American Foundation for Equal Rights

“Expert” Admits Relying on Research from Prop. 8 Attorneys


Trial on Unconstitutionality of Prop. 8 Begins Day Eleven in U.S. District Court on Jan. 25 with Continuation of Tough Boies Cross

For transcripts and latest information, visit

The federal trial over the unconstitutionality of Proposition 8 will continue Tuesday, January 25 at 8:30 am. David Boies will continue his withering cross-examination of defendant-intervenors’ witness Kenneth Miller.

On Monday, Miller admitted that he based his testimony in part on materials provided to him by the attorneys defending Prop. 8, instead of relying on his own “expert”¬† research. Beyond that, he testified that he could not remember whether attorneys provided at least 65 percent of the materials¬† he based his research on, totalling well over 200 documents, articles, etc.

The American Foundation for Equal Rights launched the Perry v. Schwarzenegger case and brought together Theodore Olson and Boies to lead the litigation.

Miller was called by the defendant-intervenors to argue that gay men and lesbians do indeed possess political power, making it appropriate for their civil rights to be eliminated at the ballot box.

Miller made several admissions while on the stand that were damaging to the defendants and strengthening to the plaintiffs’ case. He also repeatedly revealed his lack of knowledge of key information and research related to his area of purported expertise and this case.

“Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples,” Miller testified under cross-examination.¬† He also admitted that lesbians face greater bias than straight women, and directly stated a federal law that defines marriage as an opposite-sex union as well as Prop.8 as discriminatory.

On Friday, the plaintiffs called Gary M. Segura, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, who endured hours of cross without wavering. Dr. Segura testified about the relative political power of gays and lesbians as a class of citizens, and their level of political vulnerability.

Below are excerpts from his testimony:

“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.”

“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.”

“They have essentially lost a hundred percent of the contests over same-sex marriage.”

“The initiative process has been really the Waterloo of gay and lesbian politics.”

“Initiatives have been used to roll back legislative gains by gays and lesbians over and over.”

“There is no group in America….who’ve been targeted by ballot initiatives more than gays and lesbians.”

Segura noted that the gay and lesbian community has lost 33 of the 34 ballot measures across the country dealing with marriage.

(Note: the one “victory” was in Arizona, where the way it was drafted impacted health insurance. They changed the language the next year and it passed.)

Olson and Boies opened the day with the presentation of videos and documents from the Prop. 8 campaign. Below are quotes from a broadcast paid for by the Prop. 8 campaign/ that were shown in court today.

“Then pedophiles would have to be allowed to marry 6-7-8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He’d have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed.”

“Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they’re probably going to win.”

“We are seeing the people of Massachusetts being desensitized day by day concerning homosexuality and becoming more and more adjusted to the idea of homosexual marriage being the law of the land and the homosexual agenda becoming more and more of a powerful element in the life of our society.”

“I think a helpful way to think about this is to compare it to 9/11 [because] a lot of us are asking-How does this directly affect us? Well I wasn’t directly affected by 9/11 and my guess is most of you weren’t either in the sense I didn’t know somebody who crashed the plane in the building. I didn’t know somebody who was in the building. But after 9/11 the world was a fundamentally different place and that has affected me. The change in the redefinition of marriage is the same type of thing.”

After Miller, the defendants are expected to call David Blankenhorn to the stand.