We continue after lunch (1:10pm pacific) with the direct examination of Defendant-Intervenors’ Expert Witness Dr Kenneth Miller by D-I Counsel David Thompson.

Will advise when we resume.

THompson: California Council of Churches supports LGBT rights?

Miller: yes, all these listed churches do.

Walker: Go back to that for a minute, do all those listed churches perform same sex marriages?

Miller: No, I don’t know if they do, wait I’m sure not all of them do, sometimes the local churches are different form that naitonal church.

Thompson: wrt Religiosity, is CA religious?

M: CA is one of the least ten religious states, when it comes to church-going and adherence to a faith.

T: wrt professional associations?

M: Many of these are favorable to LGBT rights.

T: What about university professors? How can they be allies?

M: They testify, they write op-ed pieces, they move in and out of government service.

T: Legal organizaitons? How can they be political allies?

M: Lawyers in general are very active in the politcal process. They run for office, serve in appointed positions, serve as gatekeepers as judges all of whom have been lawyers at one time. They shape public policy.

T: Another determinant: persuasion, how does this play as a determinant of power.

M: By this I mean the power of ideas. It is an important factor that can be brought to bear in G&L political power. IF you have an idea and get others to act on it. The initiative process, that’s whast you’ve got –the ability to persuade.

T: Example of persuasive force of a group’s ideas led to a favorable outcome for the group?

M: Civil rights movement for African Americans. Seen as having very lttle politicalpower. One of the primary instruments was the power of ideas. [no mention of cities burning in the 1960s which was also very persuasive, per Perlstein] This convinced lawmakers of the rightness of their claim.

T: Indicia of power? What success have L&G had in electing candidates of their choice?

M: Increasing success of LGBT movement of being able to endorse candidtes that win elections. EQCA: regularly assesses the leevel of progress they have had electing candidates of their choice. 95% of EQCA-endorsed canddiates were elected to the leg and state office: Lt Gov, SecState, COntroller, Treasurer, AG.

T: How much of a price did legislators who voted for same sex measure pay at the ballot box?

M: All 23 incumbents who ran in the legislature races were re-elected.

T: CA Legislative victories, are G&Ls successful?

M: I reviewed a range of legislation over time to protect the right of G&L. Prohibit sexual orioentation disc in employment, houseing, adoption, foster care, insurance, state funded programs, contracting, these are just soe of the highlights of G&L victories. Also, hate crimes, recognition of DPs, series of different victories leading to broad DP we have now in CA.

T: What is the history of same sex couples’ recognition in CA?

M: After Prop 22 declared by statute that only a marriage between man and woman was valid in CA, the legislature adopted laws that would make marriage gender-neutral. Schwarzenegger vetoed both times, since the leg can’t amend or overturn laws adopted by plebesscite.

T: When was DP first achieved?

M: 1999 was first in a series of DP bills.

T: When were the first local laws?

M: City of Berkeley in 1984 was first; West Hollywood next year. Next fifteen years, 18 other muicipalities adopted them.

T: What is AB849?

M: One of the bills to allow same sex marriage in CA?

T: How much support for that bill from various groups?

M: In bill analysis prepared by the legislature, AB849 (Mark Leno) 2224 organizations, labor unions and civil rights.

T: Ultimate fate of that bill?

M: As I said, vetoed.

T: Dr Segura told us that G&L are victimized by the initiative process. What say you?

M: Prop 22 and Prop 8; two times in CA clearly defined issues G&Ls took a posiiton on tat affected them in a direct democracy context. But CA voters have not used referenda to repeal or limit OTHER legislative grants and recognition of LGBT rights. Cannot be said that those laws were stripped away by the voters.

T: What about in the past, how affected LGBTs?
M: Prop 6, 1986 (Briggs initiative) would have allowed public schools to fire employees found to be advocating, encouraging etc in homosexual acts.

T: What was the vote on that measure?
M: 58% no on Prop 6

T: 1980s, did any ballot measure affect G&Ls?
M: Three of them: Prop 64, 1986, Prop 69, 1988: both put on the ballot by LaRouche, called for quarantine and isolation of HIV/AIDS patients. 71% no and 68% no.

