Defendant-Intervenors’ Counsel Thompson continues his cross-examination of Plaintiffs’ Expert Witness Professor Gary Segura.

Thompson moves admission of HRC annual report, DIX 1331
OBJECTION as to statement of fact. (Objections are very hard to hear as attorneys don’t approach the mike)

WALKER: These documents provide a basis for the witnesses testimony, and the document is what it is. Whether I take judicial notice or admit it, it is what it is.

T: Play clip of Obama’s speech

Walker: Oh this is the 20th of January, isn’t it?


Obama talking his fierce advocacy fight in front of the Human Rights Campaign dinner last year. "I’m here with youin this fight. You will see a time when your relationships are recognized."

[Teddy wonders if this is the kind of time he should look for on his watch or his calendar]

Obama:: "Nobody should be fired from their job because they are gay if they are doing the job they were hired to do."

Obama: "If my nominees are attacked for who they are, I will not waver in my support."

Obama: Bunch of ‘working with the Pentagon and the HIll on DADT. I WILL END DADT!"

[Crowd at HRC dinner goes wild]

Thompson: Using your definition of political ally, does Obama count?

SEgura: Given my concerns about unreliabibility o f allies, he is THE BEST EXAMPLE of an ally who cannot be relied on. Surely we can agree that there is a big difference between giving a nice speech and fighting for real rights.

Thompson: So you think he is not an ally?

Segura: He opposes marriage equality; he continues to dismiss people from the military he heads; when prop 8 sister resolution emerged in the state of MAINE, OFA sent emails asking for calls into New Jersey and Virginia but nothing for Maine, or Washington. With the possible exception of HRC, most gay rights orgs think Obama is a particularly disappointing ally.

T: Signing ceremony in the rose garden for hate crimes?

S: FOr the defense authorization bill.

S: Prez Obama is a very good speechmaker.

T Has he introduced legislation favoring LGBT?

S: Strictlyspeaking the pres doesn’t do that but if he did that would be a sign.

T: Pledged to sign ENDA

S: Yes I heard the video

T: And it has passed the House

S: Yes

T DiFi a soft ally

S Yes

And you would define a reliable ally, you would say they would seet aside alternatives and sail into stiff winds

S: Yes, as opinion polls have waned in support of Obama, the Speaker has indicated that the House would not take up social legislation until the Senate does. Also setting aside ENDA or DADT or DOMA — there are other priorities, would endangerour coalition behind other bill x or other bill y.

T: Using your definition of ‘reliable ally’ would the ACLU eeven be one?

S: well they seem to always sail into stiff winds more than most groups

T: Well in your depo, Tab 88 your depo: we were defning reliability, you mentioned be some allies who are willing to pay costs. T: Some S: Few T: Maybe the ACLU S:Maybe, I’m struggling. You said that?

S: Yes, which is consistent with what I said earlier, they might be.

T: Now you have not entough info re Pelosi?

S: Don’t really know. Seems to suggesst she’s putting things off.

T But that could be a sound strategy for the LGBT community, right?

S: Well, it could be if you lvie tofight another day. So the legislative priority was sacrificed for no gain.

T: Let’s talk about the media. It can be a powerful ally.

S: MOre specific

T: Television?

S News?
T yes tv news

S Yes TV news could be an ally

T: Book Zoller’s thesis is that media responds to lead cues rather than bubbling up from ground. And what the media covers raises the salience of an issue?

S: More frequency and greater intenisty, then the public sees something as more importtant, generally.

T: Next tab, article Minority Group Interests: Gay Political Officials and the Political Process

(confusion over tabs)

T This article you considered about your opinions, tyes?

S One of sevral yes

T: Article states: Gay Pol rep significantly influecnces domestic partnership registration; but the lead cues model works better here. Agree?

S: I would agree here.

OBJECTION: to 1102
Overruled, 1102

T: More gays and mesbians on teevee coverage nowadays yes?

S: Agree

T Salience and visibility of G&L community has increased.

S: yes

T: DIX1327, HRC annual report page 19

S: YEs

T: In 2005 our message of fairness has reached 90% of Americans, with a message of fairness once a day in the paper.

S: I would dispute.

T: You would

S: Newspaper readership is significantly less than 90%, so impossible

T: You see a porblem

S: Political advocates advertizing their importance, that they got mentions in the paper, but no evidence that people are actually reached.

