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Prop 8 Trial Liveblog: Thursday Morning 2 (31)

There’s a bit of a break. Defense says they may have another hour of cross-examination testimony. Will start up when they do.

OK, here we go. Defense attorney Thompson cross-examining Prof. Gary Segura.

T: I want to talk about the aftermath of the passage of Prop. 8. Here’s a NYT article from Feb. 2009. Says “victory for Prop 8 has been soured by the ugly spectre of intimidation.” When the public reads this about death threats and boycotts and letters with white powder sent, does it dissipate LGBT appeal to fairness.

S: I may be inclined to agree. But we shouldn’t equate boycotts with death threats and intimidation. There are a host of forms of political participation which have been regularly turned to, and boycotts are one of them. Montgomery bus boycott, for example. We can go back to 1760s and 1770s, when women of Boston boycotted English tea. Isolated acts of behavior other than boycotts may have dissipated political power, if they’re true.

(Objection, Walker overrules)

Walker: Prof. Segura, have you considered effect of political support on civil rights movement of riots and bad behavior that occurred at that time which was associated, if not with civil rights movement, with African-Americans?

S: I was asked about gays and lesbians.

W: Have you considered that in the course of professional endeavors?

S: Yes. In general, any forms of organized violence has a negative impact on public opinion surrounding plight of the individuals. Nonviolent protests are a somewhat historically effective tactic and better PR. But these spontaneous acts may serve long-term interests of the group sometimes. LA Riots after Rodney King led to Rebuild LA and substantial investment. I’m not defending the actions, but there are moments when those acts get interpreted as a cry for help, or the ultimate expression of powerlessness.

W: Might the actions Mr. Thompson is discussing have the same effect.

S: I’m concerned making that leap. Most recent act took place after the election. Also, we’d want to weigh those incidents against the converse. We have testimony from Mayor Sanders about his house being vandalized. The Heritage Foundation report makes no effort to gauge violence and vandalism in the opposite direction. We know that there were over 100 acts of violence against gays and lesbians in 2007. We know that gays and lesbians are more likely to be targeted for violence than any other group. We’d want to consider all of that.

T: OK, let’s continue. Here’s an LA Times story about the boycott of El Coyote restaurant. It says boycott was activated on the Internet. Police arrived in riot gear one night to quell the angry mob. Would you agree that takes a boycott too far?

S: As it’s represented here, Mr. Lopez has a flourish for expression. I don’t know how angry the mob was. Can’t judge the actual actions. I can’t conclude about the activity and whether it went too far. I don’t have a problem with a boycott of a business managed by someone who contributed to a campaign which disadvantaged its own customer base.

T: Let’s turn to another LA Times story from Feb 2009. Classroom dispute at LA City College about Prop 8 has given rise to a lawsuit. Student says his professor called him a fascist bastard after he gave a speech against same-sex marriage. Professor told him to “ask God what your grade is.” Would this dissipate support for LGBT political power?

S: Once again, without speaking to the veracity of the incident, adverse publicity is negative to the group to which it pertains.

T: You talked about hate crimes. What makes that distinct from any other assault is that the membership in a group is a reason for targeting the crime. Correct?

S: Yes.

T: Assailant engaging in a sense of fear, correct?

S: Yes.

T: Here’s a Bill O’Reilly interview with someone who went to the Castro after passage of Prop 8 and was assaulted.

(Plays Billo tape. Woman – Christine Cloud – says she was physically assaulted by a man in the Castro, part of a Christian group who goes to the Castro and plays music and tries to engage people in conversation. They try to “share the love of God.” They went there after passage of Prop. 8 singing Amazing Grace. A man walked up to the group and picked up the Bible and hit the woman with the book. Police took man into custody, she didn’t press charges. Filled out police report so there’s a record of what happened.)

T: Would that fit your definition of a hate crime, a targeted crime to send a signal?

S: It may actually fit my definition. There is the danger of yelling fire in a crowded theater. Provocative acts are problematic. If there’s a provocation involved, it changes things. The incident, I’m not sure how to comment on it.

Walker: Can we move on.

