Perry v. Schwarzenegger/7:Credibility Determinations--Proponents' Witnesses

PROPONENTS' WITNESSES

Proponents elected not to call the majority of their designated witnesses to testify at trial and called not a single official proponent of Proposition 8 to explain the discrepancies between the arguments in favor of Proposition 8 presented to voters and the arguments presented in court. Proponents informed the court on the first day of trial, January 11, 2010, that they were withdrawing Loren Marks, Paul Nathanson, Daniel N Robinson and Katherine Young as witnesses. Doc #398 at 3. Proponents' counsel stated in court on Friday, January 15, 2010, that their witnesses [p. 36] The timeline shows, however, that proponents failed to make any effort to call their witnesses after the potential for public broadcast in the case had been eliminated. The Supreme Court issued a temporary stay of transmission on January 11, 2010 and a permanent stay on January 13, 2010. See Hollingsworth v Perry, 130 SCt 1132 (Jan 11, 2010); Hollingsworth v Perry, 130 SCt 705 (Jan 13, 2010). The court withdrew the case from the Ninth Circuit's pilot program on broadcasting on January 15, 2010. Doc #463. Proponents affirmed the withdrawal of their witnesses that same day. Tr 1094:21-23. Proponents did not call their first witness until January 25, 2010. The record does not reveal the reason behind proponents' failure to call their expert witnesses.

Plaintiffs entered into evidence the deposition testimony of two of proponents' withdrawn witnesses, as their testimony supported plaintiffs' claims. Katherine Young was to testify on comparative religion and the universal definition of marriage. Doc #292 at 4 (proponents' December 7 witness list) Doc #286-4 at 2 (expert report). Paul Nathanson was to testify on religious attitudes towards Proposition 8. Doc #292 at 4 (proponents' December 7 witness list); Doc #280-4 at 2 (expert report).

Young has been a professor of religious studies at McGill University since 1978. PX2335 Young CV. She received her PhD in history of religions and comparative religions from McGill in 1978. Id. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess [p. 37] the same desire for love and commitment as opposite-sex couples. PX2545 (dep tr); PX2544 (video of same). Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples. Id.

Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill's Faculty for Religious Studies. PX2334 Nathanson CV. Nathanson is also a frequent lecturer on consequences of marriage for same-sex couples and on gender and parenting. Id. Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples. PX2547 (dep tr); PX2546 (video of same).

Proponents made no effort to call Young or Nathanson to explain the deposition testimony that plaintiffs had entered into the record or to call any of the withdrawn witnesses after potential for contemporaneous broadcast of the trial proceedings had been eliminated. Proponents called two witnesses:

  1. David Blankenhorn, founder and president of the Institute for American Values, testified on marriage, fatherhood and family structure. Plaintiffs objected to Blankenhorn's qualification as an expert. For the reasons explained hereafter, Blankenhorn lacks the qualifications to offer opinion testimony and, in any event, failed to provide cogent testimony in support of proponents' factual assertions. [p. 38]
  2. Kenneth P Miller, a professor of government at Claremont McKenna College, testified as an expert in American and California politics. Plaintiffs objected that Miller lacked sufficient expertise to gays and lesbians. Miller's testimony sought to rebut only a limited aspect of plaintiffs' equal protection claim relating to political power.

David Blankenhorn

Proponents called David Blankenhorn as an expert on marriage, fatherhood and family structure. Blankenhorn received a BA in social studies from Harvard College and an MA in comparative social history from the University of Warwick in England. Tr 2717:24-2718:3; DIX2693 (Blankenhorn CV). After Blankenhorn completed his education, he served as a community organizer in low-income communities, where he developed an interest in community and family institutions after "seeing the weakened state" of those institutions firsthand, "especially how children were living without their fathers." Tr 2719:3-18. This experience led Blankenhorn in 1987 to found the Institute for American Values, which he describes as "a nonpartisan think tank" that focuses primarily on "issues of marriage, family, and child well-being." Tr 2719:20-25. The Institute commissions research and releases reports on issues relating to "fatherhood, marriage, family structure [and] child well-being." Tr 2720:6-19. The Institute also produces an annual report "on the state of marriage in America." Tr 2720:24-25.

