by Becker, Jo
Boies’s target on the eighth day of trial was Dr. Hak-Shing William Tam, the proponent of Proposition 8 who had done his best to avoid the very situation in which he now found himself, penned into a witness box and forced to explain himself.
Calling a hostile witness can easily backfire, and the team had extensively debated which proponents of Proposition 8 to call. Much consideration had been given to calling Ron Prentice, the executive director of ProtectMarriage.com. Questioning him under oath about some of the campaign documents that had been unearthed through discovery was hard to resist. “If you keep him narrow, if the only point you say is that they carefully coordinated all grassroots efforts, that everything came with a ProtectMarriage.com stamp of approval, it’s worth it,” Chris Dusseault said during one discussion.
But Olson and Boies were wary. Prentice was a political pro, and if they put him on the stand he would do his best to try to undermine the case they had already built with the campaign’s own documents. “Right now we control our message,” Olson said. “If we put him on, they get to tell their side of the story.”
Tam was the compromise. By order of the court, he had been sitting in the courtroom for several days running, an older, bespectacled man with tufts of black hair sticking out of the back of his head. During breaks, he kept to himself, looking uncomfortably at his shoes whenever he found himself in the vicinity of the plaintiffs or Chad.
Cooper had expected his opponent to try to pin Tam’s views to the entire ProtectMarriage.com campaign, and he had assigned Nicole Moss, a lawyer in his firm, to put as much distance between Tam and the campaign as she could. With her guidance, Tam claimed a minimal role in the campaign, said he had little contact with Prentice and had spoken only “one or two times” to a firm owned by Frank Schubert, the campaign operative who masterminded the Prop 8 victory. He insisted that he did not get the approval of ProtectMarriage.com for the Yes on 8 messages he circulated to the Chinese community. “I acted independently,” he said at one point.
But Moss had a hard sell, given that Tam was one of only five official proponents of Prop 8. And that was without the discovery documents that Cooper had been forced to turn over, which Boies proceeded to use to their full advantage.
By Tam’s own admission, he had been invited by ProtectMarriage.com to take part in the campaign and worked closely with the organization to collect the more than one million signatures that qualified Prop 8 for the ballot. He supervised the preparation of the ballot language. He acknowledged investing substantial time, effort, and resources in the campaign. Minutes from the weekly grassroots meetings run by Schubert’s firm showed Tam in attendance. He appeared at debates and on television at the direction of ProtectMarriage .com. He raised thousands of dollars and was included and referenced in e-mails addressed to the campaign’s leadership. “The Chinese coalition with Bill Tam remains strong and he is one of the signatories,” read one that Boies introduced into evidence.
E-mails addressed to Tam and another organization showed that ProtectMarriage.com paid for the messages he disseminated. But perhaps most important, the documents showed that Tam had signed a “unity pledge,” specifically promising not to pursue independent public messaging strategies. The pledge clearly stated that “public communications by coalition partners in support of the marriage amendment must be approved by the campaign manager.”
Most people want to be seen as decent and upstanding, a tendency Boies was happy to exploit. “You consider yourself an honest person, don’t you?” he asked Tam.
“Yes,” Tam answered, clearly not sensing the menace in the question.
“And when you sign something and make a commitment you take that commitment seriously, don’t you, sir?”
“Yes,” Tam answered, finally understanding where this was headed, “but later on I—I admit that I violated this, this message principle.”
“When do you think you started violating this pledge?”
“What I told the Mercury, San Jose Mercury News about homosexuality leads to all kinds of diseases.”
“That was right out there in the public, right?”
“Right.”
“Did anybody from ProtectMarriage.com come and tell you, ‘You shouldn’t have said that’?”
“Yes!”
“Who said that? Who told you that?”
Tam hesitated. “I forgot his name.”
“Is that in writing anywhere, any record of that?” Boies asked, voice dripping with disbelief.
“No,” Tam admitted.
Tam similarly was unable to point to any documentation to bolster his claim that he was not paid by the campaign to place television, radio, and print advertising with Asian media outlets. An October 2008 e-mail from Andy Pugno, the general counsel, addressed to Tam and another pastor stated that “your organizations are spending $50,000” on such efforts.
Boies moved next to a Web site linked to Tam called 1man1woman.net. The team had discovered that Tam was the secretary of a group that administered the pro–Prop 8 site.
Moss had tried to claim that Prentice and others had no knowledge of what was being said on 1man1woman.net, but ProtectMarriage.com had referenced the fact that the Web site was up and running in the minutes of one of its meetings that had been obtained through discovery.
The site was also listed as a cosponsor of a rally that Tam helped organize, featuring both Prentice and Tony Perkins, the president of the Family Research Council. Boies introduced a flyer promoting the rally. As grammatically challenged as Tam himself, it warned, “It is time for the church rise up against the forces of evil that are destroying families and young souls.”
Tam initially tried to deny any knowledge of the incendiary flyer, then hedged and said it “might have been in front of my eyes. But I—”
“You don’t remember anything?” Boies interjected incredulously, before whipping out another document that showed that Tam was listed as one of the rally’s two press contacts. “Now, does that refresh your recollection that you were more involved in this than you said before?”
