witness stand, gets to stand down.

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

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