T: I just have one more document on this line of questions. This is from Time Magazine. November 15, 2008. Talks about “Gay rights enemies list. African-Americans, 70% of whom voted yes on Prop 8 according to an exit poll, have become a target. Racial epithets have been used at protests.” When people read this, does it reduce ability of LGBT community to appeal to norm of fairness.

S: Same as I’ve said several times, bad publicity is bad.

T: Want to talk about the national political scene. This is from 1993, LA Times. Says was the year of the woman in 1992. But strong LGBT support was critical in close races. “No politician would be foolish enough not to seek strong support of gay community.” Accurate statement?

S: Inaccurate in 1993 and inaccurate today.

T: Howard Fineman article, from Newsweek. Says, throughout the country, homosexuals are a powerful and increasingly savvy block. Is the gay political movement savvy?

S: That’s a journalistic, anecdotal take. I would not agree with it in 1993, or today.

T: This says “gays and lesbians have become the key source for new funds for Dem candidates nationwide.” True?

S: No. I think gays and lesbians are donors in some parts. I would be surprised that gay donors are big in Great Plains or Deep South. Don’t know the basis of this.

T: Another article, Time, “The Gay Mafia That’s Redefining Liberal Politics.” From 2008. Talks about “The Cabinet.” Have you heard of them?

S: No.

T: Called “a secret gay SuperFriends, a homosexual Justice League.” Says they met with two sitting governors (Schweitzer and Sebelius). Isn’t it true that gay leaders can have high-level meetings.

S: When there’s money to be given, there are politicians to come accept it.

T: Political opportunity structure for gays better than five years ago?

S: Probably marginally better because of balance of power in Washington.

T: Is HIV funding an important political priority for gay community.

S: It is.

T: Congressional Research Service report for Congress. Level of funding has gone up for HIV. $8 million in 1982. $20 billion today. Example of success?

S: I’m deeply troubled by the notion that this constitutes a success. Could be an example of an infectious disease with more people affected. Don’t know what the money is spent on, and what groups have endorsed. This could be going to foreign aid for Asia and Africa. Cannot conclude much.

T: Let’s talk about adoption. That’s a right most gays and lesbians believe they should be afforded.

S: Yes.

T: They’ve won that political battle in most states, yes?

S: Actually, in most states, the laws are silent on gays or lesbians. Some states prohibit second-party adoption, only recognizing one make or female parent. But that pre-dates the gay and lesbian movement. The history of adoption regime is one of largely silence on this matter. Some states have taken affirmative steps to prevent gays and lesbians from adoptions. FL, MS, OK, MO, UT and in 2008 AR.

T: In 40 states, gays and lesbians can adopt?

S: Yes. I predicted that, as anti-gay marriage initiatives peaked, that the new frontline would be gay adoptions. Arkansas did it in 2008. So that may be where it’s going.

T: Here’s a list of hate crimes. FBI stats show 1,297 hate crimes against gays and lesbians in 2007.

S: Yes. They count the numbers in various ways. But generally, they correlate.

T: This includes trans-gender individuals, correct?

S: I don’t know.

T: This includes bisexuals, correct?

S: Yes, it’s a small sample of the total.

T: Here is says anti-Jewish totals are 1,013?

S: Yes.

T: This shows that Jewish community is 2.2% of population of US. Dispute that?

S: Yes.

T: What is the US population which is Jewish.

S: It’s 4-4.5%. This table shows adherents. Not secular Jews.

T: Even with your number, there’s a higher incidence of hate crimes against Jews, given the numbers?

S: That would be plausible.

T: And the Jewish community is political powerful?

S: It has a fair amount of political power in the US System.

T: Do you think gays and lesbians in 2009 in CA are better off than African-Americans before Civil Rights Act of 1964?

S: The term “better off” is the rub. It’s plausible that some are better off than many in African-American community at that time.

T: Here’s the list of African-Americans in US Congress. 1 in 1940s, 2 in 1950s.

S: Yes.

T: African-Americans 10% in 1940s and 1950s?

S: Yes.

T: Let’s look at women in Congress in 1970s. They had between 10-16 members at that time. 0-2 female members of Senate from 1970-1975?

S: Yes.

