The defense team opened their case in federal court Monday in the challenge against Proposition 8, arguing that gays and lesbians are a politically powerful force, with strong allies in high office, unions, corporations and the media.
The testimony was intended to counter arguments by plaintiffs seeking to overturn California’s ban on gay marriage, that the measure discriminated against a persecuted, powerless group and thus was unconstitutional.
Claremont McKenna College professor Kenneth P. Miller, the first witness for defense, was called to the stand to rebut a plaintiff’s expert who testified that gays were politically powerless.
The question of power is part of the legal analysis over whether gays need stronger constitutional protection.
Judge Vaughn R. Walker said he would admit Miller’s testimony after the defense sought to undermine his expert status, noting that in Miller’s earlier deposition he did not recognize the names of individuals and organizations who pioneered the gay rights movement in the mid-19th century.
Miller detailed a list of key politicians in the state who support gay rights, including Governor Arnold Schwarzenegger — who opposed Proposition 8 and, while named as a defendant in the case, declined to defend it — and San Francisco Mayor Gavin Newsom, referring to him a “nationally recognized” gay marriage supporter.
Miller also said newspapers, the entertainment industry and labor unions support gay rights in the state, and cited the $43 million raised to fight Prop 8, and that 21 of 23 major California newspapers opposed its passage.
But under cross examination, plaintiff’s attorney David Boies sought to undermine Miller’s contention that gays and lesbians wield power, getting him to acknowledge that no high ranking California politicians are openly gay, that gays are expelled from the U.S. military if they reveal their sexuality, and that gay couples in some states cannot adopt children.
Miller sparred with Boies over whether Prop. 8 discriminated against same-sex couples — Miller acknowledged that it “treated them differently,” but said he wasn’t sure whether it was legally discriminatory.
Earlier in the day, the plaintiffs wrapped up their case, introducing into evidence various campaign documents and videos of pro-Prop. 8 campaign rallies to bolster their argument that the initiative, promoted as a reaffirmation of traditional marriage, was actually an appeal to anti-gay bias.
In one video from a Prop 8 rally, an unidentified speaker warned that if same-sex marriage remained legal, pedophiles would be allowed to marry children, and so would a “man from Massachusetts who petitioned to be allowed to marry his horse.”
In another video clip, Ron Prentice, a leading figure in the campaign, warned that “schoolchildren will be indoctrinated” with lessons on same-sex marriage if gays and lesbians are allowed to wed.
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