January 20, 2010 Volume 7
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO,
Plaintiffs,
VS.
ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as director of the California Department of Public Health and State Registrar of
Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,
Defendants.
NO. C 09-2292-VRW
San Francisco, California
Wednesday
January 20, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By: Katherine Powell Sullivan, CRR, CSR 5812
Debra L. Pas, CRR, CSR 11916
Official Reporters - U.S. District Court
APPEARANCES:
For Plaintiffs:
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
MATTHEW D. MCGILL, ESQUIRE
AMIR CAMERON TAYRANI, ESQUIRE
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE
SCOTT MALZAHN, ESQUIRE
THEANE KAPUR, ESQUIRE
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105-2933
BY: ETHAN D. DETTMER, JR., ESQUIRE
ENRIQUE A. MONAGAS, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue, 7th Floor
New York, New York 10022
BY: JOSHUA I. SCHILLER, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
STEVEN C. HOLTZMAN, ESQUIRE
For Plaintiff- Intervenor:
CITY AND COUNTY OF SAN FRANCISCO
OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
San Francisco, California 94102-4682
BY: DENNIS J. HERRERA, CITY ATTORNEY
THERESE STEWART, DEPUTY CITY ATTORNEY
RONALD P. FLYNN
DANNY CHOU
CHRISTINE VAN AKEN
MOLLIE M. LEE
DEPUTY CITY ATTORNEYS
For Defendant Gov. Schwarzenegger:
MENNEMEIER, GLASSMAN & STROUD
980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: ANDREW WALTER STROUD, ESQUIRE
For Defendant Edmund G. Brown Jr.:
STATE ATTORNEY GENERAL'S OFFICE
455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102-7004
BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL
STATE OF CALIFORNIA
Department of Justice
Office of the Attorney General
1300 I Street, 17th Floor
Sacramento, California 95814
BY: GORDON BURNS, DEPUTY SOLICITOR GENERAL
For Defendant- Intervenors:
COOPER & KIRK
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
BY: CHARLES J. COOPER, ESQUIRE
DAVID H. THOMPSON, ESQUIRE
HOWARD C. NIELSON, JR., ESQUIRE
NICOLE MOSS, ESQUIRE
PETER PATTERSON, ESQUIRE
For Defendant- Intervenors:
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
BY: BRIAN W. RAUM, SENIOR COUNSEL
JAMES A. CAMPBELL, ESQUIRE
JORDAN LORENCE, ESQUIRE
DALE SCHOWENGERDT, ESQUIRE
ALLIANCE DEFENSE FUND
101 Parkshore Drive, Suite 100
Folsom, California 95630
BY: TIMOTHY D. CHANDLER, ESQUIRE
ALLIANCE DEFENSE FUND
801 G Street NW, Suite 509
Washington, D.C. 90001
BY: AUSTIN R. NIMOCKS, SENIOR LEGAL COUNSEL
For Defendant Dean C. Logan:
OFFICE OF LOS ANGELES COUNTY COUNSEL
500 West Temple Street, Room 652
Los Angeles, California 90012
BY: JUDY WHITEHURST, DEPUTY COUNTY COUNSEL
For Mr. Garlow, Mr. McPherson:
AMERICAN CENTER FOR LAW & JUSTICE
11 West Chestnut Hill Road
Litchfield, Connecticut 06759
BY: VINCENT P. MCCARTHY, ESQUIRE
For Dennis Hollingsworth:
ANDREW PERRY PUGNO, ESQUIRE
101 Parkshore Dr #100
Folsom, California 95630-4726
For Defendant- Intervenor Tam:
TERRY L. THOMPSON, ESQUIRE
P.O. Box 1346
Alamo, California 94507
For Proposed Intervenor Imperial County, et al.:
ADVOCATES FOR FAITH AND FREEDOM
24910 Las Brisas Road, Suite 110
Murrieta, California 92562
BY: JENNIFER L. MONK, ESQUIRE
_ _ _ _
P R O C E E D I N G S
JANUARY 20, 2010 8:38 A.M.
THE COURT: Very well. Good morning, counsel. (Counsel greet the Court.)
THE COURT: We have a few items to take up. And let's take up the scheduling item, first. I just learned that a message from the clerk to Mr. Boutrous, apparently, was not delivered or not received, that we have cleared the calendar and will be able to continue the trial tomorrow. The clerk put a call in to Mr. Boutrous to that effect, and to Mr. Thompson, and requested each to notify everybody else. Apparently, Mr. Thompson did not do so. And Mr. Boutrous apparently didn't receive the message. But, be that as it may, we're ready to continue the trial tomorrow, and we'll proceed as expeditiously as possible.
MR. THOMPSON: And, your Honor, I would like to apologize. I had assumed that it was informed counsel on our side. I had not realized that I was supposed to coordinate. And I picked up the message on Tuesday morning. But I do apologize to the Court.
THE COURT: Very well. I accept that. I understand. Now, we have some discovery and other matters to deal with. The first is proponents' objection to the magistrate's discovery order. And we just filed a written order on that objection a few moments ago. It's very brief. The bottom line is that the magistrate's order, I do not believe, is clearly erroneous, which is the standard. In fact, I think it's quite correct. And so the discovery order by Magistrate Judge Spero will remain undisturbed. The second is proponents' motion to amend the January 8 discovery order to add four names to the core group designation. I tried to communicate with Magistrate Judge Spero this morning, to see if he is available to hear that. I was unable to reach him. Inasmuch as that was a matter before him, it might make sense for him to hear that in the first instance. But I don't want that reference to delay matters. And so if he's unavailable to hear that matter and to give a decision before, say, midday today, I'd prefer to rule on that based upon the submissions here. But what I'll have the clerk do is try to reach him and see what his availability is, and then at least one lawyer from each side can go and discuss the matter with him and take up the issue. As I understand it, the proponents wish to add four names to the core group designation. A Mr. Criswell, a Mr. Wirthlin, a John Doe. And I have forgotten the fourth you are seeking.
MR. PUGNO: Mr. Rob Wirthlin.
THE COURT: Mr. Wirthlin, yes.
MS. STEWART: Peterson.
MR. PUGNO: I'm sorry. Andrew Pugno for the defendant-intervenors. Mr. Rob Wirthlin is the fourth.
MS. STEWART: Peterson.
THE COURT: I mentioned Wirthlin.
MR. PUGNO: Oh, I'm sorry, Your Honor. It's Richard Peterson.
THE COURT: Okay. Then we have the plaintiffs' motion to reopen the deposition of Mr. Prentice. We haven't had a response on that, at least I haven't seen one. But I wonder, Mr. Boutrous, whether we really need to have a further deposition of Mr. Prentice. As I understand the situation, you believe that you've discovered documents which call into question the deposition testimony that Mr. Prentice gave. Why can you not simply take that up in your examination of him? When is he going to be called as a witness?
MR. BOUTROUS: We have listed him, Your Honor, for, I think, tomorrow or Friday. And -- and we thought it would, number one, streamline things if we were able to just walk through these documents with him. It is a fairly voluminous group of documents, which might either make it unnecessary for us to call him live, if we are talking about authenticating documents, or at least would spare the Court some lengthy walking through documents and asking him what they are, and that sort of thing. And so I don't think it needs to be a really long deposition. But we thought for everyone it would be better to just do a deposition, walk through the documents, and then streamline things in the court. And we thought that would be a preferable way to approach it.
THE COURT: Do proponents have a view? Ms. Moss.
MS. MOSS: Good morning, Your Honor. And I apologize for not having a copy with me, but we did just file our opposition this morning, and I'm trying to get one printed now. Our position is, we are opposed to reopening the deposition of Mr. Prentice. He was deposed for 14 hours, both as the 30(b)(6) and in his individual capacity. And we believe that their papers suggested they had 25 documents that they wanted to go over with him. And we believe that to the extent they think that there is inconsistencies with his testimony, they can explore that on the stand; and that it would be highly prejudicial to us to have to both sit through his deposition at the same time that it's the day before they're saying they are going to put him on the stand. We wouldn't have the ability to really prepare him for his testimony. So we would ask that it not be reopened, or, at a minimum, that it be not the seven hours they have requested but, at most, an hour.
MR. BOUTROUS: We would take two hours, Your Honor. And if I could just respond to the suggestion that it's the proponents who are sort of getting the short end of the stick on the fairness equation. The proponents withheld these documents, refused to let Mr. Prentice answer questions on things that were clearly within discovery. And Magistrate Spero, when he heard the arguments and ruled, found that -- that the relevance arguments were entirely frivolous, and I think he said outrageous, at one point, because they were clearly documents and things that were within the realm of discovery and this Court's order and the Ninth Circuit's order. So we have been proceeding with extreme diligence. We had teams reviewing these documents for the last week. These documents should have been produced well before Mr. Prentice's deposition. So we think that we're making a modest request for a short deposition, which will benefit everyone, including helping streamline the proceedings.
THE COURT: I'm inclined to agree with Ms. Moss. I have not forgotten what it's like to try cases and take depositions at the same time. That's difficult under any circumstances. And seems to me you will be able to cross-examine or to examine Mr. Prentice. And if there are, in fact, inconsistencies between his deposition testimony and the evidence that's now been produced, you'll be able to explore that, and can be done just as effectively here at trial as with a further deposition. It may take a little more time with the authentication of documents, but we're in trial. So I'll let you proceed. And, then, I believe the only other matter is the proponents' objection to the next witness.
MR. COOPER: Actually, Your Honor, before you get to that, there's something in the nature of loose ends.
THE COURT: All right.
MR. COOPER: I think --
THE COURT: Let's tidy up those loose ends.
MR. COOPER: This won't take but a moment. But yesterday I did maintain a provisional objection to a couple of the documents, as you may recall, that Mr. Boies introduced into evidence. It was PX0188 and PX0189. Since the time of that provisional objection, my friends for the plaintiffs have provided the confirmation that those were indeed provided to us before the deposition of Dr. Badgett.
THE COURT: Very well.
MR. COOPER: So we withdraw that objection.
THE COURT: All right. Thank you very much, Mr. Cooper. Then I believe the only other remaining matter is the issue of the Ryan Kendall testimony.
MR. CAMPBELL: Yes, Your Honor.
THE COURT: And you are Mr. --
MR. CAMPBELL: James Campbell for the defendant-intervenors.
THE COURT: Mr. Campbell. You took the deposition?
MR. CAMPBELL: That is correct, Your Honor. Just -- as I understand, Your Honor is familiar with the deposition --
THE COURT: I read the deposition.
MR. CAMPBELL: As a brief background, Mr. Kendall is a man from Colorado whose parents forced him, against his will, to attend some type of sexual orientation conversion therapy. And that is the nature of his testimony in this case. We believe that there are at least four reasons why his testimony should be excluded from this case. First of all, Mr. Kendall's testimony is irrelevant. He can only testify about his limited experience, which deals with involuntary, forced conversion therapy. And it is our position, Your Honor, that that is wholly irrelevant to this Court's analysis. Secondly, to the extent that this issue is at all relevant, it is the proper subject of expert testimony, not lay testimony. Simply put, one man's anecdotal account of his experience with a particular type of conversion therapy is irrelevant to this Court's analysis. It's no more relevant than if the defendant-intervenors found some individual and asked them to elicit testimony about a positive experience they had with this type of testimony. So we would just urge the Court that this is the proper subject of expert testimony, if it is at all relevant. And, further to that point, Your Honor, the plaintiff and plaintiff-intervenors have already identified an expert, Dr. Herek, who in his expert report has already opined on the issue of conversion therapy. So if it's relevant, he can discuss it. And, finally, Your Honor -- I think this, perhaps, is one of the more important points -- plaintiff and plaintiff-intervenors' own expert, Dr. Herek, has indicated that self-reports of conversion therapy from many years ago, which of course is the type of testimony that we'll be receiving from Mr. Kendall, is unreliable, often inaccurate, and unhelpful for serious analysis. And what I'm referring to specifically, Your Honor, is Plaintiffs' Exhibit 2563, which I have some copies of. This document, Your Honor, is Dr. Herek's commentary on a study of conversion therapy conducted by a person named Spitzer. And if I could
DIRECT the Court's -- specifically, Dr. Herek makes some comments here about self-reporting of conversion therapy, and I think they are particularly enlightening in this context. What he says, on page 438 of this document, and it's the last paragraph on that page, just the first couple of sentences, I quote: "Even if Spitzer respondents sincerely tried to give true accounts of feelings and daily behavior from on average 12 years prior to the interview, their reports cannot be assumed to be reliable. People often are inaccurate when recalling earlier mental states, especially when their emotions, goals, or beliefs have changed in the interim." And he goes on further, Your Honor. So I guess our position on that point is, their own expert recognizes that this type of self-reporting isn't helpful for a serious analysis.
THE COURT: Let me ask you, Mr. Campbell, isn't this an issue that the proponents themselves have raised and opened in the case?
MR. CAMPBELL: I don't believe that we've -- we've raised the issue of forced conversion therapy, Your Honor.
THE COURT: Well, I'm looking at your trial brief. And you say: "The evidence at trial will show that many people freely choose their sexual orientation." Goes on: "The evidence will further demonstrate that however it is defined sexual orientation can shift over time and does so for a significant number of people." And the proposed findings that the proponents have submitted include such items as: "No aspect of sexual orientation has been shown to be immutable." "An individual's sexual orientation can change over the course of a lifetime." "Research shows that many individuals' sexual orientation does change over the course of a lifetime." "Women's sexual orientation tends to be particularly fluid, malleable, shaped by life experiences, and capable of change over time." And: "For many people, adopting a particular sexual orientation is a conscious choice." So these are findings that you yourself have put in.
MR. CAMPBELL: That's correct.
THE COURT: Or at least your colleagues. And so it seems to me you have raised the very issue to which this witness is going to testify.
MR. CAMPBELL: I think the critical distinction, Your Honor, is, we don't ever mention any type of forced or structured therapy that would bring about these changes. Our position in this case and our position in those factual findings are that these changes do occur. Whether or not they occur through some type of structured therapy is not an issue that's relevant. The bottom line is that the change occurs, and that is what's relevant to determining whether a suspect classification applies here.
THE COURT: What evidence are you going to present on this?
MR. CAMPBELL: Well, extensive --
THE COURT: Are you going to present evidence that people have successfully changed their sexual orientation?
MR. CAMPBELL: We believe that through various cross-examinations of some of the upcoming witnesses, as well as potentially through some of our own, we will show that, Your Honor, exactly what you just mentioned, that people's --
THE COURT: Other than cross-examination, how do you intend to show this?
MR. CAMPBELL: Well, you know, as I said, we may call our own witnesses to show this, our own experts to show this. But it is something that we primarily intend to show through cross-examination of the plaintiffs' expert.
THE COURT: I see.
MR. CAMPBELL: As well as whatever is on this note. (Laughter)
THE COURT: Always handy to receive a note from one of your colleagues.
MR. CAMPBELL: As well as through studies, Your Honor.
THE COURT: Through studies.
MR. CAMPBELL: Yes. (Laughter)
THE COURT: Okay.
MR. CAMPBELL: Which we will introduce through -- on cross and other various means. Thank you, Your Honor.
THE COURT: Thank you, Mr. Campbell. By the way, I think you took a good deposition.
MR. CAMPBELL: Thank you.
THE COURT: Well, it does seem to me that this is an issue that the proponents themselves have raised in the case, the fluidity of sexual orientation. It is true that this is an issue which largely depends upon expert testimony. But, as with so many aspects of testimony in a trial and evidence in a trial, actual firsthand experience to illustrate points that have been raised is very helpful, and -- well, you're not the only one, Mr. Campbell, to receive notes -- is very helpful. And I think the testimony of Mr. Kendall on this issue can be evaluated by the Court and weighed in relation to the expert testimony and all the other evidence that's going to be presented. And so I'm disinclined to exclude his testimony. He has, after all, been deposed. Mr. Campbell has had had a chance to explore this gentlemen's testimony and to prepare himself. And so I think it's not unfair to the proponents, having raised this issue, for Mr. Kendall to testify. And, therefore, the motion to exclude him will be denied. Now, the note I have just been handed is that Magistrate Judge Spero can hear the core group issue right now. So if you would designate one of your number to hightail it to Magistrate Judge Spero, he can hear the matter and render a decision. (Laughter)
MR. COOPER: Very well, Your Honor. Mr. Pugno is taking the lead for our side on these subject matters.
THE COURT: Good. Thank you.
MR. BOUTROUS: And I am sending Mr. McGill in for that one.
THE COURT: All right. Well, I believe, Mr. Boutrous, you're calling the next witness; are you?
MR. BOUTROUS: Your Honor, I'm going to have Mr. Boies explain, we're going to, first, play some video clips of depositions, as a prelude to today's testimony from our witnesses. Mr. Boies, would you like --
THE COURT: All right. Mr. Boies.
MR. BOIES: Your Honor, we are going to play deposition designations from Dr. Paul Nathanson, initially. And then we are -- we are going to begin with deposition designations from Dr. Paul Nathanson, and then follow that with deposition designations from Professor Katherine Young. Both of these individuals were designated experts from the defendants, but they're -- defendants have withdrawn them, so they are not going to be calling them live.
THE COURT: Let's see. Katherine Young does appear, yes, to have been designated by the defendants. And the other one is Mr. Nathanson?
MR. BOIES: Yes, Paul Nathanson, Dr. Paul Nathanson.
THE COURT: All right.
MR. BOIES: Thank you, Your Honor.
MR. COOPER: Your Honor, before we get underway on that, I do want to recall to the Court's attention the discussion about this, that happened a few trial days ago with Mr. Thompson. These witnesses were withdrawn at their insistence. And I understand that Mr. Boies is going to -- going to submit these to the Court under -- under judicial notice, and offer judicial notice. And we -- we are fine with that or we're -- we will not object to that. Although, we to believe that under those circumstances it would be necessary for us to be allowed to also submit to the Court the expert witness reports that provide the basis for these deposition questions and these designations, and also to offer to the Court counter-designations, as soon as we are able to determine what they're putting on and can identify counter-designations from the deposition, if the Court please.
MR. BOIES: Your Honor, we gave them these designations a week ago. In fact, we told them we might play them last Thursday or Friday, depending on the timing. So they have had the deposition designations. These are clearly admissible under 32 -- it's subsection 4 -- (a)(2)(4), I think. (a)(2)(4). 32(a)(2)(4), I think it is, where a witness is more than a hundred miles away, and we did not procure the witnesses' absence. And I think they would also be admissible under judicial notice. But I think they are admissible as evidence under 32(a)(4)(b). 32(a)(4)(b).
THE COURT: Well, let's see. Where are these folks located?
MR. BOIES: Montreal, Canada.
THE COURT: Both of them?
MR. BOIES: Both of them.
THE COURT: Well, that's more than a hundred miles from San Francisco.
MR. BOIES: I took their depositions, so I know exactly where they are and how cold it is there. (Laughter)
THE COURT: All right. Well, there are probably multiple grounds under which the testimony is admissible. Clearly, if there are counter-designations that the proponents wish to have the Court consider, they may do so. Although, if it's correct, Mr. Cooper, that you received these designations a week ago, I would think you'd be able to get in your counter-designations by now. But I'm not going to foreclose you from making counter-designations once you hear the testimony. So, all right.
MR. BOIES: Thank you, Your Honor.
WHEREUPON: PAUL NATHANSON, called as a witness for the Plaintiffs herein, testified via videotaped deposition played in open court. (Time noted: 9:01 a.m.)
MR. BOIES: Your Honor, that completes Dr. Nathanson's deposition excerpt. I would offer, at this time, Plaintiffs' Exhibit 2334, which is Dr. Nathanson's resume.
THE COURT: 2354?
MR. BOIES: 2334.
THE COURT: '34. I beg your pardon. 2334.
MR. COOPER: No objection, Your Honor, to the resume coming in.
THE COURT: Very well. (Plaintiffs' Exhibit 2334 received in evidence.)
MR. BOIES: And, Your Honor, I would offer Plaintiffs' Exhibit 2546 and 2547. 2546 is the disk, and 2547 is the transcript of the portions of Dr. Nathanson's testimony that has just been played.
THE COURT: Very well. And 2546 is the CD of the testimony that we just heard, correct?
MR. BOUTROUS: May I approach, Your Honor, and provide a copy for the Court?
THE COURT: 2546 is the CD or the disk of the testimony that we've just heard?
MR. BOUTROUS: That's correct, Your Honor.
THE COURT: All right.
MR. COOPER: Your Honor, I just want to reassert my previously stated objection, and also note that -- that we will offer the Court our counter-designations with appreciation to the Court's permission, tomorrow, if that is okay.
THE COURT: That will be fine.
MR. COOPER: Thank you.
THE COURT: Very well. Are we ready with another --
MR. BOIES: We are, Your Honor.
THE COURT: -- witness?
MR. BOIES: This is Professor Katherine Young's deposition. And I would offer Plaintiffs' Exhibit 2335, which is her resume. And I'd offer it at this time, so the Court has it while she's testifying.
THE COURT: Very well.
MR. COOPER: And there's no objection to the resume of Dr. Young.
THE COURT: Very well. (Plaintiffs' Exhibit 2335 received in evidence.)
MR. BOIES: And the disk of the resume is Plaintiffs' Exhibit 2335, as well. We also have the disk of testimony, which is Plaintiffs' Exhibit 2544.
THE COURT: 2544?
MR. BOIES: 2544, which is the disk of the testimony.
THE COURT: Very well. (Plaintiffs' Exhibit 2544 received in evidence.)
MR. BOIES: And Exhibit 2545 is the transcript of the testimony.
THE COURT: All right. (Plaintiffs' Exhibit 2545 received in evidence.)
MR. COOPER: Your Honor, again, subject to my previously stated points.
THE COURT: That will be fine, Mr. Cooper.
WHEREUPON: KATHERINE YOUNG, called as a witness for the Plaintiffs herein, testified via videotaped deposition played in open court. (Time noted: 9:20 a.m.)
MR. BOIES: That completes the deposition of Professor Young. Our next witness is Mr. Ryan Kendall, Your Honor.
THE COURT: Very well. I don't believe I was handed the disk of Professor Young's testimony, but the clerk has it?
THE CLERK: I do, Your Honor.
THE COURT: All right. Then, 2544. All right. Why don't we take a very brief break, at this time, while you bring Mr. Kendall forward, and then we'll resume in ten minutes.
MR. BOUTROUS: Thank you, Your Honor.
MR. FLYNN: Thank you, Your Honor. (Recess taken from 9:39 to 9:49 a.m.)
THE COURT: Very well.
MR. FLYNN: Good morning. Ron Flynn, City and County of City of San Francisco. Ron Flynn, City and County of San Francisco.
THE COURT: Mr. Flynn.
MR. FLYNN: Yes, Your Honor.
THE COURT: Very well.
MR. FLYNN: I'm here to call the next witness, Mr. Kendall.
THE CLERK: Raise your right hand, please.
RYAN KENDALL, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do, so help me God.
THE CLERK: Thank you. State your name, please.
THE WITNESS: Ryan Matthew Kendall.
THE CLERK: And spell your last name.
THE WITNESS: K-e-n-d-a-l-l.
THE CLERK: And your first name.
THE WITNESS: Ryan. R-y-a-n.
THE CLERK: Thank you, Mr. Kendall.
DIRECT EXAMINATION BY MR. FLYNN:
Q. Good morning, Mr. Kendall. Where do you live?
A. I currently live in Denver, Colorado.
Q. And who do you work for?
A. I work for the Denver Police Department.
Q. What do you do for the Denver Police Department?
THE COURT: Keep your voice up, Mr. Flynn.
MR. FLYNN: Yes, Your Honor.
THE WITNESS: I'm and NCIC agent.
BY MR. FLYNN:
Q. Can you briefly tell us what an NCIC agent is.
A. NCIC stands for the National Crime Information Center. It's a database maintained by the FBI. And I have a clearance to work with secure criminal information that's on that database.
Q. Mr. Kendall, I want to talk about when you were younger, when you were a child. Where did you grow up?
A. I grew up in Colorado Springs, Colorado.
Q. And when were you born?
A. In 1983.
Q. So you are 26 years old now?
A. That's correct.
Q. Where did you attend elementary school?
A. I went to a school called ECA, Evangelical Christian Academy.
Q. While you were a child in Colorado Springs, did you learn of the concept of gay people or homosexuality?
A. Yes. I remember during the discussion about Amendment 2, during the Amendment 2 campaign, my parents would talk about homosexuals seeking special rights, and how they were essentially evil people; and how they felt threatened and how our family was threatened by homosexuals.
Q. At that time, did you know what a homosexual was?
A. No, I didn't. I just knew it was a big, long, scary word. And I found the whole concept very frightening.
Q. Mr. Kendall, what is your sexual orientation?
A. I'm a gay man.
Q. When did you first realize that you were gay?
A. When I was a little kid, I knew I liked other boys. But I didn't realize that that meant I was gay until I was, probably, 11 or 12 years old.
Q. How did you come to realize that it meant -- that that meant you were gay?
A. I was a precocious kid. So one day I ended up looking up the word "homosexual" in the dictionary. And I remember reading the definition, something along the lines of a romantic attraction between members of the same sex. And it slowly dawned on me that that's what I was.
Q. Given your prior testimony about homosexuals, how did you feel when you realized that you were gay?
A. Well, once I connected this all together, I realized that what a homosexual was, the fact that I was a homosexual and the fact that my family and community did not like this concept, I was scared by that. I realized this was bad news for me. So I kept this a secret, and I hid it as far away from everyone as I could.
Q. Around this time, did anyone talk to you about being gay?
A. When I was in seventh grade, I remember being taunted about being gay. Some of the older boys and boys in my class would call me names, and things like that.
Q. What kind of names would they call you?
A. I was called a fagot. I was called a homo, a queer, or even just gay.
Q. Other than name calling, did these boys do anything else to you?
A. I remember one incident -- I have worn glasses since I was like in the third grade. I need them to see. And a couple of the boys took my glasses and played monkey in the middle, keep away, and threw them over my head until, eventually, they broke them.
Q. What was it like for you to be in that school? How did you feel?
A. It was scary going into that building, realizing these kids were taunting me with a word that was so close to the truth. And it was very upsetting. I would go home and get in the car when my parents would pick me up, crying and telling them what had been going on.
Q. What did your parents do?
A. My parents were horrified that I was being treated so poorly, so, eventually, they took me out of that school and placed me in another one.
Q. At the time they did that, did your parents know that you were gay?
A. No, they did not.
Q. Did your parents ever find out that you were gay?
A. Yes, when I was 13 years old, at one point my parents discovered my journal. And for the first time in that journal, I had admitted to myself that I was gay. And I had actually written those words. And they found that and read it.
Q. What happened when they found that journal?
A. My parents flipped out. They were very upset. They were yelling. I don't remember a lot of what they said, but it was pretty scary, the level of their reaction.
Q. Can you remember anything they said to you when they found the journal?
A. Yes. I remember my mother looking at me and telling me that I was going to burn in hell.
Q. Were you in a religious family?
A. Yes. I grew up in a very religious family. Church and God were everyday parts of our life.
Q. So what -- what did you think when your mother told you that?
A. It was shocking. I never heard anything like that from my mother. I never thought that my parents would ever say anything -- I mean, hell was the worst. You don't get much worse than eternal damnation. And I was just totally stunned that they had said that.
Q. Did your parents later tell you anything else about you being gay?
A. After my parents found out, my home life changed a lot. And my parents didn't take it very well. And I remember my mother calling me names.
Q. Did they make any efforts to -- to put you in any therapy or to change you in any way?
A. Yes. Shortly after this incident, I was sent to a Christian therapist for reversal therapy.
Q. Why do you say it was a Christian therapist?
A. That's how he was identified to me.
Q. Can you tell us the goal of the Christian therapy?
A. Yes. I was told that the goal was to make me a heterosexual.
Q. How many times did you go to this therapy?
A. I went two or three times.
Q. Do you remember anything you did at that therapy?
A. I remember a little bit. I remember the therapist telling me that homosexuality was inconsistent with Christian teaching, and that my parents didn't want me to be gay, and I needed to change, and that homosexuals were bad people.
Q. Did Christian therapy make you feel better about the situation?
A. No, it didn't. I -- I always wanted to be a good kid and to make my parents proud. And, suddenly, I was in a situation where they were taking me to see this guy who was telling me I was a bad person, and they were telling me I was a bad person. And I remember feeling very, very alone.
Q. Was the therapy successful? By that I mean, did it reach its goal of making you into a heterosexual?
A. No. I was still gay.
Q. Did you try to become heterosexual during those therapy sessions?
A. No, I didn't think it was possible.
Q. Why not?
A. I knew I was gay just like I knew I'm short and I'm half Hispanic. And I just never thought that those facts would change.
Q. When you stopped going to this therapy program, did you go to any other therapy programs?
A. Yes. My parents had been referred by Focus on the Family, to another organization called NARTH.
Q. What's Focus on the Family?
A. Focus on the Family is a Christian family ministry based in Colorado Springs, Colorado, where I grew up.
Q. And what's NARTH?
A. NARTH stands for the National Association for Reparative Therapy of Homosexuality. It's a reversal therapy organization based in Encino, California.
Q. Did you voluntarily go to NARTH?
A. No. My parents made all of those decisions for me.
Q. How long were you at NARTH?
A. About a year and a half.
Q. From what ages?
A. 14 to 16.
Q. During the time that you were at NARTH, how was your home life?
A. My home life had changed a lot. It was like night and day. I remember before this all started I had the kind of parents who would drive me to school, and make my lunches, and write notes and put them in my lunch. And after this, they were always yelling at me. They were calling me names. Uhm, and they were just telling me really horrible things. And it became a really emotionally and verbally abusive environment.
Q. What kind of names were they calling you?
A. Uhm, my mother would tell me that she hated me, or that I was disgusting, or that I was repulsive. Once she told me that she wished she had had an abortion instead of a gay son. She told me that she wished I had been born with Downs Syndrome or I had been mentally retarded. Things like that.
