Liveblogging Prop 8 Trial Tuesday Morning Two 1/26 (43)

Plaintiffs’ Counsel David Boies continues his cross examination of Defendant-Intervenors’ Expert Witness Kenneth Miller this morning. Boies indicated that he is going over the time he told D-I counsel he would need, saying that he needs more succinct Yes/No answers to his questions.

At that point, D-I Counsel David Thompson asked for a break due to the excessively long cross examination tiring out the witness. Judge Walker granted a ten minute break but not before cracking wise to Thompson about pot/kettle issues with regard to long cross examinations.

Boies checks to be sure all his previous exhibits have been entered, and has two questions about Miller’s marked-up list of sources he relied on himself.

B: You circled about 23% of those listed.
M: I don’t know the percentage
B: Would you say less than a quarter?
M: I would say less than a half. May I explain the question marks?
B: I suppose.
M: Many of those with question marks are about religious organizations’ support for Prop 8. I looked at many of these and considered them in my report, but some came from counsel. I just don’t remember which ones.

B: You are aware of Dr Nathanson’s report?
M: I am
B: You didn’t see his report?
M: No
B: did anyone represent the report to you
M: No… well it depends on what you mean by represent
B: Did counsel submit Nathanson’s report to you
N: We discussed it

B: Many of your questions marks from counsel ar ethe same ones Dr Nathanson used , about 140-150 of them. Those you got from counsel, right? YUou didn’t come up with all of those independentlt jyst as Dr Nathanson did?
M: I don’t remember where I got them; that’s why there’s a ?

B: returning to your opinoin about the fracturing of the Democratic base. Is that sentence correct?
M: It is substantially correct that the Democratic coalition fractured along relgious lines
B: That is the sentence?
M: That is what it says —
B: REGARDLESS of what you wrote, do you believe it now?
M: In large part, yes
B: (clears throat) Page 57, first full graf: "BAsed on the evidence, we see that Through the teaching of churches and religious organizations, blacks and latinos believed sexual orientation questions were a matter of scripture and not civil rights, so they could support civil rights by voting for Obama and support their religious views by voting for Prop 8"
B: Base don whast evidence?
M: Exit polling, public reports

B: Now as a political scientist, are you aware of a princliple that a religious majority should not impose its doctrinal views on a minority?
THOMPSON: Objection
WALKER: Overruled

M; Not sure —
B: throughout history there have been times when the religious majority has tried to impose its views on the minorityu through civil law?
M: Yes
B: And in political science it is an accepted principle that that is undesirable way to organize civil society?
M: As a genereal principle yes
B: Let me be sure I understnad, you agree that it is a general principle thast it is undesrieable for a religious majority to impose its views on a minority?
M: There may be exceptions, but it is a genreal rule
B: What are those exceptions?
M: Well, abolitionists —
B: Weren’t THEY the minority? What minority were they imposing their views on?
M: Slaveholders
B: WEre there religious justifications?
M: well the slaveholders may have had religious basis for their views and therefore it was inappropriate to impose others’ relgiious values on them.
THOMPSON: OBJECTION, outside scope of direct
WALKER: Well, if he would answer the question directly that he is asked, Mr Boies might not have to go so far afield in his questions trying to understnad his views on Prop 8. OVERRULED, Mr THompson.

B: Is it right for a religious majority in America today to impose its views on a minority, in the USA or in CA?
M: I think the principle —
B: Yes, No, I don’t know?
M: Well I think whats you are getting at, is it correct for a majority to impose its views…

B: I have no further questions

Walker; Questions from AG office, redirect?
PASTER: Yes Your honor.

P: Dr Miller what is your basis fdor your opinion that the AG is one of the institutional checks on the refendum procudure?
M: The AG crafts the title of the initiative, thast provides institutional input into the process.

P: How does it provide that check on the process?
M: It’s not the proponents who write the titel and the summary?

P: Can the AG provide anthing other than a nuetral title and summary?
M: That was contested inProp 8

P What was contested?
M: The AG’s title and summary were contested by both sides.

P: yes I understand that, but can the AG provide an opinion, or must his summary and title be neutral?
M: I think the law says it must be neutral, but there is some discration in the AG’s office

P: And parties can challenge this neutrality in a court of law?
M: yes

WALKER: Can the AG do something in addition to providing a neutral title and summary?
M: Different in different states
W: In California
M: Sometimes he may have…
Walker: Not the question: CAN THE AG DO MORE THAN….
N: he can provide institutional support or opposition but I’m not aware of anything else the AG has ever done.
Walker: BUT CAN HE>?
M: I don’t know
Walker: You don’t know, that;s your testimony?
M: yes

THOMPSON, REDIRECT: How many of these srouces did you personally consider and review?
M: All of them
T: research methodology regarding progressive religious support fo tthe No on 8 campaign?
M: extensive reading of progresive religious organizations websites, Pew website, those were important.

T: You were asked about your four-decade study of ballot initiatives. How successful were the CA initiatives in the 1970s that had the potential to tap into anti-homosexual prejudice?
M: Briggs, Prop 6 was defeated
T: In the 1980s?
M Three initiatives re: HIV quarantine and reporting, all were defeated by the voters.