T: Chronicle or NYT hostile to gays in the last years?

S: Don’t read every day

T: Do you recall editorials calling for the repeal of DADT?

S: Yes I do

T HRC report from the year 2000, third graf: Reporters and editorial boards see our positions as common sense not as special interests. Agree?

S: Blanket statemetn with which academics are deeply uncomfortable. But, that said, I think most editorial board, allowing for regional differences, would favor some g&L rights, and that there would be a variation by issue: marriage, DADT, DOMA, enDA. SO, again, advocacy by advocates about their advocacy.

T: Tab 26, editorial LATimes 9/2008: preserving CA constitution. About prop 8, It is our fervent hope that CA will reject this mean-spirited attempt to enshrine second class citizenship into their constitution. Aren’t theyu favor gay marriage here?

S: Well, it is what it is.

T: LATimes, blog: Same sentence as in 2000 "one-man, one-woman" but now it’s to rescind a right already recognize, we fervently hope… Emphatic support of the No on 8 campaign?

S: Yes, and a fondness for the word ‘fervently’ in editorials.

T Another power measure is the size and coherence?

S: yes

T 2-4% of American pop is G&L

S: My belief is 4-7% based on maarketing. I’ve seen numbers as low as 2% and as high as 10%. 4-7 is probably more accurate.

T: That excludes bisexuality?

S: Yes

Bisexuals two percent?

S: Or even less, but there’s definitional problems: alternating, last year, last five years, a more porous category.

T 23% of G&L voted for Bush, therefore less cohesive than AAs yes?

S: Hard to imagine a group more cohesive than AAs, though.

T A small political group can be politically powerful?

S: Perhaps

T: Jews are small community but powerful?

S: Well yes

T A small group could be more politically powerful in a closer election, yes?

S: Well by defnintion, the size of the group would matter

T: Both Obama and Clinton, they actively sought LGBT support?

S: Yes, but all got special attention. Everyone with a pulse got attention.

T: But weren’t they interested in the L&Gs for their money?

S: Actively courted L&G, labor, latino, AAs, but I don’t like your word special. I don’t think the attention was special.

T: Is L&G a Democratic constituency?

S: Yes

T: Persuasion is ameasure ofpower?

S: well, for Dahl, it is important, in appealing to political norms. Apply these norms to us as you do to others. not only the oratorical skills of the group but also how closely and deeply the larger majority holds the norms and includes the minorityin the group.

T: Persuasion does matter though

S: Does, but it’s a weak.

T: Abolitionists used idea-based intellectual appeal, thuogh?

S: not the highest, AAs used a whole host of strategies: freedom riders, boycotts, sit in strikes, television, marches, Pettis bridge got on tv by coincidence and in peoples lviing rooms. Idea of justice was a role but not the only role.

t: let’s talk about how violence perttains. violence usually backfires, yes?
S: Usually, although the Klan disenfranchizes large numnbers of people using violence when people looked the other way.
T: G&L appeal to internalized norms of fairness, yes?
S: QUalified yes, to have people be symp[athetic rather than hostile is better. But I'm not sure sympathy is a TACTIC.
T: If a group is appealing to fairness, violence means they will lose that appeal, yes or no?
S: Well, sometimes in civil rights movement violence ameliorated the goodwill of the civil rights movement.
T: YOUr deposition, then: page 190: In the democratic process violence is negatively received. If a group is appealing to norms of fairness, the moment they engage in violence they lose, right?

Walker: How close to done?
Thompson: Very fulsome answers, your honor, there's no way I can finish today.
Walker Very well continue

T: Are you aware of G&Ls who were disenfranchizement?
S: With the caveat, some G&Ls lost their right to vote as felons in antigay harassment
T: You can't point to a govt official targetting G&Ls so they can't vote?
S: Not off the top of my head

T: Source of political power. Let's now talk about the INDICIA of power. One is their ability to convince Congres to devote funds to allocate funds to an issue that mattered tothem

S: With caveat that group would have to be rpessuring congress
T: Statutory rights?
T: Elected to office?
S: Yes
T: Voting rights literature doesn't focus on the demographic of candidates.
S: Yes
T Four CA legislators are L&G

T: Now in CA EQCA is the largest?
S: I don't know
T: EQCA raised the most money for No on 8, right?
S: I think so.
T: Reading from their annual report. WE passed a record eleven pieces of legislation to improve the lvies of LGBT people.
S: Yes, with a caveat that some of it was nonbinding resolutions.
T: So this was a good leg sesion for lgbts?
S: That's a different question
I would have to compare to other years, but I take thier report on faith that they think they had a good year.

