Gery Shih on Day 10:
[And after you read Shih, compare it to the Wall St Journal's coverage of the same day. The WSJ's lack of specifics regarding David Boies' "feisty cross-examination" gives a very different impression of what happened than Shih's more factual reporting. This is one of the clearest examples, since I began highlighting media bias, of how a media outlet's political views impacts their coverage.]
The trial began on Monday morning with lawyers seeking to overturn Proposition 8 submitting the remainder of their evidence, like an array of e-mail communications, videos from pro-Proposition 8 campaign activities and academic papers.
The video presentations included footage from “simulcasts” to church groups, in which pastors say that gay marriage would lead to the legalization of polygamy, marriage with children and bestiality.
“If Proposition 8 doesn’t pass we will see a domino effect and the social re-engineering of marriage will have a profound implication for every one of our lives,” said a man in the footage, in what appeared to be a live interview. He compared the potential failure of Prop 8 to the Sept. 11 World Trade Center attacks in New York, saying, “After 9/11 the world was a fundamentally different place.”
A woman added: “If sexual attraction was the basis for the definition of marriage then pedophiles would have to be allowed to marry 6-, 7-, 8-year olds. Then a man could marry a horse. Mothers and sons. Sisters and brothers.”
The purpose of entering these simulcasts as evidence is part of the plaintiff lawyers’ attempt to show that Proposition 8 violated the constitution because it was motivated by prejudice and resulted in discrimination against a politically vulnerable group.
When Christopher Dean Dusseault, a lawyer for the plaintiffs, tried to link the simulcasts with ProtectMarriage.com, the official campaign behind Proposition 8, Nicole Moss, a lawyer with the defense, acknowledged that the simulcasts were paid for by ProtectMarriage.com, but objected that they were relevant to the case.
The plaintiffs also submitted the e-mail communications of Ron Prentice, the executive director of ProtectMarriage.com. The e-mail messages apparently showed coordination between the church groups that produced the simulcasts and Mr. Prentice’s efforts to closely “control the message from the simulcast,” in Mr. Prentice’s words, when it seemed that they would appear on the “Dr. Phil Show.”
Update | 4:04 p.m. With the last of its evidence submitted, the legal team for the plaintiffs rested their case shortly after 11 a.m. on Monday, exactly two weeks after they called the first of their 17 witnesses.
David H. Thompson promptly took over and presented Kenneth Miller, a professor at Claremont McKenna as the first witness for the defense. David Boies, the lawyer for the plaintiffs, challenged Dr. Miller’s qualifications as an expert on gay and lesbian politics, but Judge Walker allowed Mr. Thompson to proceed.
The strategy of the defense was to show, with extensive detail, the political and financial backing that gays and lesbians in California have enjoyed in recent years. This could undermine the plaintiffs’ argument that Proposition 8 passed because gay men and lesbians are a politically oppressed group suffering from continuing discrimination.
“Forty-three million dollars were raised and spent by the opponents, which exceeded very large contributions by the Yes on 8 campaign,” Dr. Miller said. “There is no social issue that has ever involved this kind of money.”
He added: “This is exceptional.”
Dr. Miller also testified that gays and lesbians could count on a deep and varied contingent of political allies. He named the state and national Democratic parties, organized labor, newspapers, celebrities and some church groups as politically powerful institutions and individuals that favor same-sex marriage ...
Update | 8:54 p.m. After Mr. Thompson finished questioning Dr. Miller, the rest of Monday afternoon was taken up by Mr. Boies’s cross examination of Dr. Miller, which yielded some uncomfortable moments for the professor of government from Claremont McKenna College.
The defense, fending off Mr. Boies’s attempts to disqualify Dr. Miller earlier in the day, had characterized Dr. Miller as a scholar well versed across the broad politics of California initiatives. Upon the start of his cross examination, however, Mr. Boies persistently tried to uncover Dr. Miller’s unfamiliarity in the area of gay and lesbian political and legal history as he cast doubt on the professor’s qualifications as an expert witness for this trial.
Mr. Boies pointed out that during his deposition, Dr. Miller did not know how many states had laws regarding discrimination on the basis of sexual orientation. Then, after Mr. Boies pressed Dr. Miller to answer whether a rebuttal report he filed with the court contained materials he had found himself or with the aid of defense counsel, Dr. Miller acknowledged that he did receive materials from lawyers.
Mr. Boies then asked Dr. Miller to circle all the indexed materials that Dr. Miller received from defense lawyers, and for the next 15 minutes, Dr. Miller, quietly seated in the witness stand, did so.
Mr. Boies appeared to land two blows in quick succession when Dr. Miller testified that both the Defense of Marriage Act and the Don’t Ask Don’t Tell policies constituted “official discrimination.”
The questioning grew increasingly strained as Mr. Boies continued to ask Dr. Miller to answer a range of difficult questions, ranging from political history to gay and lesbian politics and scholarship.
Dr. Miller acknowledged that he was not familiar with the work of Professor George Chauncey of Yale, who testified during the trial’s first week, or a list of other scholars that Mr. Boies said were known experts in the field of L.G.B.T. studies.
“What academic books and articles are you familiar with regarding the discrimination against minority groups?”
Dr. Miller demurred.
“You mean you can’t think of any titles?” Mr. Boies asked.
“No, I can’t,” Dr. Miller responded.
Mr. Boies, minutes later, asked, “Nationally, do you believe the African-American minority or the gay and lesbian minority has the greater political power?”
Dr. Miller responded, “I’d have to say I don’t know.”
At one point, midway through an intensifying series of questions from Mr. Boies, Mr. Thompson, the defense lawyer, stood up to object that the questions had strayed beyond the scope of Dr. Miller’s expertise.
To the loudest laughter of the afternoon and a chuckle from Judge Walker, Mr. Boies responded wryly, “I think there is some merit to that objection.”