Protect Marriage’s 1st Witness Admits DOMA is Discriminatory. Is Their Entire Case Doomed?

The testimony of Kenneth Miller, a government professor at Claremont McKenna College and one of the defendant-intervenors in Perry, can only be described in this way: ultimate fail. How good is he for the defense when he admits under oath that he’s basing all of his conclusions on the propaganda fed to him by Yes On 8? You know, rather than his own research? And that a little thing called the Defense of Marriage Act — which acts in very similar ways as Prop 8 — is discriminatory?

Taking the stand yesterday as Protect Marriage’s first witness, Miller was there as an expert in the political power of California’s gay community. Miller showed he wasn’t exactly qualified to testify on this subject, not only because of how he defined political power — the ability to get the attention of local lawmakers, which, uh, white supremacist groups can do — but because he admitted his own shortcomings, like not knowing about gay leaders, the status of discrimination on a state-by-state level, nor whether black Americans enjoy more political power than gay Americans. (Amusingly, defense counsel Andrew Pugno said Miller “provided ‘striking’ examples of the many ways in which they have won support for their political agenda in California.”)

And then, of course, is Miller’s own admission that the data he was going off of was not acquired independently, but provided by the Yes On 8 camp. This is like a credit ratings agency taking an investment bank’s internal reports at face value, or the Food and Drug Administration not testing or verifying the studies of a new drug from a pharmaceutical company. It is, frankly, malpractice. And on the stand, Miller admitted he practiced just that.

And the the American Foundation for Equal Rights, which is financing the plaintiffs, is overjoyed, at least in the group’s regular email blasts send to media, where they point to this statement Miller made on the stand: “Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples,” which was followed by Miller’s acknowledgments that, according to AFER’s email, “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.”

And here’s the real slam dunk (via), where “B” is David Boies and “M” is Miller:

B: Do you believe that laws that discriminate against intimate relationships between gays and lesbians is prejudice?

M: I would vote to repeal such laws. I have no idea what good purpose would they would serve.

B: You defined prejudice in your depo, as an unfair judgment. Using definition that way, does law that prohibits ss relations, rise to definition of prejudice?

M: I can’t speak to what was in the minds of lawmakers. If there was no supporting data as to why such laws were passed, I cannot say.

B: Sitting here today, you cannot say that such laws constitute prejudice?

M: Not something I would support, but cannot say if those constitute prejudice.

B: Laws that prohibited sex between gays and lesbians?

M: Yes and there were sodomy laws that prohibited sodomy between anyone before Lawrence v. Texas.


B: Any examples of discrimination against gays and lesbians in modern period?

M: Military.

B: Any others?

M: Private situations about which I cannot opine, but only official discrimination of which I can think is DADT.

B: Is that your definition, official discrimination, that is legally enforced by the state?

M: Yes.

B: Are you aware of any official discrimination against gays and lesbians in this country today other than DADT policy?

M: (Thinking) I’m trying to think of other laws that are official…policies that discriminate on that basis. One thing you are looking at would be DOMA policy.

B: There you go!

M: That’s what you are getting at. The DOMA policy is a differentiation of the treatment between gays and lesbians.


EARLIER: How Will Protect Marriage Try to Defend Prop 8 In Perry? With Spin, Hope, and a Prayer