Turning to the content of 1man1woman.com, Boies asked whether Tam agreed with the Web site’s unsupported assertion that gays and lesbians are “12 times more likely” to molest children. Tam said he did.
“What literature have you read, sir, that says that?” Boies asked, demanding now, like a parent confronting a prevaricating child. “Tell me what it is that you read.”
“I don’t remember now.”
“Who authored it?”
“Some from, apparently academic papers.”
“What academic papers, sir?”
“I don’t remember.”
Boies turned to another of the Web site’s claims. “You are saying here that after same-sex marriage was legalized, the Netherlands legalized incest and polygamy?”
“Yeah, look at the date.”
In fact, consensual incest was legal before that country began allowing gays and lesbians to marry, and polygamous marriage was outlawed.
“Who told you that, sir?”
“It’s in the Internet.”
“In the Internet?” Boies contemptuously repeated.
“Yeah.”
“Somewhere out in the Internet it says that the Netherlands legalized incest and polygamy in 2005?”
“Frankly, I did not write this, all right?” Tam said, at turns petulant and defiant.
Boies paused for effect. “You just put it out there to convince voters to vote for Proposition 8.”
Boies shifted to Tam’s “What If We Lose” letter, the one that had convinced the Ninth Circuit to amend its order and forced Cooper to disclose at least a portion of the campaign’s internal communications, and its contention that San Francisco was under the rule of homosexuals.
“The mayor was a homosexual, was he, according to you?”
“I don’t think so.”
“You don’t think so? No, I don’t think so either, actually.”
Several of the mayor’s supporters stifled smiles. If anything, Mayor Gavin Newsom was seen as something of a ladies’ man, having survived a well-publicized affair, a divorce, and a remarriage.
Boies, meanwhile, was insisting that Tam tell him why he circulated information he knew to be false, leading Tam to protest that the lawyer was trying to “use your legal arguments to pinpoint me.”
Tam then offered up a convoluted explanation. First, he said he disagreed with Newsom that homosexuals were a minority in need of protection—“I am a minority,” he told Boies. But then, forced to acknowledge that the numbers showed that gays and lesbians were also minorities, he agreed that they should not be discriminated against.
As his five-hour stint on the stand wore on, Tam seemed to become more and more befuddled, as if when forced to explain his views, he could no longer be sure of exactly what he believed.
“You know that domestic partnerships are the same as marriage, except for the name, right?” Boies asked.
“Yeah. That’s what I learned.”
“You support domestic partnerships?”
“Uh-huh.”
“But you think that just changing the name of domestic partnerships to marriage will have this enormous moral decay—”
“Yes.”
“Will bring on incest and polygamy, right? And pedophilia, correct?”
Tam said he did.
If the state’s decision to offer domestic partnerships to gays and lesbians had not resulted in the legalization of incest, polygamy, or pedophilia, why, Boies pressed, did Tam believe that allowing them to marry would yield those results? He had to reframe the question several different ways before Tam got it.
“Oh, okay. Now I understand your logic.”
“You see where I’m going?” Boies feigned excitement, enunciating as if there were an exclamation point after every word.
“Uh-huh.”
“Yeah!” Boies egged him on pitilessly.
“All right,” Tam said. “Well, the logic is good.”
“The logic is pretty good, isn’t it?!”
It might have been possible to feel sorry for Tam, but for what he was saying and his evasions, Olson said during a recess. Tam, desperate to escape Boies, had pleaded with the judge for a reprieve. “Do you mind if I like to take a break? I’m getting pretty tired.”
Chad and Kristina huddled. Chad saw everything that happened at trial through a political lens, and he could practically envision a public education commercial featuring Tam. “I was sitting there thinking that this was such a public service, because his views are so ignorant,” he told her. “The more people like him that can be cross-examined, the better.”
But not everyone had Chad’s ability to view the proceedings with strategic dispassion. Tam might be “going through hell right now,” but when he thought no one was paying attention he had no compunction about spreading lies about gays and lesbians, Kris said.
“It’s horrible listening to him,” she said. “I’ve been more traumatized by this trial than anything I can remember going through.”
Enrique Monagas’s dad, Carlos Monagas Sr., was also in the courtroom that afternoon. His son and Enrique’s husband, Jason, had been talking about this case since Enrique was dispatched to file it, and he had come to help the couple out by babysitting his granddaughter. A retired air force major, and a practicing Catholic from Puerto Rico, he said during the break that he had met a lot of people like Tam.
“There’s a lot of prejudice out there,” he said, sadly shaking his head. “He probably felt prejudice against him so he doesn’t think it’s wrong to be prejudiced. I think that we should be more open because if you are talking about God forgiving everyone, then you cannot say that the entire gay community is going to burn in hell.”
He loved his church, but its role in the passage of Proposition 8 and teachings were hard to accept. Pope Benedict, eighty-two, had called homosexuality an intrinsic disorder.