T: You were asked about polling, about the repealof DOMA, look at Tab D of your NEW binder, prepared by Dr Segura and Dr C-I-M-I-N-O, self identified LGBT in this table, 73% supported repeal of DOMA (moves DIX2649)
ONJECTION, can’t hear it, though, you guys should go to the mike for your objections PLEASE

WALKER: This was not used with Prof Segura
T: It was, but I forgot to move it into evidence.
Walker: Admitted

T: what polling data are you aware of about the warmth of the people of CA towards G&L?
:M: Field poll, 2006, questions asked like the national eleciton sstudies, with a feeling thermometer 0-100. From memory, close to 2/3 held positive or neutral views about G&L.

T: recall docs from Vatican and Southern Baptists, please look at this document about evngelicals abuot homosexuality: "God loves all people, so we love all people" Is this their your understanding of their views?
M: Yes it is

Thompson: I want to play a video
WALKER: Admitted?
T: No, we could watch it and then Boeis could object
OBJECTION: I don’t know what it is, Ihaven’t seen it,,.
WALKER: Let’s hear it, then I will decide if it is beyond the scope.
THOMPSON: Well I could admit it..

(tech difficulties, but I think we are goig to see the anti-Mormon doortodoor ad)
THOMPSON: I will come back to that.

T: when were the vast majority of the anti-marriage constitutional amendments?
M: mid-2000s
T: Why?
M: Following the Goodrich decision in MA.

T: Since you’ve completed your PhD and written your book, can you explain the evolution of your thinking on the initiative process since the time you wrote your Santa Clara law review article?
M: It was a Madisonian critique of the inititiative and refernfdm issues. I thought the best way to think about it was with the courts as an importnat check on direct democracy. I decided to pursue this area of researcj, took a year-long research leave at UC Berkeley. Then I wrote a paper fully developed in my book, that: I have a more favorable view of the initiative process, the people can express popular sovereighnty in a constitutoional system. Many arguments for direct democracty, especially those put forward by TRoosevelt: many people thought the courts were standing in the way of progress, and the proper scope of rights could be contested at the ballot box and not only in courts. Two streams diverge from the Madisonian ideal. My early research showed that direct democracy could pull decision-making out of the legislative process, now I study how direct democracy can pull lawmaking away from unaccountable judges. WRT marriage, we had some discussion state DOMA, themajjorty of them came from state legislatures, not from petitioin drives. It is a combination ofo direct democracy and legislation, since the Goodrich decision took the decision out of the hands of the populace.

M: The courts aren’t imposing a check, the people have.

T: How has your thinking about Prop 22 ewvolved since your law review articel?
M: Comparing direct democracy and judicial activism; thinking about majorities and minorities. prop 6 (Briggs) was about schoolteachers, Prop 22 was about marriage, not invidious discrimination. Different from being imposed by the court. I viewed G&L at the time of Prop 22 as a disadvantaged minority. They spent 6 millioin opposed to 43 millioin in 2008.

T: Leaving aside marriage refernda, how have the political goals of G&L fared at the ballot box?
M: Very few affect G&L if you set aside marriage initiatives. You can’t say that initives strip away rights,e xcept well in th e 1990s Prop 2 in Colorado was very discriminatory. I would still think Prop 2 was disadvantaging to G&L, but very few others.

T: Boeis showed you Estrich/Kane amicus brief: "Proponents centrally maintained that Prop 8 would require education in public schools…" recall?
M: Yes
T: PX20, official ads of the campaign. (Prince and princess, it’s already happened, Wirthlins, parents have no right to object). You were asked questions about anti-gay stereotypes.
WAlker: Clearly beyond the scope, sustained
THOMPSON: BUt your honor
WALKER: Clearly beyond the scope Mr Thompson

Boies: No right to bring in his opinion….

M: Please restate
THOMPSON: Could the court reporter read it back please?

(Can;’t hear the court reporter upstairs, of course)

M: My answer is no.
T: Why?
M: I might have to look at it again
THOMPSON: Play it again?
Walker: I thought you were on the right track, with the Estrich>Kane article.

THOMPSON: Yes your honor.

M: Well you have a law professor talking about people not being able to use democratic processes to determine this issue. There’s a theme of tradiitonal marriage in the ad.

THOMPSON: NO further questions.

Walker: Never appropriate for the judiciary to intervene in the intitiative process?
M: No your honoe
W: When is it appropriate?
M: When an initiative violates the federal constitution?
W: That justifies the courts getting into?
M: Yes, this is the first time it’s been in a federal court, and can I explain….
W: Well you make an interesting comment that referenda make a check of the Lockner era judicial activism, so when it is appropriate for the courts to get involved against initiatives?
M: When a well-understood constitutional principle is being violated. When you have interplay between popular majority and judicial review.

Walker: Should it be checked?
M: It should be checked in COngress or state legislature.

WALKER: Let’s take a lunchbreak, during my lunch I am hearing a motion to suppress, so we probably won’t be back here until 1:15.

For Marcy: Note on Moss, who seems to be preparing to examine the next witness: As opposed to yesterday when she had on her dark suit with her hair up sternly, today she is wearing a maroon maternity dress with a sweater. And her hair down today.

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