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Prop 8 Trial Livebog Week 2 Day 2 Pt. III (28)

Headed back with the rest of Gary Segura’s testimony. I believe there will be a bit more direct examination before cross.

Judge Walker gets us back in session. He asks someone from plaintiff and D-I team to visit Judge Spiro’s court for another ruling.

Boutros examining Segura.

Boutros: Go back and describe the following document.

Segura: An email to many people from Ned Dalessi.

B: Is he a member of

S: I’m aware of that.

B: Describe nature of whom the people this message was sent.

S: Members of the Roman Catholic church in CA.

B: Describe the content in broad terms.

S: Half of a thank-you note, half of a celebratory message, discussing help that Catholic organizations

B: What’s the subject line?

S: “Go to confession”

B: And the date?

S: November 4, 2008, 9:28am

B: Your honor, I want this entered into evidence, redacted if possible. Shouldn’t be redacted, but just to move things along.

Walker: Mr. Pugno?

Pugno: We want to accommodate plaintiffs. We have identified portions of this. But this is a communication between Catholic conference of Bishops, and subject matter has to do with church’s involvement. We don’t agree to lift privilege for entire document. That’s where we are.

Walker: So we should proceed with respect to highlighted portions.

Pugno: Yes. But we haven’t agreed to admit the entire document into evidence.

Boutros: Here’s the newly redacted first page. Read from the first section, please.

Segura: Today is Election Day. I am sure you share my relief that it’s finally here…. the direct involvement of the CCC (Catholic church? -ed) has been unusual – although not unprecedented.

Pugno stops and says that some material was not redacted that should have been.

Boutros says he doesn’t like asking to have things redacted, but asks for redacting of some of second paragraph.

B: OK, pick up this reading.

S: The Catholic Conference has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating… Of course this campaign owes an enormous debt to the LDS Church. I will comment specifically at a later time (under separate cover) about their financial, organizational and management contributions to the success of this effort.

B: Describe what this means.

S: Closeness between Catholic Conference and LDS Church is unprecedented. Also, I’m struck by the “financial, organizational and management contributions” line, suggesting close coordination.

B: Does this seem unprecedented, the teaming up of Catholic church and LDS Church?

S: I can’t think of another moment like it in American history.

Boutros putting another document into evidence.

B: What is this document?

S: This is a personal email from the chairman of ProtectMarriage effort. Recounts the financing of petition gathering phase of Prop 8 campaign.

B: From ronp-at-californiafamily-dot-org?

S: That’s Ron Prentice.

B: What’s notable about this document.

S: The part about the total costs.

B: Read that.

S: The total projected cost is $1.5 million. It has come from four primary sources: the Catholic community of San Diego, Fieldstead and Co., Focus on the Family, and small donations from

B: What’s Focus on the Family?

S: A conservative Christian group.

B: Are they politically active?

S: Very.

B: Read this paragraph.

S: I serve as the CEO of the California Family Council… I serve as the volunteer coordinator for

B: What strikes you about this?

S: Very early involvement of organized religion. And this was a national political campaign, leaders far and wide were involved in the effort, like Focus on the Family.

B: Where else would this kind of coalition emerge?

S: Maybe the pro-choice, abortion rights issue. I can’t think of a minority group going up against this kind of power.

B: Here’s a new document.

Pugno objects to the admission of the document.

Pugno: This is still under attorney’s eyes only. This is internal communication among the leadership of a particular church.

Boutros: This references the fact that the effort being discussed in this email is in concert with other religious groups about the coalition. I think it’s not subject to a First Amendment privilege. It was disseminated widely.

Pugno: Churches shouldn’t lose their ability to communicate within the church because they are working with other churches.

Walker: But this was in’s file.

Pugno: An individual in the organization… he was an individual in the church. This is a communication about Prop 8 (whoops!) among church officials…

Walker: But it relates to the Prop 8 campaign.

Pugno: It relates to the church’s support for Prop 8. This is an internal church communication.

Walker: This doesn’t fall under First Amendment privilege.

Pugno: No, we’re under a different field here. It’s an internal document.