Q. Who did you meet with at NARTH?
A. I met with Dr. Joseph Nicolosi.
Q. Who was Dr. Joseph Nicolosi?
A. Nicolosi was the executive director of NARTH.
Q. Was he also a therapist?
A. Yes.
Q. Where would you -- where would you meet with Mr. Nicolosi?
A. Most of the time, I would go into my parents' room. And my dad had a separate line at his desk. And I would call in and do over-the-phone sessions, for like an hour or hour and a half. But I did, actually, fly out to California to do some in-person sessions.
Q. What would you talk about during those sessions?
A. I don't recall a lot of what was said during those sessions. I recall Nicolosi saying that, you know, "Homosexuality is incompatible with what God wants for you, and your parents want you to change," and that this is a bad thing.
Q. Were you given any advice on how you would be able to suppress your homosexuality, in these therapy sessions?
A. I remember it as a general admonishment, but not a specific technique, no.
Q. You remained a religious person through your experience at NARTH, correct?
A. Yes.
Q. Is it possible that your experience at NARTH helped you reconcile your faith with your identity as a gay person?
A. At NARTH, I was being told that I had to reject who I was on the most fundamental level because what that was was dirty and bad. While I reconciled my faith with my identity, the therapy I went to at NARTH played no role in that.
Q. How old were you when you stopped going to reversal therapy?
A. I was 16 years old.
Q. And was it successful in that you were able to suppress your homosexuality?
A. No. I was just as gay as when I started.
Q. Why did you stop going to reversal therapy?
A. During this whole thing, my life had kind of fallen apart. I didn't have the world that I grew up in; my faith, which was very important to me; my family, which was even more important. Everything had just kind of stopped. And I just couldn't take any more. And I realized, at one point, that if I didn't stop going I wasn't going to survive.
Q. What do you mean by that?
A. Uhm, I would have probably killed myself.
Q. How is it that you were able to stop going to reversal therapy?
A. When I was 16, I separated myself from my family and surrendered myself to the Department of Human Services in Colorado Springs.
Q. And what happened when you surrendered yourself to that department?
A. I -- I went in, and I spoke with the case worker. And I told her what had been going on in my family, what had been going on with reversal therapy. And I told her that if I went back to that house, I was going to end up killing myself. And so they started a dependency and neglect proceeding to revoke my parents' custody.
Q. So did you stop living with your parents and stop going to therapy?
A. That's correct.
Q. And did things get better?
A. I was a 16-year-old kid who had just lost everything he ever knew. I didn't really know what to do. I was very lost. And so the next few years I wandered in and out of jobs. I wandered in and out of attempts at school. I was incredibly suicidal and depressed. I hated my entire life. At one point, I turned to drugs as an escape from reality and because I was, you know, trying to kill myself. So, no, things did not get better.
Q. How long did this period last?
A. Four or five years.
Q. During this period, were you able to support yourself?
A. It was a struggle for survival. I wasn't really able to support myself.
Q. Did you rely on any public benefits, or anything like that, during this period?
A. Uhm, well, when my healthcare ran out, you know, I had to go to emergency rooms to get medical care. And the only counseling I could get were through state schools, because I couldn't afford anything else.
Q. Mr. Kendall, you told us that you now work for the Denver Police Department, correct?
A. That's correct.
Q. How long have you done that?
A. Over two years now.
Q. So it would be fair to say that you've now -- you're able to support yourself and you're stable?
A. Yes. It's been a -- a long, hard journey. But I have fought with every bit of myself to take care of myself, to get a good job, to get someplace to live. And I've been able to do that.
Q. I just have a couple of questions for you, a couple more questions. Mr. Kendall, are you a member of any organization that advocates for greater rights for gays and lesbians?
A. Yes, I am.
Q. Can you tell me which ones?
A. I'm a member of the National -- or I'm a member of the Log Cabin Republicans. And I'm also the current chair of the Denver Gay, Lesbian, Bisexual, and Transgender Commission.
Q. What is that commission?
A. It's a advisory body that advises city agencies in the mayor's office on GLBT-related issues within the city and county of Denver.
Q. Are you here to testify today as a member of Log Cabin or as a member of that commission?
A. No. I came here to testify as myself, Ryan Kendall.
Q. Do you consider yourself personally an advocate for gay and lesbian rights?
A. In my personal life I am, yes.
Q. Mr. Kendall, was anything you said today in court shaped by your role as an advocate for gay and lesbian rights?
A. Absolutely not. I've just told you my story, what happened to me.
MR. FLYNN: Thank you. I have no further questions for you.
THE COURT: Mr. Campbell, you may cross-examine.
MR. CAMPBELL: Thank you, Your Honor. CROSS EXAMINATION
BY MR. CAMPBELL:
Q. Good morning, Mr. Kendall. I just have a few questions for you. Have you ever lived in the state of California?
A. No, I have not.
Q. And you didn't have any role in the campaign to oppose Proposition 8, did you?
A. No, I did not.
Q. You didn't see any of the Yes On 8 campaign materials, did you?
A. No, I did not.
Q. You were contacted by someone from the San Francisco City Attorney's Office who asked you to participate as a witness in this case; isn't that true?
A. Yes.
Q. When were you contacted by this person from the San Francisco City Attorney's Office?
A. I don't recall exactly. I think it was late October.
Q. You have never read a scientific study addressing the concept of sexual orientation; isn't that true?
A. That is true.
Q. And isn't it also true that you have never studied whether a person's sexual orientation can change throughout the course of his or her lifetime?
A. No, I haven't studied it.
Q. Isn't it also true that you know people who have professed to be one sexual orientation and then, at a later time, professed to be another?
A. In public, yes.
Q. And isn't it also true that you're not familiar with the American Psychological Association's position on conversion therapy?
A. That's also true.
Q. You talked at length about your experience with conversion therapy. I just want to touch on some of those points. You were compelled to go to conversion therapy by your parents; isn't that correct?
A. Yes.
Q. And nothing involved in conversion therapy was your decision; it was all your parents' decision. Isn't that true?
A. Yes.
Q. And when you began conversion therapy, you were not asked to consent to that particular type of counseling; isn't that true?
A. That is correct.
Q. At some point during your counseling, you communicated to your parents objections to the counseling treatment you received at conversion therapy. Is that true?
A. I communicated objections to what I was being told both in my family and conversion therapy, yes.
Q. But those objections, they didn't make any difference, because you didn't have a choice in the matter, and your parents compelled you to go against your will?
A. That's correct.
Q. Your only goal for conversion therapy was to survive the experience; isn't that true?
A. Absolutely true.
Q. You didn't have the goal of changing your sexual orientation -- I'm sorry, correction. You didn't have the goal of changing your sexual attraction, correct?
A. That's correct.
Q. Indeed, you admit that you did not truly want to reduce your sexual attraction to persons of the same sex; isn't that true?
A. That's correct.
Q. You testified a little bit about the alleged emotional harm that you've experienced from conversion therapy; isn't that true?
A. Yes.
Q. And you also discussed a little bit about some of the various things that your parents, specifically your mother, said to you; isn't that right?
A. Yes.
Q. But you have acknowledged, haven't you, that your particular family experience that went along with conversion therapy was just as damaging to you as the therapy itself; isn't that correct?
A. Yes, I have.
Q. At some point -- let me do it this way. At some point, your parents' custody of you was revoked; is that true?
A. Yes.
Q. And that happened at age 16; is that right?
A. Yes.
Q. And after that point, sometime after you turned 18, you went back to live with your parents for a short period of time; isn't that true?
A. Yes, it is.
Q. You've established through your testimony today you were involuntarily forced to attend conversion therapy, right?
A. That's correct, sir.
Q. But you would acknowledge that some people do want and voluntarily choose to undergo some form of conversion therapy?
A. No, sir, that's not my personal experience.
Q. So you would not acknowledge that -- that there is anyone who voluntarily chooses to attend conversion therapy?
A. Well, I don't know everyone. But that's not my experience, sir.
Q. So my question is: Is it your position that no one has ever gone to conversion therapy voluntarily?
A. I can't make that absolute assumption, no. But it is my experience that people don't want to go to programs like NARTH.
Q. Well, you acknowledged in your deposition, did you not, that some people report to have effective results with conversion therapy; isn't that true?
A. Yes.
MR. CAMPBELL: I have no further questions, Your Honor.
THE COURT: Any redirect, Mr. Flynn?
MR. CAMPBELL: Very brief.
MR. FLYNN: Very brief, Your Honor.
REDIRECT EXAMINATION BY MR. FLYNN:
Q. While you were in conversion therapy, were you introduced to any people who purported -- or were purported to you to have successfully undergone conversion therapy?
A. Yes, I was.
Q. Who was that?
A. I remember during one of the group therapy sessions Nicolosi trotted out his perfect patient, the guy who had been cured of his homosexuality. And his name was Kelly.
Q. Did meeting Kelly have any impact on your views of conversion therapy?
A. I remember once, when Nicolosi stepped out of the room, we were talking amongst ourselves. And Kelly told me that later that night he was going to a gay bar and that he was, essentially, just pretending to be cured for the sake of his family. (Laughter)
Q. How did that make you feel about the therapy program?
A. I knew I was gay. I knew that could not be changed. And this just confirmed that this wasn't going to be effective for me.
Q. One final thing. You said you returned to live with your parents; is that right?
A. For a brief period, yes.
Q. How long?
A. Few months.
Q. How is your relationship with your mother now?
A. I don't speak to my mother.
MR. FLYNN: I have no further questions.
THE COURT: Very well. Thank you. Mr. Kendall, you may step down. And your next witness.
MR. BOUTROUS: Your Honor, the plaintiffs call Professor Gary Segura. With the Court's permission we will be handing out a binder that has the main exhibits for
DIRECT testimony to the Court and the witness.
THE COURT: Very well.
MR. BOUTROUS: Your Honor, Mr. Cooper asked if we could just pause while Mr. Thompson is brought back into the courtroom.
THE COURT: That would be fine.
MR. BOUTROUS: To be fair.
THE COURT: Absolutely. I think we can do the formalities and swear the witness, and get him ready to go.
THE CLERK: Raise your right hand, please.
GARY SEGURA, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do.
THE CLERK: Please, have a seat. State your name, please.
THE WITNESS: Gary Segura.
THE CLERK: And spell your last name.
THE WITNESS: S-e-g-u-r-a.
THE CLERK: And your first name?
THE WITNESS: Gary, G-a-r-y.
THE CLERK: Thank you. (Pause)
THE COURT: Is Mr. Thompson back amongst us? Not yet. Well, why don't we just stand up and stretch a minute.
MR. COOPER: He's on his way, presently. (Pause)
THE COURT: Very well. Mr. Thompson, welcome back.
MR. THOMPSON: Thank you.
THE COURT: Are you organized now?
MR. THOMPSON: Yes, Your Honor.
THE COURT: Oh, good. Then we can begin. Mr. Boutrous, you have a witness on the stand.
MR. BOUTROUS: Yes. Thank you, Your Honor.
DIRECT EXAMINATION BY MR. BOUTROUS:
Q. Good morning, Professor Segura.
A. Good morning.
Q. Could you tell the Court a little bit about your academic and professional background.
A. I'm a professor of political science in the Department of Political Science at Stanford University. I received a Ph.D. in political science in 1992, from the University of Illinois. I've taught at a variety of institutions, and came to Stanford about a year and a half ago. I -- also at Stanford, I serve as the chair of the program on Chicano Studies. And I'm currently president of the Midwest Political Science Association, which is the second largest professional association of political scientists in the United States.
Q. What is the Stanford Center for Democracy?
A. The Stanford Center for American Democracy is a newly-established center at Stanford, that I co
DIRECT with another professor, designed to use empirical techniques to explore data about the American electorate and its implication for American democracy. Our biggest project is the American National Elections Studies.
Q. What does the American National Elections Studies entail, briefly?
A. The American National Elections Studies is the gold standard, as it were, of political science studies of the electorate. They are conducted every four years, during an election year, with some ancillary studies leading up to the election year. And it's been run consistently since 1948, so we have a very long portrait of what the American electorate thinks about politics. And my colleague and I just now are taking over the study.
Q. Do you serve on any editorial boards of journals in your field of study?
A. I do. I'm currently on the editorial board of the AJPS, the American Journal of Political Science. (Reporter interrupts.) American Journal of Political Science. The Journal of Politics, and Political Research Quarterly. I've previously served on the editorial board of PS: Political Science & Politics.
Q. Could you describe, generally, the nature of your studies and research work and specialty.
A. I think of myself as a student of political representation. So my work is primarily political behavior, which is looking at the mass opinions and attitudes and actions of citizens in the society. As a representation theorist, what I try to look at is how these things subsequently connect to the actions of policymakers. So that, obviously, representation has two ends to the relationship.
Q. Maybe you could just briefly describe what it means to be a representation theorist.
A. So one of the vexing questions in political science, from its earliest days, is whether or not democratic governance by elected officials is in any way broadly responsive. And so there has been debate off and on about whether or not the elected officials are responsive to changing views of the public, whether or not they are actually leading the public; that is, the public is actually more responsive to elected officials. And so what I try to look at is the dynamics of how communication between elites and the mass public change how people view and how the elite act over time.
Q. In your work, have you focused on the ability of minority groups to have their views heard and enacted into law?
A. Yes. I would say that while my work began as sort of a broad understanding of political behavior and its effects, in the last decade and a half or so I've tended to focus more exclusively on minorities. I spent a lot of time looking at racial and ethic minorities, and particularly Latinos.
Q. In your work, have you focused at all on the rights of gay men and lesbians, in terms of their activities in the political sphere?
A. I have.
Q. And have you published any books in your career?
A. I have one co-authored book, just out this month. And I have a co-edited volume from several years ago.
Q. What is the name of the book that's just out this month?
A. "Latino Lives in America."
Q. And could you turn to Exhibit 2330, Plaintiffs' Exhibit 2330, which is in the binder that you've been provided.
A. Yes.
Q. What is that document?
A. It's my CV.
Q. Does that include a summary of your professional background?
A. Yes.
Q. Does that document also include a list of your publications?
A. Yes.
Q. Have you published any articles in peer-reviewed publications, in your career?
A. Yes.
Q. Can you give us an overview of the number and type of publications you have published?
A. So, I have about 42 or so total publications. So about 25 of those are peer-reviewed articles, meaning that it's an article-length document that's submitted for a peer-review process in a journal that publishes a variety of different authors each issue. I also have about, some number, 15 or so chapters in edited volumes, which means that I submitted the article, but then the article was grouped with several others and refereed in that manner.
Q. Have you given any conference presentations where you lay out the results of your research work and theories?
A. Constantly.
Q. Can you give us a ballpark figure over the last decade?
A. Oh, probably, I don't know, between 20 and 40. I present pretty constantly.
Q. Thank you. And there's -- there's a list of examples contained in Exhibit 2330, your CV?
A. Yeah. I think I just put the last ten years or so in.
Q. Thank you.
A. Uh-huh.
Q. Could you please describe your work on gay and lesbian politics and political issues.
A. I have three pieces published, focusing specifically on gays and lesbians. One is a piece in an edited volume, about the various aspects of gays and lesbians and their participation in the democratic process. And that piece is on how -- whether or not different electoral structures would favor or disfavor gays and lesbians, and focuses specifically on the City and County of San Francisco. The second is an article in a peer-reviewed journal, called "Rationality in Society," where I -- I and my co-author tried to model the self-identification and mobilization behavior of minorities who can pass as a member of the majority; that is, minorities whose identification as a minority is uncertain to the perceiving public. And then the third is an introduction to a symposium in PS. And it's a satirical piece in the wake of the 2004 election, about the consequences of the 14 state ballot initiatives banning same-sex marriage in that year.
Q. What is PS?
A. PS? PS is a journal that serves two purposes. It's published by the American Political Science Association. It serves both as sort of a topical journal, kind of events of the day and what political scientists' take on those events would be, as well as things more suited to those who are functioning in the profession; suggestions about teaching ideas or syllabus ideas, news within the profession. That. So it's both a newsletter for political scientists as well as a presentation of topical research.
Q. In your classes at Stanford, do you teach any -- any courses that focus on the participation of gay men and lesbians in the political process, recently?
A. Uhm, I haven't actually taught gay and lesbian politics for probably about a decade. But at Stanford, in the courses I teach on just broad questions of political behavior, and particularly in courses on minority politics, I always include a unit on gays and lesbians.
MR. BOUTROUS: Your Honor, at this time, I would like to offer Plaintiffs' Exhibit 2330 into evidence, as well as the -- all the other exhibits in this binder. And I will present, with the Court's permission, the clerk with a list. And I believe Mr. Thompson has agreed that there's no objections to this list of exhibits.
MR. THOMPSON: That's correct, Your Honor.
THE COURT: Very well. And you are offering --
MR. BOUTROUS: I'm offering all the documents that are on this list. I can list them or provide it. Would you like an additional list into evidence?
THE COURT: Let's let the document speak for itself. (Laughter) (Plaintiffs' Exhibit 489, 490, 491, 492, 493, 494, 831, 832, 833, 834, 835, 836, 837, 838, 839, 840, 841, 842, 843, 844, 2330, and 2582 received in evidence.)
MR. BOUTROUS: Thank you, Your Honor. Happy to do that. Thank you, Your Honor.
BY MR. BOUTROUS:
Q. In connection with your work on this case, Perry vs. Schwarzenegger, what issues were you asked to examine?
A. I was asked to evaluate gays and lesbians --
THE COURT: You're getting opinions now. Have you qualified --
MR. BOUTROUS: Oh, yes, Your Honor. Why don't I just -- why don't I just do that, first. Your Honor, I would tender Professor -- I tender Professor Segura as an expert on the subject of the political power or powerlessness of minority groups in the United States, and of gays and lesbians in particular.
THE COURT: Mr. Thompson.
MR. THOMPSON: No objection, Your Honor.
THE COURT: Very well.
MR. BOUTROUS: Thank you, Your Honor.
THE COURT: You may proceed.
BY MR. BOUTROUS:
Q. Yes, what -- I'll restate my question. What issues were you asked to examine in this case?
A. I was asked to examine gays and lesbians and their participation and -- and their -- their interest in the U.S. political process, to determine whether or not I saw them as being powerful or powerless, and what evidence would be brought to bear to understand such a thing.
Q. In conducting your analysis or your work in this case, what -- what did you do to arrive at your conclusions? What type of information did you review, and what kind of things did you study?
A. Well, the first thing I did is, I read. So there -- there's a growing literature on gay and lesbian politics. And so I went out and found out kind of what the state of that literature was. Many of the pieces I was very familiar with. Some were new. The next thing I did was try to go through the statutory status of gays and lesbians, because it varies quite dramatically from state to state, in order to determine what I thought the circumstances of gays and lesbians were with respect to statutory protection or statutory disadvantage in the states. I looked at public attitudes, including very recent data on public attitudes towards gays and lesbians. I examined the presence or absence of gays and lesbians in political office. And then I spent a lot of time looking at ballot initiatives, which are kind of the -- the central question, right now, in gay and lesbian politics.
Q. In connection with your work, did you review and rely on the documents that are listed on the exhibit list in -- contained in the binder, aside from your CV, which is PX2330, in forming your opinions in this case?
A. I did.
Q. And did you also rely on your general knowledge and experience and work and reading through your career as a political scientist?
A. I did. When I was -- when I went through and enumerated the things that I focused on, I realized just exactly how much I read, which would explain my eyesight. I have been -- I started graduate school in 1985. So, at this point, I've read thousands of journal articles and hundreds if not more than a thousand books. So, you know, I've read a lot about -- about politics in the United States. Many of these things inform my views. But the materials that I presented were the ones I focused on to make specific points in the arguments I was making.
Q. Did you rely at all on a book by Robert Dahl, in forming your opinion?
A. I did.
Q. Dahl, D-a-h-l. And is that something you mentioned in your report and in your deposition in this case?
A. It is.
Q. And that is not a document we've included in the exhibit list, simply because of length, but is that a classic text in your field?
A. I would describe it as canonical. Everyone reads Dahl.
Q. In connection with your work, did you review the deposition testimony of Dr. Nathanson?
A. I did.
Q. And did you, today, review the videotape clips that were played from Dr. Nathanson's deposition?
A. I did. I was in the overflow room.
Q. And in connection with your work, did you prepare a rebuttal report to Dr. Nathanson's report, when he was put forth as an expert in this case by the proponents of Proposition 8?
A. I did. And I was deposed a second time on that.
Q. And did you also review the expert report and deposition of Dr. Miller, one of the proponents of Proposition 8's experts in this case?
A. I did.
Q. Did you attend Dr. Miller's deposition?
A. I did.
Q. I'd like to publish demonstrative No. 1, and ask you, Professor, to state very briefly, with an overview, what opinions you've arrived at in this case, based on your work.
A. So I've -- I want to offer three, which I think speak to the questions that I was asked to consider. The first is that, in my view, when we consider the U.S. political system, gays and lesbians do not possess a meaningful degree of political power. They are not able to protect their basic interests and effectuate their interests into law and to secure those. The second is that, relative to some other groups that currently enjoy judicial protection, gays and lesbians are actually, in the statutory and constitutional sense, worse off than some of those groups were when they were granted judicial protection. And, finally, I -- I -- I'm deeply troubled by some of the comments or some of the conclusions that Professor Miller drew in his rebuttal, and I find them unpersuasive.
Q. Why don't we, as a prelude of getting to the details of your testimony, talk a little bit about what you mean when you talk about political power. How do you define that term for purposes of your analysis here today?
A. For me, political power is the ability of an individual or group, through mustering their own resources, to achieve and secure their interests in the political system, and to do so relying primarily on their -- on themselves. That is, there has to be an exercise whereby their resources bring about the change that they're hoping to accomplish.
Q. Is that a definition of political power that is consistent with generally-accepted notions in the literature of political science?
A. I believe that it is. And, in fact, I think it's drawn directly from Robert Dahl's classic definition that A has power over B when A can get B to do something B otherwise wouldn't do. And there's a key element of that, which is that A is getting B to do something that B may or may not be predisposed to, because that distinguishes political power from simple agreement. My current favorite example is, I happen to be a New Orleans Saints fan. There's lots of other New Orleans Saints fans. But I don't have power over them, we just happen to agree.
Q. And in your concept and definition of political power, how does the -- the -- the concept of pluralism in our democracy play out?
A. So there -- there is a theory of American government that was put forward, first, by the founders, by Madison in the Federalist Papers, and then sort of reinvented in 20th century political thought, specifically in the person of Robert Dahl, that one of the biggest threats to society is faction. That is, if you have individuals who are able to secure and hold power over a long period of time without rotation in office, that they might conceivably tyrannize other parts of the society. And so, for Madison, the solution to this was the extended republic; that in the extended republic, there would be many, many interests. And as a consequence of the plurality of interests, none of them would be able to gain the upper hand for a very long period of time; and that would mitigate the dangers of faction and the risk of tyranny. In the 20th century, political theorists have conceptualized this as pluralism; the idea that there's an almost self-equilibrating system. There are groups and interests and if they become too powerful, they disturb the interests of individuals who are -- hold a different opinion. And they organize. And so it's almost Newtonian: To every action, there's a reaction. And this is supposed to prevent the accumulation of power by one group. But it presupposes that there's no such thing as a permanent majority. And it also presupposes that this system of contestation is fair. And one of the chief critics of pluralism, E.E. Schattschneider, has a very famous quote. And the quote is that, "The flaw in the pluralist heaven is that the heavenly chorus sings with a decidedly upper-class accent." That is, in -- in this contestation between groups, it is people with resources that are more likely to achieve outcomes; and people without resources, no matter how dedicated, are going to be disadvantaged in that system.
Q. How does this concept of pluralism relate to the opinions you are giving here today regarding the power or powerlessness of gay men and lesbians in the United States?
A. I think that, by any measure, gays and lesbians would have to be understood as a minority faction, in Madison's terms. That is, people who accept the -- the normativity, if it were, of heterosexuality, have held power essentially forever. So it is difficult, with the resources that they have, for gays and lesbians to press their cause in the political system. They -- they just simply don't have the numbers and the resources to be effective advocates in a lot of political arenas.
Q. Do the courts -- does the judiciary play a role in pluralism, in that concept of pluralism that you've just described?
A. Well, the reason -- we frequently refer to our system of government as "Madisonian." And we say this as a contradistinction to majoritarianism, because the founders specifically -- the founders and also the proponents of the first ten Amendments of the Constitution, specifically envisioned a set of constraints to sort of rein in the majoritarian impulse. So it is certainly a society that responds to majority rule, but it's also a society where there are limitations on what the majority can do. The majority cannot gather together and vote to deny a whole group of people, say, the right to vote or some other basic right.
Q. Now, when you talk about obtaining politically favorable outcomes, is that, in and of itself, sufficient to determine whether a particular group has political power in our system?
A. Uhm, well, certainly, favorable outcomes is certainly a positive thing that I would want to consider. I would also want to know some circumstances of the favorable outcomes. Were they judicially triggered as opposed to legislative? Were they passed with bipartisan majorities or with slim majorities? What's the arena of contestation? Are we talking about a favorable outcome over some advantage that's being accrued to the -- to the group, or are we talking about a favorable outcome trying to ameliorate a severe disadvantage? So we would want to take into account the process whereby the outcome was achieved, and the subject matter of the outcome, before we concluded that the outcome by itself was sufficient evidence.
Q. Can you give me an example of a favorable outcome that does not necessarily reflect the successful exertion of political power by gay men and lesbians?
A. There's a very good recent one. So, there's been a lot of news recently about the newly elected mayor of Houston, who is a lesbian. And this was talked about extensively in the news media as, you know, holy cow, there's a gay mayor of a major American city. I know a little bit about Houston politics and a little bit about Texas politics, particularly mayoral politics. And it turns out that the race that she was elected in pitted a white lesbian Democrat against an African-American male Democrat. Now, Houston is a city where there's been tremendous racial and ethnic divisions. There have been tremendous divisions over development. That's one of the key fracturing lines in Texas politics: Will the developers be allowed to do what they'd like to do, or should they be constrained? And so there is a fairly complex web of racial and economic and social and partisan fracturing lines in Houston politics. That she was elected certainly is a positive element to consider for gay and lesbian political power. However, I'd have to look at the context. And the context suggests there was a lot else going on in that election. And just a few years back, Houston voters were actually asked to weigh in on the question of whether or not Houston's city employees can have same-sex domestic partner insurance benefits. And by a city-wide plebiscite they voted it down. So while there is now a lesbian mayor of Houston, her partner of 19 years cannot obtain health insurance through the city.
Q. How about the recent signing into law by President Obama of hate crime legislation that includes hate crimes based on sexual orientation, does that -- how does that -- does it reflect political power?
A. Uhm, I would say it reflects positively on gay and lesbian political power on one dimension, and negatively on two. So the positive news out of the -- the hate crimes legislation is that this is a 20-year priority for gay and lesbian activists. And it was achieved in November -- or October, I think, of this past fall. So that's clearly something that they were -- were happy about. From the opposite side, I would consider both the context in which it was passed and the subject matter of contestation. So what we are looking at here is a piece of legislation that criminalizes bias-motivated attacks on gays and lesbians. So we're not talking about, you know, a huge victory that, you know, creates, you know, gay spots in a service academy, or something like that. We're talking about sort of ameliorating a real serious element of disadvantage that gays and lesbians face in American society. The other thing is that, in order to get it passed, it was attached as a rider to the Defense Authorization Bill. And it's a common practice in Congress to attach more controversial pieces of legislation to more consensual pieces of legislation, to make it harder for people to vote against it. So it was attached to the Defense Authorization Bill. Even though it was attached to the Defense Bill, 75 percent of the Republicans in the United States Senate voted against it. They voted against the Defense Authorization Bill, which is not a customary Republican position in the Senate. So I think that when we consider how the hate crimes bill was passed, and the fact that we're talking about criminalizing pretty vicious behavior, that would weigh against a judgment for political power.
Q. In analyzing the political power of a particular minority group, is it also appropriate to look at the vulnerability of the favorable outcomes that have been achieved?
A. Well, I'm not sure it's -- it's necessarily the case in all circumstances, but it's certainly the case for gays and lesbians because of the role of ballot initiatives. So in a number of jurisdictions, most of the western part of the United States, and parts of the east, as well, laws passed by the legislature or laws passed by even city and county legislatures are able to be overturned by popular plebiscite. Or there's a process where citizens can just have a law voted on through the initiative process. And initiatives have been used to roll back legislative gains by gays and lesbians over and over again. In fact, between 1990 and the middle part of the 2000s, there's been probably like 150 -- not even counting the same-sex marriage votes, there's been like 150 votes on gay and lesbian -- usually, on gay and lesbian antidiscrimination protections. And they lose about 70 percent of the time.
Q. Now, when you're looking at political power on a particular issue, is it also a factor to -- that you consider the importance of the issue to the gay and lesbian community, or whatever minority group you're talking about? Is that another factor you apply when you're looking at favorable outcomes?
A. Well, sure. I think we would want to look at the subject matter of any piece of legislation. So, for example, in California, there's now a standard clause, a standard antidiscrimination clause, that's attached to the end of many pieces of California legislation. And they might have to do with state licensing requirements on some profession or some type of business, or whatever. And then at the end they say "shall not be discriminatory." I wouldn't call that a victory for gay and lesbian rights, because it's not clear that gays and lesbians were, you know, actively working for, you know, rights in insulation contracting or, you know, some other sort of licensing issue. We want to focus -- when we want to focus on estimating political power, we want to focus on the things that are important to the group whose power we are trying to assess.
Q. Would marriage qualify as one of the salient important issues that would serve as a marker?
A. Yes.
Q. Speaking of markers, in your expert opinion, what are the markers of political powerlessness?
A. So, there were two types of markers I talked about in my report. The first are sort of manifestations: Can we look at the results of power or powerlessness? And then the second were the causes or the factors that might contribute to those results.
Q. Why don't we start with the manifestations of political powerlessness of gays and lesbians in the United States. Could you give us an example of one manifestation that supports your opinion regarding the powerlessness of gays and lesbians?
A. Sure. The first thing I would look at is the -- is the absence of statutory protection or the presence of statutory disadvantage. So if -- if there are laws hurting you and there are no laws helping you, that would be evidence that you have a lack of power.