Blankenhorn has published two books on the subjects of marriage, fatherhood and family structure: Fatherless America: [p. 39] Confronting Our Most Urgent Social Problem (HarperCollins 1995), DIX0108, and The Future of Marriage (Encounter Books 2006), DIX 0956. Tr 2722:2-12. Blankenhorn has edited four books about family structure and marriage, Tr 2728:13-22, and has co-edited or co-authored several publications about marriage. Doc #302 at 21.

Plaintiffs' challenge Blankenhorn's qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, Tr 2733:2-2735:4, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood and family structure, Tr 2735:15-2736:9, and his study of the effects of same-sex marriage involved "read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it," Tr 2736:13-2740:3. See also Doc #285 (plaintiffs' motion in limine). Plaintiffs argue that Blankenhorn's conclusions are not based on "objective data or discernible methodology," Doc #285 at 25, and that Blankenhorn's conclusions are instead based on his interpretation of selected quotations from articles and reports, id at 26.

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn's opinions. Tr 2741:24-2742:3. The court now determines that Blankenhorn's testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Federal Rule of Evidence 702 provides that a witness may be qualified as an expert "by knowledge, skill, experience, training, or education." The testimony may only be admitted if it "is based upon sufficient facts or data" and "is the product of [p. 40] reliable principles and methods." Id. Expert testimony must be both relevant and reliable, with a "basis in the knowledge and experience of [the relevant] discipline." Kumho Tire Co v Carmichael, 526 US 137, 147, 149 (1999) (citing Daubert v Merrell Dow Pharm, 509 US 579, 582, 592 (1993)).

While proponents correctly assert that formal training in the relevant disciplines and peer-reviewed publications are not dispositive of expertise, education is nevertheless important to ensure that "an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field." Kumho Tire, 526 US at 152. Formal training shows that a proposed expert adheres to the intellectual rigor that characterizes the field, while peer-reviewed publications demonstrate an acceptance by the field that the work of the proposed expert displays "at least the minimal criteria" of intellectual rigor required in that field. Daubert v Merrell Dow Pharm, 43 F3d 1311, 1318 (9th Cir 1995) (on remand) ("Daubert II").

The methodologies on which expert testimony may be based are "not limited to what is generally accepted, Daubert II at 1319 n11, but "nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert." General Electric Co v Joiner, 522 US 136, 146 (1997). The party proffering the evidence "must explain the expert's methodology and demonstrate in some objectively verifiable way that the expert has both chosen a reliable...method and followed it faithfully." Daubert II, 43 F3d at 1319 n11.

[p. 41] Several factors are relevant to an expert's reliability: (1) "whether [a method] can be (and has been) tested"; (2) "whether the [method] has been subjected to peer review and publication"; (3) "the known or potential rate of error"; (4) "the existence and maintenance of standards controlling the [method's] operation"; (5) "a...degree of acceptance" of the method within "a relevant...community," Daubert, 509 US at 593-94; (6) whether the expert is "proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation," Daubert II, 43 F3d at 1317; (7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion, see Joiner, 522 US at 145-146; (8) whether the expert has adequately accounted for obvious alternative explanations, see generally Claar v Burlington Northern RR Co, 29 F3d 499 (9th Cir 1994); (9) whether the expert "employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field," Kumho Tire, 526 US at 152; and (10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give, see id at 151.

Blankenhorn offered opinions on the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage for same-sex couples. None of Blankenhorn's opinions is reliable.