T: Women in 1970s less politically cohesive than LGBT, yes?

S: I’d have to look at data, but it’s plausible.

T: You referred to Sen. Tom Coburn. When was the last time a statewide CA official made a disparaging remark about gays and lesbians.

S: I don’t have encyclopedic knowledge.

T: So you can’t recall any anti-gay remark in the last quarter-century?

S: I would want to look at some of the statements made during the ballot contest on quarantining those with HIV, and those made in the mid-1980s. I’d be shocked if nothing were said.

T: You’d be surprised if an anti-gay politician won Gov. of CA?

S: I don’t know that I would say that.

T: Let’s go back to your deposition. Do you recall this: Do you think in gubernatorial election in CA, that an anti-gay politician could win? You said no, because electorate is Democratic. You said that?

(objection, the question is different. Thompson said ever. Sustained.)

T: In the next election could an anti-gay Governor candidate win?

S: Unlikely.

T: Younger people more accepting of gays and lesbians than older?

S: Some regional variation, but I generally agree.

T: Here’s 2010 article in New Yorker on risk of petitioning Supreme Court on gay marriage.

Walker steps in and says defense is at the edge of the pale.

T: Leaving this document aside, do you agree that 58% of Americans 18-29 support gay Americans, 22% of older Americans agree?

S: That’s Pew data, I have no reason to dispute it.

T: Do older Americans support at lower rates?

S: Generally that’s the case. But I’m reluctant to conclude that there’s an automatic supposition that we’re on our way to majority support.

T: One last question. Here’s an article you wrote about gay marriage. Says “where does public stand today on same-sex marriage.” When did you write this?

S: Probably summer 2005.

T: You write about MA granting gay marriage. You think the shift in opinion in support for same-sex marriage after MA legalized is “frankly astounding.”

S: Read the rest of the paragraph.

T: I will. But was that accurate?

S: Yes.

T: You write, that support for civil unions has climbed. Opposition to outright legal recognition has dropped. The evidence of rapid, massive opinion change is substantial.

S: With respect to the subject matter I was describing that was accurate.

T: Nothing further.


Mr. Boutros: What was that article Mr. Thompson just read about?

S: The article was about civil unions. I was looking at what happens when you have three options. The gay union issue is made complex by three alternatives. The point was, once MA adopted same-sex marriage, civil unions climbed. It climbed in part as a strategic behavior, for those opposed to undermine the case for marriage equality. What’s astounding is the shift in support for civil unions. There has been an increase in all forms of support for unions of same-sex couples. But I was talking about civil unions.

B: Does this affect political powerlessness of gays and lesbians in the US?

S: Trending in a positive direction. Speaks well for the future. But when opinions change, there are sometimes ceiling and floor affects. Doesn’t have to move in one direction.

B: Civil unions like domestic partnerships in CA?

S: The enhanced one, yes.

B: Thompson showed you Gray Davis supported domestic partnerships. What happened to Gray Davis?

S: He was recalled from office.

B: Have boycotts been traditionally used by oppressed minorities?

S: Yes. If people are peripheralized by existing political processes, other tools are substituted. There are examples of boycotts going back to the pre-Revolutionary period. Thoreau’s civil disobedience is an example. A-A community used boycotts extensively. Latino community (UFW) used nationwide grape boycott to get a union contract.

B: Thompson asked about civil rights movement, Walker asked you about that. Economic boycotts were used in civil rights movement, yes?

S: Yes. There’s great work documenting this. Boycotts are difficult to sustain. They are all or nothing goods. Whites in the South would insist that their domestic help shop in a store on behalf of their employer. That would look like black support. A-A community would wear maid’s uniforms, even if they wore no uniform, to show they were there on behalf of employer.

B: Did A-A community use boycotts in the South?

S: Yes.

B: MLK used nonviolence message. Did civil rights movement, despite those efforts, sometimes see certain members engage in violent conduct.

S: Yes. MLK’s prominence in civil rights movement was the result of a boycott, the Montgomery bus boycott. Led to Montgomery Improvement Assn, led by MLK. Boycotts not inconsistent. But there were certainly moments of violence and lashing out. Didn’t help the cause, but not surprising.