Boutros: I don’t see how have standing to assert First Amendment privilege on behalf of the church.

Walker: He could on behalf of the defendant.

Boutros: OK, assuming someone with standing. I can direct the court to the first sentence….

Pugno: This shouldn’t be read aloud in court.

Boutros: It says it relates to the public affairs of the Prop 8 campaign. This was in the files of a person on the executive committee of It’s hardly a sensitive religious tract that might be subject to protection under First Amendment.

Pugno: He was talking about the Public Affairs office of the LDS Church. That was a role that this individual played separate from This is an internal communication of the church. It refers to Prop 8 effort. But unless there’s a communication that’s not internal, then this is a First Amendment right for Mr. Jansen (the defendant) to have this in this possession.

Walker: Mr. Jansen is a party to the litigation. The issue of his role in the campaign is very much an issue in the case. So it’s appropriate to read this document. Objection overruled.

Boutros: OK, read the first paragraph, Mr. Segura and explain significance.

Segura: Since the First Presidency letter was read in every ward throughout CA, I was asked what our Public Affairs role would be in the campaign.

B: Third graf?

S: As you know from the first Presidency letter, this campaign is entirely under priesthood direction – in concert with leaders of many other faiths… all of us working in Public Affairs will simply stand by and wait to be engaged as the time comes.

B: 5th graf?

S: What is the next step in this campaign? All grassroots organizing efforts in OC will be led by Gary Lawrence, who will report directly to coalition leaders. He has also been hired by the coalition to do the polling work for Prop 8.

Pugno objects again to Mr. Lawrence’s name being read. Walker knocks the objection down.

Pugno: Individuals have privacy rights to be involved in the campaign.

Walker: But this came out through other means. This was not a privileged communication.

Pugno: This reveals without opportunity to redact, a different role that he had which was not public.

Boutros: Mr. Lawrence was publicly associated with the campaign. Religious orgs participated in political debate, fine, but there’s no reason to keep the names secret because they’re associated with religious orgs.

Walker: This was a public political campaign. It was out in the open. People who advocate on either side inevitably subject themselves to disclosures of this kind. No privilege or protection in this document. Objection overruled.

Boutros: Finish reading that paragraph.

Segura: He has also been hired by the coalition to do the polling work for Prop 8. The main CA grassroots leaders are in the process of being called…. with responsibility for areas that generally correspond to each of the 17 LDS Coordinating Councils… Thereafter priesthood leaders will call Local Prop 8 coordinators over each stake and leaders by zip code within each ward – potentially working not only with LDS but non-LDS volunteers.

B: Significance?

S: There is close coordination here between church leaders and campaign. The other word here is “called.” There was an LDS volunteer in every zip code. That’s a very enviable political organization.

B: New document.

Pugno objects again. Lodging a standing objection. These are the minutes of a church meeting. I can’t imagine this is not protected in a federal court trial.

Walker: I need the foundation for this document.

B: Did you review this document, Professor Segura? … this witness can testify to the foundation of this document, and it’s relevant to this opinion.

Walker: Where did it come from?

B: From the D-I after Judge Spiro rejected First Amendment claim.

Walker: Does appear to be the minutes of a church meeting. Did it come from files of or files of D-I?

Pugno: One or the other.

Walker: If it was in those files, I can’t see how it’s privileged.

Pugno: Probably came from Mr. Jansen’s file. Minutes of an LDS meeting. Just because it was in Jansen’s possession, I can’t see how this isn’t privileged.

Walker: It’s rather like attorney-client privilege. This document relates to Mr. Jansen’s activity on Prop 8.

Pugno: But this is only here because a court order told Jansen to take it out of a shoebox and bring it to court. These are his private papers.

Walker: This appears to relate to the Prop 8 campaign.

Pugno: This is private, part of his fundamental right of association and participate in a campaign.

Walker: Nobody’s arguing that. But it has nothing to do with disclosure of his role.

Pugno: Object on ground of a lack of foundation.

Boutros: I can lay that foundation. The part that says “Legislative update,” Janson reported on the Prop 8 legislative session.