Blankenhorn's first opinion is that marriage is "a socially-approved sexual relationship between a man and a woman." Tr 2742:9-10. According to Blankenhorn, the primary purpose of marriage is to "regulate filiation." Tr 2742:18. Blankenhorn [p. 42] testified that the alternative and contradictory definition of marriage is that "marriage is fundamentally a private adult commitment." Tr 2755:25-2756:1; Tr 2756:4-2757:17 (DIX0093 Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001)). He described this definition as focused on "the tender feelings that spouses have for one another,” Tr 2761:5-6. Blankenhorn agrees this "affective dimension" of marriage exists but asserts that marriage developed independently of affection. Tr 2761:9-2762:3.

Blankenhorn thus sets up a dichotomy for the definition of marriage: either marriage is defined as a socially approved sexual relationship between a man and a woman for the purpose of bearing and raising children biologically related to both spouses, or marriage is a private relationship between two consenting adults. Blankenhorn did not address the definition of marriage proposed by plaintiffs' expert Cott, which subsumes Blankenhorn's dichotomy. Cott testified that marriage is "a couple's choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life." Tr 201:9-14. There is nothing in Cott's definition that limits marriage to its "affective dimension" as defined by Blankenhorn, and yet Cott's definition does not emphasize the biological relationship linking dependents to both spouses.

Blankenhorn relied on the quotations of others to define marriage and provided no explanation of the meaning of the passages he cited or their sources. Tr 2744:4-2755:16. Blankenhorn's mere [p. 43] recitation of text in evidence does not assist the court in understanding the evidence because reading, as much as hearing, "is within the ability and experience of the trier of fact." Beech Aircraft Corp v United States, 51 F3d 834, 842 (9th Cir 1995).

Blankenhorn testified that his research has led him to conclude there are three universal rules that govern marriage: (1) the rule of opposites (the "man/woman" rule); (2) the rule of two; and (3) the rule of sex. Tr 2879:17-25. Blankenhorn explained that there are "no or almost no exceptions" to the rule of opposites, Tr 2882:14, despite some instances of ritualized same-sex relationships in some cultures, Tr 2884:25-2888:16. Blankenhorn explained that despite the widespread practice of polygamy across many cultures, the rule of two is rarely violated, because even within a polygamous marriage, "each marriage is separate." Tr 2892:1-3; Tr 2899:16-2900:4 ("Q: Is it your view that that man who has married one wife, and then another wife, and then another wife, and then another wife, and then another wife, and now has five wives, and they are all his wives at the same time, that that marriage is consistent with your rule of two?... A: I concur with Bronislaw Malinowski, and others, who say that that is consistent with the two rule of marriage."). Finally, Blankenhorn could only hypothesize instances in which the rule of sex would be violated, including where "[h]e's in prison for life, he's married, and he is not in a system in which any conjugal visitation is allowed." Tr 2907:13-19.

Blankenhorn's interest and study on the subjects of marriage, fatherhood and family structure are evident from the record, but nothing in the record other than the "bald assurance" [p. 44] of Blankenhorn, Daubert II, 43 F3d at 1316, suggests that Blankenhorn's investigation into marriage has been conducted to the "same level of intellectual rigor" characterizing the practice of anthropologists, sociologists or psychologists. See Kumho Tire, 526 US at 152. Blankenhorn gave no explanation of the methodology that led him to his definition of marriage other than his review of others' work. The court concludes that Blankenhorn's proposed definition of marriage is "connected to existing data only by the ipse dixit" of Blankenhorn and accordingly rejects it. See Joiner, 522 US at 146.

Blankenhorn's second opinion is that a body of evidence supports the conclusion that children raised by their married, biological parents do better on average than children raised in other environments. Tr 2767:11-2771:11. The evidence Blankenhorn relied on to support his conclusion compares children raised by married, biological parents with children raised by single parents, unmarried mothers, step families and cohabiting parents. Tr 2769:14-24 (referring to DIX0026 Kristin Anderson Moore, Susan M Jekielek, and Carol Emig, Marriage from a Child's Perspective: How Does Family Structure Affect Children, and What Can We Do about It, Child Trends (June 2002)); Tr 2771:1-11 (referring to DIX0124 Sara McLanahan and Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps (Harvard 1994)).