T: More recently, DPs?
M: Another one in the 1980s, Prop 102 would have required doctors and blood banks to report persons suspected of HIV. This was seen as discriminatory, and was rejected by 68% of voters.

T: More recently, DPs?
M: Conservatives opposed the DP legislation, and conservatives thought the public might repeal. They could have gone to the ballot to repeal, but they never did.

T: Developmnets in other states?
M: 30 states have adopted hate crime legislation.

T: Employment discrimination?
M: THis is an area where you need to look at state and locl. 22 states have adopted protections. Another 9 states have adopted porotections against disc inpublic employment. Also, 75 city and county local governments outside the 22 states have done so.

T: Contractual guarantees of non-discrimination?
M: Many large employers prohibit sexual orientation discrimination. These can be enforced in many state courts.

T: State empployee domestic partnership beenefits?
M: HRc says 20 states have adopted

T: How have openly g&L candidates fared at the ballot box.
M: Well the Victory Fund promotes their canddidacies and keeps track.
In 2008, 80 of 111 were elected. in 2009 49 of 79 were elected.

OBJECTION: He’s not an expert in any of this.
Thompson: Cheerfully stipulate that he did know about 2009, and Prof Segura already testified. Reject the characterization that he didn’t have expertisse about the extensiveness of these laws.

Boies is angry but unfortunately off-mike.

Walker: Can’t you take this up on cross?
Boies: Okay, I guess

Walker: Carry on Mr Thompson.

T: How do you respond to Prof Segura’s characterization of L&Gs as powerless at teh national level.

M: Matthew Shepard hate Crimes Act, has been a priority of the LGBT community for some long time. Much opposition, but passed and signed by President Obama.

T: What other?

M: Increased Congressional support to repeal DADT, DOMA, to pass ENDA. (Cites other increasing co-sponsorship and commitments from leadership to move ahead and the support of President Fierce Advocate)

T: What if anything has President Obama done?
M: First he signed the Matthew Shepard Act, he appointed openly G&L members of his Admin to important positions. He gave a major address to the HRC this past year, he asserted his support and made commitments to support their political objectives, including ending DADT. These are a few, he also proclaimed Gay Pride Month. In his first year in office, he has given great support. Some members think he should have given more. BY any objective standard, though, you must say he’s given great support.

T: Is Speaker Nancy Pelosi an ally?
M: Yes, she has consistently supported LGBT rights, Mathew Shepard was something she really pushed for.

T: Let’s talk about trends.
M: The proponents of same sex marriage were highly disappointed. Senator Mark Leno, though, said, "We picked up 18 points of support. Prop 8 lost 18 points from Prop 22. In just eight years, we’ve turned the dial. Our success is in those 18 points, and they are never getting that back. Without doubt or debate, we will win."

T: General trends?
M: A number of ways to measure support for LGBTs. Pollling data indicates increasing support for LGBT rights.

T: NGLTForce data from 2000 shows what?
M: In their report, analyzing national election studies data showed striking liberalization in: nondiscrimination, military service, and adoption.

T: Political powerlessness defined, please?
M: Drawn from the Supreme Court’s decision Cleburne 1985: ""inability to attract attentio of lawmakers."

T: Are gays and lesbians powerless in CA by this definition?
M: No

T: Can G&L attract attentio of lawmakers nationally?
M: They can as well.

NO FURTHER QUESTIONS.

Boies now!!~

(associates distribute binders)

This will go fast; I will try to keep up and save often)

B: Good afternoon professor, you identified a number of allies of L&G community. Are they all allies of African American rights also?

M: I would have to go back and look, I can’t think of any that are not.

B: (names all the groups of allies)
M: I would say they all support rights of African Americans?

B: And for women? NAtive Americans? Other ethnic minorities?
M: Yes (to all)

B: Despite all those allies, Prop 8 did pass, right?
M: Yes

B: Could the CA legislature and governor approve gay marriage?
M: YEs if they had the constitutional ability to do so.
Governor says he supports same sex marriage, but it’s somewhat hypothetical, I would have to speculate were it not for Prop 22 and prop 8.