B: During civil rights movement, A-A’s participated in boycotts. Does that mean they were politically powerful?

S: Generally, boycotts and protests are reserved for those less powerful in the political system.

B: Are those kinds of actions entrenched in political system?

S: Entrenched in our history. Boston Massacre was about shots fired into a protest mob.

B: Are you familiar with NAACP, Claiborne Hardware decision?

S: Yes.

B: Read this part of the decision.

S: “The boycott of white merchants at issue in this case took many forms.. the boycott was supported by speeches and non-violent picketing.”

B: Read rest of this:

S: Speech itself was also used to further the aims of the boycott. Names of boycott violators were read aloud at meetings of the First Baptist Church, etc.

B: The white merchants sued the NAACP, said they were the victims because the boycotting group had crossed over into violence. But the Supreme Court found that the NAACP’s activities were protected by the First Amendment. Any parallels between that case and today’s questioning?

S: Parallels are fairly obvious. Acts of violence and vandalism are inappropriate. Not clear that those acts associated with normal political process. I don’t think we can condemn or implicate No on 8 campaign with these acts. Individuals sometimes behave badly. Not necessarily an indictment of entire position.

B: Have you read anything that said results of Prop 8 campaign caused by the news reports of sporadic allegations of violence, tearing down lawn signs?

S: I don’t know of any journalistic or academic suggestions of that. It’s implausible. Some individuals might have been motivated that way, but it wouldn’t come close to the margin of victory. This suggests that someone predisposed to vote against Prop 8 voted for it because of a yard sign. Maybe there are 100-200 individuals, but didn’t affect outcome.

B: Heritage foundation backgrounder. Describe the Heritage Foundation.

S: An extremely conservative think tank.

B: Do you know the author of that backgrounder?

S: I Googled him.

B: Is he an expert in political science.

S: I was not familiar with his name. Didn’t know him.

B: You sit on a lot of editorial boards for political science journals. Does that backgrounder meet the standards to qualify for a peer-reviewed journal?

S: No. It wouldn’t even be submitted for review.

B: Why?

S: We’d want to look for evidence-gathering techniques. Accuracy of the sample of the acts that took place. Selecting on the dependent variable – only studying instances where the case occurred. You only have the presence of the phenomena, not the absence. Can’t study war and only look at war and not peace, and describe what leads to war.

B: Do you think those news reports reached enough viewers to swing the Prop 8 election?

S: It’s implausible.

B: The Heritage Foundation document did not have any information about violence or vandalism against Prop 8 opponents.

S: No.

B: Here’s Miss Zias testimony. Evidence is already in the record. Describe it.

S: We want to look at sum total of acts of violence and intimidation from both directions. It’s amazing that someone said on a public street “You’re going to die” or “Burn in hell.”

B: That’s what was said to Miss Zia when she was electioneering against Prop 8. Here’s Mayor Sanders’ testimony. Describe how that factors into evaluating the violence factor that Thompson raised.

S: This is evidence of another set of examples of vandalism working in the opposite direction. You would need both to make a conclusion about the effect on votes.

B: Here’s the LA hate crime reports. You testified about that. If one were to evaluate in a fair manner as a political scientist, would these hate crime statistics referring to harassment of Prop 8 opponents (several violent acts) be something to consider?

S: You’d want to look at that. Also, you want to look at hate crimes that took place at this time even unrelated to the ballot measure. Literature shows a correlation between hate crimes between a group and salience of political issue. Hate crimes went up against Latinos during immigration debate, for example.

B: There were several riots and acts of violence during civil rights movement in 60s?

S: Yes.

B: Describe a couple examples from that era.

S: Ranged from fisticuffs that emerged in protest, to a confrontational situation of people not obeying nonviolence. We know about resistance of Freedom Riders. Some bus riders did fight back against an angry mob. We can think about Watts or Detroit riots.

B: 34 people died in Watts riots?

S: I don’t know, but sounds right.

B: Was that a significant event of violence that many Americans saw.

S: Fair to say.

B: African-Americans were able to achieve civil rights advancements, despite that.