Walker: OK, objection overruled.

B: Read that Legislative update part, Professor… this part of document, what is it doing in this memo?

S: Mr. Janson is relating the strategy that is to be employed.


S: Mark Janson emphasized that we are not to take the lead on this Prop, but to join in coalition with Salt Lake City conducted a teleconference woth 159 out of 161 precincts in CA and told the Presidents not to take the lead but to fundraise ($30 donation)

B: Read next part:

S: We were asked to wait patiently for talking points from the coalition… Director Holland highlighted the luxury of having Mark Janson on key committees and that he will receive direct communication from them.

B: Significance?

S: Talking points were being provided to religious leaders, and in return religious leaders were providing volunteers. But there was plausible deniability through distance by religious leaders not taking the lead.

B: Elaborate.

S: Looking at the political opportunity structure, we might look at religious belief as a source of opposition to homosexuality. But this appears to suggest fairly close coordination between religious orgs and the leaders of the initiative.

B: Have you ever seen this kind of structure employed to eliminate constitutional right of a minority group?

S: This is new in my experience.

Pugno objects, it’s a post-election document, relevance is a problem. This is a revealing document.

Walker: We should want revealing documents in court.

Boutros: This was sent from the core group. This is relevant because it shows the degree of connection between and the org that sent this document with respect to the funding. has said they’re not connected. This speaks to that. Directly relevant, produced by proponents of Prop 8.

Pugno wants an unredacted copy of the document to prove it was sent by someone outside the core group.

Boutros: There is a core group member that I don’t even know about.

Walker: John Doe?

Pugno: There are six individuals of that kind.

Walker: We’ll take a look after unredacted version.

Boutros: OK, new document. There’s no objection. What is it about this document that reflects on political power.

Segura: The last sentence of the first paragraph. “You may know that the Mormons have been walking precincts with about 20,000 volunteers”

B: Significance?

S: Shows the breadth and size of the effort by Mormon church.

B: New document. No objection. What is this document?

S: Appears to be an email from the chair of to others dealing with some issue regarding how designated gifts to the campaign take place.

B: Page 2. Anything significant?

S: Yes. Under numeral I. Recounts the early organizational efforts among evangelicals to get church leaders involved in the campaign. 1,700 participants in June. 3,000 in July 2008. Their goal was to have 5,000 pastors participate in one of these calls.

B: Final document. There are a couple names I’m happy to redact. Other than that, no objection. What is this document?

S: Appears to be a fundraising letter to someone who has given to the Family Research Council in the past. Suggests coordination of potential donor bases.

B: Turn to last page. Read that.

S: “We have the political and financial support of groups like Focus on the Family, Family Research Council, American Family Council and the Arlington Group.”

B: Is that a powerful coalition?

S: Separately and together, it’s powerful.

B: What’s your opinion regarding political powerlessness of gay and lesbians in US and CA?

S: When we take all this together, all the circumstances, public hostility, hostility of elected officials, and a well-organized opposition, I believe that gays lack the power to protect themselves in the political system.

B: Explain whether you compared gay men and lesbian power to other groups in society? Woman, African-Americans?

S: I did.

B: What were the findings? Comparison between women in 1970s, for example.

S: Gay men and lesbians are more politically powerless than women in the 1970s. First, women represent the majority of the population. Being a woman is not inherently controversial, though there is sexism. Women are beloved. There was already statutory protection: Equal Pay Act, some of Civil Rights Act. More political power, more votes, less or no hostility, and statutory protection.

B: What about comparison to African-Americans before Civil Rights Act of 1964.

S: This is more complex. I would want to separate political circumstances with social and economic circumstances. Being African-American was difficult to do before Civil Rights Act. But I would turn my focus to political circumstances. There were 3 Amendments to US Constitution establishing civil equality for racial and ethnic minorities. Admittedly not enforced, but establishment was complete. Any number of statutes dealt with African-Americans; all the New Deal legislation was race-neutral. Example: FDR prohibited contracting with discriminatory businesses against African-Americans. Truman desegregated US military. Socioeconomic conditions bad for African-Americans in mid-20th century. But there were a number of statutory protections. Civil rights movement wanted to bring social status in line with statutory advantage. Situation different with gays and lesbians. Social status maybe better for some, but no constitutional establishment of equality, and gays and lesbians are moving in the opposite direction.