B: But as an expert for the defense, do you have an opinion in the absence of prop 8 and prop 22, would there be legal G&L marriage ooday in CA?
M: Easy toanswer fo the legislature; not so much for the governor. But I think he would have signed that if not for the initiatives.

B: Is it fair to say you’ve gotten a lot more info since your deposition?
M: I have done research in the last six weeks.

B: For example, at your depo, you didn’t know about how many states had laws against discrimination against employment, houseing, etc?
M: Well prt of the problem was I didn’t know about states versus local protections.

B: Directs attention to 197 in depo, Tab One of your new binder.
M: I don’t have Tab One, I only have binder Two and Three.

(associate scrambles with Binder One, approaches witness)
B: Page 197, lines 18-23
B: I was asking about protection from disc in employment, housing, public accommodation
M: Phrase that way, I couldn’t say.

Thompson: OBJECT provide context regarding previous questions about legislation … would have liked to take a closer look.

Boies: You had not taken that closer look before your depo had you?
M: No
B: (reading) You don’t know how many states? I don’t know how many"
B: That was your testimony
M: That’s my testimony, Idid put in my report state level protections of this type. I was unsure abuot local non-disc laws.
B: You didn’t say that at your deposition?
M: No I did not.
B: I am focusing on your deposition not your slides or your reports?
M: I investigated this myself.
B: Did you talk to counsel about it?
T: OBJECTION: Counsel can’t ask about conversations with attorney.
B: I asked him whether he did it himself, and he said he did.
Walker: He opened the door.

B: You personally investigated in your report?
M: Yes
B: Every sigle statement in your report you personally investigated?
M" Yes
B: Is that your testimony?
ML: Yes it is

B; For example in your rebuttal report, you cite a number of documents….
M: I don’t have that rebuttal report
B: Why, it is Tab Number Two, sir!

B: At the end you have an index of materials considered?
M: Yes
B: Were these provided by counsel, or did you find yourself?
M: Most I found myself
B: not my question, sir — did you find them all yourself, or were some provided by counsel?
M: I found most myself, but some were provided by counsel.

B: Go down the list, please, and circle the ones that you found yourself?

M: I am having some difficulty whether I found them or counsel provided them.
B: Put a question mark next to those, please

[omg, this is the David Boies people PAY MONEY to see, man]

[Vaughn Walker can't believe he has a FRONT ROW seat for this]

[still working his way through the list, quietly]

[five minutes has passed while Miller reviews and marks the appendix to his rebuttal report]

[Judge Walker is having a little stretch and another glass of water from his carafe]

[Boies stands at the podium like a good puppy waiting for his treat]

[Miller goes back through his appendix again, checking his circles and question marks]

[three more minutes]

[Thompson checks the clock; Boies strolls back to his team's table, an associate of his and one of Thompson's rush out of the room]

[still waiting]

[witness is still marking, and changing the marks on, his appendix pages, of which there appear to be perhaps six]

[six more minutes have passed]

[Judge Walker has passed a post-it note to one of his clerks or runners]

[witness appears to be changing his marks now, perhaps]

[five more minutes]

M: I am done, your honor.
B: May I approach, your honor
B: Clarifying question — you have question marks with a line down a bunch of them.
M: If there’s a question mark, I didn’t find it myself, and drew a line if there was a group.
B: If there’s a line, it means they are all question marks, is that right?
B: Ask the witness to actually mark each listing your honor.

[Thompson and Boies both at the witness stand ]

B: MArked as PX794A, your honor

B: At the time of your depo, did you know how many of the ten most pop states had laws protecting gays and lesbians in employment?
M: I did not know how many had statewide laws.
B: Look at 193 of your deposition. Line 17-21 "Q: Of the ten most populous states, how many have no laws protecting G&L against discrimination. A: I don’t know" Was that your testimony?
M: well, I did say –
Q:Please begin your response with the word Yes or No.

M Yes, I said that, but I did want some clarification.
B: Did you ask for clarification, we can go back to 192, 191, 190, did you ever ask for any clarification?
M: We went back and fotht,

B: Please answer yes or no, did you ask for clarification?
M: No, but I did ask for a wide range of things.