T: Let's look at EQCAs scorecard. 21/40 get a 100 in the state senate. Does that make them an ally?
S: DEpends on what theyt choose to score. Maybe procedural, maybe contentious, the scorecard is relative to what the agenda of that year.
T: Can you point to any of the 100%ers and indicate one who is not an ally of the LGBT community?
S: No, don't have these memorized, but look at the minority party: they are all zero!

T: (Goes through the same interrogatory wrt the Assembly scorecard)
S: Same kind of answers

T: Is Barbara Boxer a candidate of choice for lgbt?
S: Yes, she's been in general

T: DiFi too ?
S: Given the choices that have been provided, yes

T: Brown, AG now, soon governor, candidate of choice of lgbts?
S: Well, 77% of lgbts iD as democrats so since he has no primary opponent so porbably

T: CAn you identify a Democratic candidate who won despite lgbt opposition?
S: Not sure, didn't live here the whole last decade

T: are labor movements in the democratic coalition?
S: Yes
T: Labor supports lgbt issues?
S: Labor union LEADERS haven't opposed the LGBT community.
T: Can you think of an issue where union opposed a lgbt issue?
S: Well, LEADERS, no, but without access to the vote of the rank and file movement I couldn't say

T: UNITE-HERE donated $100,000 to No on 8, consistent to union's long held positions in favor with lgbt issues. Quotes Cleve Jones!
S: No I am not surprised, since hotel ees repped by this union, disproportionate rep of lgbt in hotels and service industry.

T: Statement from Geoff Kors about union support for LGBT long-standing. Is this accurate?
S: I don't know that it is, but it's what he says?
T: But is it ACCURATE?

[thompson is really a whiny nagging person, does this come across here, because HE IS]

T: Did any unions give to the YES on 8 campiagn?
S: I don’t know
T Would it surprise you that not one union gave to the YES on 8 campaign?
S: It would surprised


[Okay, they are unable to control their bigotry in any way to any group.]

Resuming now….

T: Are silicon valley, hi tech companies and big business powerful?
S: well oil companies are powerful and hi tech, and i’m not sure they are pro-gay
T: have they worked against gay interests, have you a single example of silicon valley companies working against gay interests

T: when you read that the trend in major businesses has moved from opposition to neutrality to support

Thompson suggests break [time for a siesta, counselor?]

Does losing elections or failing to attain legislation denote political powerlessness?

S: No, because in an election someone always loses. but in the intitiative process, it’s the only place we put peoples rights up for a vote. And there have been 150-200 of these in the last decade! That’s a lot of times for a minority to see its rights up for a vote. And in the legislature, votes can be reversed if the majority changes. And can be overcome by initiative/referenda. So I would like to look at teh range of events, not one event.

Thompson says 90 minutes more.

Boies says tomorrow will have two more: Prof Herrick and Mr Tan. Prof Herrick has been ill; if he can make it tomorrow, we’ll start with him. Then Tam. Then a bunch of documents. No more live witnesses. A possibility of calling Ron Prentice to authenticate documents, which we hope to work out with DIs.

Walker: Has the Magistrate resolved issues of discovery? Mr Megill?

Megill: DI has produced what they were told to, and we are reviewing those.

Walker: Will plaintiff introduce those docs in your case in chief?

Boies: Possibly.

Walker: Unduly optimistic that plaintiff will rest before the end of the day tomorrow?

Boies: Possible, but optimistic.

Walker: Defendant should then plan to begin optimistically tomorrow and certainly Friday.

Thompson: WE have Dr MIller ready to go on Friday.

Boutrous: Make a note, your honor, that the magistrate denied DIs Motion to quash earlier today.

Walker: thank you, see you bright and early at 8:30 tomorrow.

(David Dayen will pick up liveblogging tomorrow morning at the FDL News Desk. I will see you about noontime here at The Seminal!)