Protect Marriage, Day 10: Quantity, Not Quality! …Oh Wait!

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On a day when their witness got confused about whether Prop 8 passed or not, the defense is trying eagerly to hide the fact that Boies continues to decimate their “expert” witness. (See my roundup here.) Still, Andy Pugno is here to remind us the extent of their delusions and their ability to see everything in a positive light. On a day he shouldn’t be too proud, he’s offered us one of his longer posts. Incidentally, little of it has to do with today’s proceedings. Here we go!

A Vigorous Defense for Traditional Marriage

As lawyers for the plaintiffs challenging Prop 8 neared the conclusion of their arguments and prepared to “rest their case” today, the court next turned its attention to the defense case put on by the Prop 8 Legal Team.

Okay, now, I’ve made fun of the mocking quotes before. In fact, I just dedicated a whole post to them. And I created a witty little picture for them with real pictures of real mockingbirds. And I get that they normally use them to be demeaning to us, the “politically powerless” “LGBT” community and our “movement” for same-sex “marriage.” But “rest their case”? Really? You’re now mocking basic legal terms? Perhaps you’re getting so desperate you have to start convincing your followers that the whole justice system is a joke to downplay your impending loss. Or maybe you just don’t understand basic legal terms. Or both, as we shall see.

But that doesn’t mean our legal defense team, while waiting our turn to present the official defense, hasn’t been vigorously fighting to uphold Prop 8 during the plaintiffs’ case-in-chief.  In fact, when the courtroom came to order this morning the time clock tells me that while plaintiffs have logged 28 hours in presenting their case, the defense team has logged nearly as much time – 27 hours – cross-examining the plaintiffs’ witnesses and introducing our own evidence into the record.

Yes, I think they found every single outdated piece of research they could so that they could waste our time asking the witnesses if they were “reasonable.” It definitely seems like Boies isn’t hedging on the cross-exams either, so I don’t really know what Pugno’s point is here. Perhaps he’s just running out of “bright sides” to look on and so he’s boasting his team’s “effort.” I feel real swell when I get a grade of “E” on Dance Dance Revolution. (It means I didn’t work hard enough.)

The fact that Pugno thinks “case in chief” is supposed to be hyphenated reinforces my suspicions that he’s not keen on his legal terminology.

Before resting their case, plaintiffs began Week Three this morning with a “document dump,” which means they admitted into the trial record a slew of documents they view to be evidence to support their case.  Nothing earthshaking in and of itself, but the subtext is utterly astounding.

Yes, there were a lot of documents. For not being earthshaking, defense counsel Nicole Moss objected to many of the submissions. I wonder what the big deal is if there’s nothing “earthshaking” there. Oh, yeah, and Judge Walker overruled all but one of her objections. Nice try, Ms. Moss.

Despite supposedly winning our appeal in the Ninth Circuit to protect the privacy of our internal Prop 8 campaign records, the trial judge has still forced us to hand over literally tens of thousands of pages of sensitive campaign memos, emails and other documents to the plaintiffs.  After sifting through our internal documents for facts they think aid their case, they had them labeled as trial exhibits and added to the court record.

Awww, poor babies! With nothing to hide, it must be so awful that you had to share all those documents! It’s just not fair that the plaintiffs are actually trying their case!! Why can’t they just shut up and let you preserve discrimination? Whhaaaahhhh! (By the way, “discrimination” is what your witness called anti-gay laws like DADT and DOMA today, right? Just wanted to check.)

So if the Yes on 8 campaign has been forced to open up its internal campaign records for this court trial, then shouldn’t also the No on 8 campaign have to do so, too?

I think there’s a dramatic difference here. The Yes on 8 documents demonstrate the motives for the proposition, which goes to what the plaintiffs are actually trying to show. What does it matter how it was opposed?

Well, although we filed a motion some time ago asking the court to order the “No on 8” campaign to disclose to us the same types of documents as those we had to disclose to them, the court has refused to rule on our request and thus we have been prevented from examining even one single document from the opponents of Prop 8.

The answer is that the No on 8 documents are probably largely irrelevant to the defense’s case. This is just another opportunity to demonize the court itself. It’s a defensive tactic. Rather than continuing to openly chastise their opponents, they’re now trying to diminish the court proceeding so a defeat doesn’t look as bad. They’re lowering expectations, but I’m not sure it’s even working.

I just want to point out that we’ve now been through six paragraphs, which is half of Pugno’s post, and he has not yet mentioned a single detail about the day’s proceedings. Watch this trend continue.

This is the sort of striking disadvantage we have suffered all along even before trial started and now during trial.  Since the moment the case started, the court has consistently sided with our opponents as they continue to “railroad” their case against the people’s right to vote for traditional marriage.