B: (reads statement about not knowing if other states than CA have greater rights) Was that your testimony?
M: yes
B: And this question wasn’t about state or local?
M" I probably should have asked.
B: But you didn’t did you?
M: No
B: Would you have had an answer if this question had included the word ‘statewide’?
M: Probably not./
B: So they answer was that you did not know the answer.
M TO which question
B To EITHER question. You didn’tknow the answer to either question.
M: No I didn’t

B: which of the materials you relied on provided the info about 21 states and 75 localities
M: HRC report
B: where is that among the things you relied on?
M: [looks in his list of sources]
B: Are you referring to 195, 196, 197 — all of those are HRC.
M: No I meant NGLTF.
B: National Gay and Lesbian Task Force.
M: Well it’s in my report.
B: Yes I know that — the question is where did YOU get it to put in your report.
M: paragraph 99 of the report.
B: Of your report?
M: I found it on the HRC website, about laws and elections, and civil unions. There’s some confusion to me, they have some states coded by color as to their protections.
B: What did you do to resolve your confusion?

M: I noted it in my report as clearly as I could. Shall I read 99?
B: No, but do you say in 99 that you had confusion?
M: (reads)
B: You don’t need to read. You said there was confusion. Did you mention that confusion in your report?
M: (reads)
B: Let me try again. You recognize that in some states when there are protections some of those protections are narrower than others?
M: Repeat

B: Direct to your depo please, page 198, line 22: (reads) do you know whether there are many places where the laws against discrimination are narrower than they are for race or gender? define narrower Q: by number of forms, number of actors, number of agencies. A: I haven’t looked closely at other states…." Is that your testimony from your depo?
M: Yes it was.

B: You talked about public officials who are G&L?
M: Yes
B: You remember that you did not know the answer to whether G&Ls are underrepresented?
M: Well it’s a difficult question.
B: I didn’t ask you that. I asked if you knew in your depo
M: No, you don’t know the numberator or the denominator.

B: I don’t want to know whyt the question is hard, I want to know the asnwer. Let me try it another way: in CA, has there every been a G&L elected to statewide office? (names all)
M: No there has not.

B: When you talk about the LGBT community in your testimony, do you use that term in your expert report?
M: Yes
B: How many times?
M: Don’t know
B: In your deposition?
M: LBGT? I don’t recall.

Boies: You referred to DADT, recall?
M: Yes
B: Gays and lesbians are still being discharged under DADT, yes?
M: Yes I think it’s lower numbers, but yes
B: Is there any othe rminority that is being discharged from the armed forces just because they are minorities?
M: Not sure how you use minority?
B: The way you do i your report, sir. Is there any other minority being discgarged just becuase someone discovers their statsu?
M: I am unaware of any.

B: Now, you spoke about DOMA, recall?
M: Yes
B: That has not been repealed?
M: No it has not
B: Do a majority of the LGBT community want DOMA repealed?
M: I would guess that
B: You ar ean expert, sir. Wht is your expert opinoin?
M: My opinion is that the majority would likely want it rep[ealed

B: You studied this since the 1970s?
M: Yes
B: you were asked in your depo about gay-bashing? What does that mean to you?
M: Insults against G&L people, or violence against them.
B: When did you come to learn it could mean physicial violence.
M: I've always known it was violence, but it is more often threats and words.

[!!!]

B: May I have a moment, your honor?
Walker: Very well.

Boies: Look at page 39 in your deposition.
ML [deep sigh]
B: (reads) heard of gay bashing Yes understanding of meaning> again, Idon’t know if this is the dictionary definition, I don’t think it means physical violence against gays, it’s words andhominem attacks, in the way I’ve heard it, it means verbal and not physical attacks:" Did you give thast testimony?
M: Yes I did
B: At your depo, you were asked questions about prejudice against G&L, correct?
M: I guess I did.
B: Page 34, line 18 (reads) academic books and articles familiar with that deal with prejudice and discrimination against minorities? A: None I can think of. Testimony?
M: Yes
B: Research since your depo?
M: No, I interpreted that question literally, meaning it wasn’t in the TITLE of the journal or book.
B: But that was not the qeustion was it?