Blankenhorn's conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony [p. 45] consider any study comparing children raised by their married biological parents to children raised by their married adoptive parents. Blankenhorn did not testify about a study comparing children raised by their married biological parents to children raised by their married parents who conceived using an egg or sperm donor. The studies Blankenhorn relied on compare various family structures and do not emphasize biology. Tr 2768:9-2772:6. The studies may well support a conclusion that parents' marital status may affect child outcomes. The studies do not, however, support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes. The court concludes that "there is simply too great an analytical gap between the data and the opinion proffered." Joiner, 522 US at 146. Blankenhorn's reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children's outcomes.

Blankenhorn's third opinion is that recognizing same-sex marriage will lead to the deinstitutionalization of marriage. Tr 2772:21-2775:23. Blankenhorn described deinstitutionalization as a process through which previously stable patterns and rules forming an institution (like marriage) slowly erode or change. Tr 2773:4-24. Blankenhorn identified several manifestations of deinstitutionalization: out-of-wedlock childbearing, rising divorce rates, the rise of non-marital cohabitation, increasing use of assistive reproductive technologies and marriage for same-sex couples. Tr 2774:20-2775:23. To the extent Blankenhorn believes that same-sex marriage is both a cause and a symptom of deinstitutionalization, his opinion is tautological. Moreover, no [p. 46] credible evidence supports Blankenhorn's conclusion that same-sex marriage could lead to the other manifestations of deinstitutionalization.

Blankenhorn relied on sociologist Andrew Cherlin (DIX0049 The Deinstitutionalization of American Marriage, 66 J Marriage & Family 848 (Nov 2004)) and sociologist Norval Glen (DIX0060 The Struggle for Same-Sex Marriage, 41 Society 25 (Sept/Oct 2004)) to support his opinion that same-sex marriage may speed the deinstitutionalization of marriage. Neither of these sources supports Blankenhorn's conclusion that same-sex marriage will further deinstitutionalize marriage, as neither source claims same-sex marriage as a cause of divorce or single parenthood. Nevertheless, Blankenhorn testified that "the further deinstitutionalization of marriage caused by the legalization of same-sex marriage," Tr 2782:3-5, would likely manifest itself in "all of the consequences [already discussed]." Tr 2782:15-16.

Blankenhorn's book, The Future of Marriage, DIX0956, lists numerous consequences of permitting same-sex couples to marry, some of which are the manifestations of deinstitutionalization listed above. Blankenhorn explained that the list of consequences arose from a group thought experiment in which an idea was written down if someone suggested it. Tr 2844:1-12; DIX0956 at 202. Blankenhorn's group thought experiment began with the untested assumption that "gay marriage, like almost any major social change, would be likely to generate a diverse range of consequences." DIX0956 at 202. The group failed to consider that recognizing the marriage of same-sex couples might lead only to minimal, if any, social consequences.

[p. 47] During trial, Blankenhorn was presented with a study that posed an empirical question whether permitting marriage or civil unions for same-sex couples would lead to the manifestations Blankenhorn described as indicative of deinstitutionalization. After reviewing and analyzing available evidence, the study concludes that "laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women." PX2898 (Laura Langbein & Mark A Yost, Jr, Same-Sex Marriage and Negative Externalities, 90 Soc Sci Q 2 (June 2009) at 305-306). Blankenhorn had not seen the study before trial and was thus unfamiliar with its methods and conclusions. Nevertheless, Blankenhorn dismissed the study and its results, reasoning that its authors "think that [the conclusion is] so self-evident that anybody who has an opposing point of view is not a rational person." Tr 2918:19-21.

