Liveblogging Prop 8 Trial: Day Seven Wednesday Morning Two (27)
Presuming that testimony will begin with Plaintiffs’ witness Ryan Kendall who will testify to his personal experience at having been forced into "conversion" therapy by his parents when he came out to them as gay.
Plaintiffs’ Counsel Flynn will lead this direct examination.
Kendall: I am an NCIC agent, it is a database maintained by the FBI. I have a secure clearance for this work.
Q: When born?
Q 26 yo?
A: Evangelical Christian University
Q: How did you hear about homosexuality?
A: Prop 2 in COlorado where I was raised
Q: Did your family talk about it?
A: Yes, it was very scary, homosexuality was wrong and evil and threatened our family, my parents said.
Q: What is your sexual orientation?
A: I am a gay man
Q: HOw long have you known that
A: Since i was 12 yo
Q: How did you feel when you realized that you were gay?
A:and what your family and community did NOT like this concept, so I kept it a secret, hidden away from everyone.
Q: What names were you called?
A: Homo, faggot, queer
Q: What else happened
A: Played keep away with my glasses and broke them
Q: What was it like being in that Christian school?
A: They were taunting me with a word that was so close to the truth. My parents changed schools
Q: When did your parents find out you were gay?
A: My parents discovered my journal when i was 13
Q; What happened
A; My parents flipped out, they yelled, it was pretty scary the way they reacted.
Q: Do you remember anything they said?
A: MY mom said I was going to burn in hell
Q: Was your family religious?
A: Yes, church was a big part of our lives
Q: How did you feel when your mom said that?
A: I was totally stunnned.
I could not believe I was eternaly damned.
Q: What therapy did your parents send you to?
A: I was sent to a "christian therapist’ who would make me a heterosexual.
Q: How many times did you go?
A: I went two or three times
Q: Do you recall much?
A: Inconsistent with Christian teachings, disappointed my parents, and that I was a bad person and evil
Q: How did you feel?
A: I always wanted to please my parents, now I was a bad and evil kid.
Q: Was therapy successful? Did it make you heteroosexual?
A: No I was still gay
Q: Did you try to be straight?
A: No I knew I was gay the way I know I am short and half-hispanic.
Q: Next where did you go?
A: NARTH: National Association of Reparative Therapy for Homosexuality, Encino CA …
Q; For how long
A Two =ithree years, 14-16
Q: how was your home life
A: It was like night and day. My parents used to take me to school, make notes and put them in lunch, pick me up. Afterwards they called me names and that they hated me and I was disgusting. My mom told me she wishes she’d had an abortion instead of a gay son, or Down Syndrome or a retarded kid… instead of a gay son, me.
Q: Who at NARTH>?
A> Joseph Nicolosi, ED of NARTH
Q: Where meet with him
A: Over the phone hour, 90 miuntes. Then travel to CA.
Q: What did you talk about?
A: Homosexuality is incompatible with Christian teachings, and not what your parents want for you.
Q: Advice how to repress homosexuality>?
A: No specific advice, just general admonishments
Q: did your NARTH experience help you reconcile your gayness and your faith
A: At NARTH I was told I was dirty and bad, the therapy played no role inmaking me batter or healthier
Q: Were you straight when you were done?
A: Just as gay as when I started
Q: Why did you stop going?
A: My life had fallen apart: my faith, my family, everything. If I did not stop going to NARTH, I wouldn’t survive. I would kill myself.
Q: How were you able to stop?
A: At 16 I surrendered myself to the COlorado DEpt of CHildren
Q: How does that work
A: I told a social worker I was going to kill myslef if I didn’t leave my parents. They started an abuse and neglect proceeding against my parents.
Q: How was that?
A: I was incredibly suicidal, I turned to drugs to escape reality, things did not get better, I had lost everything
Q: How long did this period last?
A: 4-5 years
Q How did you support yourself
A: It was a struggle
Q On public benefits?