B: Do you believe a law against same sex sexual conduct by LGBTs would be an expression of prejudice?
M: I would not support such a law
B: But would it be an expression of prejudice?
M: definition of prejudice?

B: Using the definition you provide, would such a law be an expression of prejudice?
M: Well it could express moral disapproval, or any number of other bases. If there’s not another basis, I can’t say it would be prejudice or not.
B: You can’t say here without context, whether a law against same sex sexual contact would be motivated by prejudice.
M: I wouldn’t support it, but I can’t say if prejudice motivated it.

B: You do know there were laws against homosexual activity?
M: there were anti-sodomy law
B: But there were laws against exactly the same acts when performed by same sex couples that weren’t criminalized between opposite sex couples?

B: were there 25 states at the time of Bowers and 13 at the time of Lawrence seem about the right number of these states?
M: I don’t know how many were just for homosexual conduct.
B: Did you know that all of those states criminalized homosexual conduct?
M: Yes, and het
B: Not speaking of het, just homosexual activity.
M: Yes, heterosexual as well.
B: Just answer my question yes or no.
M: Also heter –
B: Your honor, please instruct the witnes to answer my questions.
Walker: Counsel is entitleed to a yes or no answer if that’s what he wants, your counsel can ask you expand,

Thompson: This testimony is going way beyond the witness’s expertise — we didn’t enter him as a witness on the history of discrimination.
Boies: Your honor, this is an objection I can support.

Boies: (Asks about a lot of writers, books, and papers, none of which Miller knows about)
B: Mark Lesius?
M: No
B You know who he is?
M: He is a scholar, but I haven’t read his books
B: Scholar in what?
M: LGBT studies
B: When did you discover his work?
M: After my depo
B: (Goes through several scholars, didn’t know in depo, but looked up since then)

B: Mentioned Andrew Sullivan in your depo?
C: YEs, I assign his books Virtually Normal and Same Sex MArriage.
B: Collection of articles and pieces.
M: Different writers contributed to this book
B: Read any of his other books?
M: Not that I can recall

B: John D’emilio?
M: Yes I am familiar
B: Have you read his books?
M: No
B: But you haven’t read his books
M No I haven’t
B: And article by him?
M: I may have I’m not sure

B: Wouldn’t you measure political power by the extent of discrimination?
M: yes
B: Hvae you looked at that?
M: yes I have
B: have there been instnaces in the time you say you are an expert in, are there examples of discrimination against G&Ls?
M: Restricted ability to serve in the military would be fair to describe as discriminationagainst G&Ls
B: Any others?
M: Legally enforced discrimination — well there can be private discrimination…. You mentioned federal employment ban, that has been repealed, while the military situation is different.

B: You are saying, there is OFFICIAL discrimination?
M: Yes, legally enforced rules that are differnt for G&L and nonG&L?
B: That is officiial disrimination?
M: Yes, I would call it thast
B: Do you call it that?
M" Yes that is my word
B: Are you aware of any other official discrimination against G&Ls in this country today other than the DADT laws?
M: I am trying to think of other laws, official policies — I think what you are looking at, one thing would be the DOMA policy…

B: There you go! would that would be one policy?
M: yes, it would
B: Can you think of other official discrimination?
M: Can’t think of any other.
B: You are speaking of the federl level?
M: Um, yeah.
B: What about the state level?
M: Well the military, I’m not exactly sure how the National Guard works, it might be federal or state. Ther might be an absence of non-discrimination laws, thast allow the state itself discriminates. If we are looking at the institution of marriage, same sex couples are treated differently.
B: And adoption?
M: More discretion, only a couple of states have restrictions, for instance in Arkansas there’s a restriction on unmarried couples from adopting.
B: And that law went in when the ban on same sex marriage, right?
M: yes
B: Who can’t marry and therefor can’t adopt, right?
M: WEll, yes.

B: "Private discrimination" means that not codified in law.
M: Yes
B: Are you aware?
M: Yes, lots of claims in our courts against private employers.

