Prop 8 Trial! Day 3 Summary

Ok, today’s post is again from LIVE updates so start at the bottom and work your way up! Coverage courtesy of Howard Mintz:


4:20 p.m.: Day 3 testimony ends

The third day of the Prop 8 trial is in the books. Chief U.S. District Judge Vaughn Walker quickly commented on the Supreme Court’s order banning broadcast of the trial, suggesting there are issues yet to be resolved as far as posting video of the trial on the federal court Web site. It seemed to be a reference to the fact that Walker’s larger plan to webcast via YouTube was never approved by the 9th Circuit’s chief judge before an appeal went to the Supreme Court on part of his order, which would have allowed simulcast of the trial to five other federal courthouses. But Walker made it clear he doesn’t want the issue to sidetrack the trial.

Meanwhile, UCLA prof Letitia Peplau finished her testimony. Tomorrow’s plaintiffs witnesses include Edmund Egan, San Francisco’s chief economist, and Helen Zia, a lesbian woman who married before Prop 8 went into effect.

3:36 p.m.: Bizarre exchange of the day

As the Prop 8 trial gets close to the end of the day, bizarre-question exchange of the day just took place. Prop 8 lawyer Nicole Moss was trying to ask plaintiffs expert Letitia Peplau, a UCLA prof, whether gay couples could “accidentally” have children out of wedlock. “If your question is whether two lesbians can, accidentally, spontaneously, impregnate each other, not to my knowledge,” she said, prompting laughter in the courtroom. “I would agree that same-sex couples do not have accidental pregnancies.”

3:29 p.m.: A closer look at the Supreme Court ruling on broadcasting the trial

A closer look at the U.S. Supreme Court’s ruling indefinitely barring any broadcast of the Prop 8 trial shows the difference between the majority and dissenters boiled down to two things. The majority (Justices Roberts, Alito, Thomas, Kennedy and Scalia) concluded that Chief Judge Vaughn Walker did not follow federal law in changing rules to allow cameras in his courtroom for the trial, in large part because they believe he didn’t allow enough time for public comment on changes to local federal court rules. And the justices also determined that Prop 8 supporters demonstrated there could be harm to their fair trial rights because certain witnesses could be intimidated by broadcast exposure, reason to keep the stay in place.

The dissenters (Breyer, Ginsburg, Sotomayor and Stevens) couldn’t have disagreed more. They said Walker easily followed the rules, and rejected the idea Prop 8’s defense would suffer any harm. They called the decision an unprecedented attempt to “micromanage” a district court’s administration.

Same-sex marriage advocates can only hope the justices don’t break down along the same party lines if the main issue reaches the high court.

Meanwhile, Letitia Peplau, the plaintiffs expert, is sparring with Prop 8 lawyer Nicole Moss under cross-examination, feuding over data about gay marriage in Belgium.

2:44 p.m.: UCLA prof says 2 percent of marriages would be same-sex

UCLA prof Letitia Peplau has completed her testimony under questioning from plaintiffs lawyers. By trial standards, her testimony moved pretty quickly as she told the judge her opinion that allowing same-sex marriage would not damage the institution, as Prop 8 supporters suggest. She noted that even if gay marriage is allowed, only about 2 percent of all marriages in the nation would be same-sex. “I think it would have no impact on the stability of heterosexual couples,” Peplau testified.

Prop 8 attorney Nicole Moss is now cross-examining Peplau. It appears she will question whether there is sufficient evidence to back up Peplau’s conclusions about same-sex couples and the importance of marriage to their relationships.