B: What about group size?

S: African-Americans in 1940s around 10-11% of population. Today 13%. Many Southern states 30-40%. Many cities African-Americans are majority. By contrast, no jurisdiction of any size that I know that has gay majority.

B: Bring this forward to today. Comparison between African-Americans and gays and lesbians.

S: 69 persons of color in US House, 4 previously in the Senate. 6 gays and lesbians in history served in House. Voting Rights Act provided opportunities for persons of color to elect members of their community. They have to provide those opportunities.

B: How about the Presidency?

S: We do have our first Hawaiian President. Obviously election of an African-American is a big deal. I don’t want to leave the impression that political power of African-Americans aren’t a concern, but compared to gays and lesbians, they’re doing quite well.

B: Finally, I want to look at Dr. Miller’s opinions.

D-I objects. No analysis of Segura’s opinions on this.


B: Tell us your critique of Dr. Miller’s opinions.

S: Prof. Miller looked at political power differently. 1) He lacks basic knowledge of gay and lesbian politics. He could not identify critical historical figures in early part of the movement. Not familiar with prominent political science work. Unfamiliar at all with political science work on prejudice.

B: What about knowledge of legal protections of gays and lesbians?

S: Didn’t know about anything beyond bounds of California. Didn’t know majority of states have no legal protections for gays and lesbians. Didn’t know legislative history of what’s been passed in California, too. In 29 states, there’s no anti-discrimination protection. Miller concluded gays and lesbians possessed political power without being aware of that.

B: Did you agree with Miller’s definition of political power?

S: His definition was quite vague. He said group had political power if they received a fair hearing from lawmakers. Didn’t investigate whether gays and lesbians had a fair hearing. In this case, the “lawmakers” of Prop 8 are the voters. Judicial intervention on behalf of minorities is not a fair reading of political power, he said it was.

B: Finally, how did it square with his own writings regarding ballot initiatives?

S: Miller has spent time researching those. Miller said ballot initiatives very often result in bad law, and that they frequently target minorities. I’m inclined to agree.

End of testimony.

Thompson cross-examination:

Thompson: Of the 10 largest cities, how many have protections for gays?

S: No encyclopedic knowledge, but I’d guess 8 or 9.

T: Did you donate money to No on 8?

S: Yes.

T: Did you participate in a panel discussion on Prop 8?

S: A course lecture with Simon Jackman.

T: Did you say you felt strongly about Prop 8?

S: I find inequality under the law deeply offensive.

T: Could many things go through someone’s mind when they hear the term gay or lesbian?

S: Yes.

T: Could be many things?

S: We could determine the universe of likely items, a fairly limited set of options.

T: What’s your definition of political power? Moving someone from no to yes?

S: Maybe. Or, persuading others to stand down, to no longer oppose. Mustering political forces necessary to circumvent them.

T: If the group had power, a group could cajole legislature into giving them things?

S: That’s part of it.

T: Do gays and lesbians have a lot of allies?

S: There are reliable allies, but if you look at allies, the number is smaller than necessary, and allies are unreliable.

T: Did the NAACP have power when Newt Gingrich controlled House?

S: They had less power than when it was under Democrats, but still a fair amount.

Passing out binders.

T: Direct your attention to 2007 annual report of Human Rights Campaign, page 4 of document. They are a leading gay rights campaign. Second sentence: “We were named by the National Journal as the single most effective non-union group working in the 2006 elections.” Do you agree?

S: No.

T: Says “we played a decisive role in electing fair-minded Reps.” You don’t think they’re effective?

S: No.

T: In CA, the incoming speaker of Assembly is John Perez. He’s openly gay, elected by caucus.

S: Yes.

T: But you think gays and lesbians don’t have enormous power in the CA legislature?

S: Outcome does not reveal process.

T: Outcomes would be your conclusion?