A: I had to go to emergency rooms for health care
Q: How long have you worked for the Denver PD?
A: 2-3 years now
Q: Are you stable and can you support yourself
A: Yes, it has been really hard but I have been able to do that
Q: Just a couple more question
Q: Are you aware of orgs that advocate for gay rights
A: Yes I am a member of Log Cabin Republicans, and a member of the Denver Commission on LGBT Rights
Q: Are you testifying for them or for you?
A: For myself Ryan Kendall
Q: Have the se orgs shaped your testimony
Q: no more questions
Campbell for DI:
Q: Live in CA?
Q: Did you partticipate in No on Prop 8?
Q; You were contacted by SF CIty Attorneys off ice, yes?
A: YEs, in OCtober
Q: Have you studied human sexuality?
Q: Hvae you known people who profess to have changed their sexual orientation?
A: In public yes
Q: You were compelled by your parents to go to conversion therapy?
Q It was all your parents, without your consent
Q You told your parents your objections
A: I told my parents and my therapist
Q: But that did not matter?
A: Yes it did not
Q: Did you have the goal of changing your sexual attraction?
A: YEs, I just wanted to survive it
Q: but your goal was not to change
Q: You talked about things your parents said to you?
Q: But your family experience was just as damaging as the therapy itself?
A: Yes I said that
Q: At some point your parents lost custody of you?
Q After that did you go back to live with your parents when you were 18?
A: Yes, briefly
Q: Some people volunteer and choose to go into conversion therapy?
A: That’s not my experience
Q: So no one has ever gone to conversion therapy voluntarily?
A: I dpont’ know EVERYONE, but in my exepriecne NO.
Q: BUt you have acknowledged that some people have success with conversion therapy ?
A: I don’t know that
Q: Have you met anyone who succeeded in conversioun therapty?
A: Yes, Nicolosi trotted out his perfect patient, named Kelly, who (when the doctor left the room) told me that he was going to a gay bar that night and was pretending success in conversion for his family.
Q: You said you went bakc to you parents at 18?
Q: And do you talk to your parents now>
NO MORE QEUSTIONS
NEXT PLAINTIFFS WITNESS: Gary Segura
(waiting for Thompson to return to D-I Counsels’ table)
Boutros: Morning, prof Segura Please tell us about your background
A: Political science prof at Stanford, PhD at University of Illinois, president of the midwest political science association. Also head of the Stanford Center for Democracy, which studies American elections.
A: American Election Studies are conducted every four years since 1948, giving a long portrait of what electorate thinks about things.
A: Editorial board of the AJPS, (other journals, Politcal Science and POlitics)
Q: Give us the general nature of your studies
A: Student of political representatation, a student of political behavior, how these things subseqently connect to policymakers.
Q: What is a representative theorist
A: Vexing question forever: Are elected officials responsive to changing views of the public? I try to look at the dynamic of communication btw elites and the public
Q: Now do you focus on minorities?
A: Specifically minorities, hispanic/latino
Q: What about G&L
A: I have
Q Book name
A: Latino Lives in America
Q: PX 2330 in your binder. Is that your CV?
Q: And publications
Q Publish in peer review publications
A: Total, 42 publications. 25 are peer reviewed articles; about 15 chapters in edited volumes, grouped with several others and refereed together
Q: How many in the last decade
A: 20-40? Constantly
Q: List in your CV?
Q: Work in G&L politics and issues/
A: Yes. 1 piece on whether different electoral structures favor representation of G&Ls, specifically in SF. Also, self-identification of those minorities who can ‘pass’ as others. Finally, satirical article in Political Science about the results of the 14 ballot initiatives in the 2004 election that restricted G&L rights.
Q: Classes at Stanford about G&L participation in the political process?
A Haven’t taught G&L Politics inabout a decade, but as part of minority participation in politics.
Q: Present binder and publications, list of exhibits
Thompson: NO objections
Walker: Very well. Let the document speak for itself, don’t read it all.
