The Advocate July/Aug 2022
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Shannon Minter on the Prop 8 Trial

Shannon Minter on the Prop 8 Trial

Aside from the judge and litigants of the case, perhaps no one has been more present during Perry v. Schwarzenegger over the past several weeks than Shannon Minter, legal director for the National Center for Lesbian Rights (if you’re following the case but haven’t seen his commentary via Twitter, take note: He’s at @nclrights).

As lead attorney in the California state supreme court case that opened the door for gay couples to marry before Proposition 8 slammed it shut, Minter is no stranger to the arguments that the ballot measure’s defenders are using — ones that have ranged in this trial from dubious to utterly baffling. Minter recently put his tweeting aside for a few minutes to speak with about the landmark case as it heads into its third week. Prop. 8’s proponents deny the role of bigotry in the passage of the ballot measure. How crucial is it for the Ted Olson–David Boies team to prove that animus against gays and lesbians was at play?
Shannon Minter: Showing that Prop. 8 was the product of hostility toward gay people is very helpful to the plaintiffs’ case, but it’s by no means necessary for the plaintiffs to win. Laws that require the government to discriminate against historically targeted minorities violate the federal constitution even if those who passed them claim they did so with the purest of intentions.

Last week Olson and Boies showed the video depositions of two defense expert witnesses who withdrew from testimony — Paul Nathanson and Katherine Young of McGill University — who both affirmed crucial arguments in the case against Prop. 8. How damaging was this to the defense? Have you ever seen a situation like this before in a civil rights case?
I have never seen a situation like that before in any case. Keep in mind that these were experts handpicked and paid for by the defense. To have a party’s own experts make admissions in depositions that the other side is completely correct about issues that are central to their case is almost unheard of. Ordinarily, experts would be thoroughly vetted by the attorneys, and if they disagreed with the defendants’ legal theories, they would never have been disclosed to the plaintiffs and never would have appeared for deposition.

Is there anything about the trial thus far that has surprised you?
Apart from the disclosure that the defense was dropping four of its six expert witnesses and essentially does not intend to put on a case of its own, the most stunning moment of the trial was the testimony of Prop. 8 proponent Bill Tam. To have one of the official sponsors of Prop. 8 testify under oath that to this day he continues to believe the next step in the “gay agenda” is to legalize sex with children was truly a remarkable moment of candor that unmasks the deep-seated animus and prejudice against our community that lies just below the surface of the slick Yes on 8 campaign.

Are there any players in the Prop. 8 saga or other experts who may not
be called to the stand but from whom you would have liked to hear

There is a limit to how many witnesses and experts can be called. The plaintiffs' attorneys have done a great job of
selecting and presenting their experts and witnesses. I think they've
called it just right.

David Boies has been the point man for
cross-examination and will likely play a key role in this week’s
defense testimony. What is it about his style of cross-exam that is so

Boies is justifiably regarded as a master of the art
of cross-examination. His effectiveness lies in both his low-key manner
with witnesses and in his dogged determination to follow up on evasive
or unclear answers. He has a way of putting a witness at ease, and in
doing so a witness will often make very damning admissions without
Boies ever resorting to badgering, bullying, or intimidating.

8 proponents’ objections were most heated when internal campaign and
church documents were admitted into evidence. On appeal, is there a
danger to these documents being admitted? What if the court determines
this was a First Amendment violation? Could it irrevocably damage the

The court of appeals has already heard one appeal
concerning the Prop. 8 proponents’ claims of First Amendment privilege.
Judge [Vaughn] Walker therefore has very detailed guidance about what is allowed
and what is not. Even if the court of appeals were to conclude that
some documents were admitted that should not have been admitted, it is
likely that the court would decide that the appropriate remedy is
simply not to consider those documents in performing its own legal
analysis of the constitutionality of Prop. 8.

Looking forward,
what aspects of this case do you believe will be important in its
likely appeal to the ninth circuit? Is there anything about the
defendants’ case on the district level that you find telling in terms
of appellate strategy?

One of the defendants' strategies is to
divert attention from the real issues in the case by casting
themselves, incredibly, as the victims of alleged persecution. Prop. 8
targeted gay people in order to strip them of a fundamental right. And
yet the defendants have fixated on alleged incidents of harassment of
Prop. 8 supporters during the campaign. In fact, they have even gone so
far as to suggest that Prop. 8 passed in part because voters reacted
negatively to alleged "violence" by Prop. 8 opponents. Given the damage
inflicted on LGBT people by antigay stereotypes and bigotry, it is
shameful that the defendants would engage in such obvious appeals to
that very bigotry, but of course, such a strategy is on par with
everything they have done throughout and since the campaign. While we
are optimistic that the ninth circuit will reject such claims for the
bogus antigay baiting they are, the public may in fact adopt this
narrative as accurate, which would be dangerous and distressing.

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