( Mercury News)
9:17 a.m.: Cross-examination of Yale professor
Day 3 of the Proposition 8 trial is rolling with the resumption of testimony from George Chauncey, a Yale history professor and plaintiffs expert on the history of discrimination. He is under cross-examination from David Thompson, a Proposition 8 lawyer who is trying to undercut the professor's testimony that gays and lesbians have been the target of unrelenting discrimination through history, including in modern times. Thompson has asked about television and movies on gays and gay issues, such as the TV show "Will & Grace" and the 1993 movie "Philadelphia." And he is asking Chauncey about presumed improvements in the political arena, with gains in gay rights through ordinances around the country and in the California legislature.
The trial day will be expert-intensive. The plaintiffs will later put on Edmund Egan, chief economist for San Francisco; Ilan Meyer, a mental health expert from Columbia University; and Letitia Peplau, a UCLA expert on the benefits of marriage.
The U.S. Supreme Court is expected to decide later today on the issue of broadcasting the trial on YouTube.
9:51 a.m.: Yale professor on hot seat during cross-examination
Yale Professor George Chauncey remains in the hot seat under cross-examination from Proposition 8 lawyer David Thompson. Thompson continues to pound on the theme that gays and lesbians no longer face widespread discrimination, and in fact are gaining in political power. Chauncey is not buying entirely in that argument. "The bottom line is that there has been a significant shift in public opinion toward acceptance of gay rights, correct?" Thompson asked.
"There has been a shift in public opinion and growing support for gay people, and gay people continue to encounter enormous hostility," Chauncey replied.
Interestingly, the Proposition 8 legal team is leaving much of the cross-examination of the plaintiffs experts to Thompson, a studious-looking lawyer in lead attorney Charles Cooper's law firm, Cooper & Kirk. Thompson, in fact, is managing partner in the firm and has no problem questioning academics from the Ivy League: He's a Harvard law grad himself. Thompson is no stranger to conservative legal fights, either. Among other cases, he aided in defending a legal challenge to California's Proposition 209, which banned public affirmative action programs.
10:06 a.m.: Former Miss California Carrie Prejean mentioned
The judge has taken his morning break, but not before the inevitable happened: mention of defrocked beauty queen Carrie Prejean, who drew controversy last year for opposing same-sex marriage. Proposition 8 lawyers played a clip of San Francisco Mayor Gavin Newsom saying Prejean was being unfairly maligned for speaking her mind, planning to question Yale Professor George Chauncey about it. Chief U.S. District Judge Vaughn Walker, however, agreed with plaintiff lawyers that the line of questioning was irrelevant and spiked the idea of asking Chauncey about the Newsom comment.
Chauncey is close to winding up his stay on the stand.
11:27 a.m.: Yale professor winding down testimony
As Yale Professor George Chauncey winds down his testimony, plaintiff lawyers have decided to roll out some fresh artillery to try to undercut the Proposition 8 legal team's effort to argue that gays and lesbians face a diminishing threat of discrimination. Proposition 8 attorney David Thompson used that approach in cross-examining Chauncey, who now is back under questioning from plaintiffs attorney Therese Stewart.
To set up some questions for Chauncey, Stewart is playing video of a Dec. 1 deposition of William Tam, one of the leading Proposition 8 sponsors and one of the intervenors in defending the law in the federal court case. Tam just last week asked to be let out of the case as a defendant because of concerns he faces threats and harassment from same-sex marriage advocates, and Walker has yet to rule on that attempt.
Tam, in the deposition, describes his role in mobilizing rallies during the Proposition 8 campaign, often through churches, and spurring support for the measure in the Asian-American community.
11:35 a.m.: Letter from Prop. 8 backer likens same-sex marriage to legalizing sex with children
Therese Stewart, San Francisco's chief deputy city attorney, shows Yale Professor George Chauncey a letter authored by leading Proposition 8 backer William Tam during the campaign. Tam likens allowing same-sex marriage to efforts to legalize prostitution and legalizing sex with children. Stewart asked Chauncey if the letter "reflects a lower hostility level" toward gays and lesbians.
"This is consistent in tone with a much larger history of anti-gay rhetoric," Chauncey replied.
A reminder that the plaintiffs have Chauncey on the stand to establish a history of discrimination against gays. The legal importance is for plaintiffs to try to get gays and lesbians deemed a "protected class" that warrants greater protection under the federal constitution. The U.S. Supreme Court has given that status based on race, religion and gender, but not for sexual orientation.
12:15 p.m.: UCLA professor to testify on positives of same-sex marriage
The Prop 8 trial is on lunch break until 1:40 p.m. Yale professor George Chauncey is done testifying after about a full day on the stand. Next up for the plaintiffs is Dr. Letitia Peplau, a UCLA professor being called to testify on the positive benefits of marriage for same-sex couples, and the impact on them of denying the right.
11:54 a.m.: Video of Prop. 8 supporter William Tam played in court
The plaintiffs continue to play the videotaped deposition of William Tam, one of the leaders of the Proposition 8 campaign, as Yale Professor George Chauncey remains on the stand (almost as an afterthought at this point). In the depo, Tam answers a variety of questions about why he opposed gay marriage, including what he perceived as a threat to children. He testified that children would opt to be gay if they know same-sex marriage is permitted. "Since it's in the air, then they think, why not?" Tam said in his deposition.