Q. I would like to display demonstrative 3, which -- and ask you to comment a little bit about the absence of protections in the United States for gay -- gays and lesbians.
A. Okay.
Q. And, in fact, could you describe what this demonstrative 3, that we put up on the screen, reflects. (Document displayed.)
A. These are -- this map displays the states that have statewide -- some form of statewide protection for employment nondiscrimination against gays and lesbians.
Q. And how many states do not include protections based on sexual orientation, against discrimination?
A. Twenty-nine.
Q. You watched Dr. Nathanson's testimony this morning, correct?
A. I did.
Q. And you heard him mention the Matthew Shepard case?
A. I did.
Q. Which state was Matthew Shepard's -- where did that event regarding Matthew Shepard occur?
A. Wyoming.
Q. And is Wyoming one of the states that has, since that event, enacted any kind of protection based on sexual orientation discrimination?
A. Wyoming has no protection. And this is a little bit off the topic, but Wyoming doesn't even have a hate crimes law.
Q. In terms of the ten largest states in the United States, how many of them have laws that provide protection against discrimination based on sexual orientation?
A. Three.
Q. Let's look at the federal system. Are there any statutory absences in the federal system that, to your mind, indicate, in your expert view, a lack of political power on the part of gay men and lesbians?
A. Uhm, yes. And I would say there are also statutory disadvantages at the federal level. So there is no federal-level antidiscrimination protection for housing and employment. There's no federal-level protection, really, on any level beyond the recently passed Hate Crimes Bill. There is federal legislation prohibiting gays and lesbians from receiving partner benefits in federal employment, as an incident of the Defense of Marriage Act. There is the exclusion of gays and lesbians from service in the military. And, historically, at one point, gays and lesbians were completely forbidden from working for the federal government.
Q. How long ago was that?
A. I think that actually ended in the 1970s, but it started as far back as immediately in the post-war era, maybe President Eisenhower.
Q. And in that regard, are you familiar with a man named Frank Kameny?
A. I am.
Q. Can you tell us a little bit about Mr. Kameny's experience?
A. So, in the early days of the homophile movement, the first pro gay organization -- and "pro gay" is a strange way to describe this, but the first organization working to ameliorate the disadvantages faced by gays and lesbians was an organization called the Mattachine Society. And it started on the coasts, particularly Los Angeles and New York. This was in the early 1950s. It then kind of fell on hard times, in part because they faced a lot of repression. In the 1960s, the Mattachine Society was revived in Washington, D.C., and Frank Kameny was essentially the principal organizer. And he took a much more proactive stand than the leaders of the Mattachine in Los Angeles and New York did. So Kameny regularly would send letters to the U.S. Government, demanding that the prohibitions on gay employment be dropped; or, you know, asking, you know, why there were these various obstacles to tax deductions or other benefits that other nonprofits enjoyed. So he was much more likely to engage the political system.
Q. Was he employed by the federal government?
A. I believe he had been dismissed. I don't remember the exact circumstances of his participation.
Q. Let me ask you this: In terms of protections -- well, let me back up. In terms of statutory protections, does the fact that California includes a number of antidiscrimination provisions that apply to gay men and lesbians affect your view regarding the lack of political power of that group?
A. Well, it was certainly something I considered. The presence of statutory protections is preferable to the absence of statutory protections in evaluating power. That said, I would still want to look at the circumstances by which they were passed, the degree to which they are secure in the political system, and also the subject matter over which they are covered. So in some instances -- in most of these instances, these are attempts to redress discrimination. So if we look at a hate crimes protection or we look at an antidiscrimination ordinance, the purpose of that is to ameliorate a disadvantage, ameliorate a wrong that exists. While it's certainly good to have that, it's difficult to conclude that that's a measure of political power in and of itself. It would be akin to saying that because you have more prescriptions, clearly you're healthier. No. You have prescriptions because there's a problem. And the same would be true here. We have antidiscrimination statutes because there's discrimination. The second thing I would want to look at is how those ordinances were passed. In some instances, some of the California ordinances were passed in the wake of court decisions ordering that policies be adopted. This is true for California's anti-employment discrimination ordinance. And even though the courts had already held this, that political process was quite contested. For example, the first version placed the -- the first attempt to codify this court decision placed gay and lesbian employment and housing protections in the Fair Employment and Housing Act of California. And that was vetoed by the governor. So when the decision was codified, it was codified in the Labor Code of the state, which has a shorter time period for complaint and a much more relaxed sort of regulatory mechanism. So there was -- it was really -- there was quite a bit of opposition even to codifying a decision that had already been handed down by the courts. And, of course, the minority party in this state, as a part of its platform, made it clear that it would like to repeal all of those. So I'm not sure I would be certain that they're, you know, permanent protection. A third concern I would raise would be that it's problematic to focus only on a single jurisdiction, because a domestic partnership ordinance in California does not provide any protection for you if your partner becomes ill on a trip to Las Vegas or attending the Mardi Gras in New Orleans. That when we look at -- particularly when we look at Prop eight, these are national questions; that the politics of the proposition was national, the politics of most of the ballot initiatives on same-sex marriage and on anti-discrimination involved activists on both sides from around the country. So I'm not sure I would conclude on the basis of some positive statutory outcomes, ameliorating some severe disadvantages, that that alone constitutes political power.
Q. Let me ask that demonstrative two that you prepared be displayed and ask you -- this is a quote from Romer versus Evans. Perhaps you could read that so it's into the record, and then explain to me how that bears on your evaluation of California's protections against discrimination to the extent they exist for gays and lesbians?
A. So I will preface it with the -- there is a trope in the argument against protections for gays and lesbians, that these are special rights that gays and lesbians don't need. And speaking specifically to that argument in Romer, Justice Kennedy writes: "We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people, either because they already have them or do not need them."
Q. What protections had Amendment 2 withheld in Colorado?
A. Amendment 2 was a breathtaking piece of legislation. So at the time several small cities -- I believe it was like Aspen, Boulder and Denver, that sounds right -- had passed -- Denver, a big city obviously -- had passed anti-discrimination ordinances. And so Colorado's Amendment 2 would have amended the Colorado constitution to eliminate those local ordinances that were anti-discrimination ordinances, but it would also have prohibited any locality or the state legislature from enacting any future protections from gays and lesbians. So it was not just -- it didn't just reverse the existing laws, it preempted any future action.
Q. How have ballot initiatives in this country affected the rights of gay men and lesbians in terms of their political power?
A. Well, for starters, there is no group in American society -- and I would include in this undocumented aliens, who are probably a distant second. There is no group in American society who has been targeted by ballot initiatives more than gays and lesbians. The number of ballot initiative contests since the first one in the late 1970's is probably at or above 200. Gays and lesbians lose 70 percent of the contests over other matters. They have essentially lost a hundred percent of the contests over same-sex marriage and now on adoption. The initiative process nationalizes issues because money and activism crosses state lines. So even if there is a local legislative majority to enact something for the protection of gays and lesbians, participation of people around the country can play a role in shaping a ballot process that would reverse it. The initiative process has been really the waterloo of gay and lesbian politics.
Q. We would like to display demonstrative number four, which you can elaborate, but it lays out what I think you just said concerning ballot initiatives. But let me ask you this: What is it about gay and lesbian politics and ballot initiatives that has in your view, your expert opinion, caused the ballot initiative process to be unleashed in this manner against that particular group?
A. Well, the -- you know, it's a hard question to answer. There is -- proponents and opponents of gay rights would say that there is a culture war going on in the society. And as a consequence, these are things that people feel very deeply about and it gets them hot under the collar. Initiative processes have -- they are a mixed bag historically. On the one hand, they serve as a reasonable check on the behavior of the legislature if the population is dissatisfied. On the other hand, they are frequently been used to target minorities, and this is not just gays and lesbians. But no group has been more targeted than gays and lesbians. And I think from a political science standpoint, what we would think about is sort of expanding the scope of conflict; that if your side is not doing well in the legislature, perhaps because of the partisan distribution, then you try to move the arena of contestation to the populace where you can motivate people through, you know, campaign commercials; you know, you inflame momentary passions.
Q. In your expert view, does the ballot initiative process put the gay and lesbian community at a particular disadvantage in the political process?
A. I would say yes, first and foremost because of the numbers. So in the end the ballot initiative process is a plebiscite and you need notes. You need 50 percent plus one. The ballot initiative process in California is particularly problematic, in part, because we allow the amending of the state Constitution with a simple majority and, in part, because we have really widely varying rates of turnout between, say, ballot initiative contest and the contest that would produce a state legislature, so that the state legislative distribution looks a lot more like the underlying population than a turnout in the state-wide election. And, of course, this allows money and organizations to transcend state lines. So it moves the focus of the contest away from state politics alone and into a national arena.
Q. How many ballot initiatives have been passed relating to marriage between individuals of the same gender in the last decade?
A. I believe 33 of 34. Because in one state it failed and then they came back in the next election and passed it, and that was Arizona.
Q. You mentioned that there have been other examples of the use of ballot initiatives against minority groups -- you mentioned Romer. Could you give us a couple of other examples relating to other groups?
A. Sure. In the 1960's there was an attempt to overturn the implementation of the Fair Housing Act in California by having a state-wide ballot initiative saying that landlords and property owners could rent or sell to whomever they wanted, even if that was discriminatory in its practice. There have been a whole host of ballot initiatives targeting immigrants, and in some instances targeting more than immigrants. Prop 187 would be an example of that.
Q. What happened to Prop 187?
A. Prop 187, as I understand, was struck down at the lower court level and the state declined to appeal that ruling. Prop 187 was really contentious because the official -- the language of the initiative was that state employees could withhold state services from any person they suspected of being an undocumented immigrant, but the basis of that suspicion was not particularly clear in the legislation. Latino activists in the state felt that that would create essentially open season a Latinos; that, you know, if you walk in with a Spanish accent or with dark skin, you know, that would be the basis for a state employee withholding state services from you until you could prove otherwise.
Q. And what happened to the Fair Housing -- the housing proposition that you mentioned from the 1960's?
A. It was struck down.
Q. Now, if the -- is there an effect on the ability of gay men and lesbians to achieve political power based on the fact that they find themselves fighting these ballot initiatives?
A. Umm, I would say there are two effects, one of which is obvious and one of which is maybe less obvious. The obvious effect is that legislative gains that are, you know, hard earned get overturned and in some instances gays and lesbians find themselves, even in the events where they win, contesting the same issues over and over again and spending a lot of resources on this. I think that the less visible effect is that it chills legislatures. Legislatures thinking about passing some statute that would be advantageous to gays and lesbians think twice about that because no legislator relishes being overturned by a plebiscite.
Q. How does the fact that ballot issues can be used to amend state constitutions effect the political power of gay men and lesbians?
A. The amendment process in many states -- in fact, in most states -- require that the vote of the people take place. So even were it the case that every elected official in California decided that Prop 8 were a bad idea, there is, frankly, nothing they can do to change it unless there is a vote of the people.
Q. Are gays and lesbians underrepresented in political office in the United States?
A. They are. At last count only six people have ever served in the House of Representatives who have been openly gay and only two of those were elected as openly gay. So in the other four instances their sexuality became a matter of public record after their initial election. There has never been an openly gay senator or cabinet member or certainly, you know, president. There is only about one percent of the state's legislatures that are gay and an even smaller, much smaller percentage of local elected officials.
Q. Do you recall the percentage of local officials?
A. I believe it's five-hundredths of one percent.
Q. How about state -- total state legislatures, what is the percentage?
A. I think it's right around one percent.
Q. Thank you. Now, in your view, how does the low number of officeholders who are gay or lesbians affect the political power or powerlessness of gay men and lesbians in the United States?
A. So in political science we call the election of a representative who shares a demographic characteristic of their constituents descriptive representation. Theorists who have examined descriptive representation identify two effects. The first effect is that there is the
DIRECT representation; that having a gay man or lesbian sitting at a legislative table debating a particular issue, working out the policy, increases their voice. They are able to have their wishes, at least, considered in the process or whatever. And the second is that the presence of -- and less clear is that the presence of gay men or lesbians in public office -- or, for that matter, racial and ethnic minorities or any other group -- really serves to constrain some of the bad behavior of other members of the legislature -- There is a famous case when Senator Moseley Braun was representing Illinois in the Senate where the Senate kind of voted on, without comment, reauthorizing the U.S. -- the Congressional resolution creating the Daughters of the Confederacy, and this just kind of swept through without any discussion. And Carol Moseley Braun went down to the well of the Senate and gave an impassioned speech about what that felt like and what that looked like to African-Americans, and the Senate promptly reversed themselves as a consequence of her presence. And at the time she was the only African-American member of the body. So having someone from the group certainly directly represents their voices, but, also, makes others a little less willing to engage in some thoughtless or disparaging behavior.
Q. So how does the lack of participation or representation in high ranking and other government positions undermine political power of gay men and lesbians?
A. Well, for starters in many parts of the country elected officials have absolutely no problem speaking about gays and lesbians in a way that you could not imagine them speaking about any other member of the electorate. So in addition to gay and lesbian concerns not being considered meaningfully, for example, in the U.S. Senate, there are members of the United States Senate who, in public speeches, have compared same-sex marriage to marrying a box turtle. There is a member of the Senate who has a hold on a judicial nomination because the nominee attended a lesbian commitment ceremony. Senator Coburn has gone on record saying that the gay and lesbian agenda is the greatest threat to freedom in the United States today. And a Senator from South Carolina, when he was elected to the Senate said during the course of his campaign that gays and lesbians shouldn't be allowed to teach in the public schools. It's difficult to imagine an elected official saying such a thing about, really, almost any other citizen group in the United States.
Q. Is the fact that some public officials feel so free to publicly denounce gay men and lesbians a factor that contributes to the lack of political power of that group?
A. Absolutely. And, again, I think it plays out in multiple ways. First, this demonstrates a real hostility of that legislator, or perhaps his party, to the interests of gays and lesbians. But secondly, when someone in a position of authority communicates to you that this is okay, then it moves those thoughts into the mainstream. So if -- if two U.S. senators compare same-sex marriage to bestiality, that makes that part of the mainstream conversation. That's not the fringe. That's a United States senator. And as a consequence, it legitimizes some of these deeply hostile beliefs.
Q. Can you provide us with another example of a factor that contributes to the political powerlessness of gay men and lesbians?
A. The simplest one would be their numbers. There just simply aren't enough gays and lesbians in any jurisdiction of any size to shape outcomes.
Q. Do the attitudes of other people towards gay men and lesbians affect their political power?
A. I think that the role of prejudice is profound. So when we are engaged in the pluralist struggle, as Dahl and others envisioned it, we are engaged in a contest of ideas where I'm trying to persuade you of the rightness of my position and you are trying to persuade me of the rightness of your position. But if the group is envisioned as being somehow or another morally inferior, a threat to children, a threat to freedom, if there's these deeply-seated beliefs, then the range of compromise is dramatically limited. It's very difficult to engage in the give-and-take of the legislative process when I think you are an inherently bad person. That's just not the basis for compromise and negotiation in the political process.
Q. Did Dr. Nathanson's testimony that was played in court about the prejudice and hostility towards gay men and lesbians affect your view on this issue concerning political power?
A. It was consistent with my view in that I felt like he was agreeing with the position that I would take; that there is a lot of hostility to gays and lesbians. It is still the case, even today, that a majority of Americans find sex between two persons of the same gender to be morally unacceptable in all cases. Another huge percentage finds it morally unacceptable in most cases. So I think he -- he sort of validated the belief that I had based on my examination of the data in the literature.
Q. I would like to display demonstrative number six, which you prepared based on your report and deposition and ask you some questions about what political scientists call a feeling thermometer.
A. Okay.
MR. BOUTROUS: And I resisted the temptation to use a thermometer graphic, your Honor.
BY MR. BOUTROUS:
Q. What in your field is a feeling thermometer?
A. So a feeling thermometer is a simple question that we can ask respondents, and it's an unobtrusive measure of sentiment. So I ask you: On a scale from zero to 100, how warmly do you feel about Evangelical Christians? How warmly do you feel about African-Americans? How warmly do you feel about Democrats, about Republicans, et cetera. And you could put any group in. What's nice about a feeling thermometer is because we don't -- they don't know -- we are not asking them to compare, Do you like one group better than another, people are going to give us fairly honest answers. They might bias those answers upward. People tend to say they feel warmly about everybody, which is, I guess, nice to see, but a little bit dubious. But they can say they feel warmly, but if there are still between group differences, we are identifying sort of differences in attitudes by the general public across different groups.
Q. In connection with your work on this case, did you study opinion data relating to this sort of -- this feeling thermometer analysis?
A. I did.
Q. What conclusions did you reach based on your analysis of that data concerning the political power of gay men and lesbians?
A. The conclusion I reached is that the American public is not very fond of gays and lesbians. So on a scale from zero to 100, almost every group you could imagine that had any demographic identity, that would be the source of contestation. So religion, race and ethnicity were scoring in the upper 60's. So people were giving them a score somewhere between 65 and 69. And every group has its haters. And it turns out that for African-Americans and Hispanics, Catholics and Jews, some number of people placed the group below the midpoint, below the 50 score; between a third and, say, 45 percent. For gays and lesbians, instead of the mean score establishing between 65 and 70, the mean score was 49.4. So it was as much as 16 to 20 points below the average score for these other groups about whom we know there is already some amount of societal distance. So, you know, Hispanics and African-Americans are held in higher esteem than gays and lesbians. And over 65 percent of the respondents placed gays and lesbians below the midpoint, below the score of 50; whereas, only, again, a third to 45 percent did the same for other groups.
Q. Do you think that those numbers and those measurements had anything to do about the ballot initiatives that have been put on the ballot in so many states in recent years?
A. I do. And I think that it speaks to the larger question of the variation of opinion across the states and how that may affect my notion of political power. So when you see that approximately two-thirds of all respondents are giving gays and lesbians a score below 50, that's telling elected officials that they can say bad things about gays and lesbians, and that could be politically advantageous to them because, indeed, many parts of the electorate feel the same way. It's also suggesting that the initiative process could be fertile ground to try to mobilize some of these voters to the polls for that cause and for other causes. So similarly we might find, for example, that about half of all people think that sex between two people is morally wrong, but in some states that number would be a lot higher, and so you could use that as a place to target gays and lesbians.
Q. And do you believe that the views of major religious denominations have an effect on the political power of gay men and lesbians in this country?
A. I do.
Q. What is your view?
A. I think that religion is the chief obstacle for gay and lesbian political progress, and it's the chief obstacle for a couple of reasons. The first is that after government, it's difficult to think of a more powerful social entity in American society than the church. Religion is something that deeply connects to people's lives. Indeed, America is a very church-going nation compared with other western democracies. It provides the opportunity for people to meet together on a weekly basis. So it's a very powerful organization, and in large measure they are arrayed against the interests of gays and lesbians. There are exceptions, but in large measure they are arrayed against gays and lesbians. This is an important contrast with African-Americans, because except for the Southern Baptist Church, virtually every denomination was supportive of the civil rights movement at the time.
Q. Do you recall Dr. Nathanson's testimony earlier this morning about religious organizations and their views on gay men and lesbians?
A. I do.
Q. And did that effect your views in any way on this issue of the interaction between religious groups and gays and lesbians as it relates to political power?
A. It confirmed what I had previously believed, which is that biblical condemnation of homosexuality and the teaching that gays are morally inferior on a regular basis to a huge percentage of the public makes the political ground, the political opportunity structure very hostile to gay interests. It's very difficult to overcome that.
Q. And are you aware from your work in responding to Dr. Nathanson, that he's a professor of religious studies?
A. I don't believe he actually holds a professorial position anywhere.
Q. That his area of specialty is religious studies?
A. That's correct.
Q. And did you also -- do you recall professor -- Dr. Young's testimony earlier this morning regarding the views of religious denominations in the United States as to gay men and lesbians?
A. I do.
Q. And what is your understanding of Dr. Young's position?
A. I think Dr. Young freely admits that religious hostility to homosexuals is an important role in creating a social climate that's conducive to hateful acts, to opposition to their interest in the public sphere, and to prejudice and discrimination.
Q. Can you point to any other situation in which religious groups in the United States have been so unified in their opposition to a particular minority social group?
A. I could not. A moment ago I gave the example of the relatively high level of unity during the black civil rights movement in favor of the social group, but there is even an interesting piece of work that I relied on in my opinion by a scholar of religion and politics who suggested that opposition to homosexuality has been a real boost in the arm for the ecumenical movement because it's something on which many different sects could agree, and so it's served as the basis of cooperation between religious denominations.
Q. Is violence against gay men and lesbians another factor that you believe, in your expert opinion, contributes to the lack of political power of that group?
A. It is.
Q. Why is that?
A. So it's important to understand conceptually what we think a hate crime is. So a hate crime is distinguished from a simple assault in that it targets not just the individual who's being assaulted, but it is intended to send a message to the entire group. That's why there has to be the extenuating circumstances to suggest that the person was targeted for their identity. So if a gay man is beaten in a particular part of town, it's not just that he is the victim; the intended message is that you shouldn't be here in this part of town, or you shouldn't be engaging in the behavior in which you are engaging, or you are not supposed to have a public expression of self in the normal commerce of everyday life. Creates a fear that really constrains or chills what individuals would do in the normal daily activities of life. So it's designed to make you pull back, to make you less active. If you have a fear of violence, you are less likely to self identify. If you have a fear of violence, you are less likely to go to a place where someone might see that by virtue of your being there, you actually are gay or lesbian. If there is violence you might know that if you go to a certain place there is some chance that you will be hurt. I have known of individuals who simply don't leave a bar without two people because it's just not safe. In many parts of the country it can be quite hazardous.
Q. In your work on this case did you study and review the FBI Hate Crime Statistics that are now in evidence as Plaintiff's Exhibits 489 through 494 covering the years 2003 through 2008?
A. I reviewed 2003 through 2007 for my report and deposition. The 2008 numbers had not yet been released when I was deposed.
Q. Have you since reviewed the 2008 statistics?
A. I have.
Q. Did you also review the Los Angeles Hate Crime Report that has now been admitted as Plaintiffs' Exhibit 834?
A. I did.
Q. And when did you review that?
A. That, too, was released after my deposition. It was released in the latter part of last year.
Q. With the Court's permission I would like to display demonstrative number seven. (Document displayed)
Q. And ask you, Professor Segura, have rate crimes been on the increase or the decrease in the United States as directed against gay men and lesbians?
A. The data that I observed show that over the last decade, there has been no real improvement, no real decline; and over the last five years, there has actually been an increase in violence directed towards gay men and lesbians.
Q. And in 2008 -- we have those overt demonstrative -- was there an increase between 2007 and 2008 in hate crimes?
A. There was a substantial increase. And I would also point to the next column of figures, which is the share of all hate crimes. So what's happening is that gays and lesbians are representing a larger and larger portion of the number of acts of bias motivated violence.
Q. And when we talk about hate crimes and when the FBI talks about hate crimes, what is your understanding in terms of the definition of a hate crime offense?
A. My understanding of a hate crime offense, as the FBI collects it, is that there has to be an underlying criminal offense on which there are exacerbating characteristics suggesting that the purpose of the offense was bias related. So it's not just simply a shouting an epithet. It's shouting an epithet in association with an act of vandalism, or in association with a felonious assault, or in association with a robbery, or something like that.
Q. How did the hate crime figures for 2008 compare to the levels each year over the prior decade?
A. 2008 is the highest, I think, for the last period of time and represents a pretty substantial increase. I know that the numbers are also up in California and in Los Angeles County. It's also important to look at the intensity. So we don't want to look at just the number of crimes, but we want to look at the type of crimes. So one of the things the FBI does is it looks at what percentage of the hate crimes were violent, as opposed to simply an act of vandalism. And it turns out that gays and lesbians are far more likely to experience violence. Like, I think the number is 73 percent of all the hate crimes committed against gays and lesbians also include an act of violence. And in 2008 -- we are talking about the most extreme forms of hate based violence, so rape and murder. 71 percent of all hate-motivated murders in the United States were of gay men and lesbians in 2008. Fifty-five percent of all hate-motivated rapes were against gays and lesbians in 2008. There is simply no other person in society who endures the likelihood of being harmed as a consequence of their identity than a gay man or lesbian.
Q. I asked you about the Los Angeles data. I would like to have displayed Plaintiffs' Exhibit 834 and ask you a few questions and have you turn to that exhibit in your binder. (Document displayed)
Q. And that is the 2008 Los Angeles Hate Crimes Report.
A. Okay.
Q. You have reviewed this document --
A. I have.
Q. (Continuing) -- correct? What does it tell you about the situation concerning hate crimes with respect to gay and lesbian individuals in Los Angeles?
A. It tells me a couple of things. So I'm -- I particularly took note of two items, and there are perhaps others. The first is that how many times on the basis of race, ethnicity and national origin from 2007 to 2008 declined by 16 percent.
Q. Which page are you looking at?
A. Nine.
MR. BOUTROUS: Put page nine on the screen? Thank you. (Document displayed)
BY MR. BOUTROUS:
Q. Continue. I'm sorry I interrupted you.
A. No problem. So there is a decline in race -- racial and ethnic hate crimes, which I think is a good thing. But in the same period of time, there's an increase of 21 percent in bias-motivated crimes against gays and lesbians. So even if there is a sort of general negative drift overall, the drift for gays and lesbians is positive. The second thing I took note of was that on page 14, Los Angeles County documented a fair number of hate crimes specifically related to the Proposition 8 ballot initiative.
Q. And what did -- and what did the report conclude specifically?
A. That there were some number of crimes. I believe there were nine acts of vandalism. There were a number of other smaller numbers of physical assaults associated with Proposition 8. These included acts of graffiti, the targeting of cars, et cetera.
Q. It you'll see at the bottom it says, "In addition, there were four violent crimes"?
A. I'm sorry?
Q. At the --
A. Yes. "Four violent crimes." That's the very last line.
Q. I would like you to turn to page 26, please. (Witness complied.)
Q. And perhaps you can describe what this -- what the report concludes here and how that affects your views concerning the political power of gay men and lesbians?
A. Well, so this reports the distribution of crimes by -- targeting people on the basis of real or perceived sexual orientation. And it shows that in a couple of categories the number declined, and in most of the categories the numbers increased and increased sizably.
Q. And were you in court yesterday during the testimony of Mayor Sanders from San Diego?
A. I was in the overflow room upstairs, yes.
Q. Did you see the advertisement that was played during his testimony concerning alleged acts of vandalism relating to Proposition 8 proponents?
A. I did.
Q. Does that undermine your view that hate crimes and violence directed against gay men and lesbians is a factor that undermines, that detracts, that renders less the political power of gay men and lesbians?
A. I wasn't quite sure what to make of that video. On the one hand -- let me state categorically, I think those sorts of behaviors are unacceptable. And I would also state that as a political scientist, I am aware of and there is a small literature on act of vandalism, even in candidate-based elections. Electioneering activities are frequently not pleasant; tearing down of signs, et cetera. That notwithstanding, I thought it was interesting that their video certainly doesn't report any acts in the opposite direction. Acts of vandalism, as Mayor Sanders pointed out, you know, even in front of his own house, the tearing down of Pro 8 signs, the hundred or more acts of violence against gays and lesbians during the course of 2008; that a more balanced way to look at what the effect of these behaviors, would be to look at the effects from both sides. And, obviously, that was, you know, not the interest of the advocates producing the video, but...
Q. In your view, in the political world and in American society, is there pressure on gay men and lesbians to remain invisible to a certain extent?
A. Certainly --
THE COURT: To remain visible?
MR. BOUTROUS: Remain invisible.
THE COURT: Invisible.
A. I think that the sort of the psychology of the closet and the social and economic pressures of the closet are still quite relentless and insidious. They do vary dramatically across the country and they do vary across racial and ethnic groups and across socioeconomic status. So for people who are in sort of working class occupations, for people who are from the deep south or the great plain states, self-identification as a gay man or a lesbian can be quite detrimental to one's health, one's income. There is still a profound incentive to not self-identify.
BY MR. BOUTROUS:
Q. How does that factor contribute in any way to the political powerlessness of gay men and lesbians, in your view?
A. For starters, if you can't self-identify, you are not really available for political mobilization. Any rational person would include that, you know, even though I'm secretly gay or lesbian, I'm going to go to the gay rights march; that that's not going to work out for them, because their attendance at the gay rights march would be, at least, an indicator to the public that, perhaps, you are a member of the community. So if you are in the closet, you are unlikely to mobilize. If you are in the closet, it's difficult for you to even necessarily have information about what other gays and lesbians are doing. It's harder for gays and lesbians to find one another for political mobilization, particularly in places where their density is smaller. The other effect is that it creates a misperception in the public. So when the public sees gays and lesbians, what they see are gays and lesbians in major cities. And they conclude, Gee, you know, there's lots of gay activism and there's -- you know, all the gay men I have ever seen have advanced degrees and whatnot, when, in fact, that's something of a misperception because it's the gays and lesbians you don't see that present the other side of that picture; people who, for economic necessity or for physical safety, have chosen not to self-identify. So the public has a lower estimation of the total number of gays and lesbians. They have a misinformed estimation of the socioeconomic status of gays and lesbians. And I think they have a misperception of the quality of life or the level of societal treatment of gays and lesbians. Not every gay man is Will from Will and Grace.
Q. What does that have to do, though, with political power or powerlessness?
A. Well, because people are likely to perceive gays and lesbians as not having any political needs. Going back to my Will and Grace example, you know, Will was an attorney in Manhattan with a large apartment and a private practice. That is not the reality of every gay men in America and, as a consequence, when people see this, they are going to say, Well, you know, these are not individuals who need any form of protection. What do you mean we need anti-discrimination laws? There's lot of gay people in prominent jobs. So it makes the public a little bit less sympathetic. It make the public think that there's less need for some of these protections. It also makes the public view the numbers of gays and lesbians as being smaller and, therefore, maybe not as politically interesting.
Q. How about the concept of censorship? Are gay men and lesbians in society censored in any way that's relevant to the concept of their political power?