Blankenhorn's concern that same-sex marriage poses a threat to the institution of marriage is further undermined by his testimony that same-sex marriage and opposite-sex marriage operate almost identically. During cross-examination, Blankenhorn was shown a report produced by his Institute in 2000 explaining the six dimensions of marriage: (1) legal contract; (2) financial partnership; (3) sacred promise; (4) sexual union; (5) personal bond; and (6) family-making bond. PX2879 (Coalition for Marriage, Family and Couples Education, et al, The Marriage Movement: A Statement of Principles (Institute for American Values 2000)). Blankenhorn agreed that same-sex marriages and opposite-sex marriages would be identical across these six dimensions. Tr [p. 48] 2913:8-2916:18. When referring to the sixth dimension, a family-making bond, Blankenhorn agreed that same-sex couples could "raise" children. Tr 2916:17.

Blankenhorn gave absolutely no explanation why manifestations of the deinstitutionalization of marriage would be exacerbated (and not, for example, ameliorated) by the presence of marriage for same-sex couples. His opinion lacks reliability, as there is simply too great an analytical gap between the data and the opinion Blankenhorn proffered. See Joiner, 522 US at 146.

Blankenhorn was unwilling to answer many questions directly on cross-examination and was defensive in his answers. Moreover, much of his testimony contradicted his opinions. Blankenhorn testified on cross-examination that studies show children of adoptive parents do as well or better than children of biological parents. Tr 2794:12-2795:5. Blankenhorn agreed that children raised by same-sex couples would benefit if their parents were permitted to marry. Tr 2803:6-15. Blankenhorn also testified he wrote and agrees with the statement "I believe that today the principle of equal human dignity must apply to gay and lesbian persons. In that sense, insofar as we are a nation founded on this principle, we would be more American on the day we permitted same-sex marriage than we were the day before." DIX0956 at 2; Tr 2805:6-2806:1.

Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who [p. 49] might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships. Tr 2839:16-2842:25; 2847:1-2848:3; DIX0956 at 203-205.

Blankenhorn's opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.


Kenneth P Miller

Proponents called Kenneth P Miller, a professor of government at Claremont McKenna College, as an expert in American and California politics. Tr 2427:10-12. Plaintiffs conducted voir dire to examine whether Miller had sufficient expertise to testify authoritatively on the subject of the political power of gays and lesbians. Tr 2428:3-10. Plaintiffs objected to Miller's qualification as an expert in the areas of discrimination against gays and lesbians and gay and lesbian political power but did not object to his qualification as an expert on initiatives. Tr 2435:21-2436:4.

Miller received a PhD from the University of California (Berkeley) in 2002 in political science and is a professor of government at Claremont McKenna College. Doc #280-6 at 39-44 (Miller CV). Plaintiffs contend that Miller lacks sufficient [p. 50] expertise to offer an opinion on the relative political power of gay men and lesbians. Having considered Miller's background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.

Miller testified that factors determining a group's political power include money, access to lawmakers, the size and cohesion of a group, the ability to attract allies and form coalitions and the ability to persuade. Tr 2437:7-14. Miller explained why, in his opinion, these factors favor a conclusion that gays and lesbians have political power. Tr 2442-2461.

Miller described religious, political and corporate support for gay and lesbian rights. Miller pointed to failed initiatives in California relating to whether public school teachers should be fired for publicly supporting homosexuality and whether HIV-positive individuals should be quarantined or reported as examples of political successes for gays and lesbians. Tr 2475:21-2477:16. Miller testified that political powerlessness is the inability to attract the attention of lawmakers. Tr 2487:1-2. Using that test, Miller concluded that gays and lesbians have political power both nationally and in California. Tr 2487:10-21.