B: Have you investigated that at all?
M: No I have not.
B: Are you aware of the Williams Institute?
M: Yes, at UCLA
B: What do they do?
M: Promotes research on G&L issues, provides funding for research in that area.

B: Look at Tab B PX604, testimony given to the House Education Labor COmmittee, judicial notice.
No Objection
Walker: Very well
BL Who is the person testifying?
M: Not familiar
B: Turn to very last page, please: last graf, "based on this research as well as the research I have just discussed, there is widespread discrimination against public employees at all levels, state, local and federal. The list of documented examples we have compiled far underrepresents the actual discrimination." Disagree?
M: No research of my own in this area, have no basis to disagree.
B: Tab C: Have you ever reviewed this report?
M: No I have not
B: Look at page two, second bold headline; Sexual orientation is not related to an individual’s ability to contribute to society and hold down constructive work."

OBJECTION: Outside scope
Boies: Discrimination is being treated differently, different treatment of like people, and that goes to power.
Walker: Like so much else, it is being used to obtain the reaction of the witness to the statement, the court takes notice of the doc, objection OVERRULED.

M: I would have to look closely to see where there are any examples of sexual orientation discrimination in the workplace.

B: Now, Tab D, first chapter of the Williams Institute book. Judicial notice of 606, 607, 608, 609,610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620 are the 15 chapters of the Williams report.

Walker: Very well.

B: Have you reviewed any portion of this report?
M: (sound very bad here, witness speaking very low, and lots of static on our system in Ceremonial Courtroom)

B: Is the discrimination widespread?
M: Yes it is

B: You compare the political ppower of G&L today with teh political power of African Americans, which minority do you believe had greater political power today?
M: Today?
B: yes, these two minorities today?
M: CA or USA
B: First, nationally?
M: It’s somewhat difficult to make these comparisons. WE haven’t defned power.
B: That’s what you are testifying about, isnt’ it? Power?
M: Yes
B: Nationally, which has more politcial power?
M: Somewhat difficult to say
B: Yes, no or I don’t know.
M: I don’t know
B: Now in CA, African American minority or G&L has more political power?
M: well compared to national
B: I’m not asking you compared to national, I’m asking you compared to each other in CA
M: I don’t know
B: Does that mean you don’t know the answer about CA either?
M: I would do more analysis
B: You would need to do more analysis to answer my question?
M: I would need to do more analysis of the AA community
B: You have not done the analysis you need to do to answer my question?
M: I don’t know the answer, no.

B: just to close this off: I have asked you to compare the power of the African American conmmunity and the G&L community in CA and in the USA? And you cannot?
M: I cannot
B: but if you had done as much research on the AA community and the G&L commnunty, you could answer it?
M: Yes perhaps
B: But in your work, not your testimony and your report, you can’t say which has more power?
M: NO

B: Despite the power of G&L, Prop 8 and Prop 22 lost — I mean they did not succeed in defeating them?
M: I’m not the only one who gets them mixed up!
B: Yes, with all their power, I was confused and thought perhaps they had asctually defeated both of them, but no.

B: Now, despite all these allies you discussed — your honor, may I approach?
Walker: Yes
(gives Miller a brand new binder!)

B: Look at third volume, Tab 90 PX2865.
M: okay
B: Can you identify this?
M: An article I wrote for the journal of american politics research.
B: when?
M: shortly after teh gray david recall, so after 2003.
B: first page under the title, it says 2005?
M: it says 2 March 2005 — oh, i’m looking at the next page
B; You are more precise
M: But written several months before that
B: LOok at page 138, second sentence, first full graf: "Sometimes called lawmaking without goernment, the initiative process radically departs from MAdisonian ideals by substituting represnetation for direct democracy." You wrote that?
M: Yes
B: In 2003?
M: Well I probably wrote it in 2004, before it was published.

B: You menitoned publication in law reviews?
M: Yes
B: Turn to tab 35, PX2865, Volume 2, Miller book

Walker: When would be good time to take a break?
Boies: THIS WOULD, your honor.

Walker: We’llcome back at ten minutes before the hour.

I WILL START A NEW LIVEBLOG WHEN WE PICK UP