A. Over the last 25 years or so there have been statutory enactments preventing, for example, the discussion of homosexuality in public health classes in school. Some states specifically forbid the mentioning of homosexuality in health classes or actually instruct teachers to tell students that it's not an acceptable lifestyle and it's unhealthy. There was a ban on the funding of any art that had homoerotic images in it for the National Endowment for the Arts for a period of time. There was even a period of time where one of the states had a provision in their anti-HIV education program that said that no -- no portrayal of homosexuality can be used in the discussion of safe sex instructions to prevent HIV transmission, which struck me as particularly odd. If we go back historically, of course, there were periods of time when gays and lesbians weren't allowed to use the mails; that the transmission of material through the U.S. mails related to gay and lesbian political activity was considered to be obscene and, therefore, illegal.
Q. Is there anything in the Yes On 8 campaign that occurred here in California that illustrates the censorship point you just made?
MR. THOMPSON: Your Honor, I would object. This is not a subject that's addressed in his report.
MR. BOUTROUS: Censorship certainly was an issue in the report, your Honor. And I believe Mr. Thompson vigorously questioned the witness about his views as to what prompted the passage of Proposition 8, questioned him in great detail about Proposition 8 in the campaign.
MR. THOMPSON: My objection stands. I don't believe it's in the report.
THE COURT: Well, I gather you are not disputing that this was a subject explored at the witness's deposition.
MR. THOMPSON: We did discuss the motivations behind Proposition 8, yes, your Honor.
THE COURT: Then I think it's appropriate to explore that in his testimony. You may proceed, Mr. Boutrous.
MR. BOUTROUS: Thank you, your Honor.
BY MR. BOUTROUS:
Q. Is there anything about the Proposition 8 campaign by the Yes On 8 campaign that illustrates the censorship point that you discussed a few moments ago?
A. So one of the enduring sort of tropes of anti-gay argumentation has been that gays are a threat to children. And one particular instance in the Prop 8 campaign was a campaign advertisement saying, "At school today, I was" -- a young girl saying, "At school today, I was told that I could marry a princess too." And the underlying message of that is that the public school -- that if Prop 8 failed, the public schools are going to turn my daughter into a lesbian. At some level the notion is a little bit amusing or risible, but at another level it's sort of a reflection that there is a very strong taboo about the portrayal of homosexuality as anything other than pathological in the views of a lot of Americans. It's never to be talked about; not only not positively, but even neutrally.
Q. How does that affect, in your view as a political scientist, the public's view concerning the value of the contributions made to society by gay men and lesbians?
A. Well, it certainly lowers their familiarity. So if the public is not aware of any contributions of gay people to American life or to world society, or if they are aware of the contributions, but the individual is not identified as being gay or lesbian, then the public might reasonably conclude that they don't have any evidence of significance social contributions by gay men and lesbians.
Q. How does that affect the political power?
A. Again, it demeans the relative worth of the community vis-a-vis all others.
Q. Does it make other groups not take gay men and lesbians as seriously when they speak out on behalf of a particular issue?
A. Conceivably, it means that they are not taken as seriously. It also might mean that they are not seen as desirable coalition partners. And at the same time it makes them easier targets. It's easier to target people who have never contributed anything.
Q. You don't dispute, do you, that gay men and lesbians do have some allies in the political system, in California and in the United States?
A. They do, of varying reliability, but they do.
Q. Why doesn't that give that group political power in this country?
A. Okay. So the question of allies is an important one because we need to look at allies with respect to both their reliability, with respect to the range of their potential actions on behalf of gays and lesbians, and with respect to kind of what potential outcomes they can and can't secure with the structure of the governmental system. So it is nice to have allies; and if those allies are reliable, that's even better. But there are a number of instances where ostensible allies of the gay community, when faced with difficult decisions that might be electorally risky, retreat and retreat quickly. Or, there is also the disconnect between, say, rhetoric on the one hand and action on the other. So if you think of the major groups in society, you know, outside of the commercial enterprises, you think about, you know, the military, the church, the Democratic and Republican parties. These are the power centers in American society. And of those only the Democratic party purports to be an ally of gays and lesbians. But the Defense of Marriage Act was signed into law by a Democratic president. "Don't ask, Don't tell" was passed by a Democratic Congress and signed into law by a Democratic president. The current president describes himself as a fierce advocate of gay and lesbian civil rights, but, yet, has actually taken no steps to overturn either of those and, actually, I understand has refused an order by the chief judge of the Ninth Circuit to provide domestic partner benefits to his clerk and has filed briefs hostile to gay and lesbian interests. So even fierce advocates are submitting briefs supporting the Defense of Marriage Act, comparing gay and lesbian same-sex marriage to bestiality. This is not a reliable ally. Now, certainly, some allies are more reliable than that, but we have to look at the disconnect between rhetoric and action.
Q. In your view, is a smaller group in society more in need of reliable allies in the political sphere?
A. Well, just from the absolute numerical question of electoral politics, the smaller the group, the more allies necessary in order to sustain the day. That's clearly the case. If you are particularly insular or you are geographically isolated, without allies you are very unlikely to have an impact beyond, you know, fairly limited geographic circumstances.
Q. In your expert opinion, does the gay and lesbian community have any reliable allies in the way you are using that term from a political science standpoint?
A. Umm sure. I wouldn't say that they have no reliable allies. I think that would be an unfair statement. I think that when we look at kind of across the country and across the range of issues, the number of allies on which gays and lesbians can count on in a tough fight is fairly small, but I wouldn't say it's zero.
Q. Do you think that those -- that group of reliable allies is sufficient to give gay men and lesbians political power in the United States?
A. In my view, no.
Q. What has been the impact of HIV and Aids on the political power of gay men and lesbians in this country?
A. So I spoke before about the fairly small numbers of gays and lesbians. Those numbers are diminished by over 300,000 deaths of men engaged primarily in same sex sexual behavior from HIV, another quarter of a million infections in the same category. So that's done a couple of things. One is, it's diminished the voting power of a group that's already small. Second, the disease has rather dramatically sapped the financial resources of the group. Obviously, the 300,000 who have passed are not in a position to make contributions. Those who are ill, are frequently on disability, spending untold treasure on their medications. More importantly, resources from the healthy are being directed towards HIV activities and action, prevention campaigns, HIV support, charities and whatnot, quite rightly. And, finally, during the period of the worst severity of the Aids epidemic, that was, frankly, the more important agenda item; that gays and lesbians turn their attention first to surviving before engaging the political system. So I think HIV has been a real setback, certainly, for the people who have been infected, but for the cause as well.
Q. When a group, when a minority group faces a well orchestrated, well-funded opposition, does that affect its powerlessness in our political system?
A. Right. And so I think this really kind of gets to one of the central problems that gays and lesbians face in the political system. So you could imagine for the sake of hypothesis that there are two groups with exactly the same number of voters, with exactly the same number of dollars. Are they equally powerful? And the answer is, no, because that depends on what their opposition is. So you can imagine a group that faces relatively little hostility or relatively little opposition, and we would assume that they would be more powerful than a group that faces well-funded and coordinated opposition to simply even with the same amount of resources, because it's tougher sledding. It's an uphill battle for the group with strong opposition.
MR. BOUTROUS: Your Honor, I'm going to ask to approach to provide the witness with another smaller collection of exhibits in a binder and provide the Court and opposing counsel with those exhibits, if that's okay?
THE COURT: Very well.
MR. BOUTROUS: Thank you. (Whereupon, binders were tendered to the Court, counsel and the witness.)
MR. BOUTROUS: And, your Honor I'm going to present the clerk with a listing of exhibits for convenience of the Court. I have provided a copy to the witness and opposing counsel as well.
THE COURT: Very well.
BY MR. BOUTROUS:
Q. Professor Segura, I would like you to start out by opening the binder to Plaintiffs' Exhibit 1550 -- (Witness complied.)
Q. (Continuing) -- and ask you if this is a document that you reviewed in connection with your testimony in this case?
A. It is.
Q. And before I ask you questions about that document, did you study the Proposition 8 campaign and draw any conclusions about the degree of opposition that gay men and lesbians faced during the Proposition 8 campaign?
A. I generally familiarized myself with the details of the campaign, but I can't say as I went into any depth on the organizations of the two sides. So I know what money was spent, et cetera, but I didn't really have available to me a lot of information about, for example, volunteerism and those sorts of things.
Q. And since you have been involved in this case, were you provided with certain documents that were received by the plaintiffs during the discovery over the last week from the proponents of Proposition 8 in this case?
A. I was.
Q. And is one of those documents Plaintiffs' Exhibit 1550?
A. It is.
Q. And could you tell us what, if anything -- well, describe this document and explain to the Court what, if anything, it tells you about the political opposition arrayed against gay men and lesbians?
A. It appears to be a flyer or perhaps a web screen capture then sent as an electronic mail. There are two things in it that I took note of when I was looking through it. The first is on the second page the role of the LDS Church in supporting Prop 8.
MR. BOUTROUS: And, your Honor, I would move admission of Plaintiffs' Exhibit 1550.
MR. THOMPSON: No objection, your Honor.
THE COURT: Very well. 1550 is admitted.
25 (Plaintiffs' Exhibit 1550 received in evidence.)
BY MR. BOUTROUS:
Q. And if we could display Plaintiffs' Exhibit 1550? (Document displayed)
Q. And, Professor Segura, I would ask you to direct us to the portion that you are referring to on page two and read the portion that you found relevant.
A. Page two under the title "LDS Church takes an active role." I'm particularly interested in a couple of notes. First, the second sentence: "A letter from the First Presidency of the LDS Church in Salt Lake announced the church's official position during Sunday services on June 29th. The LDS Church rarely takes an official stand on political issues, but in this case the First Presidency sent a letter to the highest worldwide church leaders and California local LDS leaders."
Q. And why do you find that relevant to the question of political power and powerlessness of gay men and lesbians?
A. Churches -- many churches, and the LDS Church I would include in this, are hierarchical. They have very clear patterns and lines of communication. All churches have the good fortune to essentially be able to speak to their flock once a week or more, which makes for a very strong communications network. And so to me this illustrated that the LDS Church was very active, not just on the financial side, but even in the sort of grassroots side of pushing forward the proposition.
Q. Please turn to page three of Plaintiffs' Exhibit 1550? (Witness complied.)
Q. Is there anything on that page that you found relevant to your analysis of the political forces arrayed against gay men and lesbians gay men and lesbians in the Prop 8 campaign?
A. Sure. Under the subtitle "Pastor's Committee."
Q. If you could read that for the record and then explain what, if any, relevance it has to your opinions?
A. On 17 -- excuse me: "On June 17, 2008, Jim Garlow, senior pastor of Skyline Church in San Diego, released an invitation letter to the state's pastor community asking them to participate in a state-wide conference call for pastors. The call, which marked the first in a series of pastor meetings, served to kick off an aggressive grassroots campaign among churches of varying denominations. A total of 1700 pastors based in 101 locations across the state participated."
Q. What relevance does that passage have to your analysis of the political powerlessness issue in this case?
A. So in going through these documents, Reverend Garlow's name appears frequently and he ends up organizing this team, and it goes on to become, I believe, Protect Marriage CA. And they were very instrumental in trying to involve the Evangelical community in supporting the proposition. And I was particularly taken aback by the notion of 1700 pastors. That is a profound network of influence. I think most campaigns, candidate campaigns, initiative campaigns, party coordinated campaigns would be thrilled to have 1700 volunteers across the state on any given conference call. I think that that would be considered a heroic success. So this is an admirable organization at some level. I mean, it's enviable.
Q. And you are not suggesting there is anything wrong with like-minded groups and like-minded organizations, including churches, banding together to fight for a cause they believe in, right?
A. Umm, well, of course, there are limitations under the tax code about political advocacy; but of terms of individual groups working together on their own behalf, they are perfectly allowed to do that. And, in fact, that's kind of the center piece of pluralist democracy, is that people get to advocate for what they believe in. I think what takes me back here is just sort of the sheer breadth of the organization and its level of coordination with Protect Marriage.
Q. Let's turn to Plaintiffs' Exhibit 2310, which is the second document in the binder. (Witness complied.)
Q. Is this a document that you reviewed in connection with your work on this case over the last week?
A. It is.
Q. And could you describe your understanding of what this document is?
A. This document appears to be a cover page screen capture of ProtectMarriage.com's website.
MR. BOUTROUS: Your Honor, I move admission of Plaintiffs' Exhibit 2310.
MR. THOMPSON: No objection, your Honor.
THE COURT: 2310 is admitted. (Plaintiffs' Exhibit 2310 received in evidence.)
BY MR. BOUTROUS:
Q. Professor Segura, was there anything about this document that caught your eye as you evaluated the relative political power of gay men and lesbians vis-a-vis others?
A. Frankly, it was just the word "coalition." So the very first subpoena is: "ProtectMarriage.com is a broad-based coalition of California families, community leaders, religious leaders, pro-family organizations and individuals from all walks of life who have joined together to support Proposition 8." And so coalitions we know exist, you know, in an informal sense in all forms of political contestation. And this appeared to be sort of a stipulation of a more formal association. So it was more of an impression that I got from that sentence that -- you know, that there was an organized effort here, rather than just simply a group of people who happened to agree.
Q. Based on your evaluation of the record in this case before you saw these documents and in connection with public statements that you had seen previously, was the use of the word "coalition" significant to you in this document?
A. When I evaluate the political opportunity structure that gays and lesbians face in my evaluation of their level of power or powerlessness, it enhances my understanding and enhances my estimation of the strength of their opposition.
Q. Professor Segura, please turn to Plaintiffs' Exhibit 2314. (Witness complied.)
A. I'm there.
Q. Have you reviewed this document?
A. I have.
Q. What does -- could you describe this document? And then I will ask that it be moved into evidence before you go on. But just give your over -- overall description of the document, please?
A. This is also a screen capture of a website called "The Pastor's Rapid Response Team," which sounds fun and -- (Laughter.)
A. I'm sorry. The term "rapid response" just struck me as odd. Again, it's headed by Jim Garlow from Skyline Church.
MR. BOUTROUS: And, your Honor, I move admission of Plaintiffs' Exhibit 2314.
MR. THOMPSON: No objection, your Honor.
THE COURT: Very well, 2314 is in. (Plaintiffs' Exhibit 2314 received in evidence.)
MR. BOUTROUS: Thank you, your Honor. Please display 2314. (Document displayed)
BY MR. BOUTROUS:
Q. In political parlance, Professor Segura, what is a rapid response team?
A. It's an unusual term in political science. I'm more accustomed to the term with respect to toxic waste bills or fires or medical emergency sorts of things. So I'm not sure what they had in mind when they coined the term. I would assume that what they wanted to do would be in a position to put out responses to or to stage a public event quickly in response to sort of developments throughout the course of the campaign, the word "rapid" and "response" being the key words there. But I was just more taken aback that there was an organization who was sort of regularly monitoring everything and ready to go at a moment's notice.
Q. Well, thank you. Let's turn to Plaintiffs' Exhibit 2389.
MR. THOMPSON: Your Honor, I would like to say we are getting to a part of this binder where there are many documents that are stamped "Attorneys' Eyes Only," "Highly Confidential." This document doesn't have that stamp on it, but we believe it is confidential. We haven't had an opportunity to have dialogue with plaintiffs' counsel about the extent to which we might be able to lift those designations, but we are certainly concerned about these documents being discussed in open court without having an opportunity to assess that. And I might suggest that we take a lunch break and look and see whether we can work with plaintiffs' counsel to resolve those issues without having to take the Court's time fighting document by document over this on the fly.
MR. McCARTHY: If I may, your honor, attorney Vincent McCarthy. I represent Pastor Jim Garlow and Pastor Miles McPherson. I have concerns regarding these documents, which I haven't seen, your Honor. I'm presently in the process of discussing with counsel for the plaintiffs a potential agreement on the motion to quash and for a protective order that I filed in this matter. My clients are currently reviewing certain documents and disks, some of which appear to be the documents that are being introduced here, to make a decision as to whether or not they will agree to the introduction of those documents and/or authenticity of the documents. For plaintiffs to be introducing these while telling me that they want my clients to review them on the issues of both authenticity and admissibility, I think is somewhat misleading. We are still reviewing these documents and if they are going to be introduced at this point or counsel is going to seek to introduce them, then I would like to have the motion to quash and for a protective order decided, because the part of the motion that goes to a protective order goes to any testimony by Pastors Garlow and McPherson. And if these documents include testimonial matters regarding these two pastors, then they are included within the motion for protective order. As your Honor knows, we have argued not only under the earlier Perry decision, but the Trump decision, that there are First Amendment implications to the introduction of testimonial evidence from pastors. Particularly, a lot of this, I think, concerns sermons that they have given, speeches they have given to other people regarding their biblical beliefs, and all of which we believe are protected by the First Amendment and have been argued in the motion papers that your Honor presently has.
THE COURT: Well, Mr. Boutrous, I guess there are two suggestions; Mr. Thompson's suggestion for lunch, and the comment raised by counsel for Reverend Garlow.
MR. BOUTROUS: I have no objection to the lunch suggestion. (Laughter.)
MR. BOUTROUS: Let me make that clear, but let me address two of the points. First, counsel -- we provided this gentleman with disks, documents. Asked him over the weekend, as I represented to the Court we would do, to review the documents that we might use to absolve his clients of having to appear and testify about them. He sent us back an email, which I can provide the Court -- I was hoping to spare you having to delve into this -- basically that it would be too burdensome for his clients to review the documents to tell us whether they had any objection to us using them, and essentially refused to participate in the back-and-forth on the documents. That's number one. Number two. This document that is -- as Mr. Thompson astutely noted, the next exhibit, Plaintiffs' Exhibit 2389, does not say "Attorneys' Eyes Only." It was not designated confidential. It's an email from Ned Dolejsi, who was on the executive committee of ProtectMarriage.com, and we obtained it from the formerly anonymous Mr. Swardstrom in production without any limitation on our using this document whatsoever. The third point I would make, your Honor, is that these are documents that were produced after the Ninth Circuit amended its opinion in footnote 12, after Judge Spero ruled regarding the scope of the privilege. These are documents that were disseminated widely, widely. Some of the documents you will see, your Honor, they talk about 3,000 pastors on a conference call in order to disseminate more messages to huge numbers of people. So they are clearly not within any cognizable scope of a First Amendment privilege and they're covered -- and this is -- covered by the order that the Court today upheld from Judge Spero. So and, finally, we did redact the names. We did not do it on this document because it was not produced pursuant to any protective order. But the version I have provided the Court and the witness and that I was going to seek admission of evidence, we redacted the names that we believed had not been made public or we didn't know, consistent with the agreement that I made with Mr. Cooper last week regarding the use of these documents. And we did have a dialogue with -- with the proponents' counsel over the weekend in terms of redaction, and I think some of the things we did agree on and others -- we are in the middle of trial with witnesses. We just took our best good faith effort to eliminate names of people we didn't have information concerning, the extent to which they had been publicly revealed. So I don't think there's any basis for any objection to these documents. They are documents produced by the proponents or the individual members of the executive committee, in the latter case, without any limitation on our use.
THE COURT: You are representing that Exhibit 2389 and the other document that are contained in this binder came from the sources you identified rather than from counsel's client?
MR. BOUTROUS: Correct, your Honor.
MR. McCARTHY: Your Honor, if I may just correct the record? I don't think one hand knows what the other is doing with regard to plaintiffs' team. There is an attorney named Lazarus, who I am dealing with, who presented me yesterday with a separate binder with, I believe, eight disks in it and about 10 or 12 documents. She stated to me on the phone that if my clients would review them, she would -- and agree to the admissibility -- or not admissibility, authenticity of the documents, she would withdraw the subpoenas. Now, I sent those documents in good faith, together with the disks, by overnight mail yesterday to my clients because the prior package that had been sent to me was over 40 hours in length and the plaintiffs wanted my clients to review them on a Sunday and Martin Luther King holiday, which it was impossible to get the documents to them and for them to spend 30 hours on that on a Sunday on Martin Luther King's birthday. So right now my clients are reviewing them thinking that there is an offer on the table here. So we are completely taken by surprise. And if counsel is going to proceed with this, apparently, then they are withdrawing the offer that they made earlier to me yesterday and I would like an opportunity to argue the motion to quash. And we've also prepared a motion to stay, because we would like to have the Ninth Circuit take a look at this as well. We know of no instance in which pastors have been called to testify regarding their sermons and other biblical interpretations to their congregants and others.
THE COURT: Well, that's a separate issue, is it not, from the documents that Mr. Boutrous is proposing to use with this witness?
MR. McCARTHY: Unless they include testimonial materials, your Honor. Then they would be covered by the motion for a protective order.
THE COURT: A protective order motion is different. As I understand it, these are not the documents that were produced by or came from the files of your client.
MR. McCARTHY: Right. But I'm objecting not only to the authenticity of the documents, but, also, to the admissibility of the document because of the First Amendment consideration set out in our motion.
THE COURT: That is a separate issue, isn't it?
MR. McCARTHY: It's only separate if there is no testimonial materials in the documents that have been introduced.
THE COURT: Now, what do you mean "testimonial material"?
MR. McCARTHY: In other words, if there are statements from either Pastors Garlow or McPherson in these documents, then what plaintiffs are doing is getting in statements by my clients over the motion for protective order that I have made protecting any statements made by my clients under the First Amendment.
THE COURT: If the statements, however, were made to third parties, what possible protection could there be for these statements?
MR. McCARTHY: Your Honor, I don't even -- I haven't seen these before. I have no idea what's in them. I was provided with a --
THE COURT: That would tell you whether there is some kind of privilege that attaches to the statements, would it not?
MR. McCARTHY: Well, it would, sure. If the material in these documents includes biblical interpretations of my clients of the issues that are being talked about here, then the Court is really asking a pastor to testify as to his of view of traditional marriage, of same-sex marriage, and we believe that would violate the First Amendment rights of a pastor to do that, your Honor.
MR. BOUTROUS: Your Honor, may I make one point? This was a pastor who was on the Pastor's Rapid Response team. So he injected himself into the political sphere.
THE COURT: You are saying he can respond quickly, is that it? (Laughter.)
MR. BOUTROUS: I wish I had thought of that.
THE COURT: All right. Lets take Mr. Thompson's suggestion and have lunch, and you and Mr. Thompson can work out whatever you want with respect to these documents. One other piece of information for counsel. I have been informed that Magistrate Judge Spero has heard the parties on proponents' motion to expand the designation of the proponents' core group. Magistrate Judge Spero granted proponents' motion with respect to John Doe, but denied the motion with respect to Rob Wirthlin, Richard Peterson and Bill Criswell. So you may consider that in the course of your discussions.
MR. BOUTROUS: Thank you, your Honor.
THE COURT: All right. (Whereupon at 12:12 p.m. proceedings were adjourned for noon recess.)
P R O C E E D I N G S JANUARY 20, 2010 1:09 P.M.
THE COURT: Very well. With regard to the matter that we were discussing just before the luncheon recess, I want to advise counsel that I'm going to make a reference of the motion to quash, that counsel is addressing, to Magistrate Judge Spero so that he may attend to that while we proceed with the trial. And so I would urge Counsel, whose name I'm afraid I have forgotten --
MR. MCCARTHY: McCarthy, Your Honor.
THE COURT: Oh, yes, Mr. McCarthy.
MR. MCCARTHY: Yes, Your Honor.
THE COURT: If you and your opposite numbers on the plaintiffs' team and on the proponents' team would make yourself available to Magistrate Judge Spero, he will be able to attend to this matter and deal with it.
MR. MCCARTHY: Thank you, Your Honor.
MR. BOUTROUS: Your Honor, may I just confer with Mr. McGill, for one moment?
THE COURT: Of course. (Pause)
THE COURT: Ready to go?
MR. BOUTROUS: Yes, Your Honor.
THE COURT: All right. You may continue with your direct examination. And I will remind the witness, you're still under oath.
THE WITNESS: Yes, Your Honor.
THE COURT: You understand that?
THE WITNESS: Yes, I do.
THE COURT: Fine.
MR. BOUTROUS: Thank you, Your Honor.
DIRECT EXAMINATION RESUMED
BY MR. BOUTROUS:
Q. I would like to ask the witness to go back to Plaintiffs' Exhibit 2389, and not discuss it until I ask you a question. I would like to proceed through this step by step. First, is this a document that you have seen?
A. Yes.
Q. And, just in general terms, could you describe for the Court what it is, without mentioning anyone's name except the name of the individual who -- whose name appears in the "from" line.
A. It is an e-mail to many people, from someone named Ned Dolejsi.
Q. And are you aware that Mr. Dolejsi is a member of the executive committee of ProtectMarriage.com?
A. I am.
Q. And without disclosing the names or the titles of the individuals to whom this e-mail was sent, can you generally describe the nature of the -- the people to whom this e-mail was sent?
A. In broad terms, I would describe it as the senior leadership of the Roman Catholic Church in California.
Q. And could you generally describe the subject matter of this e-mail, at least as to the first page of the document. Again, without going into any detail concerning the actual specific contents.
A. Uhm, it appears to be sort of half of a thank you note, half of a celebratory message on the election day, recounting the specific contributions that Catholic organizations and the Church itself played in prosecuting the Yes On 8 campaign.
Q. In going back to the top of the document. Under the "from" line there's a "subject" line. Could you read that for me.
A. It says, "Go to confession."
Q. And what is the date of the e-mail?
A. November 4, 2008.
Q. And is there a time stamp on it?
A. 9:28, in the morning.
MR. BOUTROUS: Your Honor, I move admission of Plaintiffs' Exhibit 2389. The parties did -- we did discuss this document. There is still a dispute about whether the whole thing can come in. I propose that it be entered into evidence subject to redaction, and that I would only display the portions of the document that the parties agreed to be displayed, published to the public and put on the screen for now. And then we could resolve the -- any other -- I still believe this document is not covered by any privilege. But to move things along, would suggest we proceed that way.
THE COURT: Mr. Pugno.
MR. PUGNO: Thank you, Your Honor. Is this on?
THE COURT: I believe it is.
MR. PUGNO: I'm sorry, Your Honor. Thank you. And thank you for pronouncing my name correctly. Everyone gets it wrong.
THE COURT: Oh, well.
MR. PUGNO: We discussed this at length during the break, and we're doing everything we can to accommodate the plaintiffs on this. And we identified some portions of this that we were comfortable having read to the witness. But the -- but the -- this is, as has been described by the witness, a communication between the executive director of the Catholic Conference of Bishops and the bishops who make up the Catholic Conference of Bishops. And, you know -- and the subject matter has to do with the Church's involvement, as I understand it from the witness. We don't agree to lift, voluntarily, the attorneys' eyes only privilege for this entire document. But we did, earlier, work out some highlighted portions that could be read to the witness without our objections. So that's where we are at this moment.
THE COURT: Well, then, do I understand it's mutually agreeable to the parties that we proceed with respect to the portions that you've highlighted and as to which there is no objection to being read to the witness?
MR. BOUTROUS: Yes.
MR. PUGNO: That is correct. But as to the admission of the entire document into evidence, we haven't gotten there yet.
THE COURT: All right. Well, we'll deal with that when and if we reach that point.
MR. PUGNO: Thank you, Your Honor.
MR. BOUTROUS: Thank you, Your Honor. At this time, I would like to publish the newly redacted first page of Exhibit -- Plaintiffs' Exhibit 2389. And then I'll ask the witness to read from the sections that have not been redacted, those paragraphs. And then I'll ask the witness a couple of questions about that. Maybe we can enlarge it, so it's easier to read. (Document displayed.)
MR. BOUTROUS: Thank you.
THE WITNESS: Would you like me to read it in its entirety?
BY MR. BOUTROUS:
Q. Yes, if you could, Professor. Thank you.
A. (As read) "Today is election day. I am sure you share my relief that it is finally here. We have all been subjected to the longest campaign for President in American history. And in our own state, the intensity of the campaign around Proposition 8 has been incredible. The
DIRECT involvement of the CCC has been unusual - although not unprecedented."
MR. PUGNO: Your Honor, I'm sorry to interrupt. But what's been posted on the screen is more than what has been highlighted and agreed to by the parties.
MR. BOUTROUS: Oh, I'm sorry. Were you -- do you want additional sentences? I had this sort of blocked. I thought --
MR. PUGNO: That's fine.
MR. BOUTROUS: -- we had agreed to those two paragraphs.
MR. PUGNO: What's highlighted.
MR. BOUTROUS: Okay. Well, maybe I can ask our team to redact, in that second paragraph, everything -- not that I like asking to have things redacted. Let me just make that clear. But to move this along, the sentences that -- up until the sentence that begins, "The Catholic conference has played..." So, basically, the first two sentences of the second paragraph. If we can redact those as well. My apologies for the delay, Your Honor. Yes. There we go. Thank you. (Document displayed.)
BY MR. BOUTROUS:
Q. Professor Segura, could you pick up reading with the now slimmed-down version -- slimmed-down version of this exhibit.
A. (As read) "The Catholic Conference has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating. Led by the Knights of Columbus national donation of $1.15 million, other million-dollar donors, and countless major donors, and with a significant percentage of the 90,000 online donors, the Catholic community has stepped up. Of course, this campaign owes an enormous debt to the LDS Church. I will comment specifically at a later time, under separate cover, about their financial, organizational and management contribution to the success of the effort. The ProtectMarriage.com campaign has surpassed $37 million in donations."
Q. Thank you, Professor Segura. What about this document, and in particular those passages that you read, bears on your analysis of the array of political opposition that gay men and lesbians face in the United States in general, and in particular in California as it relates to Proposition 8.
A. Well, certainly, it suggests that the fairly substantial monetary resources of the Roman Catholic Church and its faithful were mobilized in substantial portion on behalf of the Yes On 8 campaign. It also suggests a fairly close cooperation between the Catholic Church and the LDS Church, which is certainly remarkable from a historic perspective. And I was taken aback, frankly, by the phrases "financial, organizational and management contributions to the success of the effort," which suggests a very close coordination between those organizations and the campaign.
Q. In your study of American politics and political science, to your recollection, have you ever seen an example where two churches of the scope and size and power of the Catholic Church and the LDS Church had banded together and arrayed themself against a particular minority group in society?