2:25 P.M.: Supreme Court indefinitely blocks YouTube broadcastts

With a 5-4 ruling, the U.S. Supreme Court has decided to keep the Prop 8 trial dark on the Web, rejecting Judge Vaughn Walker’s attempt to broadcast the proceedings on the federal court’s Web site by using YouTube., as well as allowing it to be circulating for viewing at various federal courthouses around the West. The majority opinion said that Walker and officials with the 9th Circuit Judicial Conference, including Chief 9th Circuit Judge Alex Kozinski, did not follow proper procedures in changing federal court rules that would allow the broadast. The majority stressed that it was not “expressing any view on whether such trials should be broadcast.” Justice Stephen Breyer, writing for the four dissenters, decried the decision, saying there was no reason to interfere with the broadcast and that there would not be any harm in allowing the webcast.

Meanwhile, UCLA prof Letitia Peplau, a plaintiffs expert, is testifying on research she says shows that same-sex couples enjoy the same benefits from marriage as heterosexual couples. She also said he will offer an opinion that allowing gay marriage will have no impact on heterosexual marriage

1:48 p.m.: Next witness is UCLA prof

The Prop 8 trial has resumed for the afternoon session. Letitia Peplau, a UCLA professor, is taking the stand for the plaintiffs as a social-psychology expert who is expected to testify to the benefits of marriage for same-sex couples.

Meanwhile, everyone is waiting for the U.S. Supreme Court to decide the issue of allowing the broadcast of the trial on the Web. The Supreme Court had stayed Judge Vaughn Walker’s order allowing cameras until 1 p.m. today, but that time came and went. The nation’s high court apparently moves on its own time.

12:15 p.m.: UCLA professor to testify on positives of same-sex marriage

The Prop 8 trial is on lunch break until 1:40 p.m. Yale professor George Chauncey is done testifying after about a full day on the stand. Next up for the plaintiffs is Dr. Letitia Peplau, a UCLA professor being called to testify on the positive benefits of marriage for same-sex couples, and the impact on them of denying the right.

11:54 a.m.: Video of Prop. 8 supporter William Tam played in court

The plaintiffs continue to play the videotaped deposition of William Tam, one of the leaders of the Proposition 8 campaign, as Yale Professor George Chauncey remains on the stand (almost as an afterthought at this point). In the depo, Tam answers a variety of questions about why he opposed gay marriage, including what he perceived as a threat to children. He testified that children would opt to be gay if they know same-sex marriage is permitted. “Since it’s in the air, then they think, why not?” Tam said in his deposition.

The plaintiffs are expected to call Tam as a witness in the trial Friday. A thrust of the lawsuit will be an attempt to persuade Walker that Proposition 8 was driven by animus against gays, and Proposition 8 supporters are certain to be grilled on that topic.

11:35 a.m.: Letter from Prop. 8 backer likens same-sex marriage to legalizing sex with children

Therese Stewart, San Francisco’s chief deputy city attorney, shows Yale Professor George Chauncey a letter authored by leading Proposition 8 backer William Tam during the campaign. Tam likens allowing same-sex marriage to efforts to legalize prostitution and legalizing sex with children. Stewart asked Chauncey if the letter “reflects a lower hostility level” toward gays and lesbians.

“This is consistent in tone with a much larger history of anti-gay rhetoric,” Chauncey replied.

A reminder that the plaintiffs have Chauncey on the stand to establish a history of discrimination against gays. The legal importance is for plaintiffs to try to get gays and lesbians deemed a “protected class” that warrants greater protection under the federal constitution. The U.S. Supreme Court has given that status based on race, religion and gender, but not for sexual orientation.

11:27 a.m.: Yale professor winding down testimony

As Yale Professor George Chauncey winds down his testimony, plaintiff lawyers have decided to roll out some fresh artillery to try to undercut the Proposition 8 legal team’s effort to argue that gays and lesbians face a diminishing threat of discrimination. Proposition 8 attorney David Thompson used that approach in cross-examining Chauncey, who now is back under questioning from plaintiffs attorney Therese Stewart.