“One of these days we’ll elect a pope who is under eighty years old,” he said wistfully. “When I was in parochial school, they said the Jews killed Christ and all that stuff. But I don’t care. My daughter is married to a Jew, and I’m glad for Enrique and Jason. They have a beautiful daughter.”
Most lawyers won’t ask a question to which they don’t know the answer. Then again, most lawyers aren’t Boies.
“During the break, did you talk to anybody about your testimony?” he asked Tam when court resumed.
Boies knew that he had—a member of the team had spotted Tam in a huddle in the hallway—but he did not know what was said.
“I talk to my lawyer.”
“You talked to your lawyer,” Boies said, then, after a pause, “What did you say to your lawyer?”
“I said I felt like a naughty boy being put in front of a classroom and being mocked at.”
“And what did your lawyer say to you?”
“He laughed.”
“One last question, Dr. Tam. You indicated earlier that you felt like a minority; do you remember that?”
“Yes.”
“And you are aware that there were periods, unfortunate periods in our history, when Asian Americans were limited in who they could marry, do you know that?”
“Uh-huh. Yes.”
“And I take it if those laws were present today, you would feel very aggrieved by those laws, would you not, if you couldn’t marry the person you loved?”
The question prompted another objection, but Tam answered anyway. “Yes.”
At that evening’s press conference, Boies declared that Tam’s testimony was “one of the clearest windows that you have into the minds and hearts and souls of what was really involved in Proposition 8.”
Andy Pugno, the lawyer Cooper had designated to handle the press, could do little more than complain about what he called an unwarranted intrusion into protected speech. “You are witnessing history,” he told reporters. “For the first time ever in an initiative process, a supporter of an initiative has been put on the stand to be examined about his political and religious views. That is absolutely astonishing.”
TWENTY
THE SCIENCE OF SEXUALITY
Midway through Cooper associate Howard Nielson’s mind-numbing cross-examination of Dr. Gregory Herek, the plaintiffs’ expert on sexual orientation, David Boies whispered into the ear of the lawyer seated beside him. “Gotta give Nielson credit,” he said. “He is making sex boring!”
Nielson, a law professor at Brigham Young University and a member of Cooper’s firm, had clerked for Justice Kennedy and worked as a deputy assistant attorney general in the second Bush administration. But trial work was not his specialty. His questions rarely deviated from a prepared script, and with his dark suit, wan face, and brooding manner, he looked a bit like an undertaker.
“He ought to be doing wills,” Olson told Matt McGill.
To stay awake at the counsel’s table, some of the lawyers had begun keeping track of how many times Nielson said “thank you” after the witness answered one of his questions. By midmorning, it was up to 180. Cooper’s wife nodded off while listening to the nasal sound of Nielson’s voice.
Herek, a professor of psychology at the University of California at Davis, had taken the stand on Friday morning, January 22, at the end of the second week of trial. He was the plaintiffs’ last expert witness, and his direct testimony was to the point and lasted just under an hour.
A substantial body of research shows that for the vast majority of people, sexual orientation is not a choice and is not readily changeable, Herek told the court. In his own survey of twenty-two hundred subjects, for instance, 87 percent of gay men and 70 percent of lesbians said they experienced no choice or very little choice about their sexual orie
ntation.
For that reason, the American Psychological Association had concluded, based on available research, that therapists should steer clear of the type of sexual orientation “conversion” therapy that Ryan Kendall—and, unbeknownst to anyone in the courtroom, Judge Walker—had undergone. Not only had it proven ineffective, but it was also potentially dangerous, according to a pamphlet that the group, along with a coalition of other associations representing psychiatrists, pediatricians, teachers, school counselors, and principals, had put together for educators.
A broad consensus had determined that homosexuality is a normal expression of human sexuality. But efforts by religious and political organizations that are “aggressively promoted to the public” have “serious potential to harm young people,” the pamphlet read, because by presenting the view that sexual orientation is a curable mental disorder, “they often frame the inability to change one’s sexual orientation as a personal and moral failure.”
The notion that most people do not choose their sexual orientation seemed so obvious to Boies that he was not sure that the team even needed to put Herek on the stand. “There’s no evidence, no study that finds that people wake up and say, ‘Today I’ll be gay! This seems like a gay day!’” he said.
But Cooper’s point was more nuanced. As part of his strategy to keep the court from applying heightened scrutiny, his goal was to try to show that sexual orientation was not as fixed a trait as gender or race. In service of that mission, Nielson spent five hours plodding through everything from the 1935 writings of Sigmund Freud to the work of Alfred Kinsey, a famous sex researcher whose studies in the 1940s and 1950s were credited with bringing taboo subjects like masturbation and adultery out into the open.
Nielson began with what he argued was a definitional problem in establishing gays and lesbians as a new suspect class. Researchers studying homosexuality use different measures for different purposes: whether a person is attracted to a member of the same sex, whether a person engages in sexual activity with a same-sex partner, and whether a person identifies as gay, lesbian, or bisexual.