Boutrous: What were youasked to evaluate…
Walker: Have you qualified this witness?
Boutrous: I will do that now, about the powerlessness of G&L in American politics.
Walker: So qualified
A: Was asked to review power/powerlessness of G&L in American politics.
Q: How did you do your work?
A: Read, reviewed statutory status of G&L to determine their circumstances wrt disadvantage. Looked at public attitudes to G&L, presence or absence of G&L in public office. Looked at ballot initiatives.
Q: rely on these exhibits in the binder to form your opinions?
Q: And rely on your general knowledge
A: Yes, I did. I started graduate school in 1985 and have read thousands of journal articles since then, but my specific points here today are based on the exhbits
Q: DId you rely on book by RObert Dahl?
A: Everyone reads Dahl.
Q: did you review Dr Nathanson’s testimony and depo?
A: Yes, in overflow room
Q: did you prepare a reaction
A: Yes I was deposed on that
Q: Did you also review Dr MIller’s depo?
A: I did, and I was deposed on it.
Q: opinions of gary segura:
A: Yes, three: 1. G&L do not possess a meaningful degree of political power. They can’s effect their desires in legal framework
2. G&L suffer political disabilities greater than other groups that have received suspect class protection
3. the opinions of Dr Kenneth MIll are fundamentally flawed and incorrect.
q; is your defition of politcal powr generally accepted?
A: Yes: If party A can get party B to do something B would rather not, it’s political power not simple agreement.
Q; AS you define political power, how does pluralism work?
A: FOunders in Federalist papers, then reinvented in political thought in the 20th centuruy, that FACTION is a great threat. Individuals who hold power for a long time without rotation might tyrannize others. Solution, for Madison, was the republic. In 20th century, we ascribe the success to pluralism. Groups disturb and organize, in an almost Newtonian way, prevents the accumulation of power by one group.
Presupposes the contestation mechanism is fair. "Flaw in the pluralist chorus is that it sings with a decidedly upper-class accent" Resources dictate success within pluralistic society.
Q; DO courts play a role in pluralism?
A: WE call our government Madisonian, with regard to a set of constraints to rein in the majoritarian impulse. There are limitations on whast the majority can do.
Q; When you talk about obtaining politcally favorable outcomes, does that mean they are powerful?
A: Well, that’s one. Also, circumstances? Judicial, legislative? Bipartisan or only in one party? Proces by which the outcome was achieved is important.
Q: Example, please of favorable outcome lacking political power.
A: Houston mayor is a lesbian, but the race pitted a white lesbian Democrat against a black male Democrat. In Houston, the fracture line is along development, can developers get their way? Complex web of fracture lines. That she was elected was wonderful, but a lot else was going on. Houston recently voted down employee partner rights, though, so the new Mayor’s partner of 19 years is ineligible for partner benefits!
Q: Obama signed hate crimes, is this example?
A: Yes, 20-year effort. BUt, context: legislation criminalizes bias-motivated attacks on G&L. Ameliorating a real serious disadvantage, not expanding rights. And in order to pass, it had to be attached to the Defense authorization bill. Even though so attached, 75% of GOP House members voted against it, not a customary oposition of the GOP, against Defense Dept.
Q; Analyzing political power, do you also look at how vulnerable the achieevements are?
A: Yes, not always, but certainly for G&L, because of ballot initiatives. OVerturned by popular plebiscite. Initiatives have rollewd back gains. 150, not counting marriage, G&L antidiscrimination votes, in 20 years. 75% of these have lost.
Q; Another factor?
A: Subejct matter obtained in legislation. In CA, many laws have a standard anti-disc rider. That’s not a big victory, because it’s not clear G&L activielyt worked for rigths in insulationcontracting, for instance. We want to focus on the important issues when we measure power.
Q: Is marriage importsant to G&L?
Q; What are the markers of power?
A: Results & Manifestations.
Q: Give us an example
A:Statutory protection or disadvantiage. If laws hurt you and no laws help you, that’s statutory disadvantage.
