Thursday, January 21, 2010

Prop8 on trial: the beginning of Week 2

The trial of Perry v. Schwarzenegger, addressing the constitutionality of Prop8, resumed on Tuesday, with some procedural issues about admission of documents. The plaintiffs (=Good Guys) want access to documents about the campaign, which is vigorously resisted by the Defendant-Intervenors (=Bad Guys).

Day 6 began with Expert Witness #8 San Diego Mayor Jerry Sanders, speaking about his conversion to a marriage advocate. Sanders' daughter is lesbian. But what's more notable is that he's a Republican, former police chief, and the heart of the establishment. He originally promised to veto a San Diego City Council resolution that favored marriage equality, but in an emotional press conference in 2008, changed his mind, much to the dismay of his base, and became an active campaigner against PropH8. He explained that he was shocked at how hurt his GLBT friends were when he told them civil unions were good enough, and that he had an epiphany:
"I could not bring myself to tell an entire group of people that they were unequal . . . I couldn't look them in the face and tell them their relationships were any less meaningful than the relationship I shared with my wife."
"It's not necessarily hate," he added, "but it is prejudice." And he repeated this over and over during cross.

Excellent witness. Great dad. You can read more at Rex Wockner's site here.

Expert Witness #9 Professor M.V. Lee Badgett of University of Massachusetts testified on the economic effect of marriage inequality. She described how couples are hurt financially if they can't marry, and showed that there is no negative effect to STRAIGHT couples if GLBT couples marry. She also showed that there is a negative effect to the state if people can't marry. Finally, she presented evidence that GLBT couples and straight couples are really indistinguishable in terms of demographics (and apparently also in terms of logos, see here).

On cross examination, the Prop8 side tried to poke holes in the argument by twisting numbers. For example, they claimed that there was a decrease in straight marriage and increase in out-of-wedlock children in the Netherlands once marriage equality occurred. ANy scientist will tell you that you cannot make a post hoc ergo propter hoc argument about causality without better data, but more telling, their contention was shown to be false, because they only looked at one time point. They ignored the long term trends prior to equality. (They have real trouble with science and quantitative data, these defense attorneys. It's of course characteristic of the social conservatives to ignore data that doesn't agree with them. But if the preponderance of data disagrees with your viewpoint, you don't get to cherry pick the one guy who agrees with you and ignore the 99 who don't).

Day 7, the witnesses were Witness #10 Ryan Kendall, who testified movingly about his parents' reaction when he came out--his mother told him she wished he had been aborted, despite her Evangelical Christian views-- and their insistence he participate in "reparative therapy" and the damage it did. (Can you imagine what it must mean to a boy to be told by his mother she wishes he had never been born?) The Prop8 supporters want to argue that being gay is a choice, and not an immutable characteristic, and therefore not eligible for protection. They tried to keep the witness off the stand because they didn't want to discuss "forced conversion".

The main part of the day was spent with Expert Witness #11 Stanford University Professor Gary M. Segura, who testifed that GLBT remain strikingly unpopular politically and socially. Among the important quotes:

"There is no group in American society that has been targeted with ballot initiatives more than gays and lesbians."
Not to mention losing 70% the ballot box.
"Gays and lesbians are not able to protect their interests because they do not possess meaningful political power."

"I think President Obama is perhaps the best illustration of an ally who cannot be counted upon, an ally whose rhetoric far exceeds his actions."
So much for the fierce advocate for change. Remember there are no federal protections: no federal non-discrimination (ENDA), no repeals of DADT(don't ask don't tell), no repeals of DOMA (defense of marriage).

Professor Segura pointed out that anti-GLBT hate crimes are on the rise, citing data showing that in 2008, 71% of hate-motivated murders were against GLBT people. And then he quoted the outrageous and hateful remarks of opposition politicians.
"When two US senators compare gay marriage to bestiality, that is not the fringe, that is the US senate."
He also showed that in 29 states there is no protection, no non-discrimination policy that protects GLBT people, and of course, no federal protections. Finally he made the point that using initiatives to target GLBT people is a cynical ploy to inflame the base and support conservative candidates and measures.

There were some bombshells. In a discussion about the Prop8 campaign, and the array of forces supporting it, some documents came out from the campaign revealing just how deeply entwined the Catholic church and Mormon church are in this. The defense tried to keep these documents out, claiming that because they were written by religious people, their views were protected and private. The plaintiffs countered that if you share a letter or a view with 3000 people in a phone conference on a political issue, it's not private.