To set up some questions for Chauncey, Stewart is playing video of a Dec. 1 deposition of William Tam, one of the leading Proposition 8 sponsors and one of the intervenors in defending the law in the federal court case. Tam just last week asked to be let out of the case as a defendant because of concerns he faces threats and harassment from same-sex marriage advocates, and Walker has yet to rule on that attempt.

Tam, in the deposition, describes his role in mobilizing rallies during the Proposition 8 campaign, often through churches, and spurring support for the measure in the Asian-American community.

10:06 a.m.: Former Miss California Carrie Prejean mentioned

The judge has taken his morning break, but not before the inevitable happened: mention of defrocked beauty queen Carrie Prejean, who drew controversy last year for opposing same-sex marriage. Proposition 8 lawyers played a clip of San Francisco Mayor Gavin Newsom saying Prejean was being unfairly maligned for speaking her mind, planning to question Yale Professor George Chauncey about it. Chief U.S. District Judge Vaughn Walker, however, agreed with plaintiff lawyers that the line of questioning was irrelevant and spiked the idea of asking Chauncey about the Newsom comment.

Chauncey is close to winding up his stay on the stand.

9:51 a.m.: Yale professor on hot seat during cross-examination

Yale Professor George Chauncey remains in the hot seat under cross-examination from Proposition 8 lawyer David Thompson. Thompson continues to pound on the theme that gays and lesbians no longer face widespread discrimination, and in fact are gaining in political power. Chauncey is not buying entirely in that argument. “The bottom line is that there has been a significant shift in public opinion toward acceptance of gay rights, correct?” Thompson asked.

“There has been a shift in public opinion and growing support for gay people, and gay people continue to encounter enormous hostility,” Chauncey replied.

Interestingly, the Proposition 8 legal team is leaving much of the cross-examination of the plaintiffs experts to Thompson, a studious-looking lawyer in lead attorney Charles Cooper’s law firm, Cooper & Kirk. Thompson, in fact, is managing partner in the firm and has no problem questioning academics from the Ivy League: He’s a Harvard law grad himself. Thompson is no stranger to conservative legal fights, either. Among other cases, he aided in defending a legal challenge to California’s Proposition 209, which banned public affirmative action programs.

9:17 a.m.: Cross-examination of Yale professor

Day 3 of the Proposition trial is rolling with the resumption of testimony from George Chauncey, a Yale history professor and plaintiffs expert on the history of discrimination. He is under cross-examination from David Thompson, a Proposition 8 lawyer who is trying to undercut the professor’s testimony that gays and lesbians have been the target of unrelenting discrimination through history, including in modern times. Thompson has asked about television and movies on gays and gay issues, such as the TV show “Will & Grace” and the 1993 movie “Philadelphia.” And he is asking Chauncey about presumed improvements in the political arena, with gains in gay rights through ordinances around the country and in the California legislature.

The trial day will be expert-intensive. The plaintiffs will later put on Edmund Egan, chief economist for San Francisco; Ilan Meyer, a mental health expert from Columbia University; and Letitia Peplau, a UCLA expert on the benefits of marriage.

The U.S. Supreme Court is expected to decide later today on the issue of broadcasting the trial on YouTube.


10 responses to this post.

  1. Posted by Next Please on January 13, 2010 at 8:43 pm

    Thanks for your blog. Unfortunately, the Supreme Courts 5-4 ruling on in court video is EXACTLY the same ruling we will get when we get to the Supreme Court unless one of those 5 justices miraculously resigns and Obama gets to appoint. this is the precise reason why it was a mistake to bring this to trial at this time.

    This is going to set us back 25 years, I’m afraid.


    • Posted by ethingtoneric on January 13, 2010 at 8:48 pm

      Next Please;
      Thanks for your comments! I don’t know if I agree with you however. While it is very possible that your 5-4 prediction may be correct when this inevitably makes it to the Supreme Court, how does that set us back 25 years? Isn’t it more likely that with so much national attention, the trial may push the federal government into pursuing further rights through it’s body? Or even prompting further rights to come from a state level?
      Thanks again for your thoughts, looking forward to hearing from you again!


