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Monday January 25 Federal Prop 8 Recap


On the first day of what is scheduled to be a truncated defense, Prop. 8 proponents sought to portray gays and lesbians as a powerful minority that has colluded with politicians and professional organizations to further its legislative and social agenda.

Kenneth Miller, a professor of political science at Claremont McKenna College in Claremont, Calif., testified that the LGBT community has been increasingly persuasive in American politics, pushing for antidiscrimination laws, adoption rights, federal hate-crimes legislation, and domestic-partnership laws in states like California. Miller defined "political powerlessness" as having "no ability to attract attention of the lawmakers."

When asked by defense attorney David H. Thompson whether the term is applicable to gays, Miller responded, "In my view that's an incorrect assessment. I do believe that gays and lesbians have power."

Miller's testimony was in stark contrast to that of the plaintiffs' expert witness who testified on the subject last week. Gary Segura, a political science professor at Stanford University, concluded from his research that gays lack substantive political power and explained such laws as "attempts to redress discrimination, to ameliorate a disadvantage. ... While it's good to have [these laws], it's difficult to conclude that's a measure of political power in itself."

While defense attorneys had questioned many of the personal pro-marriage equality sentiments of the plaintiffs' phalanx of expert witnesses, plaintiffs' attorney David Boies instead went straight to questioning Miller's expertise itself, accusing him of doing last-minute research on discrimination laws and other gay-related legislation since his original deposition.

Miller admitted he now knew many elements of hate-crimes and antidiscrimination laws that he didn't know weeks before. And though he purported to be an expert on discrimination against gays and lesbians, Miller admitted he was either unfamiliar with or hadn't read the work of many leading experts in the field -- some who had testified earlier in the trial.

In his testimony Miller pointed in particular to federal gains -- namely hate crimes legislation and pro-gay statements by Obama on the proposed repeal of "don't ask, don't tell" and his support for the Employment Non-Discrimination Act -- as evidence of political power. (The Matthew Shepard Act, signed as part of a defense spending bill last fall, took almost nine years to pass into law; both DADT and ENDA have seen little legislative movement in recent months.)

Boies snapped at many of Miller's assertions: "Is there any other minority in this country that is discharged from the military even when they're doing a perfectly good job?"

"I'd have to say I'm not aware of any," Miller replied.

In attempting to prove that gays have been historically subjected to prejudice and discrimination -- and therefore make up a minority vulnerable to the whim of the majority -- Boies pressed Miller on his views on whether gays faced more discrimination today than women and racial minorities. "Is it really your testimony that you can't tell whether [women] face more or less prejudice or stereotyping than gays and lesbians?" Boies asked during one heated exchange.

"I think I'd have to look at it more closely," Miller said.

"OK, let me leave gays out of the equation and just talk about lesbians then," Boies said. "Do lesbians face as much prejudice as women plus more?"

"I would say yes," Miller replied.

In yet another instance where a defense witness corroborated plaintiffs' arguments, Boies also grilled Miller on his past academic writings -- namely regarding the danger of the initiative process in undermining informed deliberation and consensus-building consistent with a representative democracy. Miller criticized initiatives in his previous writing as "unfiltered, direct democratic rule."

Defense testimony continues Tuesday. Frank Schubert, the media strategist behind Yes on 8, is expected to testify.

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