Q: Demonstrative 3
A: States that have some form of employment disc protection for G&L. There are 29 states with NONE.
Q: You heard Nathanson talk about mathew shepard. Where was it?
Q: Protections there?
A: Neither employement nor hate crimes
Q: Are there federal statutes that indicate a lack of political power for G&L
A: Yes, also disadvantages: no housing, no employment, no partner benefits, exclusion from military service. historically, until the 1970s, G&L couldn’t work for the feds
Q: Tell us about Frank Kameny
A: Early days of the homophile movement, first pro-gar organization working to ameliorate disadvantages was The Mattachine society. Revived in 1960s in DC by Kameny, around employment. He’d send letters to agencies asking them to drop obstacles toemployment of G&Ls.
Q: Was Kameny employed by feds?
A: I think he had been dismissed
Q: Statutory protections in CA affect your view of lack of power for G&Ls?
A: Yes, presence is good, but let’s look at circumstances in which they are passed. Most are attempts to redress discrimination, purpose is to ameliorate a wrong. It’s good to have, but is it a measure of power? It’s like saying a person with lots of prescriptions is very healthy.
No, you have laws against discrimination because there IS discrimination!
First attempt to redress employment and housing disc was vetoed by the governor, then moved from housing law into labor law, which allows less time to complain and lower penalties. Signed then into law.
Problematic to only look at one jurisdication. A CA DP doesn’t protect you when traveling to Las Vegas or New Orleans. Positive statutory outcomes don’t alone demonstrate political power.
Q: Demonstrative on Romer v Evans
A: There is trope that G&L rights are ‘special.’ Justice Kennedy writes that they are not ‘special’ but are protections taken for granted by others. Either they already have them or don’t need them.
Q: Tell us about ROMER
A: Not only rolled back existing laws, pre-empted any future local lawmaking to protect G&L
A: NO group in American society that has been targetted by ballot initiatives more than G&L. More than 200 times, lost more than 75%. Initiative process nationalizes this issue, money and publicity crosses state lines. Nothing is local.
Q: Q: How has the ballot initiative process beenunleashed in this manner against G&L?
A: Proponents andopponents would say there is a culture war. People get hot under the collar. Reasonable check on the legislature, but also used to target minorities. NO GROUP HAS BEEN TARGETED MORE THAN G&L. Inflamed momentary passions.
Q: Particular disadvantage for G&L?
A: Yes, in CA particularly because constitution can be amended with just 50%. Wide distribution of turnout. Money and organization transcends state lines; moves away from state issues.
Q: How many gaymarriage bans have passed?
A: 33 of 34, because AZ rejected a ban once and then went back and endorsed it.
Q: What about 187
A: Immigrant restrictions, but then struck down in court. Basis of suspicion for turning down state benefits was not defined in law, so services would be withheld capriciously. State did not appeal when it was struck down.
Q: Effect of G&Ls achievement of power, while fighting ballot initiatives?
A: Legislative gains hard fought are overturned. Contesting issues over and over and over, spending lots of money. Less obviously, legislators think twice about passing good laws for G&Ls if they think they’ll be overturned by plebiscite.
Q: How doe sit work for contstitutional issues?
A: In CA, only a vote of the people can undo the vote of the people.
Q: Underrepresented in political office?
A: Only six elected to congress; only two elected as gay.
No Senate, no Cabinet, 5/100 of 1% of local officials.
Q: how doe sthis low number affect powerlessness?
A: In political science we call this descriptvie representation. One effectis that there is direct representation. Having a G&L sitting at the table increases the G&L voice, theier wishes consdiered in the process. 2. Serves to constrain som eof the bad behavior by peers. When Carol Mosely Braun served in senate, the Senate reauthorized the Daughters of the Confederacy, and she made a powerful speech as the only AA member of the body, and the senate promptly reversed itself.
Q: So lack of representation undermines political power how?