S: 1968 Fair Housing Act passed despite riots already taking place. By and large, people don’t take single incidents and draw conclusions about political worth of a class of people.

B: Any basis for concluding that handful of incidents have led to lack of political power of LGBT in US?

S: Strains credulity.

B: Thompson showed a lot of articles that post-dated Prop 8. I want to show “The Gathering Storm,” the video that also post-dated Prop 8. Defense objected to it, but I think they opened that up.

Thompson objected, attempt to smuggle evidence in.

Walker: What does video show?

B: Ad from supporters of Prop 8, talking about the threat to the public from gay marriage. At least as relevant to this case as the Bill O’Reilly clip.

Thompson: This is from NOM, not

Walker: Subject matter was raised in Thompson’s cross, so I’ll allow video to be shown.

(Plays “Gathering Storm” ad from National Organization for Marriage)

B: Professor, had you seen that before?

S: Yes.

B: Does that ad, did it get wide distribution?

S: I read a lot about it. I assume a lot of people had seen it. It’s become semi-famous.

B: The messages in that video, do they relate to the balance of power, with gay and lesbians on the one hand, and groups opposing marriage on the other?

S: Video connotes that gays and lesbians are deeply threatening to the public. References to children, taking religious liberty away, churches discriminated against. Shows gays as a threat.

B: This public message, does it undermine the political power of gays and lesbians?

S: It re-substantiates long-held prejudices, and says LGBT rights come at the expense of other groups. Makes it tougher to gain legal protections.

B: Thompson asked you about 1993. What’s happened since then?

S: Interesting reading those quotes. My recollection was that after 1992, there was supposed to be rapid progress for gays and lesbians. The statements show that. This pre-dates enactment of DADT, DOMA, pre-dates prohibitions against same-sex adoption, pre-dates amendments in state Constitutions against same-sex marriage. This illustrates how a lot of optimism was dashed.

B: When was Amendment 2 enacted?

S: It was either the 1992 or 1994 election, I don’t recall (someone here said 1992)

B: What’s your assessment of this idea that gay and lesbian rights were on ascendency in 1993?

S: Mistaken claims. Said by advocates who believed the future was bright. But doesn’t seem justified now. Amendment 2 in Colorado was interesting. Amendment 2 pre-empted local legislatures and the state legislature from enacting protections for gays and lesbians. That was struck down by SCOTUS. Could have been other ballot initiatives that did not occur because SCOTUS gave that small protection in Romer v. Evans. As difficult as it’s been, it could have been even worse without that ruling.

B: Gay issues are known as a wedge issue in the US, right?

S: Yes. One political party think there’s electoral gain to be made from targeting gays and lesbians for political disadvantage. This illustrates that progress for social groups does not have to be a straight line. SCOTUS in Lawrence made it legal to be gay in many states by striking anti-sodomy laws. The next year, in 2004, 14 states enacted anti-gay marriage laws, and this was helpful for Bush’s re-election. This appears to be a potent political force in the future.

B: Have there been instances where gay rights recognition has affected violence against them?

S: There is some support for that in the literature.

B: I’m handing the witness a document. This is from Politics Magazine. Are you familiar with Frank Schubert and Jeff Flint, the authors?

S: They are paid political consultants involved with Prop 8 campaign.

B: Read this paragraph into the record:

S: “Members of the Mormon faith played an important part of the Yes on 8 coalition, but were only a part of the winning coalition. We had the support of virtually the entire faith community in California.”

B: This doesn’t say anywhere that vandalism or violence impacted the election. Surprised?

S: No.

B: You talked yesterday about church groups that banded together in support of Prop 8. Mr. Pugno suggested that line of testimony reflected animosity or bigotry toward religion. Agree?

(objection, outside of scope. Overruled.)

S: I didn’t suggest there was anything bad about political groups supporting Prop 8. If you believe in democracy, you believe in the other groups’ right to be wrong.

B: You suggested an “enviable” political operation. What did you mean by that?

S: The extraordinary number of coordinating volunteers, like the pastors in conference calls, or state Presidents identifying volunteers from every zip code, the 20,000 precinct walkers. Politicial consultants from around the country would love to have that grass-roots buy-in.

