A political scientist testified Tuesday in a trial challenging California’s ban on same-sex marriage that gays and lesbians face significant discrimination in the workplace.
Claremont McKenna College Professor Kenneth Miller said under cross-examination that he did not know how frequently gay Americans are fired or harassed at work but assumed it happens often.
Miller was called as a defense witness in the trial, the first in a federal court to examine whether decisions by states denying gays the right to wed violate their constitutional rights.
On Monday, Miller testified that the gay rights movement enjoys substantial political power in California that helps shield them from bias.
Lawyers for two same-sex couples suing to overturn the voter-approved ban known as Proposition 8 are trying to prove that deep-seated prejudice motivated the measure.
Plaintiffs’ attorney David Boies asked Miller, “You do agree there are some gays and lesbians who are fired from their jobs, refused jobs and paid less because of their sexual orientation?”
“I have no reason to disagree with that. I expect that’s the case,” Miller replied.
Boies also introduced some of Miller’s writings that criticized California’s initiative process, saying it had historically been used to target unpopular minorities. The lawyer asserted churches opposed to same-sex marriage and voters’ religious views played a big role in the passage of Proposition 8.
“You are saying the general principle that a religious majority should not be able to use law to impose their views on others is a generally accepted principle in political science?” Boies asked, citing Miller’s work.
Miller replied, “There might be exceptions, but that is a generally accepted principle.”
His voice occasionally rising, Boies also prodded Miller to explain why voters in a state known for being gay-friendly overwhelming supported Barack Obama yet denied gays the right to wed.
“I’m not aware of any,” Miller answered.
But Miller resisted Boies’ persistent attempts to get him to put Proposition 8 in the same category as the federal Defense of Marriage Act and the “don’t ask, don’t tell” policy on gays in the military. Boies asked Miller if he agreed with another political scientist with whom he had co-authored a book chapter that Proposition 8 is inherently discriminatory.
“It’s differential treatment. Whether it’s legally discriminatory, I don’t know,” Miller said.
The question of whether the gay rights movement constitutes a potent political force is central to efforts by lawyers seeking to challenge the state’s same-sex marriage ban on grounds that it unlawfully targeted a disadvantaged group.
Miller said one indication of the gay rights movement’s clout in California was that neither Republican Gov. Arnold Schwarzenegger nor any other statewide office holders endorsed Proposition 8. But perhaps the best measure of the movement’s strength was the $43 million amassed to defeat the gay marriage ban in 2008, he said. That was $3.4 million more than initiative backers raised.
“Gay and lesbian interests are well-represented, can get anything they like passed through the Legislature, raise millions and millions of dollars,” Miller said. “You just can’t with a straight face say gays and lesbians are a politically weak minority in California.”
Earlier Monday, a team of lawyers led by Boies and former U.S. Solicitor General Theodore Olson rested the plaintiffs’ case after spending more than nine days presenting evidence on the meaning of marriage, the nature of sexual orientation, and the role of religion in shaping attitudes about both.
The last volley in their attempt to prove that Proposition 8 was a product of anti-gay bias and served no legitimate public interest was videotape of a simulcast produced for California churches in which supporters of the ban said gay marriage would lead to polygamy and bestiality.
Lawyers for the coalition of religious and conservative groups that sponsored Proposition 8 are expected to call their second expert witness on Tuesday. He is David Blankenhorn, founder and president of the Institute for American Values, a private group that advocates on behalf of responsible fatherhood and traditional marriage.