A: Speak about G&L in ways they would never speak about other minorities in the electorate. Senators have compared same sex marriage to marrying a box turtle; "Man-on-dog"; Coburn says the G&L agenda is the greatest threat to freedom today; SC Senator said that G&L shouldn’t be allowed to teach in the public schools. HArd to imagine another group being spoken of this way.
Q: This hurts G&L power
A: Demonstrates real hostility. And when a person in power says this, it moves these deeply hostile beliefs into the mainstream.
Q: what else contributes to powerlessness?
A: Sheer low numbers
Q: role of prejudice?
A This is profound, it’s a struggle on ideas, but if the group is envisioned as morally inferior, a threat to children, a threat to freedom — then the legislative process is constrained. Our negotiation can’t go very far if I think you are an inherently bad person.
Q: Did Nathanson talk about hostility?
A: A majority of Americans find sex between two same sex people is morally wrong. This makes it very hard for them to participate in the political process.
Q: talk about ‘feeling thermometer’
A: On a scale of 1 to 100, how warmly to you feel about….
This allows to give honest answers without comparison in each answer, but we can aggregate the answers acorss groups.
Q: Did you do analysis of this?
What did you find
Q: the American public is not very fond of G&L
ALmost any demographic scored in the upper 60s, between 65 and 69. Every group has its haters; there are always some who score poeple low. But: for G&L, the score was 49. This means the societal difference was huge.
Over 65% of Americans places G&L below 50m the midpoints. There are lots more haters of G&L than there are of other groups. When you see this, it means elected officials can say bad things about G&L and have lots of agreement with the public.
People can be motivated to sign and vote for refernda based on these views.
Q: What’s your view of religion and G&L?
A: It’s the chief obstacle to progress. Can’t think of a more powerful entity than the church in America. People meet togther on a weekly basis. In large measure, they are arrayed against G&Ls. Except for the southern baptists, for instance, AAs had the support of the civil rights movement from almost all churches.
Q: interaction as it relates to political power?
A: Biblical condemnation and the teaching of inferiority makes the political discourse very hostile.
Q: DO you recall Dr Young’s testimony earlier?
A: She admits that religious hostility is an importnat role in conducive to hateful acts in the public sphere, as well as prejudice and discrimination.
Q: Are religious groups unified against another group as this?
A: No, opposition to homosexuality has been a real boost in the arm for evangelical movement, since they all agree on it.
Q Does violence contribute to powerlessness
A: First, distinguish between simple assault and hate crime. HAte crime involves sending a message to the entire community: not just the imediate victim, but also everyone else. Creates a fear that chills individuals.
Q: did you review FBI hate crime report admitted here
Q: and the Los Angeles report on hate crimes
A: released after my depo, but i have reviewed it now
Q: hate crimes against G&L up or down in America
A: no real decline, and in last five years an actual increase
A: increase from 2007 to 2008, and G&L are representing a larger share of all hate crimes being measured.
Q: what;s a hate crime?
A: Underlying offense with a purpose that was bias related. Shouting an epithet in association with another crime.
Q: COmpare 2008 over last decade?
A: Substantial increase. Also intensity, we want to look at the type of crimes. FBI looks at what percentage were violence and not just vandalism. 75% of hate crimes against G&L involved violence. MOre than two thirds of hate motivated murder and rape was against G&L
THERE IS SIMPLY NO OTHER MEMBER OF SOCIETY WHO IS LESS SAFE IN AMERICA THAN A LESBIAN OR GAY MAN. NONE.
Q: Los Angeles report?
A: Two items: hate crimes on bases of race, ethnicity or national origin declined by 16%. Increase of 21% against G&L. NEgative drift overall, but not for G&L. Second, LA county documents a specific number of crimes related to Prop 8 ballot initiative. NIne acts of vandalism, smaller number of assaults, targeting cars and homes. And four violent crimes.
Q: Page 26, closer look at sexual orientation hate crimes
A: reports the distrinution of crimes; some decreased, many increased some a great deal.