A. I don't -- I wouldn't claim to have an exhaustive knowledge of the political action of those churches forever, but I would suggest that this is unprecedented in my experience.
Q. Let's turn to the next exhibit, Plaintiffs' Exhibit 2552.
MR. BOUTROUS: And, Your Honor, I would move -- I would move -- actually, let me can ask the witness a couple of questions first.
BY MR. BOUTROUS:
Q. Is this a document that you've seen before, sir?
A. Yes, it is.
Q. And is it a document you've reviewed this week, in preparing for your testimony, once we received this document in the production that proponents of Proposition 8 made to the plaintiffs in this case?
A. Yes, it is.
MR. BOUTROUS: Your Honor, I move admission of Plaintiffs' Exhibit 2552.
MR. THOMPSON: No objection, Your Honor.
THE COURT: Very well. 2552 is admitted. (Plaintiffs' Exhibit 2552 received in evidence.)
MR. BOUTROUS: Thank you, Your Honor.
25
BY MR. BOUTROUS:
Q. Professor Segura, can you describe your understanding of this document and how it relates to your analysis of the political powerlessness of gay men and lesbians.
A. This document appears to be a personal e-mail from the chairman of the protect marriage effort. And it recounts the financing of the signature petition gathering -- signature gathering phase of the Prop 8 campaign.
MR. BOUTROUS: I would like to publish this exhibit, 2552, to the screen, please. (Document displayed.)
BY MR. BOUTROUS:
Q. In your understanding, is the e-mail line from -- and maybe we can highlight that -- "ronp" of CaliforniaFamily.org, who do you understand "ronp" to be?
A. Ron Prentice.
Q. And who do you understand Ron Prentice to be?
A. The chairman of ProtectMarriage.com, or the head.
Q. What about -- what was it about this document, what portion of this document did you find shed light on the opinions that you formed, that you're giving in this case?
A. On the second page, the paragraph about a third of the way down the page that begins with "the total."
Q. Could you read that for the record.
A. (As read) "The total projected cost for the qualification effort has been set at 1.5 million. Thus far, 1.25 million has been raised and spent. The monies have come from four primary sources thus far: The Catholic community of San Diego, due to the involvement of Auxillary Bishop Cordileone, Fieldstead & Company, who pledged 50 cents for each dollar raised in January for the effort, Focus on the Family, and small gifts from
Direct mail efforts by ProtectMarriage.com."
Q. Are you knowledgeable, generally, about the organization Focus on the Family?
A. I am.
Q. What is Focus on the Family?
A. It's a nationally prominent evangelical organization dedicated to supporting issue positions consistent with the evangelical community's preferences.
Q. Is it a group that has been known to be politically active?
A. Very much so.
Q. And going back to page 1 of the document, the first paragraph of the document, if we could pull that up. (Document displayed.) Could you -- could you read -- just read that paragraph, just into the record, so we have it.
A. Okay. (As read) "I spoke with" -- person redacted -- "in your office, who suggested I send along some information. I serve as the CEO of the California Family Council. Our 501c4 organization, California Renewal, is the sponsoring organization for the marriage amendment that is attempting to qualify in California. Thus, I serve as the volunteer chairman of ProtectMarriage.com steering committee."
Q. What is it about this document that relates to your opinions on political powerlessness of gay men and lesbians?
A. Well, I drew from this two things. First of all, was the very early involvement of the organized religious communities in the signature and petition gathering phase of the campaign. And the second thing I drew from it was that this was, really, a national political campaign; that Focus on the Family is, of course, a national organization; and, therefore, communities, organizations, and leaders far and wide were involved in the effort.
Q. Adding Focus on the Family and the organizations -- the other organizations mentioned in this document, to the LDS Church and the Catholic Church, that was discussed in the prior document, is that a coalition you've seen before, arrayed against a particular minority group in the United States in a political battle?
A. I would say that there's probably one other issue position against which such a coalition might emerge, and that would be a Pro Choice abortion rights position. Apart from that, I can't think of a minority group against whom such a coalition has been raised.
Q. Thank you. I would like you to now turn to Plaintiffs' Exhibit 2554. And I'm going to ask you some general questions about this document. I would like you to refrain from mentioning any of the names, but -- because, as you can see by the approach of Mr. Thompson, there's an objection to admission of this document. But have you seen this document before?
A. I have.
Q. Does this document shed any light on the powerful political forces arrayed against gay men and lesbians in connection with the Proposition 8 campaign?
MR. PUGNO: Your Honor, if I may object, this --
THE COURT: Let's get an answer to the question first.
MR. PUGNO: I'm sorry, Your Honor.
THE WITNESS: Yes, it sheds light.
THE COURT: All right. Mr. Pugno.
MR. PUGNO: Yes. Your Honor, this is still under attorneys' eyes only confidentiality. As the Court can probably see from the body of the message, the "to" and the "cc" designations, from all appearances, this is an internal communication among leadership of a particular church. I don't see anything that connects it to the Prop 8 campaign, or that it was disclosed beyond the church leadership officials that are listed there. So we would object to testimony about this document.
THE COURT: Mr. Boutrous.
MR. BOUTROUS: Thank you, Your Honor. First, without revealing anything other than the following, I think I can reveal that it references the fact that the effort being discussed in the -- in this e-mail is in concert with the leaders of many other faiths and community groups forming part of the ProtectMarriage.com Coalition. This is a document that we received in production from the proponents of Proposition 8 in this case, in the wake of the order rejecting their First Amendment claims and defining the core group. So I think it's not subject to a First Amendment privilege. It was clearly disseminated more widely than those who saw it. And, therefore, I believe it should be admissible.
MR. PUGNO: Your Honor --
THE COURT: This Mr. Bentley is not one of the individuals that has been designated -- that have been designated as in the core group. Is that correct?
MR. BOUTROUS: That's correct, Your Honor.
MR. PUGNO: Your Honor, I really must clarify, this document -- how do I say this? Whether or not any of these individuals are in the core of ProtectMarriage.com is completely a different issue. This is a document in the possession of one of our clients who is -- or, at the time, was a church official and had a document in his possession revealing communications with other church officials. And that's the body of this. Now, it may relate to Prop 8, but there is -- I think that we are -- it would be very troublesome to say that religious organizations, churches, lose their ability to communicate within their leadership in the church because the church works with other churches and other organizations, even in a cooperative way in a campaign.
THE COURT: But, as I understand it, this is a document that was in ProtectMarriage.com's files.
MR. PUGNO: No, Your Honor. In the file of an individual who is an official proponent.
THE COURT: One of the parties?
MR. PUGNO: One of the intervenor individuals, not the campaign committee.
THE COURT: But it was in that individual's files?
MR. PUGNO: That's right.
THE COURT: That individual is not part of this religious organization, correct?
MR. PUGNO: He is, Your Honor. That individual is a member of the organization -- a member of the religious denomination, and at the time had a position of authority in that church and was -- sent this e-mail in that -- in connection with his -- in other words, Your Honor, someone can be on the executive committee and be an official proponent, and they can also be involved with their church. And this is a communication about Prop 8 among church officials with one of our proponents who was also a church official. In other words --
THE COURT: Well, but he's one of the proponents. He's an individual intervenor-defendant in the case. The document relates to the Prop 8 campaign. If there has been a disclosure --
MR. PUGNO: It relates to the churches' support for Prop 8. This is not a publication of the campaign. This is not a document produced by ProtectMarriage.com. This is an internal church communication.
THE COURT: I don't understand how, if it is a document that relates to the Prop 8 campaign, in the files and possession of one of the defendant-intervenors, how it can have some kind of privilege attached to it.
MR. PUGNO: Well, there's -- there's --
THE COURT: It obviously falls outside the First Amendment privilege as defined by the Ninth Circuit.
MR. PUGNO: Absolutely agree with that, Your Honor, because that First Amendment privilege articulated by the Ninth Circuit was with regard to the campaign's internal formulation of messaging strategy. We are on a completely different field here. We're dealing with the religious association of a religious denomination and their ability to communicate with one another within the walls of the church.
THE COURT: Mr. Boutrous.
MR. BOUTROUS: Your Honor, I would make a couple of points. First, I don't see how Mr. Pugno and ProtectMarriage.com have standing to assert this First Amendment privilege on behalf of the people who wrote this document, number one --
THE COURT: Well, he can assert it on behalf of the individual that he represents.
MR. PUGNO: Right, the individually-named defendant.
MR. BOUTROUS: Mr. Jansson.
THE COURT: Which named defendant are we talking about?
MR. BOUTROUS: Mr. Jansson.
THE COURT: Mr.?
MR. BOUTROUS: Jannson.
THE COURT: Mr. Jansson.
MR. BOUTROUS: Yes.
THE COURT: Okay.
MR. BOUTROUS: So assuming there is some level of standing, the -- I would
DIRECT the Court to the first sentence. And, again, I think I can read this without bringing down the First Amendment.
MR. PUGNO: I am going to object, Your Honor, to this -- this internal church communication being read aloud in court.
MR. BOUTROUS: Let me try it this way, Your Honor. The document, on its face, says it relates to the role in Public Affairs of the Prop 8 campaign. And then in the third -- or the fourth paragraph, it talks all about the campaign and the fact that certain officials -- who I won't name, even though I don't think that name is confidential -- who report directly to the ProtectMarriage.com Coalition leaders. So it seems to me this is a classic -- it's a document that's in the files of a person who sat on the executive committee of ProtectMarriage.com precisely to play this role in this broad coalition that breaches and breaks down any limits between these groups for this effort in the political sphere, and then arrays against the folks on the other side of Proposition 8. So I think it -- it's hardly the kind of sensitive religious tract that might otherwise be subject to protection under the First Amendment.
MR. PUGNO: Your Honor, Mr. Jansson testified in his deposition that he, at this time, was a member of -- forgive me. I don't remember the exact name. But it was the Public Affairs something something office of the Church of Jesus Christ of Latter-day Saints. That was a role that he played independent of the executive committee of ProtectMarriage.com. The references in capital letters, in title caps, to "Public Affairs" are a reference to those church officials. And there's also a mention in the cc to -- to -- I won't say it aloud, but other leadership in the church. So this is an internal communication of the church. It certainly refers to the larger Prop 8 effort. But unless there is a communication from Mark Jannson to another organization in his capacity as an official proponent or as an executive committee member -- which this is not -- then we really are not having to be even concerned with what the core is, and so on. This is an individually-asserted First Amendment protected right of Mr. Jansson to have in his possession an internal church memo that he does not have to produce in court.
THE COURT: The content of the document appears to relate to the messaging of the campaign. Mr. Jansson is a party to the litigation. The issue of his role in the campaign is very much an issue in the case. He intervened to serve as a party in the case. And I think it is appropriate that the plaintiffs have sought from and obtained discovery concerning his role. And, apparently, his role relates to his religious affiliation. I'm not aware of any privilege that attaches to that, under these circumstances. And the objection will be overruled.
MR. BOUTROUS: Thank you, Your Honor. With that, I would like to publish the original version as redacted. Not any other version, but the original version to the screen. Thank you. (Document displayed.)
BY MR. BOUTROUS:
Q. Professor Segura, I'd like you to look at the very first paragraph of this document.
MR. BOUTROUS: And enlarge that on the screen so we can take a look at it. (Document displayed)
BY MR. BOUTROUS:
Q. If you could read that into the record, and then give me your views on any -- the significance, if any, of that statement to your opinions.
A. (As read) "Since the first Presidency letter was read in every ward throughout California last month, I have been frequently asked what our role in Public Affairs will be in the Prop 8 campaign."
Q. And in the third paragraph, that begins "as you know," if you could read that. And then maybe you can talk about the significance, more generally, with respect to the entire document, rather than going through it one by one, paragraph by paragraph.
A. Sure. (As read) "As you know from the first Presidency letter, this campaign is entirely under priesthood direction - in concert with leaders of many other faiths and community groups forming part of the ProtectMarriage.com Coalition. I believe" -- name redacted -- "will be the LDS chair for all of California, with the help in Southern California from" --
Q. Why don't you just skip --
A. Skip that.
Q. -- that for now.
A. I will. "All of us working in public affairs will simply stand by and prepare to be anxiously engaged, like all citizens and lay members, when that time comes."
Q. And then if we jump down to the next -- the paragraph that begins, "What is the necessary step in this campaign?" Could you read -- read that into the record, and then tell me your views about this document.
A. (As read) "What is the next step in this campaign? I understand that all grass roots organizing efforts in OC will be led by ..." I believe his name is not protected?
Q. I believe that's correct.
A. (As read) "... Gary Lawrence, who will report directly to the ProtectMarriage.com Coalition leaders."
MR. PUGNO: Your Honor, somewhat after the fact, I need to object that Mr. Lawrence's role in another capacity was not protected, and was disclosed, and has been open -- open and public in this whole trial. His capacity here has been, as far as I know, protected, not disclosed.
THE COURT: Well, recall that the Ninth Circuit --
MR. PUGNO: It would have been nice to have a chance to redact this, maybe, with regard --
THE COURT: Well, the Ninth Circuit protected communications, internal communications involving the core group. This would appear to be a communication that mentions Mr. Lawrence, but it's outside a communication among the core group. So the mere fact that an individual is in the core group does not mean that his or her name cannot come out in some other way in the course of discovery.
MR. PUGNO: I don't disagree with that at all, Your Honor. Just that individuals have privacy rights to be able to be involved in a campaign and to not have their name become part of the public record, against their will, in connection with things that they did not do in a public way.
THE COURT: Well, but Mr. Lawrence has been afforded core group protection for his internal communications. This is not one of those communications.
MR. PUGNO: He was a polling and researcher for the campaign, polling and so on. Actually, the protection was Lawrence Research, the company. And Judge Spero's order of January 8 says that the protection is given to Lawrence Research, the company through which the campaign did polling. This is attempting to reveal, without an opportunity to redact, a completely different role that he had, that was not a public role.
THE COURT: Mr. Boutrous.
MR. BOUTROUS: Your Honor, Mr. Lawrence's name was public. He was publicly associated with the campaign. And this paragraph talks about the fact that the efforts in OC -- which I guess is Orange County -- will be led by Gary Lawrence, who will report directly to ProtectMarriage.com Coalition leaders. So it's talking about his role in a campaign, a public campaign to pass a law in California. And the fact that religious organizations participate in the political debate is a perfectly fine thing. But once they do, and they're public, there's no support for the notion that we suddenly keep people's names secret even though they are associated publicly. And from a First Amendment perspective, probably one of the most basic principles is that once something is public, courts and other governmental bodies aren't allowed to keep it secret without a compelling reason. So Mr. Lawrence's name is public. He has been well-known to be associated with the campaign. I can't see a First Amendment interest in not noting that he was playing a principal role and liaison role here, with this broad-based group of coalition leaders.
THE COURT: Last word, Mr. Pugno.
MR. PUGNO: Your Honor, I realize the nuance that his company did research and polling. He had a completely different hat that he wore in this campaign, that was not a public hat. And if we're going to start revealing those, I don't see a distinction between this and production of a list of every volunteer who helped in the campaign.
THE COURT: Well, this individual appears not to fit the category of the famous Mrs. McIntyre, who was the subject of a good deal of litigation in the Supreme Court. It's important to bear in mind, this is a public campaign. This is a political campaign. It was out in the open. And the people who advocate on either side, as a result of their advocacy, and particularly their participation in the litigation that follows, inevitably subject themselves to disclosures of the kind that are contained in this document. So I don't see, frankly, Mr. Pugno, that there is a privilege or protection that applies to this document, or that applies to Mr. Lawrence's role in this communication. An internal communication with other members of the core group is a different matter, entirely. Very well. Proceed, Mr. Boutrous.
MR. BOUTROUS: Thank you, Your Honor.
BY MR. BOUTROUS:
Q. Professor Segura, if you could finish reading that paragraph, and then we can -- we can move on to your opinions regarding this document as it relates to political power.
A. Okay. (As read) "He has also been hired by the coalition to do polling work for Prop 8. The main California grass roots leaders are in the process of being called as, quote, area directors, end quote, with the responsibility for areas that generally correspond to each of the 17 LDS coordinating councils for the LDS mission boundaries. Thereafter, priesthood leaders will call local prop coordinators over each stake and leaders by zip code within each ward - potentially working not only with LDS, but also LDS volunteers."
Q. In your opinion, Professor Segura, what does this document relate to, in analyzing the degree of political power of gay and lesbians, and particularly with respect to the Prop 8 campaign?
A. There are at least two things worthy of note. The first is that there is a very close coordination between people involved in the church and the campaign, from an organizational standpoint. Phrases like, you know, "This entire campaign is entirely under priesthood direction" are -- are notable. The other thing that I take notice of is the term "called." So it is customary, in the practice of the LDS Church, for volunteers to be solicited through encouragement. So it appears that there was an LDS volunteer in every zip code, to coordinate those activities. Which is, once again, a very enviable political organization. I think any political candidate would be pleased to have such a thing.
Q. Thank you.
MR. BOUTROUS: Your Honor, I wanted to make sure that with all the back and forth, that Plaintiffs' Exhibit 2554 had been admitted into evidence.
THE COURT: It has. (Plaintiffs' Exhibit 2554 received in evidence.)
MR. BOUTROUS: Thank you, Your Honor.
BY MR. BOUTROUS:
Q. Professor Segura, let's move on to Plaintiffs' Exhibit 2555. Is this a document that you have reviewed over the past week, in connection with your work on this case and your analysis of the issues in the case?
A. It is.
MR. PUGNO: Your Honor, I apologize, but I must lodge another objection. And perhaps I could just lodge what will be a standing objection. These are the minutes of a church meeting. I cannot imagine how this is not protected from disclosure in a federal court trial, especially -- Your Honor, this has got to be protected information.
THE COURT: Well, I think we need a foundation for this document.
MR. BOUTROUS: I will -- I will establish one, Your Honor. Thank you.
THE COURT: All right.
BY MR. BOUTROUS:
Q. Professor Segura, did you -- you reviewed this document. And did it shed any light on your analysis of political power?
THE COURT: Well, is this witness able to lay a foundation for the document?
MR. BOUTROUS: This witness can testify that this was a document we represented to him was produced by proponents in this case pursuant to the production order, and that he reviewed it, and that it's relevant to his opinion.
THE COURT: And your representation is, from what source did the document come?
MR. BOUTROUS: This document was produced by the defendant-intervenors in response to our request for production, after they began to comply with Judge Spero's order rejecting their First Amendment claim. So I think it falls into the same category as the last document, 2554.
THE COURT: It does appear to be the minutes of a Stake meeting. I gather, Mr. Pugno, this is a document that came from the files of ProtectMarriage.com, or one of the individual intervenor-defendants?
MR. PUGNO: I can say, Your Honor, it was one or the other. I'm not certain which. But I suspect it was --
THE COURT: Well, if it is, in fact, what it appears to be, and that is minutes of a Stake meeting, but it was, nonetheless, in the files of an organization other than a religious organization, I can't see how it would enjoy any religious institution privilege, if there is one.
MR. PUGNO: Well, Your Honor, just to clarify, I'm almost certain this came from Mr. Jansson's file. As far as the named defendant-intervenors, he's the only one that I'm aware of that is a member of the LDS church. These are the minutes of a meeting of church members and officials. And the fact that it was in Mr. Jansson's possession, I cannot imagine, abrogates the privilege to be able to communicate with -- with -- there really is no First Amendment protection here, Your Honor, if having a copy of your correspondence with other members of your church in your possession becomes -- abrogates -- abrogates your First Amendment rights.
THE COURT: Well, it's rather lengthy attorney-client privilege. Confidentiality must be maintained. And it appears that that was not done in connection with this document. Mr. Jansson may have had multiple roles, but his role here is his role in the campaign. And this document apparently relates to that activity.
MR. PUGNO: Your Honor, there's no evidence here that this was sent to anyone, by Mr. Jansson. This is in Mr. Jansson's shoebox under his bed. This is the minutes of a meeting that I don't -- I don't even -- I haven't looked to see whether he was in attendance at the meeting. But this -- I know that he was a -- a Public Affairs official at the time of the campaign. But my point is, is that Mr. Jansson did not send this to anybody. The only reason this is here is because a federal court order told him to take it out of his shoebox and bring it in to court.
THE COURT: Shoebox? (Laughter)
MR. PUGNO: It illustrates the point, Your Honor. He did not send this to his neighbors. These are his private records of his private political religious associations. How in the world can that be compelled to be brought into court and laid bare in the public record?
THE COURT: But this appears to relate to the Prop 8 campaign.
MR. PUGNO: It clearly relates to this religious denomination's Public Affairs meeting, part of which included a discussion of a ballot measure and the efforts of their members, in which anyone on either side of the issue has a fundamental right to associate with others, including in their religious organizations --
THE COURT: Of course. Of course, no one is questioning the fundamental right of association. No one is questioning the right of Mr. Jansson to participate in the political campaign. But that does not afford a right against the disclosure of his role, what he did.
MR. PUGNO: Well, Your Honor, then I would suggest that unless there is something in this document for which a foundation can be laid that he had anything to do with the matters discussed in here, then I have to object on a lack of foundation.
MR. BOUTROUS: I think I can lay that foundation, Your Honor.
THE COURT: I beg your pardon?
MR. BOUTROUS: I think I can lay that foundation.
THE COURT: All right.
MR. BOUTROUS: On page 10685, which would be the second page -- and this is, really, the -- the paragraph that begins "Legislative Update"?
THE COURT: Yes.
MR. BOUTROUS: That's really -- the remaining portions of this document I think we could probably redact even more, if it goes into the record. But this is the key part, the part that says, "Mark Jannson reported on the California Constitutional Amendment Proposition 8." And then it goes on to describe the public activities with ProtectMarriage.com, this broad-based coalition. That's, really, what I would like to direct the witness's attention to.
THE COURT: Very well. The objection will be overruled, and 2555 is admitted. (Plaintiffs' Exhibit 2555 received in evidence.)
MR. BOUTROUS: Thank you, Your Honor. Please publish Plaintiffs' Exhibit 2555. Focus on -- if we can go right to page 10685, the paragraph that is entitled "Legislative Update." (Document displayed.)
MR. BOUTROUS: And, actually, if you can put the paragraph that follows that, as well. (Document displayed.)
BY MR. BOUTROUS:
Q. And while that's happening, Professor Segura, give me your impression as to what this document, this portion of the document, relating to Legislative Update, is doing in terms of this memorandum.
A. As I read it, Mr. Jansson is reiterating the strategy that's to be employed, with how church leaders and church members should present themselves with respect to the Prop 8 campaign.
Q. And in what -- what is it about this document that leads you to that conclusion?
A. Particularly, the first two sentences of the second paragraph. Quote: "Brother Jannson emphasized that we are not to take the lead on this proposition but to join in coalition with ProtectMarriage.com. Salt Lake City conducted a teleconference with 159 of 161 Stake presidents in the State of California, and told the presidents LDS are involved in this issue but are not to take the lead; teach youth and young adults the doctrine of marriage by using the" -- I assume that's "letter read in sacrament meetings, and LDS are encouraged to contribute the fund-raising $30 suggested donation. Brother Jannson announced that 5 million is the projected goal in addition to general fund-raising. Donations are best provided to ProtectMarriage.com."
Q. Then, if we could turn to the next page, 10686, which is the stamped number on the bottom of the page, the paragraph begins, "We were asked."
A. Uh-huh.
Q. I would like to focus you on the first and the last sentence of that paragraph. And then tell me your views on the connection between this document and political power. (Document displayed.)
A. (As read) "We were asked to wait patiently for talking points from the Coalition."
Q. And then how about the last sentence?
A. (As read) "director Holland highlighted the luxury of having Mark Jannson on key committees, and that he will receive
DIRECT communications," I assume, "from him."
Q. As a political scientist, what is it about this document and these statements that is relevant to analyzing the balance of political power between gay men and lesbians and religious organizations to the extent they're involved in political activities in California?
A. Well, with respect to the Proposition 8 campaign, it makes it clear that there was a sort of two-way flow of information, where strategic talking points were being provided to religious leaders by the campaign. And, in turn, the religious leaders were providing volunteers to the campaign. But there was this cautious strategic not-to-take-the-lead notion so as to provide a -- I don't know, plausible deniability or respectable distance between the church organization per se and the actual campaign.
Q. And does that have an impact on how the power of gay and lesbians is viewed by public officials and in the public, that kind of approach to political advocacy?
A. Well, certainly, because as we're looking at the political opportunity structure, sort of how fertile the ground is for political action, and how strong your opponents might be, we might look at the religious belief as a source of opposition to homosexuality and say some number of religious adherents went out and voted their -- their beliefs on election day. And I think that that's, in fact, kind of the end of it. But, in fact, this appears to suggest fairly close coordination between hierarchy and officials within church organizations -- as in some of the past documents have illustrated -- and the leaders of the ballot initiative.
Q. Have you ever, in your studies, in your review of the literature, and your analysis of political activity in the United States, ever seen this kind of structure constructed and deployed in an effort to eliminate a fundamental state constitutional right of a community group?
A. This is new in my experience.
Q. Let's -- let's jump ahead to Plaintiffs' Exhibit 2557.
A. Okay.
MR. PUGNO: Your Honor, I need to lodge an objection to the use of this document. Again, it is under attorneys' eyes only confidential privilege. This is a post-election document. And it refers to activities and financial activities post-election. And so the -- the relevance is a problem, and it -- to the extent this reveals confidential inner-workings of relationships between organization that supported Prop 8, this is highly, highly revealing and -- and confidential, and we object.
THE COURT: Well, not to make light of that, usually why people want to introduce documents is because they are revealing. (Laughter) But it does appear that this is a communication amongst individuals who are part of the core group. Is that not correct, Mr. Boutrous?
MR. BOUTROUS: It's a communication from someone outside the core group, to people who are in the core group. Which --
THE COURT: Oh, I see.
MR. BOUTROUS: Yes.
THE COURT: I see.
MR. BOUTROUS: The "from" line.
THE COURT: The "from" line.
MR. BOUTROUS: And, Your Honor, the foundation -- there is no question this is an authentic document. It was sent to the -- you know, the entire -- basically, the entire executive committee, Mr. Dolejsi, Mr. Pugno himself, Mr. Jansson, Mr. Schubert, who is the political consultant, Jeff Flint, another political consultant. And it -- it -- and they are all copied on it. And the reason that it's relevant, without disclosing the full contents, is that it really shows the degree of connection between ProtectMarriage.com and the organization that sent this document, in terms of the funding. And the ProtectMarriage.com in this court before Your Honor, and in the depositions, and in other context, have taken the position that these other organizations were not really that connected to ProtectMarriage.com and the official campaign. This document goes directly to that. And, as relevant to Professor Segura's testimony, demonstrates this significant, broad coalition that was connected by not only the same views about Proposition 8, but by an incredible fund-raising mechanism and relationships. So I think it's directly relevant. It was produced by proponents of Proposition 8. It includes people outside the core group. So I think it should -- it should be admitted.
MR. PUGNO: Your Honor, maybe we can confirm the sender. If I could see an unredacted copy of this.
MR. BOUTROUS: I can show you that right now. Your Honor, I could --
THE COURT: Sure.
MR. PUGNO: Your Honor, the sender is a person identified in Judge Spero's order of January 8 as a member of the core group. Otherwise, we'll just state our continuing objection.
THE COURT: You say he was identified as part of the core group, the sender?
MR. PUGNO: Well, he was under seal. And he was identified by the -- by Judge Spero, by a reference to paragraph and line number, as a member of the core group. Not by his -- his name doesn't appear in the order. It refers to a sealed declaration.
THE COURT: You've lost me.
MR. PUGNO: There are six members of the --
THE COURT: Did Spero include this individual as a member of the core group?
MR. PUGNO: Yes, Your Honor.
MR. BOUTROUS: That one, Your Honor, I don't -- there is, I think, one -- maybe a core group member or two that I don't even know about. But I would suggest there --
THE COURT: Is this John Doe?
MR. PUGNO: No, it's not, Your Honor. Well, this morning's John Doe? (Laughter)
THE COURT: John Doe 1. John Doe 2.
MR. PUGNO: I believe, Your Honor, that there were as many as six individuals --
THE COURT: How many?
MR. PUGNO: As many as six individuals that were identified to Judge Spero, by John Doe 1, John Doe 2, or something in that nature, under a sealed declaration. And the order which lists the members of the core group includes those six individuals. And that is the individual who sent this communication.
THE COURT: My inclination is to do this. I'm not sure I follow the John Doe business. But accepting Counsel's representation that the sender is a member of the core group, the document is a post-election document. The document is being offered to establish a connection between the religious organization and the campaign; that being a subject that I think, Mr. Boutrous, you have pursued and have introduced significant evidence on. So I will sustain an objection, basically, on cumulative grounds.
MR. PUGNO: Thank you, Your Honor.
MR. BOUTROUS: Thank you, Your Honor. And I just have a couple more documents here, Your Honor, that I think the next document, Plaintiffs' Exhibit 2561, this is one to which there is no objection, I'm pleased to announce.
BY MR. BOUTROUS:
Q. Professor Segura, is this a document that you have reviewed?
A. It is.
Q. And did -- did it -- did you consider it in forming your opinions, the opinions that you're giving here today?
A. I did.
MR. BOUTROUS: Your Honor, I move admission of Plaintiffs' Exhibit 2561.
MR. THOMPSON: No objection, Your Honor.
THE COURT: Very well. Music to my ears, Mr. Thompson. (Laughter) (Plaintiffs' Exhibit 2561 received in evidence.)
MR. BOUTROUS: That was refreshing. If we could publish Plaintiffs' 561 please. (Document displayed.)
BY MR. BOUTROUS:
Q. Professor Segura, briefly, what is it about this document that reflects on political power, in your view?
A. Going to the heart of the matter, the last sentence of the first paragraph reads, quote: "You may know that the Mormons have been out walking neighborhoods the past two Saturdays, with about 20,000 total volunteers."
