Category Archives: proposition 8

Judicial activism

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A 1958 Gallup poll showed that 94 percent of Americans—96 percent of white Americans—disapproved of interracial marriage. In 1967, the year Loving v. Virginia was decided, that number was 72 percent. It wasn’t until 1991 that the majority of Americans told Gallup that mixed-race marriages are acceptable.

The first anti-miscegenation law to be struck down in the US was in California’s Perez v. Sharp in 1948. Other states followed suit throughout the 1950s, with the last of them struck down with the Supreme Court case Loving v. Virginia in 1967.

If left up to national public opinion, then, my own parents’ marriage would not have been legal or valid until I was 11 years old. (Leaving aside for now the question of whether the legitimacy imposed by the courts helped to sway public opinion, which I happen to think is very likely.)

Thank you California, and thank you SCOTUS, for overriding “the will of the people” when it unjustly trampled the rights, dreams and desires of families.

Law and Order

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I think it’s safe to say that the first Expert Witness for the defense¹, Professor Kenneth Miller², is not doing any favors for his cause. Under cross-examination by Plaintiff’s lawyer David Boies, he’s been fumbling all over himself. He’s admitted that he didn’t research the marginalization of gays and lesbians, he’s said that the majority of the articles he’s been brought in to comment on were provided by his counsel, he’s stated that DOMA and DADT are discriminatory, and he’s being confronted with his own writings which discuss the fact that ballot initiatives can be used to further inequality and discrimination.

Here’s a quick example from today’s liveblogging (the grammar’s a little rough, but you can get the gist):

Boies (Plaintiff’s lawyer): Reads from another article. “Popular view that courts should be lenient in judicial review for initiatives is 180 degrees off. … “When courts review initiatives, need to be more vigilant, not less.” “Courts are the only institutional filter, the check of first and last resort” in imitative process. Courts project against “majoritarian” rule. Did you believe this when you wrote it?

Prof. Kenneth Miller: It’s compound statement. Which part?

B: All of it. You wrote it!

M: I did not agree with all of it.

B: You don’t say here that you are exploring the issue. You don’t say maybe this is right and maybe you don’t know?

M: Maybe I should have written it differently. Maybe courts should look at initiatives in the same way as laws passed by legislature.

Also see How a Bad Expert Witness Can Ruin A Case. Quote:

But it really goes further than [the fact that Prof. Miller is a net loss for the defendants]. When an attorney puts on an “expert” who has so little background in the subject area, it tells the Court that this is a) the best they could find and b) probably the level of all of their witnesses. A bad expert can taint the whole case, the reputation of the attorneys, and the odds of winning. Combining the fact that they could only find two expert witnesses, the fact that this one did so poorly, and the fact that cross-examination did little to touch the plaintiff’s experts, the defense has a bit of work ahead of them.

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¹(so, the groups trying to uphold the constitutionality of Proposition 8′s ban on same-sex marriage in California)
²Not the biologist. This is Kenneth P. Miller, a professor of government at Claremont McKenna College.

(Image via Charles, a commenter at the trial tracker)