B: Have political scientists started to gauge religious involvement in politics?

S: Increasingly so, yes.

B: Let’s look at one of these documents from yesterday again. Read this paragraph.

S: “Our ability to organize a massive volunteer effort through religious denominations gave us a huge advantage… had 100,000 volunteers, five per voting precinct, working on Election Day.” … Breathtaking.

B: Here’s more.

S: “We built a campaign volunteer structure around both time-honored campaign grassroots tactics of organizing in churches, with a ground-up structure of church captains, precinct captains, zip code supervisors and area directors.”

B: Anything like this from unions?

S: A little, but not nearly on this scale.

B: Anything from corporations, mobilizing its own employees?

S: I’d wonder about the legality of such a thing.

B: On the funding comparisons of Prop 8, why do they not suggest political power parity?

S: Campaigns have two component, paid component and volunteer component. Volunteers can offset financial disadvantage. The financial reports don’t include on both sides the volunteer work, etc. Evidence suggests that the heavy volume of volunteerism was on the Yes on 8 side.

B: Does this show political power balance?

S: This is all legal, entitled to do it. But it suggests there are a great deal of resources against gay and lesbian groups.

B: Thompson said lots of church groups were against Prop 8. You saw Dr. Nathanson’s video testimony?

S: Yes.

B: He said groups against gay marriage bigger than ones for. Ones against gay marriage sent more troops to Yes on 8. Do you agree?

S: On that point, I agree with Dr. Nathanson.

B: You submitted a rebuttal report to Dr. Nathanson’s report. What did you say about Dr. Nathanson’s opinions?

S: He offers four “findings,” and I summarized them. He said organized religion was not monolithic in support of Prop 8. I said in the extreme definition, that’s true. But the evidence he presented was wholly misleading and silly. He lists four orgs in favor and four opposed without considering the size.

B: Were the orgs that Nathanson talked about the same that Thompson asked you about today? The same churches in support and opposed?

S: He had Catholic, LDS, Protestant and Orthodox Jewish; UU, UCC, Reform Judaism and MCC on the other.

B: Go on.

S: He said that individual sects were divided. Shows dissenter groups of Catholics, Mormons and evangelicals. Again, never talked about the size of the groups. The evidence shows these groups are small and have no power in the respective churches.

B: Summarize last two points.

S: He said gay and lesbian orgs do not view organized religion as the enemy because gay advocacy groups are talking to them. That struck me as bizarre in the extreme. They are talking to them because they see them as a principal obstacle. The last one was that support for Prop 8 cannot be fairly attributed to anti-gay animus. He defines animus in a narrow way. It’s almost nonsensical to respond to.

B: Let me read some of what Nathanson said in video deposition. Asked about gay-bashing. Nathanson said teaching of certain religions of homosexuality as a sin does lead to gay-bashing. He said that hostility to gays is in part from religious teaching.

S: If you look at the array of views held by religious and non-religious people, the most plausible explanation is that religious views are related to the action of religious people.

B: Mr. Thompson asked about this document. Read that into the record.

S: Our results show that representative orgs do a poor job of getting minority rights even when the public supports them.

B: Is that consistent with your view?

S: Yes.

B: In light of protections to gays and lesbians in the law in CA, and prominent politicians who have been allies to gays and lesbians, do you think gays and lesbians still lack political power.

S: I do. The questions Thompson asked serve as the basis of the skepticism for this claim. We need to look across levels of gov’t and across jurisdictions to judge the level of protections. When the skepticism is expressed, I explore the counter-factual. If I thought gays and lesbians were powerful in political system. I see FBI suggests that gays and lesbians have increased violence against them, 70% of targeted murders. In many states, gays and lesbians can be dismissed without cause for being gay. Small statutory protections have been challenged at the ballot box 150 times and they lose those measures 70% of the time. Dozens of constitutional stripping of protections. I could observe a couple of those things and conclude that gays and lesbians are powerful. To see all of those and conclude that would be political malpractice.

B: Nothing further.

Walker: OK, we’ll break for lunch. Next witness is Mr. Tam, after the break.

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David Dayen

David Dayen