Q. And why is that important in evaluating the political power in this context?
A. Again, I -- I would suggest that any political consultant would be thrilled to have 20,000 precinct walkers on any given Saturday. So I think it speaks to the -- the breadth and size of the opposition to gay and lesbian interests.
Q. Please turn to Plaintiffs' Exhibit 2562. Is Plaintiffs' Exhibit 2562 a document you reviewed over the last week, in connection with your testimony?
A. It is.
MR. BOUTROUS: Your Honor, I move admission of this document, Plaintiffs' Exhibit 2562. It's another document that was produced by the proponents over the last week.
MR. THOMPSON: No objection beyond our standing objections, Your Honor.
THE COURT: Thank you, Mr. Thompson. Very well. (Plaintiffs' Exhibit 2562 received in evidence.)
MR. BOUTROUS: Please publish this exhibit. (Document displayed.)
BY MR. BOUTROUS:
Q. And I would like to direct, the witness just to expedite things, to the second page. Actually, let me ask, go to the first page. What is this document, Professor, in your understanding, if you could describe it?
A. Uhm, it appears to be an e-mail from the chair of ProtectMarriage.com, to others, dealing with some issue regarding how designated gifts take place to the campaign.
Q. Then, let's go to the next page. And are there -- is there anything on this page that caught your eye as you evaluated the issue of political power?
A. There are three things. The first would be everything under the numeral 1.
Q. What is it about that portion of the document that's relevant to what you're talking about today?
A. Numeral 1 recounts the early organizational efforts, largely among evangelicals to get church leadership involved in the campaign, and reports that in these very, very large teleconferences when sort of message -- the message that the campaign wanted to send through the pulpit was -- was discussed, there were 1700 participants in June, and 3,000 participants in July of 2008. And the third bullet point suggests that their goal was to have as many as 5,000 California pastors participate in one of these calls.
Q. Thank you. And, finally, Plaintiffs' Exhibit 2598. Please turn to that exhibit.
MR. BOUTROUS: And, Your Honor, in conversations with Mr. Pugno, there are a couple of names in this that I'm happy to redact, that we missed. I will refrain from publishing them. But, other than that, I don't believe there's an objection to this document, and would move its admission. It's another one, a document produced by the proponents.
MR. THOMPSON: Subject to the redaction, no objection, Your Honor.
THE COURT: Very well. 2598 is admitted. Yes, go ahead. (Plaintiffs' Exhibit 2598 received in evidence.)
MR. BOUTROUS: Thank you, Your Honor.
BY MR. BOUTROUS:
Q. Professor Segura, since there's this redaction issue, I'm not going to put this up on the screen. What is this document, and what is it about it that sheds light, in your view, on the political power issue?
A. It appears to be a fund-raising letter. And it's to someone who has given generously to the Family Research Council in the past. And the reason I found it interesting was it -- it suggests a -- a coordination of potential donor bases, a sort of sharing of sort of people with capacity, as endowment folks like to say, who -- who are potentially able to give.
Q. In that regard, could you turn to the very last page, which is stamped 009699.
A. Uh-huh.
Q. At the top of the page, the sentence that begins, "We have the."
A. Yes.
Q. Could you read that, and then give me your impressions on that, in terms of political power.
A. (As read) "We have the political and financial support of groups such as Focus on the Family, Family Research Council, American Family Association, The Arlington Group, and many others."
Q. And are those significant groups, in terms of political power in the United States, when banded together?
A. Separately and together, each of them are a fairly powerful interest group representing the evangelical movement in national politics.
Q. Based on the factors that you've described today, as well as the manifestations that you described earlier this morning, relating to political powerlessness, what is your opinion regarding the political powerlessness of gay men and lesbians in the United States and in California?
A. My opinion is that when we take together the moments of legislative victory, the moments of legislative defeat, the presence of ballot initiatives, the absence of statutory or constitutional protection, the presence of statutory or constitutional disadvantage, and a host of circumstances, including small numbers, public hostility, hostility of elected officials, and a clearly well-integrated, nationally prominent, organized opposition, I conclude that gays and lesbians lack the sufficient power necessary to protect themselves in the political system.
Q. Now, I have two principal lines of questioning for you, as we finish things off here. The first is, I would like you to explain whether you conducted any comparison with the political power of gay men and lesbians with other -- other groups in society, including women, African Americans.
A. I did.
Q. What were your conclusions regarding the comparison, in terms of the relative political power between gay men and lesbians, on the one hand, and women in the 1970s, for example?
A. So I -- I'll begin with the conclusion. I concluded that, relative to the position of women in the early 1970s, gay men and lesbians are more disadvantaged today than women were in the 1970s. For starters, women constituted then and constitute today a majority of the population. And were they so motivated, they could determine most if not all political outcomes. Second, while there were certainly sexism -- and I wouldn't want to, you know, understate the importance of that historically -- being a woman is not inherently controversial. Families don't hate their daughters. In fact, women are quite beloved by many, many people. Third, there were women in public office. (Laughter) Some of whom are men, some of whom are women. (Laughter) There were women in public office. But, perhaps most importantly, there was already statutory protection. The 1963 Equal Pay Act, certain provisions of the 1964 Civil Rights Act, clearly protected women at the federal level. So, in addition to having more political power, more votes, less or no hostility, there is also the matter that they enjoyed statutory protection.
Q. What were your conclusions regarding the relative political power between gay men and lesbians on the one hand, and African Americans on the other hand, before the Civil Rights Act of 1964?
A. This is a -- this is a comparison which is a little bit more complex to explain, so I would want to try to separate out the political circumstances on the one hand from the social and economic circumstances on the other. Let me begin by saying that being an African American prior to the enactment of civil rights legislation was a very difficult thing to do in this country. And the quality of life and the day-to-day experiences of African Americans, particularly in the south, is something that we should take quite seriously as historically quite damaging. That notwithstanding, I would turn my focus to the political circumstances, which is what I was asked to evaluate. At the time that suspect classification was extended to cover racial and ethnic minorities, there were three amendments to the United States Constitution that formally established civil equality for racial and ethnic minorities. Admittedly, these were not enforced. Admittedly, there was all sorts of statutory nonsense that took place in the wake of those amendments. But the establishment, at the Constitutional level, of equality was complete. There were any number of statutes that had taken place to protect the interest of African Americans. All of the New Deal legislation, for example, was explicitly race neutral, and made a point of -- of making it clear that African Americans were entitled to the activities of the New Deal. Immediately prior to the second World War, President Roosevelt issued Executive Order 8803, which prohibited the government contracting, the War Department especially, with any business that was engaged in discriminatory practices against African Americans. And, of course, the government is the largest single purchaser of all products in this society, so that had a fairly substantial ripple effect in the manufacturing sector. And in 1948, President Truman desegregated the United States military. So, again, I think it would be fair to say that socioeconomic conditions were very bad for African Americans in the middle part of the 20th century. But there were a number of instances of statutory protection and even constitutionally-established equality that African Americans enjoyed. And, at that point, it was the -- the civil rights movement was an effort to bring the social reality in countenance with the constitutional establishment. By contrast, gays and lesbians are in a different position. So they're subject to statutory disadvantage. Some would suggest that gays and lesbians aren't as oppressed as African Americans were, and there might be good reason to suggest that that's true for at least some gays and lesbians in more open social environments. But the hour is moving in the opposite direction. So in 1990, there was not a single constitutional establishment of inequality for gays and lesbians, and today there are -- in about three-fifths of the states, there is constitutionally-established inequality. So as a constitutional matter, gays and lesbians are moving in the opposite direction than African Americans were in the 1940s.
Q. How about group size, in terms of African Americans and gay men and lesbians, in terms of populating jurisdictions?
A. So, African Americans in the 1940s were approximately 10 or 11 percent of the national population. Today, that number is closer to 13 percent. That varies quite widely by jurisdiction. There are a number of southern states where the black population is well north of 30 percent. In some cases around 40 percent. Certainly, many cities in which African Americans are a majority of the population. By contrast, there is no jurisdiction with which I'm familiar -- there might be, you know, a small resort town here or there, but there's no jurisdiction of any size, with which I am familiar, that has a gay majority.
Q. Bringing us forward to today, how do the manifestations of political powerlessness of African Americans compare to the manifestations of political powerlessness of gay men and lesbians?
A. So thinking a little bit more broadly about the subject matter of race and ethnicity, there are now 69 persons of color serving in the House of Representatives. There have been as many as four senators. That's not the case right now. Some people left to join the administration. And so, obviously, that compares favorably to the six gay and lesbians who have ever served, and the three who currently serve in the House of Representatives. Minorities are elected to public office in many parts of the United States. The 1965 Voting Rights Act, and particularly the judicial implementation of Section 2, as it was amended in 1982, have provided numerous opportunities for persons of color to elect members of their community to public office. And, in fact, have even been interpreted as an affirmative responsibility, particularly under Section-5-covered jurisdictions, that they have to provide opportunities for racial and ethnic minorities to vote for first-choice candidates.
Q. How about the presidency?
A. Oh, yeah, there's that. (Laughter) We do have our first Hawaiian president. But, obviously, the election of an African American to the presidency is a big deal. I would also go so far as to say, however -- and I don't want to provide the impression that I don't think African Americans and the category of race and ethnicity isn't still of significant concern in our society. And, indeed, a significant portion of my scholarship addresses that. Just that in terms of political power today, compared to gays and lesbians, they are doing quite well.
Q. Finally, I would like to display demonstrative number 8, and ask, Professor Segura, whether you have any opinions regarding the deposition and report and opinions expressed by proponents' proffered expert on political power, Dr. Miller.
A. So -- I do.
MR. THOMPSON: Your Honor, we would object that the witness has not put in any report that addresses Professor Miller's analysis. And we haven't had an opportunity to depose him on it.
THE COURT: Well, I assume, Mr. Boutrous, you had the witness read Mr. Miller's deposition.
MR. BOUTROUS: He attended it, Your Honor.
THE COURT: He attended it?
MR. BOUTROUS: Yes.
THE COURT: Objection overruled.
BY MR. BOUTROUS:
Q. Professor Segura, if you could give us kind of the broad outlines of your critique of Dr. Miller's opinions and approach.
A. Sure. Professor Miller approached the question of political power of gays and lesbians somewhat differently than I did. And in his deposition, a number of things became clear about both his analytical structure and the breadth of the information that he considered. The first point is that Professor Miller, frankly, doesn't know anything about gay and lesbian politics. During the course of his deposition, he could not identify many of the critical historical figures in the early part of the movement; was not familiar with political science work, including very prominent political science work that had focused on gays and lesbians. He was aware of some judicial scholarship on gays and lesbians because that is -- is his field of endeavor, but, even there, wasn't familiar with some of the key pieces on -- on how political science would address gays and lesbians. It was also curious that he was unfamiliar, at all, with the political science work on prejudice; of which there is an enormous amount, and of which was well-known.
Q. How about his -- sorry.
A. Go ahead.
Q. How about his knowledge concerning the presence or absence of legal protections relating to gay men and lesbians?
A. Uhm, I think it's fair to say that Professor Miller did not look beyond the boundaries of California. He focused exclusively on California statute. And when he was asked about other states, he had almost no answer for anything. And, in fact, even proceeded to suggest that he would be shocked if it were the case that a majority of the states have no legal protections for gays and lesbians. Which, of course, is the case. When asked how many of the top ten states don't have any protection, he didn't know the answer. With respect to the protections that have been passed in California, he actually didn't really know the legislative history of most of those, as well. So it was -- it was really quite striking how little information he had on this. To put it in starkest terms, in 29 states, there is no anti-discrimination protection for gays and lesbians. And Professor Miller concluded that gays and lesbians possessed political power, without being aware of that fact.
Q. Did you agree with Professor Miller's definition of political power as he applied it in reaching his opinions?
A. There were a couple of problems with Miller's definition of power. First, what there was of a definition was actually quite vague. And he was asked about it in deposition. He arrived at a definition that said that a group had political power if they received a fair hearing from the lawmakers. But he -- there was no investigation in his report as to whether or not gays and lesbians had in fact received a fair hearing from the lawmakers. And, of course, this is an initiative process. So who are the lawmakers? The lawmakers are the proponents of the ballot initiative and the voters. So in the absence of any investigation, I don't understand how, even under his definition, he could conclude that the threshold for political power had been met. But in the case of the statutory enactments, where he wanted to say, well, these -- these pieces of legislation constituted evidence of political power, some of those pieces of legislation were actually pursuant to court cases that -- decisions that had already been handed down. And the attorney deposing him actually asked him, so, are -- are favorable court decisions an element of political power? And he said yes. Well, judicial intervention on -- on behalf of insular minorities cannot be considered an element of political power, in a fair sense, if the measure of political power is what we're using to decide whether or not judicial intervention is appropriate.
Q. Finally, Professor Segura, how did Dr. Miller's testimony and report square with his own writings regarding ballot initiatives?
A. Professor Miller's scholarship focuses on how the judiciary has reacted to ballot initiatives. So he spent a fair amount of time researching those. In his actual published research, he has suggested, first, that ballot initiatives are very likely to result in bad law because they are not as deliberative as the legislative process, and that ballot initiatives frequently target minorites. And on both of those things, I'm highly inclined to agree with him.
MR. BOUTROUS: No further questions, Your Honor.
THE COURT: Very well. Mr. Thompson, you may cross-examine. CROSS EXAMINATION
BY MR. THOMPSON:
Q. Good afternoon, Professor.
A. Mr. Thompson.
Q. Nice to see you, sir. Now, of the ten largest cities in the United States, how many of them have protections against discrimination, against gays and lesbians; do you know?
A. I -- I don't have an encyclopedic knowledge of that, but I would suspect the number is probably in the eight or nine range; that it's quite common. Municipal enactments, of course, have limitations.
Q. Now, you live in California; is that correct?
A. I do.
Q. And you donated money to the No On 8 campaign; is that correct?
A. I did.
Q. And do you recall that about eight days after the Prop 8 campaign, you participated in a panel discussion at Stanford with Simon Jackson?
A. Simon Jackman.
Q. Jackman?
A. I participated in a course lecture with Simon Jackman.
Q. Okay. And do you recall that the subject of Prop 8 came up during that discussion?
A. It certainly did.
Q. And do you recall your colleague saying that you felt very strongly about Prop 8?
A. I don't remember exactly what he said. I don't have it committed to memory. It wouldn't surprise me.
Q. You do feel very strongly about Prop 8, don't you?
A. I believe in the equality of persons under the law. And as a consequence, the constitutional establishment of inequality is something I find deeply offensive.
Q. And I'd like to nail down some terms that you used during your
DIRECT. When an individual answering a poll is asked about gays or lesbians, a variety of things might enter their mind; is that correct?
A. Presumably, yes.
Q. It might mean sexual conduct to some, correct?
A. It may.
Q. Or it could be some sort of behavioral trappings of what the person might stereotypically believe to be gay or lesbian, correct?
A. It may.
Q. Or it may be associated with an individual person, a member of the family or co-worker, correct?
A. That's correct.
Q. It is really hard to say what jumps into someone's mind when they hear the term "gay or lesbian," correct?
A. Hard to say in the sense that there's more than one notion that could enter their mind. We could define the universe of likely items that would be considered by a respondent, so that's not particularly hard to say. But to ask what any individual is thinking of when he or she answers the question, it could be a fairly limited set of options.
Q. All right. Now let's talk about the definition of political power. The exercise of power, in your opinion, is moving someone from opposition or fence-sitting into your own column, correct?
A. Uhm, that would be part of it. Another possibility would be persuading them to stand down, to no longer oppose, even if they themselves haven't changed their opinion. Or it may be mustering the political forces necessary to circumvent them.
Q. And under your definition of power, if the group had power, it would be able to cajole or compel members of the legislature to produce an outcome that they may not have been predisposed to produce, correct?
A. That would be part of it. I would also want to be concerned about secure. So it's not just achieving an outcome but sort of securing it from likely reversal.
Q. And you believe that gays and lesbians have to rely almost exclusively on allies who are regularly shown to be insufficiently strong or reliable to achieve or protect their interests, correct?
A. I believe as a general proposition that that's true, that there are allies, even reliable allies. But that if we looked across the universe of potential allies, that the number of allies is smaller than is necessary, and that many of those allies are unreliable.
Q. And applying your definition of political power, you believe the NAACP had had a meaningful degree of political power even when Newt Gingrich was the Speaker of the House, correct?
A. I think it is the case that they had less power when Newt Gingrich was the Speaker than when the Democrats controlled the House of Representatives. But even under those circumstances, I would say that they had a fair degree of influence.
Q. All right.
MR. THOMPSON: Your Honor, we'd like to pass out some binders, if we may?
THE COURT: Very well.
MR. THOMPSON: Thank you, Your Honor.
THE COURT: I wondered where the binders were. (Laughter)
MR. THOMPSON: May I approach, Your Honor?
THE COURT: You may.
BY MR. THOMPSON:
Q. Professor, I'd like to direct your attention to tab 7. And in particular -- this is the 2007 annual report of the Human Rights Campaign. It's DIX1330. And the Human Rights Campaign is a leading gay rights advocacy group; is that correct?
A. That's correct.
Q. And I'd like to direct your attention to page 4 of this document. It's actually the sixth page of the exhibit. It has a little 4 in the bottom left-hand column.
A. I'm there.
Q. Okay. And directing your attention to the third paragraph, it says in the second sentence: "We were named by the well-respected national journal the single most effective nonunion progressive organization working in the 2006 midterm elections." Using your definition of political power, do you think the Human Rights Campaign had a meaningful degree of political power in the 2006 midterm elections?
A. I do not.
Q. All right. And in the next sentence the annual report says: "We played a decisive role in electing fair-minded majorities to the U.S. House and Senate, and to legislatures from Oregon to New Hampshire." But using your definition of political power, you don't believe the Human Rights Campaign has a meaningful degree of political power, correct?
A. I don't.
Q. And in California the incoming speaker is John Perez; is that correct?
A. That's correct.
Q. Of the Assembly?
A. Yes.
THE COURT: I think he's already taken office; hasn't he?
THE WITNESS: He may have, actually.
MR. THOMPSON: Thank you, Your Honor.
BY MR. THOMPSON:
Q. And Mr. Perez is openly gay; is that correct?
A. That's my understanding.
Q. And he was unanimously elected to the speakership of the California Assembly, is that correct, by the Democratic caucus?
A. After the alternative candidates withdrew, yes.
Q. And -- but under your definition of political power, gays and lesbians do not have a meaningful degree of political power in the California Assembly, even though the speaker is openly gay, correct?
A. That's correct, because, again, outcome does not reveal process.
Q. Applying your definition of political power, Biblical literalists have more political power in the California legislature than the gay and lesbian community, correct?
A. If we looked at their representation among the elected officials, that would be my conclusion.
Q. And if we look at outcomes, would that be your conclusion, as well?
A. Again, outcomes are a particularly difficult thing to rely upon because we have to understand how the outcome came about.
Q. Well, if we look at domestic partnerships, the gay and lesbian community supported those in 1999 in California, correct?
A. That would be my assumption, yes.
Q. And the Biblical literalists opposed it, correct?
A. That's correct.
Q. And the gay and lesbian community won that fight, correct?
A. Again, process matters. But, yes, the answer to that is: That's correct.
Q. And then in 2003, there was an expansion of the domestic partnership law in California, correct?
A. That's what I understand.
Q. And the gay and lesbian community supported that expansion?
A. I'm sure they did.
Q. And the Biblical literalists opposed it?
A. I would assume.
Q. And even though the gay and lesbian community won that fight, you say they have less power in the California legislature than Biblical literalists, correct?
A. I say that they have less power in the California legislature because they're less represented. Their representation is augmented by Democratic control. Should there be Republican control, they would have no power, whatsoever.
Q. If a group is successful in getting legal protections against discrimination aimed at that group, that would be a positive factor that you would weigh in assessing political power, correct?
A. It would be a positive factor with the consideration that the discrimination exists in the first place.
Q. And gays and lesbians in California have many legal protections against discrimination, correct?
A. Uhm, I'm sorry, "many"? I don't under- -- you'd have to be specific about what that term means.
Q. Well, haven't there been over 50 pieces of legislation over the last ten years, that have sought to protect the legal rights of gays and lesbians in California?
A. I don't think it would be a fair statement to say that in 50 cases, the interests of gays and lesbians were codified into law. I think it would be fair to say that there are anti-discrimination lines in at least 50 pieces of legislation. Now, you are correct that some of those pieces of legislation did, in fact, grant protection from discrimination to gays and lesbians. And as I indicated in my direct, some of that was in response to court decisions.
Q. Can you identify any state in the union that has more legal protections for gays and lesbians than California?
A. I cannot.
Q. Using your definition of political power, can you give any examples of the Hispanic community in Congress exercising political power during the last ten years?
A. Uhm, well, I could think of the role they may have played in attempting to stop immigration legislation when the current minority was the majority. They certainly played a role in rallying forces to stop the attempt to criminalize the presence in the United States of undocumented persons. That would be an example.
Q. Any other examples?
A. Uhm, I'm sure if I thought for a while, I could.
Q. Now, in New Hampshire, gays and lesbians have secured through the legislative process the right to same-sex marriage, correct?
A. That's my understanding, yes.
Q. But using your definition of political power, your initial reaction would be that gays and lesbians do not have a meaningful degree of political power in New Hampshire, correct?
A. Uhm, that would be my initial reaction because I would need to understand the legislative history and the legislative circumstances surrounding the enactment of that protection. I would also want to know whether or not that protection is likely to be subject to reversal.
Q. And so do you have an opinion on whether gays and lesbians in New Hampshire have a meaningful degree of political power?
A. I don't have sufficient information in my hand to answer that.
Q. And in Vermont, gays and lesbians have secured through the legislative process the right to same-sex marriage, correct?
A. Uhm, again, I'm uncomfortable with this notion that gays and lesbians have "secured." The Vermont legislature has, in fact, passed same-sex marriage legislation. That's my understanding.
Q. At the urging of the gay and lesbian community?
A. Well, certainly not with their opposition, but they weren't in a position to compel the legislature to do so, but certainly they asked.
Q. But using your definition of political power, you would suggest that gays and lesbians do not have a meaningful degree of political power in Vermont, correct?
A. Again, it would be difficult for me to make a full-length statement about the circumstances in Vermont without knowing the legislative history and the circumstances of gays and lesbians in the various state and county governments. I also want to reiterate that my understanding of political power is very nationally oriented. That is, that those gays and lesbians newly enfranchised with the right to marry in New Hampshire and Vermont don't have those marriages recognized by the federal government. Nor can the domestic partners registered in California visit ill domestic partners in Nevada or Louisiana. There's no guarantee those rights are accepted. So we need to think of this not solely on a jurisdiction-by-jurisdiction basis, but also across layers of government.
Q. Well, is a jurisdiction-by-jurisdiction basis irrelevant to your analysis?
A. It's not irrelevant, but we certainly would have to consider both.
Q. Okay. Now, gays and lesbians have the right to marry in Massachusetts, correct?
A. That is correct.
Q. And gays and lesbians were able to defeat an effort to restore the traditional definition of marriage in Massachusetts, correct?
A. "Defeat" is an interesting term. My understanding was that in the legislature there was some maneuvering to prevent it from coming up for a vote. I'm sorry, I don't have an exhaustive command of the Massachusetts legislature.
Q. And at present in Massachusetts, there is no effort to repeal same-sex marriage, because any such effort would be futile, correct?
A. Again, I don't know if I could conclude that. I would think as long as the Democrats retained the majority in the commonwealth lower house, that it would be difficult to do that. But I -- I can't say for sure that there would be none.
Q. But using your definition of political power, gays and lesbians do not have a meaningful degree of political power in Massachusetts, correct?
A. To the extent that they, mustering their own resources, cannot defend their basic rights and that those rights do not travel with them across state lines, no, they do not.
Q. And would the same answer obtain for Connecticut, that even though there's same-sex marriage, under your definition, gays and lesbians do not have a meaningful degree of political power in Connecticut?
A. And Iowa. (Laughter)
Q. Okay. Thank you. In Washington, D.C, the D.C. City Council passed a bill that would legalize same-sex marriage in the District of Columbia, correct?
A. That's my understanding.
Q. But using your definition of political power, gays and lesbians do not have a meaningful degree of political power in Washington, D.C, correct?
A. Again, thinking of the context moving across levels of government, I would say that no gay and lesbian in the United States enjoys a meaningful degree of political power.
Q. And in Houston, where there's an openly lesbian mayor, your opinion would be that there's not a meaningful degree of political power in Houston for gays and lesbians; is that correct?
A. Nor are there even domestic partner benefits for city employees, so that is correct.
Q. Now, Mayor Sanders has testified that two out of the eight city council members in San Diego are openly gay. Are you aware of that?
A. I am.
Q. And Mayor Sanders, himself, is an ally of the LGBT community, correct?
A. I would say that he is today, yes.
Q. And using your definition of political power, gays and lesbians do not have a meaning full degree of political power in San Diego, correct?
A. That is correct, because gays and lesbians in San Diego -- in two ways. Gays and lesbians in San Diego remain constitutionally established as second-class citizens. And, as Mayor Sanders testified, the gay and lesbian group in San Diego is not sufficiently powerful to prompt fear or any sort of compliance from its legislators.
Q. And turning your attention to tab 15, please, in your binder.
A. Uh-huh.
Q. There is a New York Times --
MR. THOMPSON: Oh, and, by the way, Your Honor, I believe I neglected to request permission to move into evidence DIX1330, which is the Human Rights Campaign annual report of 2007.
MR. BOUTROUS: No objection, Your Honor.
THE COURT: Very well. 1330 is admitted. (Defendants' Exhibit 1330 received in evidence.)
BY MR. THOMPSON:
Q. And turning your attention to tab 13 in your binder, Professor, it's DIX2554. This is a New York Times article entitled "Gay Candidates Get Support That Causes May Not." And it's dated December 28, 2009. And in the fifth paragraph, it states: "There are currently at least 445 openly gay and lesbian people holding elected office in the United States, up from 257 eight years ago." And are those numbers accurate, to the best of your knowledge?
A. I have no basis on which to evaluate them. I have no reason to believe that they're inaccurate.
Q. Didn't you have numbers like that in your opening report?
A. I did, but my numbers were disaggregated by level of government.
Q. And turning to the third paragraph from the bottom, it talks about: "Charles Pugh, an openly gay former broadcaster, swept to victory as city council president in Detroit in his first bid for public office." Using your definition of "political power," gays and lesbians do not have a meaningful degree of political power in Detroit, even though the president of the city council is openly gay, correct?
A. That would be correct, because I would look at the preferences of the remaining members of the city council, the attitudes of the State of Michigan's legislature, the absence of any form of non-discrimination legislation in Michigan, and the absence of protective legislation at the federal level. So residents of the City of Detroit reside not just in Detroit, but in Wayne County, in Michigan, in the United States.
Q. Now, if we turn to the second page of this article, which is actually the third page behind the tab, we can see that in the seventh paragraph it starts, "In Detroit."
A. Yes.
Q. It says: "In Detroit Mr. Pugh's sexuality never became an issue in his race for city council. Quote, I thought I would be attacked during the campaign for being gay, close quote, he said in an interview. I wasn't. It was a pleasant surprise." Isn't it true that in many big cities it's in increasingly irrelevant whether a candidate is gay or lesbian?
A. I think that would depend on which big city. So I would -- I would respond to this in two ways. First, the candidate did expect to be attacked for his sexuality. And, second, in the previous example you mentioned in the City of Houston, her sexuality was very much at issue. Her opponent used it to try to diminish her support. So I don't think it is the case that being gay or lesbian is a footnote of no interest to voters in many big cities. There are certainly big cities where it is less important than it might previously have been or than in other cities, but I don't think it's fair to say that it is an insignificant element of a candidate's identity today.
MR. THOMPSON: Your Honor, we would move the admission of DIX-2554.
MR. BOUTROUS: Your Honor, I'm going to object on hearsay grounds. I have no objection to it coming in for the fact of the article, but not for the truth of the matter asserted.
MR. THOMPSON: Your Honor, it relates to a legislative fact.
THE COURT: I think the witness has opened the door to this. 2554 will be admitted. (Defendants' Exhibit 2554 received in evidence.)
MR. THOMPSON: Thank you, your Honor.
BY MR. THOMPSON:
Q. Turning your attention, Professor, to tab 16, this is a story in the Atlanta Journal Constitution dated October 10, 2009. It's entitled "Gay Votes Can Make A Difference." And it's an interview with Jeff Graham, the executive director of Georgia Equality, one of the largest gay advocacy and lobbying groups in the state. And if you turn your attention to the fourth paragraph from the bottom, he provides the following answer to a question: "I think we have certainly seen in the last 20 years that I have lived here there have been a number of close elections and runoff scenarios when both the winners and the losers have conceded that strength of the LGBT vote was a deciding factor in those races. When you have a voting history that goes back 20 years or more, the political establishment begins to realize that it actually is a vote that can make a difference." But using your definition of political power, gays and lesbians don't have a meaningful degree of political power in Atlanta, correct?
A. That's correct. And I would actually go on to suggest that there are a number of problems with the claims being made here. The first problem is that this claim is being made by an advocate for a gay and lesbian action organization. Not surprisingly, as you can imagine yourself, advocates for organizations want to present the power of their organization in the most positive light, because their job is to raise money and to mobilize forces on behalf of the group. People historically don't give money to the, "Donate to us, we are very unlikely to make a difference." (Laughter.)
A. So the strategy that he would use -- and, indeed, any advocate would use -- would be to overstate to the extent possible the political influence you have. Now, actually, I know a little bit about Atlanta. So Atlanta, of course, was one of the locations where there were violent attacks on a gay bar by an individual who was subsequently identified as potentially involved in the Olympics bombing, you will all recall. I also know that Georgia is one of the top 10 states that does not have an anti-discrimination provision in its state statute. So I don't think we can look at the certainly well-intended boast of a political advocate and conclude that this is a convincing analysis of the political circumstances in the City of Atlanta's politics.
Q. Isn't it true that in the most recent runoff for mayor, both candidates were actively seeking the vote of the LGBT community?
A. That may well be the case. It still doesn't mean that the group is determinative of the outcome or that they have particular important input on matters of city policy.