The plaintiffs are expected to call Tam as a witness in the trial Friday. A thrust of the lawsuit will be an attempt to persuade Walker that Proposition 8 was driven by animus against gays, and Proposition 8 supporters are certain to be grilled on that topic.
1:48 p.m.: Next witness is UCLA prof
The Prop 8 trial has resumed for the afternoon session. Letitia Peplau, a UCLA professor, is taking the stand for the plaintiffs as a social-psychology expert who is expected to testify to the benefits of marriage for same-sex couples.
Meanwhile, everyone is waiting for the U.S. Supreme Court to decide the issue of allowing the broadcast of the trial on the Web. The Supreme Court had stayed Judge Vaughn Walker's order allowing cameras until 1 p.m. today, but that time came and went. The nation's high court apparently moves on its own time.
2:25 P.M.: Supreme Court indefinitely blocks YouTube broadcasts
With a 5-4 ruling, the U.S. Supreme Court has decided to keep the Prop 8 trial dark on the Web, rejecting Judge Vaughn Walker's attempt to broadcast the proceedings on the federal court's Web site by using YouTube., as well as allowing it to be circulating for viewing at various federal courthouses around the West. The majority opinion said that Walker and officials with the 9th Circuit Judicial Conference, including Chief 9th Circuit Judge Alex Kozinski, did not follow proper procedures in changing federal court rules that would allow the broadast. The majority stressed that it was not "expressing any view on whether such trials should be broadcast." Justice Stephen Breyer, writing for the four dissenters, decried the decision, saying there was no reason to interfere with the broadcast and that there would not be any harm in allowing the webcast.
Meanwhile, UCLA prof Letitia Peplau, a plaintiffs expert, is testifying on research she says shows that same-sex couples enjoy the same benefits from marriage as heterosexual couples. She also said he will offer an opinion that allowing gay marriage will have no impact on heterosexual marriage.
2:44 p.m.: UCLA prof says 2 percent of marriages would be same-sex
UCLA prof Letitia Peplau has completed her testimony under questioning from plaintiffs lawyers. By trial standards, her testimony moved pretty quickly as she told the judge her opinion that allowing same-sex marriage would not damage the institution, as Prop 8 supporters suggest. She noted that even if gay marriage is allowed, only about 2 percent of all marriages in the nation would be same-sex. "I think it would have no impact on the stability of heterosexual couples," Peplau testified.
Prop 8 attorney Nicole Moss is now cross-examining Peplau. It appears she will question whether there is sufficient evidence to back up Peplau's conclusions about same-sex couples and the importance of marriage to their relationships.
3:36 p.m.: Bizarre exchange of the day
As the Prop 8 trial gets close to the end of the day, bizarre-question exchange of the day just took place. Prop 8 lawyer Nicole Moss was trying to ask plaintiffs expert Letitia Peplau, a UCLA prof, whether gay couples could "accidentally" have children out of wedlock. "If your question is whether two lesbians can, accidentally, spontaneously, impregnate each other, not to my knowledge," she said, prompting laughter in the courtroom. "I would agree that same-sex couples do not have accidental pregnancies."
3:29 p.m.: A closer look at the Supreme Court ruling on broadcasting the trial
A closer look at the U.S. Supreme Court's ruling indefinitely barring any broadcast of the Prop 8 trial shows the difference between the majority and dissenters boiled down to two things. The majority (Justices Roberts, Alito, Thomas, Kennedy and Scalia) concluded that Chief Judge Vaughn Walker did not follow federal law in changing rules to allow cameras in his courtroom for the trial, in large part because they believe he didn't allow enough time for public comment on changes to local federal court rules. And the justices also determined that Prop 8 supporters demonstrated there could be harm to their fair trial rights because certain witnesses could be intimidated by broadcast exposure, reason to keep the stay in place.
The dissenters (Breyer, Ginsburg, Sotomayor and Stevens) couldn't have disagreed more. They said Walker easily followed the rules, and rejected the idea Prop 8's defense would suffer any harm. They called the decision an unprecedented attempt to "micromanage" a district court's administration.
Same-sex marriage advocates can only hope the justices don't break down along the same party lines if the main issue reaches the high court.
Meanwhile, Letitia Peplau, the plaintiffs expert, is sparring with Prop 8 lawyer Nicole Moss under cross-examination, feuding over data about gay marriage in Belgium.
4:20 p.m.: Day 3 testimony ends
The third day of the Prop 8 trial is in the books. Chief U.S. District Judge Vaughn Walker quickly commented on the Supreme Court's order banning broadcast of the trial, suggesting there are issues yet to be resolved as far as posting video of the trial on the federal court Web site. It seemed to be a reference to the fact that Walker's larger plan to webcast via YouTube was never approved by the 9th Circuit's chief judge before an appeal went to the Supreme Court on part of his order, which would have allowed simulcast of the trial to five other federal courthouses. But Walker made it clear he doesn't want the issue to sidetrack the trial.
Meanwhile, UCLA prof Letitia Peplau finished her testimony. Tomorrow's plaintiffs witnesses include Edmund Egan, San Francisco's chief economist, and Helen Zia, a lesbian woman who married before Prop 8 went into effect.
(Read Howard Mintz's recap of the day's proceedings in the Proposition 8 trial later today online on this Web site and in tomorrow's Mercury News, Contra Costa Times, Oakland Tribune, and other Bay Area News Group papers. Return to this Web site for live coverage of the Proposition 8 trial tomorrow and each and every day court is in session).
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