Q: Did you see yesterday’s video about crimes against prop 8 suporters?
A: Yes, I oppose all these acts. But none were mentioned in their report against G&L supporters. A political scientist, in measure hate crimes due to prop 8, would look at crimes against all.
Q: Are G&L pressured to remain invisible?
A: Socioeconomic pressures of the closet. Vary dramatically across the country, across race and ethnic, across class groups. Self-identification can profoundly affect pepople;’s lives, and mostly negatively.
If you can’t self-idenitify, you can’t be mobilized politically. You can’t attend a gay rights march if you’re in the closet; people will wonder what you’re doing there. It’s hard to find other G&L, especially when already low density, if closeted. Public sees G&L activists in major cities and thinks they are powerful. But closeted people aren’t seen, so public has a lower estimate of G&L, a misperception of economic power and political power.
NOT EVERY GAY MAN IS WILL FROM WILL & GRACE.
Will is a New York attorney with a nice aparment and a great job with lots of friends, so why does he need legal protection?
Q: Are G&L censored?
A: Over 25 years, statutory enactments against discussion of G&L in health classes, for instance. Or teachers must tell students G&L is bad and unhealthy. Provisions against artistic funding with gay themes. US MAil once prohibited as obscene.
Q: Anything in the Yes on 8 campaign that is censorship.
THOMPSON OBJECTS; Not in his report
BOUTROUSL: Yes it is, and thompson asked him in the depo.
Walker: So, did you talk abuot the motivtions of Prop 8?
Walker: Well then the witness may answer
A: An enduring trope is that gays are a threat to children. One campaign ad, young girl was told she could marry a princess too. If Prop 8 fails, the public schools are going to turn my daughter into a lesbian. Strong taboo against portrayal of G&L as anything but pathological. NOt eve neutral, but always bad. This lowers the familiarity of the public to the contribution of G&Ls tosociety.
Q: how affect political power?
A: Demeans, and not taken as serioously. NOt seen as desireable coalition partners. Easy to target non-contributors.
Q; what about allies>
A: It;’s nice to have allies, and it’s great if they are reliable. Many times allies retreat, or their rhetoric exceeds the actions they actually take. Of church, military, government, political parties
only Democratic party favors G&Ls but DOMA under Democratic president, DADT under democratic president and NOW WE HAVE:
PRESIDENT FIERCE ADVOCATE!~~~ with his ninth circuit briefs against G&Ls comparing them to bestiality, and proposing nothing to benefit gays and lesbians excpet Hate Crimes which is an amelioration not a benefit
Q: Are there reliable allies
A: YEs, look across the country, the number of allies in a tough fight is very small but not zero.
Q: is that number sufficient to get them power
Q: Impact of HIV AIDS on limiting political power
A: Over 300,000 deaths of men; another 250,000 ijfnections. Dimishing the voting power of a group already small. Sapped the financial resources of the group. THose passed, and all, can;t help much. Resources from the healthy are directed to HIV AIDS prevention and support, quite rightly, so can’t be devoted to fighting. HIV AIDS meant G&L turned to survival before politics.
q: does that affect power?
A: Hypothesize two groups equal in money and numbers. the group with fewer opponents will be more powerful, the other has tougher sledding in the face of organized opposition.
Yay, another Binder of exhibits!
Boutrous presents list, open to PX1550.
Did you reeview this doc? Did you study the prop 8 campaign? Degree of opposition to G&L from the campaign?
A: I know what money was spent, but not a lot of info about volunteerism, etc.
Q: But you’ve looked at some docs we got in the last week?
Q: Yes, 1550 is one of those.
Q: Describe it please, what does it tell you about the opposition to G&L people?
A: flyer or website, screen capture sent along with an email. Mentions the role of LDS church in support of Prop 8.
Q: Display and admit 1550,please. Which section?
A: "LDS Church Takes An Active Role" in which the 1st Pres of LDS took an official position and sent it to all leaders of LDS in CA. CHurches are heirarchical. All churches can speak to their flock once a week or more, strong comm network. LDS was very active, not simply financial but also grassroots.