There were documents thanking the Conference of Catholic Bishops for their "unprecedented" support of this campaign. You know how we said that the Catholics and the Mormons were in bed together on this one? One pro-Prop8 document main funding to put 8 on the ballot was from Auxiliary Bishop Corleone of San Diego’s efforts amongst Catholics (he's now in Oakland).

From the Courage Campaign
This is perhaps the most explosive bit of all, from a document between the LDS Church and the campaign:
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.
Get that? The LDS Church intentionally worked to hide behind the scenes to disguise their involvement in the public realm.

From the AP
Other evidence presented by the plaintiffs Wednesday provided new details confirming reports from the 2008 campaign that Catholic and Mormon church leaders were heavily involved in promoting Proposition 8, directing money, volunteers and advisers to the effort.....

"This campaign is entirely under (Mormon) priesthood direction in concert with leaders of many other faiths and community groups," read an e-mail from Mark Jansson, the church's representative to the executive committee that oversaw the Yes on 8 campaign.

Theodore Boutrous Jr., a lawyer for the couples, told Walker the documents were significant because the Mormon and Catholic churches tried to downplay their roles in the campaign. Segura testified that having two powerful religious groups form an alliance against gay rights was a big asset for gay marriage opponents and "unprecedented, in my experience."

(My emphasis). Prof Segura also said
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.
The fact that the opposing churches are much larger than those in favor of equality was also mentioned. They are pussyfooting around the religion issue to some degree, and did not bring up the question of why the political process should favor one religion's views over another.

As the Courage Campaign summarized,
Basically, Thompson went through every possible event, election, legislation, or judicial decision that could possibly be construed as a victory for the LGBT community and asked Dr. Segura whether he felt that represented political power for the community. Dr. Segura pointed out, time after time, that you have to view each victory in context, each election in context. For example, Annise Parker, the newly elected Mayor of Houston, is an out lesbian. However, she does not get benefits for her partner, and says that she will not take the lead on them. Furthermore, Parker lives in a state with no protections for LGBT employees, and little, if any, protections whatsoever for the community.
Now, let's talk for a moment about the pro-Prop8 witnesses on the calendar for the defense. One feature of this trial is that the video tapes made when the witnesses were deposed can be admitted into evidence. (Depositions are taken under oath). As I mentioned before, several of the defense witnesses have withdrawn, ostensibly because the trial is being taped (even though not broadcast). THe defense claims they are afraid for their safety. Our side suspects it's more likely because the depositions show that those witnesses aren't so hot-- for the defense! They got two depositions admitted and it looks like the defense should work for the plaintiffs.

Paul Nathanson PhD and Katherine Young PhD between them agreed that (in the summary by AFER)
“equal marriage would increase family stability, improve the lives of children, and that gay men and lesbians have faced a long history of discrimination including violence. They also acknowledge broad scientific and professional consensus in favor of equal marriage.”
Dr Young also noted that with separation of church and state, this kind of religious persecution shouldn't be allowed.

You can see their depositions yourself here. I have to say, why would the defense even suggest these witnesses? Didn't they actually ask them any questions before putting them on the list? It sounds like a failure in due diligence on the part of the defense to have their own witnesses so readily "turned" to the other side.

Day 8 will continue the cross examination of Prof Segura. Other plaintiff witnesses to be called are Gregory M. Herek, Ph.D. a Professor of Psychology who will testify about the nature of sexual orientation, and how medical professionals view it as a normal variant. But we are all looking forward to the testimony of Mr William Tam. Tam's the one who wanted to withdraw from the case, which he had joined voluntarily as a defendant intervenor.

Just to remind you, although the"offical" defendants of the case are Gov Arnold Schwarzenegger and Attorney General Jerry Brown, neither of them are willing to defend it. (Brown agrees it is unconsituttional). So a bunch of prop8 supporters "intervened" to defend Prop8, hence the term "defendant intervenor". Tam, a vocal supporter and organizer of the Pro-Prop8 campaign, is one of them. He claimed he wanted to withdraw because he feared for his safety, but since he's been a public face of the campaign, this is not really plausible. It's more likely to be because he wants to hide his views. ( His deposition says that the gay agenda was founded in 1972 to support sex with children. ) They may also call Ron Prentice, a minister and leader of the campaign, to authenticate newly provided documents. The plaintiffs should finish their side of the case Thurs or Friday. Then the Defendants step up to justify their bias.

My summaries rely on the outstanding live-blogging and analysis from these sites, but any errors are my own.

Full trial transcripts are now available from AFER.

All my previous posts on this trial are here.

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