The defense only has one trick in their bag: play the victim. They can’t get any further playing victim to the opponents of Prop 8, so now they’re playing victim to the court itself. This is new. We have not heard any complaints like this before now, so the only logical explanation is that it’s a last-ditch effort to rally sympathy to their cause. It’s pathetic that this is the best Pugno can come up with.

Another example:  For months the plaintiffs have been practically foaming at the mouth to get our campaign manager, Frank Schubert, onto the stand to be questioned as a witness.  Having come up empty-handed in their search for evidence of “anti-gay bias” in campaign records, they suddenly dropped their plans to call Mr. Schubert to the stand.

Actually, it was because Schubert refused to answer questions during depositions. And not just a few. He refused to answer 76 questions. What’s the point of calling a person to testify who won’t say anything? By the way, what does he have to hide? Now watch this sneaky little tactic they pulled and how they’re playing it:

But when we announced plans to call Mr. Schubert as our own witness to help defend Prop 8, they filed a motion to prevent him from testifying at all.  They got their chance to question Mr. Schubert on the stand but when they saw the whites of his eyes, they blinked.

That’s because the plaintiffs would have had one day to review the huge mass of documents they had previously been refused access to and to prepare the cross-examination. I doubt the defense had any actual expectation of calling Mr. Schubert; this was likely just a little scheme to try to embarrass the plaintiffs. Given that all they’ve done is rouse further suspicions about Mr. Schubert and all the questions he refused to answer, I don’t think it worked.

Note: Pugno still has not revealed a single detail about any of the documents they spent over two hours reviewing or any of the testimony of their “expert” witness, Dr. Miller. Finally, three-fourths through his post, we get some detail. (Perhaps Pugno was hoping his followers would not read down this far?)

After plaintiffs rested their case today, our legal team called to the stand our first witness, Dr. Kenneth Miller, a political science professor at Claremont McKenna and expert on California politics.  Dr. Miller’s task was pretty straightforward: to lay out the reality that gays and lesbians in California have achieved enormous political power at all levels of government.  Why is this important?  Because to trigger the highest level of constitutional protection in favor of their claims, our opponents need to prove that gays and lesbians are a vulnerable and “politically powerless” minority.

And was he able to do that, despite the fact that Boies pointed out that “not one gay or lesbian has ever been elected to statewide office in history?”

To show that homosexuals are not politically powerless, Dr. Miller provided “striking” examples of the many ways in which they have won support for their political agenda in California, claiming allies such as federal officeholders (both US Senators and President Obama) , local and statewide elected officials (more than 30 local officials, mayors of the top three cities, and every single Constitutional officer); organized labor (more than 54 such groups opposed Prop 8); major newspapers (21 of 23 opposed Prop 8 while the other two took no editorial position); major corporations (including a consortium of Silicon Valley businesses), and the fact that the “No on 8” campaign actually raised more money than the “Yes” side.

Miller’s claim was that access to legislators, visibility of allies, and money were enough to constitute political power. Apparently, having our rights constantly voted away despite the support we have isn’t an indication of anything. But then, what does Miller know? Judging by the number of times he answered, “I don’t know” to Boies’ cross-exam, I’m going to go with “not much.”

Far from being “politically powerless,” the evidence has firmly established that the political influence of gays and lesbians in California has become quite powerful.

That is, except, of course, for the great details Dr. Segura outlined last week about political powerlessness that Dr. Miller couldn’t comment on. After reading that much Pugno—we’ve actually arrived at the end of his piece (didn’t you notice that conclusive last sentence?)—I’ll leave you with an excerpt from Shannon Minter’s recap juxtaposing the two testimonies.

This simplistic analysis contrasted sharply with the nuanced approach adopted by the plaintiffs’ expert, Professor Gary Segura, in his testimony last week.  Prof. Segura emphasized that to understand a group’s political power, one has to consider not only the number of legislative victories or the number of elected officials, but also the broader context-including factors such as the incidence of anti-gay hate violence, the number of initiatives attacking the civil rights of gay people and our persistent inability to defend ourselves against them, and the long history of government-sponsored discrimination against gay people in employment, which continues to the present day in the military’s ban on openly gay servicemembers. This rigorous attention to detail was notably lacking from Prof. Miller’s testimony.

In fact, under Prof. Miller’s definition of power as the ability to attract any favorable legislative attention, it’s hard to think of any group that would not qualify as politically powerful.  Certainly, neither race nor gender would be a suspect classification under the Constitution, since many federal and state laws prohibited discrimination on those bases before  the United States Supreme Court held that women and racial minorities were sufficiently politically powerless to merit constitutional protection.  In contrast, we still do not have a single federal law that prohibits sexual orientation discrimination, and, most states still permit employers to fire workers because of their sexual orientation.  If Prof. Miller’s analysis were correct, no type of discrimination would be subject to heightened constitutional scrutiny.

[Brian Leubitz also responded to this post over on the Prop 8 Trial Tracker.]

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