Q: turn to page three. What there is relevant to political forces arrayed against G&L in prop 8 campaign?
A: Under suibtitle Pastors Committee: "Jim Garlow of Skyline Church invited pasters statewide to first of many conference calls. 1700 pastors in 101 locations across the state participate." Garlow organized this team, the evangelical community — 1700 PASTORS IS HUGE!! Any campaign would be delighted to have this enviable organization.
Q: But nothing wrong with banding together to fight for beliefs?
A: Well, tax code limits advocacty. But in a plural democracy, advocay is protected. I was just taken aback by its size and breadth.
Q: Another exhibit. what is it?
A Cover page of ProtectMarriage.com’s website
Q; Move to admit
Q: what caught your eye hear
A:L The word "coalition" listing all the people who’ve joined together to support Prop 8. Coalitions exist in an informal association in politics; the impression I got was that of an organzied effort rather than simply a bunch of peolpe/
Q: Now beforep you saw this, was this word important?
A: Level ofpowerlessness is enhanced if there is a coalition arrayed against you.
Q: Another exhibit, admitted, describe please?
A: screen capture, Pastors Rapid Response Team (which sounds fun) headed by Jim Garlow at Skyline Church.
2314 admitted without OBJECITON
Q: Whatis a rapid response team?
A: More accustomed to it in context of toxic spills, fires, natural disasters. taken aback by an organization ready to go with reaction to something G&Ls might do, with their allies, right away.
OJECTION: Lots of these upcoming documents are stamped ATTORNEYS EYES ONLY — CONFIDENTIAL. Can we take a break to go over these with opposing counsel to decide what can come in>
OBJECTION NUMBER TWO: Counsel to pastors who wants to keep documents out (and challenge their authenticity) and is still negotiating with Plaintiffs to admit them. I’m seeking protective order to quash admission of these docs, and these docs would be in cluded if they involve first amendment issues of testimony of pastors’ sermons, speeches about their biblical beliefs.
WALKER: Two suggestions, THompson’s for lunch. Counsel for Rev Garlow.
BOUTROUS: WE provided discs & documents and he said his clients couldn’t review them because it would be too burdensome. Next doc does NOT say ATTORNEYS EYES ONLY or CONFIDENTIAL. These are docs produced after the ninth circuit’s opinion and the magistrate rules on the scope. If they had 3000 pastors on a conference call, there’s no first amendment protection under religion. And we did redact the names that we believe had not been made public consistent with our agreement with MR Cooper.
We had a dialogue with D-Is counsel this weekend to help us eliminate names that had not been publicly revealed. We don’t see any limitation on our use.
Counsel: I’m dealing with an attorney named LAZARUS: she stated that if my clients would review them for authenticity. I sent them overnight mail to my clients b/c the prior package was over 40 hours on Sunday and MLK holiday. My clients are reviewing them thinking there is an offer on the table, but we want to have our motion to STAY and our motion to QUASH heard by the FULL NINTH CIRCUIT in case they are covered.
WALKER: But these weren’t obtained form your client.
Counsel: It’s only separate if there is testimonial material.
WALKER: What do you mean by testimonial?
Counsel: They are, through these documents, getting first amendment protected statements into evidence despite the stay and quash motions being considered. The court is asking a pastor to testify as to his view of same sex marriage and traditional marriage.
BOUTROUS: He’s on the Rapid Response Team.
WALKER: SO, you are saying he should be able to answer quickly. Let’s have lunch. Oh, wait, here’s word from Magistrate Spero: the proponents’ (D-Is) motion to limit John Doe’s testimony is denied, but the motion to limit testimony by [named, didn’t catch, but not Ron Prentice] is prohibited.
[Not sure what this magistrate ruling means; will try to find out at lunch]
David Dayen will pick up at 1:00 Pacific time at the FDL News Desk.