S: We have to understand how the outcome came about.

T: LGBT supported domestic partnerships in 2005, churches opposed, and gay community won?

S: Yes, but process matters.

T: Prop 22, gays supported and biblical literalists opposed, and gays won?

S: Yes.

T: But gays don’t have power in CA legislature?

S: It’s augmented by Democratic control, but they remain outnumbered.

T: 50 pieces of legislation that has sought to protect legal rights of gays and lesbians in CA?

S: There are some anti-discrimination pieces in the law, some are in response to court orders.

T: Is there any state with more protections than CA?

S: I don’t think so.

T: Have Hispanics played a role in legislation in CA?

S: Stopping discrimination, fighting for immigration rights.

T: In New Hampshire, they secured the right to gay marriage through the legislature.

S: Yes.

T: But they don’t have political power?

S: Don’t know if that is subject to reversal.

T: In Vermont, same thing?

S: Yes. I’m uncomfortable with the notion that “gays and lesbians have secured” the rights. The legislature passed it.

T: At the urging of the LGBT community?

S: They didn’t say no. Those gays and lesbians still don’t have the rights in other states. Those rights aren’t accepted throughout the country. Can’t think of it in a jurisdiction by jurisdiction basis.

T: Jurisdictions are irrelevant?

S: You have to be careful.

T: Gay marriage in MA?

S: Yes.

T: Stopped effort to reverse?

S: I’m not sure how that played out.

T: No meaningful political power in MA?

S: Not to the extent that it’s across levels of government.

T: Not in Connecticut?

S: Or Iowa.

T: DC?

S: Not across levels of government.

T: Houston, where there is an openly gay mayor?

S: They don’t have domestic partner benefits in Houston.

T: In San Diego, two city councilmembers are gay, Sanders is an LGBT ally. No political power in San Diego?

S: Still second-class citizens on marriage, and Sanders said that there is not enough power on the part of LGBT community.

T: Here’s a NYT article entitled “Gay Candidates Get Support, Their Causes May Not.” Says 445 openly gay people holding elective office in the US. Accurate?

S: No reason to believe that they’re inaccurate.

T: Article talks about Charles Pugh, city council President in Detroit, gay, in first bid for public office. No political power?

S: Still would look at rest of city council, MI legislature, no protections for gays and lesbians at state or federal level. Residents of Detroit don’t just live in Detroit, but Wayne County, MI, and the US.

T: Article says Pugh’s sexuality never became an issue. Isn’t it true that in many big cities it’s irrelevant whether candidate is gay.

S: Depends on the city. Pugh did expect to be attacked, and in Houston, the mayoral candidate was attacked for being gay. It’s certainly less important in some cities, but not an insignificant element of candidacies.

T: Atlanta Journal-Constitution story: “Gay votes can make a difference.” Interview with director of Georgia Equality. He says “I think we’ve seen in the last 20 years, there have been a number of close elections, where the winners and losers have decided that the votes of the LGBT community have been a deciding factor.” No political power in Atlanta?

S: Yes. And there are problems with the claim. Being made by an advocate of a gay org. Advocates want to present power of their org in most positive light. People don’t give to the “give to us, we’re unlikely to make a difference” org. So he would overstate political influence. I know a bit about Atlanta. Atlanta was where there were violent attacks on a gay bar by the guy who was involved in Olympics bombing. One of top 10 states with no gay and lesbian protections.

T: Didn’t both candidates in recent mayoral run-off seek LGBT votes.

S: Maybe, but doesn’t mean they have political power.

T: Is money a source of political power in the US?

S: Yes.

T: For some groups, biggest political resource is cash?

S: Yes, but that varies by group. Trade associations don’t have voters to mobilize. In other cases, votes are a bigger deal. Depends on the group.

T: Some groups have political power because of financial resources.

S: Agreed.

T: Size of the group important factor?

S: Clearly.

T: Financial resources part of size?

S: Yes.

T: LGBT community outraised Yes on 8 groups.

S: In nominal dollars, correct.

T: $43 million by LGBT, $40 million by Yes on 8?

S: Yes.