Q. Let's look at the sources of political power. I think you identified several. One of them would be money, correct? That's a source of political power in the United States?
A. Yes.
Q. And that's one of the ways to cajole a legislator, is to make campaign contributions to him or her, correct?
A. Or threaten to make contributions to his or her potential opponent.
Q. Either way, you can get power that way?
A. Yes.
Q. And for some groups their biggest political resource is their cash, correct?
A. Yes, but I think that that varies a little bit by group. So, for example, things like trade associations. When we think of groups representing groups of corporations, they don't really have voters to mobilize. So money is their contribution to the political system. In other cases votes are actually a much bigger deal. So we can think of some demographic groups who turn out to vote in large numbers, even though they don't have a particularly great amount of resources. So it's an uneven balance, and it just depends on the type of group. It varies from group to group.
Q. And some groups have a meaningful degree of political power largely because of their financial resources, correct?
A. I would -- I would be willing to agree with that, yeah.
Q. In assessing the political power of a group, the size of the group is clearly an important factor, correct?
A. Clearly.
Q. And in terms of other factors that might be as important, one such other factor would be financial resources because they play such a large role in the political system, correct?
A. That's correct.
Q. And the LGBT community and their allies outraised the Yes On 8 groups, correct?
A. In nominal dollars donated to the campaign fund tracked by the FPPC, that's correct.
Q. They raised approximately 43 million, the No On 8 groups did, is that correct?
A. That's my understanding.
Q. And the Yes On 8 groups raised approximately 40 million, is that correct?
A. In nominal dollars, yes, that's my understanding.
Q. All right. And now let's turn to tab 18, which is DIX-1329. It's the 2008 annual report for the human rights campaign. And I would like to direct your attention to page 14. The page numbers appear at the bottom left-hand part of the page in microscopic font?
A. Microscopic print.
Q. Tell me when you are there, sir.
A. To the extent I can see it, I am there.
Q. And turning your attention to the right-hand series of numbers under "Revenue and Support," it lists total revenue and support, $45.97 million for the year 2008; do you see that?
A. Yes.
Q. All right. And that's a lot more than the NAACP raised in 2008, isn't it?
A. I have no idea.
MR. THOMPSON: Your Honor, we would move the admission of DIX-1329.
MR. BOUTROUS: No objection, your Honor.
THE COURT: 1329 is admitted. (Defendants' Exhibit 1329 received in evidence.)
BY MR. THOMPSON:
Q. Political participation in the form of resource contributions is a luxury item in economic terms, correct?
A. Yes. So if you have scarce resources and you need to allocate them across food, rent, health insurance, then political contributions for most people would rank lower on the list.
Q. Than food?
A. Than food.
Q. You would want to look at the disposable income of individuals in a group to know their ability to contribute financially, correct?
A. That would be one issue you would look at, that's correct.
Q. But you have not undertaken an economic analysis of what the disposable income available to gays and lesbians is in the United States, correct?
A. I have not.
Q. You do not have an opinion as to what the median income is for gay men in the United States, correct?
A. I do not.
Q. And you do not have an opinion as to what the median income is for lesbians in the United States, correct?
A. No.
Q. And you do not have an opinion on whether gays and lesbians have less disposable income than heterosexuals, correct?
A. I don't have an opinion on that.
Q. But one factor that affects the level of disposable income is the number of dependents in a household, because that -- dependents absorb resources, correct?
A. That's true.
Q. And it's true that on average gay male couples are less likely to have children in their household than heterosexual couples, correct?
A. That seems likely.
Q. And, in fact, I'd like to direct your attention to tab 19, which is DIX-1162. This is a report authored by Lee Badgett and others, March, 2009. And directing your attention to page six, top of the page, it states: "About half, 48.7, of married couples have children under 18 years old, compared to 27.3 percent of lesbian couples and 11.3 percent of gay male couples." And you don't have any reason to doubt those numbers, do you?
A. I don't know their source, so I can't speak to them in any way.
MR. THOMPSON: Your Honor, we would move the admission of DIX-1162.
MR. BOUTROUS: No objection, your Honor.
THE COURT: Very well. 1162 is admitted. (Defendants' Exhibit 1162 received in evidence.)
BY MR. THOMPSON:
Q. But you would agree that the number of gays and lesbians who actually make contributions to political causes is quite high, correct?
A. I would have to ask, quite high with respect to what? So if you are asking as a percentage of the known population of the group, while I haven't undertaken an analysis of that, my suspicion would be that that's correct. That among gays and lesbians we could observe, a higher proportion of them would give money to politics, for all the reasons we have already discussed here today, the frequency with which their identity is a source of political contestation. The relative size of the contributions and the relative numbers of individuals giving contributions, I'm less confident about. Because gays are such a small portion of the population, a very small group of people has to make an awful lot of donations.
Q. Now, you would agree though that the internet has made it easier for gays and lesbians to mobilize politically, correct?
A. I believe that the internet has made it easier for everyone to mobilize politically. Political scientists have seldom observed such a change in political circumstances as we have in the last 20 years.
Q. But isn't it -- the internet particularly useful for groups who wish to remain invisible?
A. I would think that it certainly makes life a little bit simpler for them, that's true.
Q. Now, with the $43 million that the No On 8 groups were able to raise, did they spend a lot of that on TV ads?
A. I actually don't know the internal workings on the No On 8 campaign. My own perusal of the television suggests that they spent a fair amount of money on television, yes.
Q. And they were able to get their message out to the voters, to get the voters' attention; is that fair to say?
A. They were able to get a message out. The reason I'm a little bit caution here is that campaign activities take place in a variety of different contexts. So some of them are an advertising. Some of them are precinct walking. Some of them are get-out-to-vote efforts immediately before and on election day. Some of them are absentee ballot efforts. So when I look at the total amount of effort put forward, it's much harder to say whether or not the campaign feels it was conducted effectively or whether they would do things differently or whatever. I think it is fair to say that many Californians saw a commercial on the subject of Prop 8 from the No campaign.
Q. Now, let's turn our attention to access. You would agree that it's a good thing for a group in terms of its political power if it has regular access to important political figures, correct?
A. That would depend on a definition of "access," which I believe we have to be careful in defining. So "access" implies the meaningful opportunity to strongly signal to a decision maker what your preferences are and to have that decision maker responded to that cue. Nevertheless, certainly meeting with an elected official is better for the group than not meeting with the elected official.
Q. Access to federal officeholders is the most valuable favor that a party is able to give in exchange for large donations, correct?
A. Hmm, I'm inclined to agree with that, but I'm trying to think if there are other things within the law -- boundaries of the law that a party could agree to provide in exchange for a contribution. So, it seems reasonable.
Q. All right. And access in itself shows that in a general sense an officeholder favors someone or that someone has influence on the officeholder, correct?
MR. BOUTROUS: Objection, your Honor. Compound question.
MR. THOMPSON: All right. I'll break it apart.
BY MR. THOMPSON:
Q. Access in itself shows that in a general sense an officeholder favors someone, correct?
A. No.
Q. Or, access shows in a general sense that someone has influence on the officeholder, correct?
A. I'm going to say no again. And the reason I'm resistant to both of those things is that there's a fine tradition in both Washington and Sacramento of providing access to both sides in order to accept their contributions, et cetera. So it's not clear that just access alone suggests that the person favors your viewpoint.
Q. You can't identify a single issue on which the leaders of the LGBT community have been unable to get a hearing before Nancy Pelosi on, correct, during her speakership?
A. Of course, I don't know the private communications in Speaker Pelosi's office, so as a factual matter I don't know the answer to the question. If you are asking me do I believe that gays and lesbians are able to meet with Speaker Pelosi, I would assume that that is so. She's a Democratic representative representing the City and County of San Francisco, so it would seem unlikely that she would refuse to meet them. And she has been vocally supportive of a number of gay issues, though. She is now -- she is resisting bringing some things to a vote, but I think that that's a -- that's what I know about that.
Q. All right. Now, I would like to direct your attention to tab 20 in your binder.
A. Okay.
Q. And do you have a chart before you?
A. I do.
Q. And you spoke in terms of political power, that one thing you need to assess is the feeling that the general public has towards a group, correct?
A. Correct.
Q. And you made reference to a feeling thermometer, correct?
A. That's correct.
Q. And if we look at this chart, we can see that in the sixth column it says "GL Mean Temp." And that's the temperature for the gay and lesbian community, correct?
A. That's correct.
Q. And in 1984 it stood at 30, is that right?
A. Because I can't see the wording of the questions, I don't know for sure that it's always the same question. But if you represent to me that it is, then, yes, it appears that the mean thermometer score was 30 in 1984.
Q. And today it's at 49.4, correct?
A. That's correct.
Q. And so that we see that there's been a consistent trend in terms of a more favorable, more warm feeling towards gays and lesbians in the United States over the last 25 years, correct?
A. Correct, with a footnote; and that is that there is a possibility of a secular trend in the feeling thermometers of all respondents on all groups. So I would want to net that out. Because I don't have all that data at my hands, I can't -- I can't do it out of thin air. But there could be a secular trend in favor of warmness; but it is the case that those numbers have gone up, yes.
THE COURT: Is that in the form of global warming? (Laughter.)
THE WITNESS: Among the electorate, your Honor, yes. We like everybody better now.
BY MR. THOMPSON:
Q. Now, let's talk about allies. You referenced the importance of allies during your
DIRECT testimony, correct?
A. I did.
Q. And you would agree that allies can be a source of political power, correct?
A. Umm, yes, with constraints. So not every ally is in the position to provide the assistance of the group needs at a particular time. So it's going to be particular to the area of contestation. For example, a state legislative ally can't help you in Congress, as a simple example. And, then, the second would be that some allies are more reliable than others, as I have indicated.
Q. And, in your opinion, an ally is a group or individual who is repeatedly embracing the gay position from the perspective of gays and lesbians, correct?
A. Umm, I would go a step further and say that an ally is an individual or group who are willing to expend political capital on behalf of that position, not merely embrace it.
Q. And I would like to actually -- I think this will be the only time I make you do this -- go back in your binder, for which I apologize, but back to tab 14. And this is a book entitled Gays And Lesbians In the Democratic Process. And you contributed a chapter to this book, is that right?
A. I did.
Q. And we can see it on the third page, behind the tab, your chapter is called "Institutions Matter, Local Electoral Laws, Gay and Lesbian Representation and Coalition Building Across Minority Communities," correct?
A. That's correct.
Q. And I would like to direct your attention to page 236.
A. Okay.
Q. And the last paragraph on the page starts: "The value of coalition building is clearly not lost on the gay and lesbian leadership, who have worked for years to build partnerships with racial and ethnic groups, friendly religious groups, such as Jews, organized labor, and other organized interests." And that's a true statement, correct?
A. Yes.
Q. Okay. Now, I would like to direct your attention to tab 21 in your binder, which is DIX-1331 --
A. I'm sorry. Tab number again?
Q. Tab 21.
A. Thank you.
Q. It's DIX-1331, which is the Human Rights Campaign Annual Report for 2009.
A. I'm there.
Q. And it starts on the second page of this document in all caps: "FINALLY, with strong allies in the White House and Capitol Hill and across the country." Would you agree that the Obama administration is more favorable to the political interests of gays and lesbians than the Bush administration was?
A. So that -- that was a nice little switch. So I would agree, yes, that Obama is more favorable than Bush, though I think the degree of difference is far smaller than most progressive voters anticipated. I would not agree with the capitalized notion that finally there are strong allies, et cetera.
Q. Let's turn to page five of this document, and to the first bullet point which says: "The President launched a national Aids strategy and set key goals to lower the number of new HIV infections, increase the number of people receiving care and reduce racial disparities." And that's evidence that President Obama is an ally of the LGBT community, correct?
A. It strikes me that that is not a particularly persuasive point, because -- for a number of reasons. The first is that an equally plausible explanation is that the president is an ally of public health. Second, and this is going to sound strange, but actually HIV prevention, particularly in the lesser developed world, was an area of strength for President Bush. In fact, it's one of the more laudable aspects of his administration that groups both gay and straight gave him substantial credit for. So I don't -- I'm not able to evaluate the Bush administration's anti-HIV strategy vis-a-vis the Obama's, but it's not clear on its face that this is necessarily a big step on behalf of gays.
Q. Do you know what this is talking about? Are you familiar with the initiatives and strategies that are referenced here?
A. The specifics of them, no, I'm not.
Q. Okay. And now let's turn to the second bullet point: "We are on our way to eliminating the HIV travel ban. To get here HRC lobbied Congress effectively, resulting in the vote that paved the way. Then when the Department of Health and Human Services issued a proposed regulation, HRC members submitted 17,000 of the 19,000 public comments that HHS received. Soon the process will be complete and the discriminatory ban will be gone." And that's been something that the LGBT community has sought, correct?
A. That is something that the LGBT community has sought in concert with the scientific community.
Q. And that's evidence of the political power of the LGBT community, correct?
A. I would not go quite so far. So the first is that we are talking about a letter writing campaign to an administrative oversight agency, which is not a particularly highly salient undertaking. Kind of flies under the political radar. The second is that there was huge pressure on the part of university medical centers receiving NIH grants to eliminate the HIV travel ban because it put U.S. Aids researchers, who are among the world's leading Aids researchers, in the uncomfortable position of not being able to host the international Aids conference in the United States because individuals with HIV could not actually attend. So there was a lot of different forms of public pressure on this issue prior to the proposed regulation change, which did, in fact, go into effect.
Q. And turning to the next bullet point, it says: "We advocated for the administration to ban discrimination on the basis of gender identity in the nation's largest work force, the federal government, and they did." And that's something that the LGBT community has sought, correct?
A. It is something that they sought.
Q. And it's evidence of the political power of the LGBT community, correct?
A. It is certainly one outcome that would weigh positively. My understanding was that this was done in the form of a presidential directive, so I'm not sure of the legislative vibrancy of this, if it will survive this administration; but it's certainly a positive consideration.
MR. THOMPSON: Your Honor, would it be possible to take a short break?
THE COURT: You mention lunch and breaks and so forth, Mr. Thompson. I think we are all grateful for your suggestions.
MR. THOMPSON: Thank you, your Honor.
THE COURT: Why don't we take 10 minutes? Is that enough?
MR. THOMPSON: Yes. Thank you, your Honor. (Whereupon there was a recess in the proceedings from 3:10 p.m. until 3:25 p.m.)
THE COURT: Very well, Mr. Thompson. I trust the break helped shorten your cross-examination.
MR. THOMPSON: Yes, your Honor. Thank you. Now, we would like to move the admission of DIX-1331, which was the document we were just discussing, the Human Rights Campaign Annual Report.
MR. BOUTROUS: Your Honor, I just -- I want to object. I'm a little concerned that at some point proponents are going to cite these documents as somehow stating truthful facts. They haven't called witnesses on these issues, statements in these documents. They are opinion. They are hearsay. I don't think we have an objection to judicial notice so they are available to the Court to refer to, but I do object to this type of document going into substantive evidence.
THE COURT: I understand your position. The witness is being asked about these documents. I think in fairness for all parties and the completeness of the record, it's appropriate to admit these. The testimony is what it is. And I realize that these statements are not -- do not necessarily establish the truth of the content, but they certainly provide a basis for of the witness's testimony and the witness's cross-examination by Mr. Thompson, so I think it's appropriate. And however they are characterized, as either admitted or judicial notice, I think is essentially immaterial.
MR. THOMPSON: Thank you, your Honor. (Defendants' Exhibit 1331 received in evidence)
BY MR. THOMPSON:
Q. So we would like to, with the Court's permission, play a short clip from a speech from President Obama. I would like you to watch this clip and react.
THE COURT: Well, this is the 20th of January, isn't it? (Videotape played in open court.)
BY MR. THOMPSON:
Q. Using your definition of a political ally, does President Obama, does he count as a political ally to the gay and lesbian community?
A. Given my concerns about the unreliability of allies in the illustrations I have used, I think President Obama is, perhaps, the best illustration of an ally who cannot be counted upon, an ally whose rhetoric far exceeds his actions. Surely, you would agree that there's a difference between giving a nice speech and actually accomplishing some sort of policy change.
Q. You believe, in fact, that President Obama is, at best, lukewarm and maybe even indifferent to gay rights, correct?
A. I believe that he has some significant reservations about the issue, particularly on same-sex marriage. He articulated repeatedly during the 2008 campaign that he was not in favor of same-sex marriage. Since his inauguration into office, there has been no administrative action on suspending discharges under "Don't ask, Don't tell." His words notwithstanding, the Employment Nondiscrimination Act is not on its way to final passage. He has -- his administration has defended the Defense of Marriage Act in court and continues to do so in multiple lawsuits. When the Prop 8 sister resolution emerged in the State of Maine, he -- Organizing For America, which is the remnants of his campaign from a year ago, sent emails into Maine asking for them to make calls into the New Jersey and Virginia gubernatorial races, but without a single mention of the same-sex ballot initiative that was on the ballot at the very same time. The same was true for the Washington state initiative. So, in fact, most gay activists with whose work I am familiar and the leadership of most gay organizations, with the possible exception of the Human Rights Campaign notably, feel that President Obama has been particularly disappointing as an erstwhile ally.
Q. Now, he did sign the hate crimes legislation, correct?
A. He did sign the Defense Authorization Act on which hate crimes was an amendment, yes.
Q. And then he had a signing ceremony in the rose garden, correct?
A. He did.
Q. And in determining whether President Obama was an ally of gays and lesbians, one thing you would look to is whether he has spoken publicly about the adverse treatment of gays and lesbians in society, correct?
A. That's correct. And on that dimension, President Obama is a very good speechmaker.
Q. And another factor you would consider in assessing whether President Obama was an ally of gays and lesbians is whether he had introduced legislation on behalf of LGBT political goals, correct?
A. Well, strictly speaking, of course, the administration doesn't introduce legislation; but, yes, if his administration was working with an author on the Hill to submit a piece of legislation that he pledges upfront to sign, that would be a positive factor to consider.
Q. And he has pledged to sign the Employment Nondiscrimination Act, correct?
A. He has. I heard the video.
Q. And that's passed the House of Representatives, correct?
A. It has.
Q. Now, using your definition of ally, Senator Feinstein is only a soft ally of gays and lesbians, correct?
A. I think given her -- the record over the course of her political career, that's the way I would describe it.
Q. And in considering whether gays and lesbians have reliable allies, you would define a reliable ally as one who, when faced with political threat, when faced with alternative agenda items, is willing to set side alternative items and sale into stiff winds in order to act on behalf of gays and lesbians, correct?
A. I think that that would be one aspect I would want to consider. For example, as the opinion polls in support of the Democratic administration have waned over the course of the last 12 months, the speaker -- who, as we recall from the earlier question represents the City and County of San Francisco -- the speaker has indicated that particularly controversial social matters, including gay rights issues, that the House of Representatives would not take them up until the Senate acted first. That's an example of not wanting to sale into stiff winds. Another example might be, for example, the setting aside of any question of the "Don't ask, Don't tell" or Defense of Marriage Act issues until after the economy or healthcare is dealt with, et cetera. So one of the tropes that people would use to not enact protections for gays and lesbians is that there are other priorities or to do so would endanger our coalition behind Bill X or Bill Y. And so this is a fairly constant refrain, that gay and lesbian advocacy leaders hear when they are asking for legislation to be moved forward.
Q. Now, using your definition of "reliable political ally," you are not even sure the ACLU would qualify as a reliable ally, correct?
A. Well, I'm actually willing to concede that the ACLU is a pretty reliable ally, because sailing into stiff winds appears to be what they are willing to do. That's not to say that they have never shrank from an issue, they may have. But I think they are probably more reliable than most other groups.
Q. But when I asked you during your deposition -- and I would like to direct your attention to, I believe, it's tab three of your binder and page 88. We were talking about the definition of reliability on 88, line six. And then towards end of 88 you mention that there may be some allies who are willing to pay costs to support gay and lesbian causes. And then when we go to 89, I said: "QUESTION: Well, now, you said very few. "ANSWER: Well, I said there could be individuals in my answer. "QUESTION: Okay. "ANSWER: But in terms of large organized forces in the society, maybe the American Civil Liberties Union, I don't know. I mean, I'm struggling. I'm sure if I spent all day, I could probably think of an ally or two." And you gave that testimony, correct?
A. I did, which I believe is consistent with what I just said; that the ACLU is probably an ally, yeah.
Q. Now, you don't have sufficient information to know whether Speaker Pelosi meets your definition of a reliable ally, correct?
A. I don't have maybe all the pertinent information. I would see her as more likely than not an ally, but her level of reliability I would condition by her responsibility and desire to protect the Democratic majority and, perhaps, put off controversial votes.
Q. And that could be a sound strategy even from the perspective of the LGBT community, correct?
A. Well, that depends. It could be a sound strategy if it creates the opportunity for the majority to live to fight another day. Alternatively, it could be -- and I think there is some evidence to suggest -- that by delaying certain priorities of court constituencies or groups that you have a long-term representational relationship with, that, in fact, on the claim that you do so to live to fight another day, that when the next day comes, you are no longer there and so the -- the legislative priority was sacrificed for no gain. So I think it remains an open question, whether this is a sound strategy or not.
Q. All right. Now, let's talk about the importance of the media. The media can be important in terms of figuring out the political power of a group, correct? It's relationship to the media?
A. You would have to be a little bit more specific, I'm afraid, to which media you are speaking.
Q. Well, television could be important to -- the way in which a group is portrayed on television could be important?
A. Entertainment television or news?
Q. News.
A. Television news?
Q. Yes.
A. Yes. I would say that TV news might be relevant.
Q. Okay. And one of the materials you deemed relevant in this case is a book by John Zaller entitled The Nature and Origins of Mass Opinion, correct?
A. That's correct.
Q. And I would like to direct your attention to tab 23, which has the first few chapters of that book, which is DIX-296. And the thesis of Mr. Zaller is that public opinion responds more directly to lead cues than bubbling up from the masses, correct?
A. That's a fair version, yeah.
Q. And you would agree that he is right in the general sense that the stories that the media covers raises the salience of an issue, correct?
A. Within constraints, yes. There are some issues that, whether the media covers or not, remain present; and then there are some issues that the media might devote a lot of attention to, and even political leads might cure a great deal that the public never buys on to. So it's certainly not a perfect relationship. But, in general, if the media covers a story more frequently and with greater intensity, the public is likely to respond by thinking it more important.
MR. THOMPSON: Your Honor, we move the admission of DIX-296.
MR. BOUTROUS: No objection, your Honor.
THE COURT: Very well. DIX-296 is admitted. (Defendants' Exhibit 296 received in evidence.)
MR. THOMPSON: Excellent.
BY MR. THOMPSON:
Q. And turning to the next tab, Professor. This is an article entitled Minority Group Interests and Political Representation - Gay Elected Officials in the Policy Process. And it's DIX-1102. And this was an article you considered?
A. I'm sorry. I -- my next tab is a 2005 report by the HRC.
Q. Okay. Let me -- and if the binder is missing that information, we can provide that later.
A. Okay. So you are under tab A.
Q. Yes, sir.
A. Okay. I'm with you.
Q. And this is an article you considered in reaching your opinions in this case, correct?
A. One of several, yes.
Q. All right. And I would like to direct your attention to page 575, the second paragraph. And the article states here: "Most important, gay political representation significantly influences the adoption of domestic partner benefits. However, unlike the registration model, it is not the most influential factor. Instead, elite support has the greatest influence." Is that consistent with the point Zaller is making?
A. It would be consistent, but unless I look at the results directly, I'm going to have a tough time giving you a sort of specific response to the claim.
MR. THOMPSON: Your Honor, we would move the admission of DIX-1102.
MR. BOUTROUS: No objection, your Honor. Though I will make a standing objection concerning the hearsay nature of these documents, but I will not make it again.
THE COURT: Very well. 1102 is admitted. (Defendants' Exhibit 1102 received in evidence.)
MR. THOMPSON: Thank you, your Honor.
BY MR. THOMPSON:
Q. Now, Professor, you would agree that the frequency of media coverage has increased in recent years for issues relating to gays and lesbians, correct?
A. I would. I'm still grappling with your last question. But, yes, I would agree that media coverage is higher.
Q. And, therefore, the salience or the visibility of the gay and lesbian community, at least on that dimension, has increased, correct?
A. That's probably true, yes.
Q. And I would like to direct your attention to tab 24. This is the Human Rights Campaign 2005 Annual Report. It's DIX-1327. And I would like to direct your attention to page 19. And the pagination appears in the upper right-hand corner of the even pages. We did not paginate it.
A. I see.
Q. Are you there, sir?
A. I'm with you.
Q. In the second paragraph on page 19 it states. "In 2005 our message of fairness has reached 90 percent of Americans with a quote in at least one newspaper every day." And that would be an indication that the gay and lesbian community is able to get its message out through the media on a regular basis, correct?
A. It would be a claim that the gay and lesbian community can get its message out on a regular basis.
Q. Do you have any basis to dispute that claim?
A. Oh, yes. (Laughter.)
Q. You don't think that they are getting a quote in the paper once a day?
A. I believe they are getting a quote in the paper once a day.
Q. Okay. That's what they claim here.
A. Well, no. Their claim is that 90 percent of Americans have seen the quote.
Q. It has reached 90 percent of Americans now?
A. Newspaper readership in the United States is significantly below 50 percent of the population. So newspaper media is certainly -- and, certainly, news stories about gays and lesbians is not likely to yield a 90 percent contact rate. Now, does that mean that newspapers serving localities that have 90 percent of the population have published at least one quote about gays and lesbians? Absolutely. But does it mean that 90 percent of Americans have been reached with the HRC message? I think we have political advocates again advertising their importance.
MR. THOMPSON: Your Honor, we would move the admission of DIX-1327.
THE COURT: Very well. 1327 is admitted. (Defendants' Exhibit 1327 received in evidence.)
BY MR. THOMPSON:
Q. And during the year and a half that you have lived in this area, you can't recall any editorial from the San Francisco Chronicle that was hostile to the interests of gays and lesbians, correct?
A. I do not read the Chronicle every day, but I would find it unlikely.
Q. But you do read the New York Times, correct?
A. Again, not every day, but I read it fairly frequently, yes.
Q. And in the last 10 years you don't recall any instance in which the New York Times took a hostile position to the interests of gays and lesbians, correct?
A. I don't recall one.
Q. You do recall editorials in the New York Times advocating for the dissolution of "Don't ask, Don't tell," correct?
A. I do.
Q. And advocating for the Employment Nondiscrimination Act, correct?
A. Yes.
Q. And I would like to direct your attention to the next tab, which is DIX-1323. And it's the Human Rights Campaign Annual Report for the year ended March 31, 2000. And turning your attention to page three, which is the fifth page behind the tab, the third paragraph from the bottom, the second sentence states: "Reporters and editorial boards view our advocacy as common sense rather than special interest." Is that a true statement that editorial boards view the positions of the gay and lesbian political community as common sense?
A. It's a blanket statement. And like most academics, I am deeply uncomfortable with blanket statement. I would be willing to represent that it would be my belief, my belief in the absence of analysis, that the majority of editorial boards, with some regional variation accounted for, probably tend to favor some protections for gays and lesbians. I don't believe that that's uniform across the issue. So you would have more editorial boards, for example, favoring a hate crimes law than a nondiscrimination law, and more favoring a nondiscrimination law than same-sex marriage, for example. I also think that there would be dramatic variation by region. So there would be parts of the country where this would clearly not be true. So I guess I'm -- I'm at a loss for information to evaluate this, but it strikes me as particularly overbroad.
MR. THOMPSON: Your Honor, we would move of the admission of DIX-1323.
THE COURT: Very well. 1323 is admitted. (Defendants' Exhibit 1323 received in evidence)
THE COURT: And remind me, Mr. Thompson, what page were you looking at?
MR. THOMPSON: I was looking at page three, your Honor.
THE COURT: Page?
MR. THOMPSON: Page three. We have Xeroxed the cover, so it's actually the fifth page in the exhibit.
THE COURT: But it's marked page three?
MR. THOMPSON: Yes, your Honor.
THE COURT: Thank you, sir.
MR. THOMPSON: Certainly.
BY MR. THOMPSON:
Q. And now directing your attention, Professor Segura, to tab 26. This is an editorial from the New York Times dated September 29, 2008, and it's entitled "Preserving California's Constitution." And in the third paragraph it -- and it's addressing Proposition 8. And in the third paragraph the third sentence says: "It is our fervent hope that Californians will reject this mean-spirited attempt to embed second-class treatment of one group of citizens in the state constitution." Is it fair to say that the New York Times emphatically supports the rights of gays and lesbians to marry?
A. Well, I would certainly conclude from this editorial that they certainly fervently oppose Proposition 8. I would assume, in the absence of an editorial to the contrary, that they would extend that to other states as well.
Q. And let's turn your attention to tab 33.
A. I'm there.
Q. And this is a document that appeared on the L.
A. Times, one of their blogs. And in the first bullet point under the picture there is a quote from the L.
A. times editorial, and it says: "It's the same sentence as in 2000, only marriage between a man and a woman is valid or recognized in California. Yet, the issue that will be put before voters November 4th is radically different. This time the wording would be used to rescind an existing constitutional right to marry. We fervently hope that voters, whatever their personal or religious convictions, will shudder at such a step and vote no on Proposition 8." And is this a reflects that the L.
A. Times emphatically supported the No On 8 campaign?
A. It would appear to be a reflection of both the L.
A. Times's support for the No On 8 campaign and the fondness for the word "fervently" in editorials. (Laughter.)
Q. Now, another factor that is a source of political power is the cohesion and size of a political group, correct?
A. I think that's true.
Q. And you believe that four to seven percent of the U.S. population is openly gay or lesbian, correct?
A. Umm, as you and I discussed during my deposition, there is a broad scholarly disagreement over the size of the gay and lesbian population. And I believe my answer in deposition is the same one I will give now, which is that it is my belief that the answer is somewhere between four and seven percent based on some marketing polling that I have observed, places that are not particularly political, so we tend to get a few more honest answers. I have seen numbers as low as two and as high as ten, both of which I think to be unlikely, were sort of too conservative and too permissive. So I think four to seven is a more accurate estimate, but, again, that's based on reading literally dozens of stabs at this in both the scholarly's and the marketing literature.