  2. Posted by Next Please on January 13, 2010 at 9:10 pm

    From a legal standpoint, once the Supreme Court creates a ruling (and in this case, I certainly hope I am wrong) that legal precedent is used as a reference point for all lower court cases that try to change the law state by state. I fear that – much like Bowers v. Hardwick – (1986), it took almost 20 years to overturn that case and in the meantime, it was used to support discriminatory law all over the country. I think I would have advocated waiting for a change in the Supreme Court rather than taking the risk.


    • Posted by ethingtoneric on January 13, 2010 at 9:28 pm

      Next Please;
      Valid point. But at the same time, if not now when? Prop 8 was an extreme catalyst which galvanized an ever-growing indifferent community into action. If this isn’t pushed as much as possible now do we run the risk of falling back into complacency?


      • Posted by alibeast on January 13, 2010 at 10:08 pm

        Next Please, you’re right-there is a very large risk in taking this all the way to the Supreme Court. courts, especially the Supreme Court, work very, painfully, slow. not only that, but the Supreme Court has total control over whether they decide to hear a case or not, meaning that if challenges to the constitutionality of a gay marriage ban were to appear again, they could metaphorically stick their fingers in their ears and ignore it.

        were prop 8 to be deemed legal (and constitutional) we would be facing a possible constitutional amendment banning it, which take even longer to repeal. there have been no constitutional amendments since 1992.

        the most important thing to keep in mind about the Supreme Court is that it can ONLY act when cases or incidents are brought to its attention-it cannot of its own volition go out and seek to change law. undoubtedly, those opposed to prop 8 and for gay marriage realized that the case before them has incredible strengths, or they would have never filed it in the first place. they must have anticipated appeal to the Supreme Court. they realized that this was the right case at the right time. who knows when another would have been bold enough to appear.

      • Posted by ethingtoneric on January 13, 2010 at 10:14 pm

        Kate Kendall of the National Center for Lesbian Rights also made a great comment tonight. She said that no matter what the outcome of the trial, this case has the potential to change peoples’ minds and help them get over the history and culture that LGBT people are somehow lesser. And even if we don’t win this, isn’t that in itself a huge step on this staircase towards equality?

    • Posted by Ryan on January 14, 2010 at 10:03 pm

      Yes, it did take almost twenty years to overturn Bowers v. Hardwick, but that doesn’t tell us much. We have no way of knowing whether how the existence of that precedent affected the timing of Lawrence v. Texas (or it’s alternative universe equivalent). It is true that the existence of a precedent may have made later justices more leery of ruling the other way, but that is not the only possibility. It may be that the judges ignored the existence of Bowers while coming to a decision. It is also a possibility that the experience of Bowers taught the lawyers of Lawrence lessons that helped them win.

      By not challenging Prop. 8 and other marriage bans, we have a de facto ruling that the United States Constitution allows them. If we don’t bring this case, we are forced to rely state law rather than appealing to the U.S. Constitution. If this case brings an unfavorable ruling, we will be forced to rely on state law rather than appealing to the U.S. Constitution. I don’t see the big difference.

      By challenging Prop. 8 in federal court, we have a chance to get something like Brown v. the Board of Education. Even if we fail, we will have had an opportunity to show the public the strength of our arguments and the weakness of our opponents’ arguments as well as to learn lessons that we will be able apply when one of the five conservative justices are replaced with someone new.


  3. Posted by Libbie on January 13, 2010 at 9:14 pm

    Hi, Eric. Thanks so much for the thorough reporting, which, given the trial broadcast outcome, is more crucial than ever. I’ll be watching your blog closely in the days to come, sending good vibes to SFO. Again…thank you so much for your commitment to reporting the details of the case.


  4. Thank you so much for taking the time to post this summary! I am looking forward now to reading your continuing summaries!


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