Plaintiffs cross-examined Miller about his knowledge of the relevant scholarship and data underlying his opinions. Miller admitted that proponents' counsel provided him with most of the "materials considered" in his expert report. Tr 2497:13-2498:22; PX0794A (annotated index of materials considered). See also Doc #280 at 23-35 (Appendix to plaintiffs' motion in limine listing 158 [p. 51] sources that appear on both Miller's list of materials considered and the list of proponents' withdrawn expert, Paul Nathanson, including twenty-eight websites listing the same "last visited" date). Miller stated that he did not know at the time of his deposition the status of antidiscrimination provisions to protect gays and lesbians at the state and local level, Tr 2506:3-2507:1, could only identify Don't Ask, Don't Tell and the federal Defense of Marriage Act as examples of official discrimination against gays and lesbians, Tr 2524:4-2525:2, and that he has read no or few books or articles by George Chauncey, Miriam Smith, Shane Phelan, Ellen Riggle, Barry Tadlock, William Eskridge, Mark Blasius, Urvashi Vaid, Andrew Sullivan and John D'Emilio, Tr 2518:15-2522:25.

Miller admitted he had not investigated the scope of private employment discrimination against gays and lesbians and had no reason to dispute the data on discrimination presented in PX0604(The Employment Non-Discrimination Act of 2009, Hearings on HR 3017 before the House Committee on Education and Labor, 111 Cong, 1st Sess (Sept 23, 2009) (testimony of R Bradley Sears, Executive Director of the Williams Institute)). Tr 2529:15-2530:24. Miller did not know whether gays and lesbians have more or less political power than African Americans, either in California or nationally, because he had not researched the question. Tr 2535:9-2539:13.

Plaintiffs questioned Miller on his earlier scholarship criticizing the California initiative process because initiatives eschew compromise and foster polarization, undermine the authority and flexibility of representative government and violate norms of openness, accountability, competence and fairness. Tr 2544:10- [p. 52] 2547:7. In 2001 Miller wrote that he was especially concerned that initiative constitutional amendments undermine representative democracy. Tr 2546:14-2548:15.

Plaintiffs questioned Miller on data showing 84 percent of those who attend church weekly voted yes on Proposition 8, 54 percent of those who attend church occasionally voted no on Proposition 8 and 83 percent of those who never attend church voted no on Proposition 8. Tr 2590:10-2591:7; PX2853 at 9 Proposition 8 Local Exit Polls - Election Center 2008, CNN). Plaintiffs also asked about polling data showing 56 percent of those with a union member in the household voted yes on Proposition 8. Tr 2591:25-2592:6; PX2853 at 13. Miller stated he had no reason to doubt the accuracy of the polling data. Tr 2592:7-8. Miller did not explain how the data in PX2853 are consistent with his conclusion that many religious groups and labor unions are allies of gays and lesbians.

Miller testified that he did not investigate the extent of anti-gay harassment in workplaces or schools. Tr 2600:7-17, 2603:9-24. Miller stated he had not investigated the ways in which anti-gay stereotypes may have influenced Proposition 8 voters. Tr 2608:19-2609:1. Miller agreed that a principle of political science holds that it is undesirable for a religious majority to impose its religious views on a minority. Tr 2692:16-2693:7.

Miller explained on redirect that he had reviewed "most" of the materials listed in his expert report and that he "tried to review all of them." Tr 2697:11-16. Miller testified that he believes initiatives relating to marriage for same-sex couples arise as a check on the courts and do not therefore implicate a fear of the majority imposing its will on the minority. Tr [p. 53] 2706:17-2707:6. Miller explained that prohibiting same-sex couples from marriage "wasn't necessarily invidious discrimination against" gays and lesbians. Tr 2707:20-24.

The credibility of Miller's opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report, see PX0794A. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group's political power.

Miller's credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, see PX1869 (Kenneth Miller, Constraining Populism: The Real Challenge of Initiative Reform, 41 Santa Clara L Rev 1037 (2001)), contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment. Tr 2606:11-2608:18.

[p. 54] For the foregoing reasons, the court finds that Miller's opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.