T: Here’s 2008 annual report of Human Rights Campaign. Under revenue and support, says $45.7 million in 2008. That’s more than the NAACP raised in 2008. Political participation in the form of contributions is a luxury item, yes?

S: Yes, compared to other items.

T: You would want to know income level for that analysis.

S: Yes.

T: Do you know median income for gays and lesbians in the US?

S: No.

T: No opinion on level of disposable income among gays and lesbians. Gays and lesbians are less likely to have children in the household and dependents take up resources, yes?

S: Yes.

T: Here’s a document from Lee Badgett. Half of heterosexual couples have children, compared to 22% of lesbian couples and 11% of gay male couples. Accurate?

S: Don’t know.

T: Are political donations of LGBT quite high?

S: In respect to what? Higher proportion might give money to politics for reasons we’ve described. Size and numbers of contributions, I’m less confident about that. Small part of population.

T: Has Internet made it easier for gays and lesbians to mobilize politically?

S: Easier for everyone.

T: Isn’t it particularly useful for groups who wish to remain invisible?

S: I suppose.

T: A lot of money from No on 8 raised used for TV ads?

S: Don’t know, but I suppose.

T: Able to get their message out.

S: I suppose, but there are a lot of efforts in a political campaign. It’s hard to say if the campaign was conducted effectively. Fair to say many Californians saw a No on 8 ad.

T: Regular access to political figures is important for political power, yes?

S: Depends on the definition of access. Depends on if decision-maker responds. Certainly meeting with elected official more important than not meeting.

T: Access is the most valuable favor a politician can give?

S: For the most part, seems reasonable.

T: Access shows that an officeholder favors someone?

S: No.

T: Access shows someone has influence on officer?

S: No again. There’s a fine tradition of providing access to both sides, to accept their political donations. Not clear that access alone signals favoring a viewpoint.

T: You cannot mention one area where LGBT cannot get a hearing from Nancy Pelosi?

S: Don’t know the answer. I would assume LGBT can meet with Pelosi. Would seem unlikely that she would refuse to meet them. She’s been vocally supportive. Resisting bringing things to a vote, though.

T: Here’s a document about the feeling thermometer for LGBT community. Mean score was 30 in 1984, now 49%?

S: Looks correct.

T: So more warm feeling toward LGBT in US?

S: Correct, but there could be a secular trend in favor of warmness.

Walker: You’re in favor of global warming?

S: In terms of the electorate, yes.

T: Allies can be a source of political power.

S: Yes, but with constraints. A state leg. ally can’t help you in Congress. And some allies not as good as others.

T: Ally embraces gay position?

S: I would say ally willing to expend political capital for that position.

T: Here’s a book, “Gays and Lesbians in the Democratic Process.” You contributed a chapter?

S: I did.

T: Your chapter was about local initiatives?

S: Yes.

T: You said: “Value of coalition building not lost on gay and lesbian leadership… they’ve built many coalitions.” Yes?

S: Yes.

T: Here’s HRC annual report for 2009. Say “strong allies in the White House.” Would you say Obama Administration better allies than Bush Administration?

S: Yes, though the degree of difference is far smaller than most progressive voters anticipated.

T: This says “President launched a national AIDS strategy.” Evidence that Obama is an ally of LGBT community?

S: Not a persuasive point. Just as plausible that President ally of public health. HIV prevention was an area of strength of President Bush. Gay and straight groups gave him credit for that.

T: Familiar with this strategy?

S: Not really.

T: Says “On our way to getting rid of HIV travel ban.” (Actually, we are rid of it -ed.) That’s been something LGBT community has sought?

S: Yes, in concert with scientific community.

T: Evidence of political power?

S: Not so fast. Talking about a letter-writing campaign to a federal agency, under the radar. Second, university Presidents wanted this to host the national AIDS conference in US, because until this, HIV patients couldn’t attend.

T: Next point. “Banning discrimination against gender identity in federal gov’t.” Evidence of LGBT political power.

S: This would weigh positively. This is a Presidential directive, might not outlast the Administration.

short break.

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David Dayen

David Dayen