Q. All right. And that doesn't include bisexuals, correct?
A. No, no.
Q. With respect to the percentage of the U.S. population that is predominantly bisexual, you've only seen numbers in the neighborhood of two percent, correct?
A. Two percent or even less. But, again, that's another number that has some definitional problems with it. So I know the Court heard some testimony yesterday on this issue, but is a bisexual someone who has only engaged in sex with alternating partners or do -- are we defining it in -- with their sexual behavior in the last year or the last five years? So I think that's a little bit more of a porous category, a little bit harder to define.
Q. In terms of cohesion, 23 percent of gays and lesbians are estimated to have voted in favor of George W. Bush in 2004, correct?
A. That's correct, yes.
Q. So, in fact, gays and lesbians are much less politically cohesive than African-Americans, correct?
A. As a practical matter, it's hard to imagine a single political group that is not less cohesive than African-Americans, who vote Democratic somewhere between 89 and 95 percent in most elections. So 77 percent voting Democrat and 23 percent voting Republican would be less cohesive than African-Americans, a significant degree more cohesive than Latinos, and certainly than Anglos.
Q. A small group can be politically powerful, correct?
A. It depends on what you mean by "group." Are we talking about a demographic group here? Are we talking about, like, an organization or association?
Q. Well, a small demographic group can be politically powerful. The Jewish community has a meaningful degree of political power in the United States, correct?
A. I would say the Jewish community has a meaningful degree of political power based on their representation in public office and their resources. But I'm not sure -- I haven't undertaken an analysis of that community, but that would be my conclusion, at least, at the of -- without anything about it a lot.
Q. And a small group could be powerful in a closely divided electorate, correct?
A. Well, that's always true. So the closer an election, the more likely it is that smaller segments of the population can make a difference. For a group to make a credible claim that they played a role in the outcome of the election, the margin within the group would have to exceed the margin of victory overall.
Q. So when then Senator Obama and Senator Clinton were battling it out for the Democratic primary, they both actively sought the support of the gay and lesbian community, correct?
A. I think it's fair to say that that's true. I think it's also fair to say that in the very close primary contest, they actively sought the support of every person with a pulse and a voter registration card.
Q. But they had special attention to the gay and lesbian community because of the financial resources, correct?
A. By "special attention," are you suggesting that they paid more attention to gays and lesbians than they did to other Democratic constituencies? Because I actually don't know that to be true.
Q. Well, to anyone with a pulse. In other words, they weren't indifferent. You just said, Oh, well they wanted everyone with a pulse. Isn't it true that they were more focused on the gay and lesbian community than just anyone with a pulse off the street?
A. I don't have evidence of that. I mean, I -- I think it would certainly would be fair to say that both then Senator Obama and then Senator Clinton actively courted organized labor, actively courted gays and lesbians, actively courted environmentalists, African-Americans, Latinos, et cetera. It's the term "special" that I'm reacting to, I'm afraid, because the term "special" appears to suggest that they paid more attention to gays and lesbians than to other Democratic constituencies, and I actually just don't know that to be true.
Q. Are the gay and lesbian community, is that a Democratic constituency?
A. I think by any measure it's a majority Democratic constituency, yes.
Q. All right. Now, persuasion can also be a source of political power, correct?
A. That's a more complex question. So Dahl speaks about persuasion and he identifies persuasion as one of the weakest forms of political power. Persuasion has multiple components to it. So it is more than merely a group saying, Please, pass a piece of legislation for us, or, It's the right thing to do. Persuasion involves -- particularly for this instance -- the need to identify an external deeply-held norm in the society to which you can appeal. So, for example, this society has norms of equality or norms of fairness. And in order for persuasion to be used, what a group would have to do is say, you know, We all believe in equality. We all believe in fairness. Those norms should apply to us. And if you apply those norms to us, then you should change your vote and be persuaded of the rightness of our position. So persuasion actually relies not only on the oratorical skills of the group, but, also, the degree to which the audience holds the deeply-internalized norms about what the society thinks and is willing to assign the -- include the subject group in those norms. It's a much more tenuous undertaking and for that purpose, I think, that's why Dahl sees it as the weakest form of power.
Q. But you would agree a group might cajole a legislator by appealing to a societal norm of justice or fairness, correct?
A. I would if believe that a group would certainly make the effort and may actually yield some number of changed cards, yes.
Q. And the abolitionists in the 19th century were able to make claims on norms of fairness, correct?
A. They were, but I wouldn't look at that as the principal source of power for the abolitionists.
Q. But you would agree that among the strategies that the black civil rights movement used was an intellectual or idea-based appeal to the internalized national norm of fairness, correct?
A. I believe that that was a strategy, but it would hardly be the most important or even the most frequently used. If we peruse the history of the black civil rights movement, African-American activists fighting for their civil rights engaged in a whole host of strategies, including boycotts of businesses, boycotts of the Montgomery bus line, sit-down strikes at southern lunch counters, freedom rides where northerners -- northern blacks and northern whites -- boarded buses and road into the south to defy the segregation of southern facilities; a strategy that took them into the courts, a strategy that took them into the television sets. Serendipity, frankly, played a role. One of the reasons we have the Voting Rights Act is that the attack by Alabama officials on African-American activists at the Edmund Pettus Bridge happened to be televised live by CBS and spill into people's living rooms. So there are many more strategies and tactics used by the black civil rights movement. Certainly, the idea of justice played an important role. It was not the only role.
Q. And gays and lesbians make appeals to the norm of fairness in pursuing their political agenda, correct?
A. Yes, they do.
Q. And such appeals to fairness may, in fact, persuade some number of people, correct?
A. They may, in fact, persuade some number of people, yes.
Q. Now, in terms of sources of political power, another would be tactics. The tactics that a group uses can have ramifications for the amount of power they have, correct?
A. Yes, with the following qualification. Sometimes tactic -- you are suggesting that tactics shape how much power a group has, and I would think that normally the causal arrow is in the reverse; that how much power a group has really shapes the tactics that they choose. So I wouldn't put a causal relationship in the way that you are suggesting.
Q. Are you saying that tactics are irrelevant to the political power of a group?
A. I did not. I said that there was a non-recursive relationship.
Q. Well, you've read press reports suggesting that the No On 8 people themselves felt like they did not do a particularly good job on reaching out to blacks and Latinos, correct?
A. I have read reports suggesting that they felt like they had maybe not done the best outreach there, yes.
Q. And you have no reason to doubt those reports, correct?
A. I don't know enough about the internal organization of the Prop 8 campaign, but I have no reason to question it.
Q. All right. Now, let's talk about how violence pertains to the political power of a group. In the Democratic process, violence is usually negatively perceived, correct?
A. That is usually the case, yes.
Q. And within a Democratic process, violence historically backfires, correct?
A. Yes, depending on the willingness of external authorities to become involved. So there have been moments, frankly, when violence was effectively used, for example, by segregationists around the turn of the century, the Klan and others, to disenfranchise large numbers of people. So there have been unfortunate moments in our history when political forces have used violence to actually achieve their goals. As a general question, I think I would certainly not favor it and I think it's a fundamentally anti-Democratic thing to do.
Q. Sympathy is a tool to help secure political outcomes by seeking to activate internalized norms of fairness and equity, correct?
A. Again, a qualified yes. And the reason is that certainly the audience, in this case the electorate, being sympathetic to your goals or to your personal circumstances is better than their being hostile. But the way you say sympathy as a tactic suggests that there is sort of a premeditation that a particular political force goes out and maybe, I don't know, cries "Whoa is me" on the corner. Sympathy as a tactic is something I'm having a little bit of trouble wrapping my mind around.
Q. Well, if a group is trying to use an appeal to an internalized norm of fairness or equity, the moment it engages in violence, much of that appeal dissipates; "yes" or "no"?
A. Well, again, these are matters of degrees. So it was certainly of the case during the black civil rights movement, that there was a very strong emphasis on non-violence in order to retain the positive support of white northerners, for example. So in general, if the group is enjoying sympathy, then violence could ameliorate that sympathy to some agree. It would depend on how much violence and who it was directed at and the circumstances under which it arose and whatnot.
Q. Well, I would like to direct your attention to your deposition in this case, and to page 190, line 13. This should appear behind tab three in your binder.
A. Yes.
Q. Okay. And so if we look at page 190, line 13, you said: "ANSWER: In the Democratic process violence is usually negatively received; that in some respects" -- if we go back to your question about ideas -- "if a group is trying to use an appeal to an internalized norm of fairness or equity, the moment it engages in violence, much of that appeal dissipates." And you gave that testimony, correct?
A. I did.
Q. Okay. Now --
THE COURT: How are you doing on time, Mr. Thompson?
MR. THOMPSON: Well, your Honor, I appreciate Professor Segura's fulsome answers. I'm not getting "yes" or "no" answers, so I'm running behind schedule and I'm afraid there is no possible way that I could finish this evening.
THE COURT: Well, can you get in another half hour?
MR. THOMPSON: I'm happy to keep going, your Honor. Absolutely.
BY MR. THOMPSON:
Q. Now, so one of the political resources that a group may have is goodwill, correct?
A. Correct.
Q. All right. And if we are looking at sources or barriers to political power, you would also want to look to see if a group had been disenfranchised, correct?
A. Yes.
Q. All right. And you are not aware of any specific form of intimidation aimed at prohibiting gays and lesbians from voting, correct?
A. With the caveat that there may have been some number of gays and lesbians who were kept out of the franchise as a consequence of felony charges associated with gay harassment in the 50's and 60's. It is possible under those circumstances that some number of gay and lesbian voters lost their right to vote as a consequence of anti-gay enforcement policies in the states. With that caveat, in the recent sense, there may have been an isolated incidence of intimidation with which I'm not familiar, but I don't know of a concerted effort to drive down the gay electorate.
Q. You can't point to any such instance, let's say, in the last 30 years of any government official anywhere in the United States targeting gays and lesbians to disenfranchise them so they can't vote, correct?
A. I don't have an example off the top of my head, so, no, I cannot recall any.
Q. All right. Now, let's talk -- we have talked about the sources of political power. Let's talk about some of the indicia of political power. And would you agree that one reflection of political power is a group's ability to convince Congress to allocate funds to issues that are important to the group?
A. Again, with the footnote that I would want to see evidence that the group was bringing resources and pressure to bear in order to get Congress to allocate funds it otherwise wouldn't have, yes. That would be a positive outcome that I would want to look at.
Q. And in assessing the political power of a group, another factor you would look at would be the presence of statutory protections for their equality, correct?
A. Yes.
Q. And you would also want to look at whether they had the ability to elect candidates of their choice, correct?
A. That would be a measure, yes.
Q. All right. And with respect to the gay and lesbian community, you have not assumed that only a gay or lesbian could be a candidate of choice for the gay and lesbian community, correct?
A. No, I am not.
Q. And the voting rights literature has always focused on the notion of first choice without regard to the demographic characteristics of the candidate, correct?
A. That's correct.
Q. And in the California legislature there are four openly gay officials, correct?
A. To the best of my knowledge, that number is correct.
Q. And that's out of 120, correct?
A. Yes, that's correct.
Q. And so that's 3.3 percent, if I'm doing my math right?
A. I'm sorry. I can't do the math that quick in my head, but if you represent that, I will take that on --
Q. On redirect Mr. Boutrous can correct me. Now, let's talk about political power in California. And is it true that Equality California is one of the leading gay rights groups in the State of California?
A. I, actually, can't really answer that because what do you mean by "leading gay rights groups"? There are a number of groups active. I would assume that Equality California is among the largest, if not the largest; but I don't have the basis -- I don't know the budget of every group in the state.
Q. Equality California raised more money for the No On 8 campaign than any other group, is that right?
A. That sounds correct, yes.
Q. Okay. Now, let's turn to tab 35, which is the 2009 legislative scorecard for Equality California. And directing your attention to the first page of text it says: "Despite a tough legislative session and the worst budget crisis in California history, this year has been one of Equality California's best yet in Sacramento. We passed a record 11 pieces of Equality California-sponsored legislation that will improve the lives of LGBT Californians." Is it true that last year there were 11 pieces of legislation passed that were sought by the LGBT community?
A. With the caveat that some of that legislation was, in fact, non-binding resolutions that were senses of the legislature, then I have no reason to dispute their number.
Q. And so this was a good legislative session for the LGBT community, correct?
A. I think that's a different question. So what constitutes as good legislative session is whether or not high priority items were, in fact, acted upon in a positive sense and were ultimately signed into law. So, again, I would have to know what the rate of bill passage was in all other years, what the number of bills passed in all other years was. I take on -- on faith that their report, that they feel pretty good about it; that they are happy with it.
Q. All right. Now, let's look at their scorecard that they give to different legislators. If we look at the Senate scorecard -- and you just flip the page -- it has ratings of 100 percent. And I'll represent to you that 21 out of 40, a majority of the California Senate, has a 100 percent approval rating from Equality California. Is it fair to assume that any state senator who receives a 100 percent rating from Equality California is an ally of the LGBT community?
A. That would depend on which items were used to score. So, for example, we might find in a year where there were several sort of procedural issues that came up, you could get 100 percent from a particular representative; and in a subsequent year, in which maybe there was a much more contentious issue that came up, you would get less than 100 percent. So it's important to always keep in mind that the scorecard is relative to what the agenda was in the legislature that year. Some agendas are more vexing than others.
Q. Can you point to any of these legislators who received 100 percent rating and provide evidence that any of them are not allies of the LGBT community?
A. Again, I don't have the legislature and all of their activities committed to memory. I couldn't possibly.
Q. Well, I'm just asking for one. Can you point to one piece of evidence that one of these individuals with a 100 percent rating is not an ally of the LGBT community?
A. I cannot. I can point to the fact that there is an awful lot of zeros on the page as well; that the minority party, should they gain control of the Senate, would reverse many of the items that you've just identified.
Q. All right. Now, let's turn to the assembly scorecard. And, again, I will represent to you that 41 out of the 80 -- again a majority -- have a perfect 100 percent score. Can you point to any evidence that any of these individuals who received a 100 percent rating were not allies of the LGBT community?
A. Once again, no. I do not have an exhaustive command of the behavior of each legislator.
Q. Okay. Now, let's look at some other officials in the State of California. It's reasonable to assume that Barbara Boxer was a candidate-of-choice for gays and lesbians, correct?
A. In a general election sense, I think the answer to that is yes. I don't remember the last time she had a meaningful primary challenge; maybe not since '92, when she was first elected.
Q. Right. But in her recent elections, she has been a candidate-of-choice for the gay and lesbian community, correct?
A. Yes, yes.
Q. And Senator Dianne Feinstein's recent elections for U.S. Senate, she has been a candidate-of-choice for the gay and lesbian community, correct?
A. Given the choices that they have been provided, yes.
Q. Right. I understand. And Attorney General Brown is the candidate-of-choice to be the next governor of California among gays and lesbians, correct?
A. Well, as we previously discussed, approximately 77 percent of self-identified gays and lesbians identify as Democrats. And the last time I checked, he's the only Democrat in the field. So I would assume that approximately 77 percent have a predisposition to support him.
Q. Can you identify any general election for state-wide office in California in the last 10 years where the LGBT community supported the Republican candidate rather than the Democratic candidate?
A. I cannot.
Q. And can you identify any Democrat running for state-wide office in California in the last 10 years who won the Democratic primary over the opposition of the LGBT community?
A. That I'm going to -- I'm afraid I have to plead ignorance on. I lived external to the state from 2001 until 2008, so I wasn't privy to primary politics here.
Q. Okay. So Senator Boxer is an ally of the gay and lesbian community, correct?
A. I think that's a fair assessment.
Q. And let's talk about labor unions. Labor unions were part of the coalition, the Democratic coalition in the State of California, correct?
A. That's correct.
Q. And you would agree that there certainly have been a number of moments where labor unions supported the gay and lesbian political position on matters of concern to the community, correct?
A. I believe a distinction I would want to make is that labor union leaders have supported a variety of issues of concern to the community.
Q. You can't think of any instance in the last decade where labor unions have opposed the gay or lesbian community, correct?
A. I cannot think of an instance where labor union leaders have opposed the gay and lesbian community. The reason I'm differentiating these things is there's a difference between a coalition built at the elite level and the mass behavior of voters. So while you could probably show me an endorsement of No On 8 from a particular union, I don't actually know how the rank and file of that union voted in November of 2008.
Q. And I would like to direct your attention to tab 41. This is a press release produced to us by Equality California. It's dated October 6, 2008. It's DIX-2502. And it says in the first paragraph: "The Unite Here International Union on Saturday made a $100,000" -- presumably contribution -- "to Equality California's No on Proposition 8 campaign committee and announced its opposition to Prop 8, which eliminates the right of same-sex couples to marry in California." And then turning to the third paragraph it says: "'Endorsing the No On 8 campaign is consistent with the long-held positions of this union,' said Cleve Jones." Do you have any reason to doubt that Mr. Jones's statement that supporting the rights of the gay and lesbian community was consistent with Unite Here, the international union?
A. I don't. And I'm actually not surprised to see Unite Here endorsing the No On 8 campaign. Unite Here represents both needle trades and hotel and restaurant employees. And gays and lesbians are a somewhat larger percentage of the work force, particularly in the hotel and restaurant employees union, than they are in many other trade unions. So this is not surprising.
Q. Okay. And then if we turn to the last paragraph, there's a statement by Geoff Kors, and he is the executive director of Equality California, is that right?
A. That's correct.
Q. And he states in the second to last sentence of this press release: "This contribution reflects the longstanding relationship the LGBT community has had with our union partners." And that's a fair statement, isn't it?
A. I presume it's a fair statement of his belief.
Q. Well it's an accurate statement, is it not?
A. Once again, I don't know that that's true. I think that it's fair to say that union leadership has been supportive of gay and lesbian causes in the state in recent decades. And Mr. Kors is commenting on that, but you are asking me to say whether or not there is a longstanding relationship between the community and the union's membership, I don't -- I don't really know that.
MR. THOMPSON: Your Honor, we would move the admission of DIX-2502.
THE COURT: Very well -- wait a minute, DIX --
MR. THOMPSON: 2502, your Honor.
THE COURT: Very well. DIX-2502?
MR. THOMPSON: Yes, your Honor. (Defendants' Exhibit 2501 received in evidence.)
BY MR. THOMPSON:
Q. Now, turning your attention to the next tab, Professor Segura, this is a printout of the union contributions that we pulled off of the California Secretary of State's website.
A. Uh-huh.
Q. If we did our math right, there was $1.7 million worth of contributions by unions to the No On 8 campaign. Do you know of a single union that contributed money to the Yes On 8 campaign?
A. I do not.
Q. And does it surprise you that all of the unions that gave were giving to the No On 8 campaign?
A. When -- you didn't ask me. I don't know if any union gave to the Yes On 8 campaign. I haven't come across that. So it's possible that one has.
Q. All right.
A. If I take as a given that all the union contributions went to No On 8, it does not surprise me, given the longstanding relationship between union leadership on the one hand and the gay and lesbian movement on the other.
Q. All right. Well, now, let's turn your attention to the next tab in your binder. This is a story dated October 26, 2008 from the Sacramento Bee. And if we look at the last line on the page, the last sentence talks about influential Latinos, including the Los Angeles mayor. And can you help me with the pronunciation, Professor, Antonio?
A. Villaraigosa.
Q. That's what I meant to say. "...and leaders of the United Farmworkers Union are spreading the word that Proposition 8 is anti-civil rights." Isn't it true that unions did not confine their support to giving money, but their leadership was also out there actively working to defeat Proposition 8?
A. That's a blanket statement. I don't know of the actual activities of all the union leaders involved in the State of California. I couldn't speak to that. Were there some union leaders who were active? Yes.
Q. Active in opposing Proposition 8?
A. That's correct.
Q. And you can't identify any union leaders who were actively supporting Proposition 8?
A. No, I cannot.
Q. If we look at tech companies in California, you would agree that many of the Silicon Valley technology companies express pro-gay positions, correct?
A. I think it's fair to say that the Silicon Valley industry has intended to be more pro-civil rights on many dimensions, and this being one of them. I think that's a fair statement.
Q. All right. And large corporations in California have a meaningful degree of political power, correct?
A. They do, with respect to the issues that concern them. So, for example, we might find that oil companies are particularly influential on environmental regulation, energy, pricing or some form of emissions control and things such as that. Oil companies are not particularly influential on things like kindergarten policy or classroom size, for example. So we don't identify a group as being powerful and then they are powerful in all circumstances across all issues. They are powerful with respect to the issues that discern them. I think it would be fair to say that Silicon Valley firms and large corporations are powerful here, as they are everywhere in the United States, in terms of having lots of lobbyists and making lots of campaign contributions and things such as that.
Q. And you were not aware of circumstances in which Silicon Valley technology companies have worked against the interests of gays and lesbians, correct?
A. Again, I don't have an exhaustive list of their political behavior over time. I don't have an example to suggest that they haven't been.
Q. Okay. Now, let's -- I would like to direct your attention to tab 44, which is the 2006 annual report of the Human Rights Campaign, and the --
A. I'm beginning to think you are on their mailing list, Mr. Thompson.
Q. My new favorite website. (Laughter.)
Q. It's DIX-1328, and it's page 13. I would like to direct your attention to the last bullet point. And tell me when you are there sir.
A. I'm there.
Q. It says: "Big businesses, like Microsoft, backed state legislation that would protect GLBT workers. Plus, more and more businesses are supporting fair-minded legislators working to pass important bills for same-sex couples, as Nike did when it backed a civil union's bill in the Oregon legislature in 2006." Do you have any reason to doubt these statements, that Microsoft and Nike and other large corporations actively are working for the rights of the LGBT community?
A. I would clarify the statement. So there would be a number of objections I would offer. The first is that, again, this is the advocacy organization speaking on how wonderfully effective they are, which is, of course, in their interests in order to maintain their membership and their contribution base. The second is that the statement itself sort of illustrates its internal problem. By saying more and more businesses are supporting fair-minded legislators, what it's suggesting is that there are many businesses that do not. Otherwise, we couldn't have any change. If they are suggesting change, we couldn't have a uniform level of support. The third is that it's not clear to me that each of these organizations are contributing to those legislators because they support same-sex interests. We would want to investigate that. So those would be the things that I would sort of throw in as a caveat. As a general rule, I would not object to the statement that the trend in major businesses has moved from opposition to neutrality to support in a number of instances. I don't have an estimation of what the distribution of that is.
MR. THOMPSON: Your Honor, we have come to a convenient stopping point. I hate to be the one who looks like a slacker here, always suggesting that we take breaks, but --
THE COURT: I don't think anyone would make that suggestion. (Laughter.)
MR. THOMPSON: But if it's --
THE COURT: Let me ask one question and then you can follow-up, if you like, and then Mr. Boutrous, also. One question or, perhaps, one or two follow-on. Does losing elections or failing to obtain legislation denote political powerlessness to require extraordinary protection against majoritarian political processes?
THE WITNESS: Losing an individual election, in my view, would not because in the Democratic process someone losses all contests. The initiative process, however, is a little bit different because it is the only circumstance where we put individual rights up to a popular vote. So we have 150 or more instances in a decade and a half where anti-discrimination protections are voted on by the population and overturned, even though the legislature or its city council or county board had granted them. We have uniform passage of constitutional amendments to exclude one group of citizens from a civil institution. And that's extraordinary, in my view. Now, does -- would each individual act by itself be determinative of whether or not there should be judicial intervention? I would say, just as I said to Mr. Thompson, that an outcome by itself is a piece of information, but we would want to know the context in which it passed. So if we look at the passage of a particular bill in the Assembly, if we have the passage of a bill where the majority party votes for it and the minority party votes against it, then we might reasonably expect that should that majority change, we could see a reversal on that. We could contrast that with an outcome which is bipartisan, for example. We can see examples where a legislature passes a bill and the public then files an initiative to overturn it. So I would want to look at the range of events rather than a single event. And in my view when you look at the range of events that have occurred in terms of the, you know, public voting directly on questions of gay and lesbian rights, that their loss rates suggests that longstanding prejudice against gays and lesbians is shaping what their political opportunities are.
THE COURT: Follow-up, Mr. Thompson?
MR. THOMPSON: No follow-up, your Honor.
THE COURT: All right. Very well. Then why don't we break today at this point? How much longer do you have with Professor Segura?
MR. THOMPSON: I think maybe, you know, an hour and a half more. So it depends on the length of the answers, of course, to some extent.
THE COURT: Well, perhaps you can do as you have done before and spend some time this evening and hone those questions.
MR. THOMPSON: I will endeavor to do so, your Honor.
THE COURT: So we can move along. And with that, who do we expect as our witnesses tomorrow? Mr. Boies?
MR. BOIES: Your Honor, we are working on that. After this witness completes, we basically, for the completion of our case, have probably two witnesses; Professor Hewitt and Mr. Tam. Professor Hewitt, who was planning to be our next witness, has been ill today and so if he can make it tomorrow, we are going to put him on. Otherwise, we are going to go with -- I may be mispronouncing, it's Herek.
THE COURT: Herek, yes.
MR. BOIES: Herek. I'm pronouncing his name wrong. Professor Herek is the one that is ill. If he is available, we would put him on following this witness. Other than that, we would put Mr. Tam on. But those are the two witnesses that we have, and then we have a number of documents to offer before we rest.
THE COURT: Okay. And after those two witnesses testify, do you plan to present any other live witnesses?
MR. BOIES: We do not. Those are our two live witnesses that we plan at the present time. There is a possibility that we still may need to call Mr. Prentice to authenticate some materials, or one of the other people to authenticate materials. But the only other live witnesses we would be calling would be just for the purposes of authentication of documents, which we hope we are going to work out without the necessity of calling them.
THE COURT: I understand that the magistrate judge has, I believe, resolved the matter that was discussed before the break this morning involving some of the documents. Can counsel inform me what that situation is?
MR. BOIES: I cannot, your Honor, but somebody --
THE COURT: Mr. McGill, I think you were involved in that proceeding, were you, Mr. McGill?
MR. McGILL: Yes, your Honor, I was. The motion to amend the core group order was -- as your Honor indicated, was granted in part and denied in part. And the defendant-intervenors have produced, and we are currently reviewing all of the documents that they were withholding pursuant to that motion to amend that they had made.
THE COURT: Is it the plaintiffs' intention to introduce some of those documents in their case in chief?
MR. BOIES: Obviously, your Honor, we are reviewing the documents to see, but it is our intention to introduce some of those, if we can resolve the authentication issues before we rest.
THE COURT: All right. Well, then, it's -- is it unduly optimistic to think that the plaintiff may rest tomorrow?
MR. BOIES: Your Honor, I think it would be optimistic. I think it is possible, but I think it would be optimistic. I think it is certain we will rest before the end of the day on Friday, but I think that with -- with the documents that we're still getting and sort of working on parallel tracks, I think it will be challenging to finish tomorrow, but we still think that's a possibility.
THE COURT: All right. Well, then, that means that under a very optimistic scenario, the defendants may be called upon to begin their case tomorrow; and if not, in all probability on Friday?
MR. THOMPSON: Yes, your Honor. We'll have Professor Ken Miller ready to go, your Honor. We would expect Friday morning, so.
THE COURT: Very well. All right. Any housekeeping matters we need to attend to?
MR. BOUTROUS: Your Honor, just one issue to update the Court on. The magistrate did deny the motion to quash -- deny the motion to quash that was filed by Pastor Garlow and Pastor McPherson. So that was the other issue that he was addressing.
THE COURT: All right. Well, also, unless that's brought here, that should be the end of that matter.
MR. BOUTROUS: Thank you, your Honor.
THE COURT: Very well, counsel. I will see you bright and early tomorrow at 8:30. (Whereupon at 4:34 p.m. further proceedings in the above-entitled cause was adjourned until Thursday, January 21, 2010 at 8:30 a.m.)
- - - -
I N D E X
PLAINTIFFS' WITNESSES PAGE VOL.
NATHANSON, PAUL
Videotaped Deposition Excerpt 1500 7
YOUNG, KATHERINE
Videotaped Deposition Excerpt 1502 7
KENDALL, RYAN
(SWORN) 1504 7
Direct Examination by Mr. Flynn 1504 7
Cross Examination by Mr. Campbell 1516 7
Redirect Examination by Mr. Flynn 1521 7
SEGURA, GARY
(SWORN) 1523 7
Direct Examination by Mr. Boutrous 1524 7
Direct Examination Resumed by Mr. Boutrous 1603 7
Cross Examination by Mr. Thompson 1657 7
- - - -
E X H I B I T S
PLAINTIFFS' EXHIBITS IDEN VOL. EVID VOL.
489 - 494 1531 7
831 - 844 1531 7
1550 1587 7
2310 1590 7
2314 1592 7
2330 1531 7
2334 1501 7
2335 1502 7
2544 1502 7
2545 1502 7
2552 1610 7
2554 1628 7
2555 1633 7
2561 1642 7
2562 1643 7
2582 1531 7
2598 1644 7
- - - -
DEFENDANTS' EXHIBITS IDEN VOL. EVID VOL.
1102 1702 7
1162 1680 7
1323 1706 7
1327 1704 7
1329 1678 7
1330 1670 7
1331 1693 7
2502 1729 7
2554 1673 7
296 1701 7
_ _ _ _
CERTIFICATE OF REPORTERS
We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS, Official Reporters for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C 09-2292 VRW, Kristin M. Perry, et al. vs. Arnold Schwarzenegger, in his official capacity as Governor of California, et al., were reported by us, certified shorthand reporters, and were thereafter transcribed under our direction into typewriting; that the foregoing is a full, complete and true record of said proceedings at the time of filing.
/s/ Katherine Powell Sullivan
___________________________________________
Katherine Powell Sullivan, CSR #5812, RPR, CRR
U.S. Court Reporter
/s/ Debra L. Pas
___________________________________________
Debra L. Pas, CSR #11916, RMR CRR
U.S. Court Reporter
Wednesday, January 20, 2010
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