Prop 8 trial transcript: Attorney shakes up Tam on witness stand
Law.comHe didn't say so, but you could tell David Boies was looking forward to this one.Dr. Hak-Shing William Tam, an official proponent of Proposition 8, sat on the stand a few feet from Boies, of Boies, Schiller & Flexner. Tam had penned harsh anti-gay rhetoric during the campaign, claiming, for example, that gays are 12 times more likely to molest children.Since Boies, who represents two same-sex couples in a federal challenge to Prop 8, called Tam as a witness Thursday, technically his questions were direct examination. But the feel and strategy was all cross.Boies probed Tam about literature in which Tam said San Francisco is "under the rule" of homosexuals. Name them, Boies asked. Former supervisor Tom Ammiano, Tam replied."Is the mayor homosexual, according to you?" Boies shot back.It was a question for which there was no clean answer.
(Prologue: If anyone doubts just how very high the stakes are in the Proposition 8 trial in the district court of California, just how powerfully a gay win would sweep away "Don't Ask, Don't Tell" and "The Defense of Marriage Act", and suddenly, in one fell swoop, shower upon the LGBT community all of the rights they have sought for decades, read this article in the American Prospect, "Gay on Trial". )
Boies is the sharp-witted attorney representing the gay couples who want it shown that Proposition 8 is in violation of the US Constitution. Tam is the proponent of Proposition 8, who pushed hard for its passage.
Today, Boise caught Tam in a battle of semantics:
When asked if San Francisco Mayor Gavin Newsom is gay, Tam was caught. Newsom seems gay, thinks gay, advocates gay, but is known for his adventures with women (Yes, bisexual males actually do exist, and Newsom is one of them)(*Correction: Newsom, alas , is not one of them. My mistake, duly noted, duly apologized for. SMK ) Tam was forced to cautiously admit he did not think so.
But things went downhill rapidly from there: Tam had apparently forgotten to read the secular and scholarly arguments which denounce gay marriage, while supporting civil unions and gay rights. These arguments are born of classical liberalism and the equity values of the enlightenment.
Tam, however, never thought to base his arguments on the writings of Kolasinski, Gagnon, and Shell. He went straight around secular and liberal epistemic and deontological arguments, and depended on a hodgepodge of rumor and half-truth.
But Boies quickly followed up: If Tam knows that, why was he telling people the opposite? The lawyer hammered the same point a moment later. Tam had claimed during the campaign that same-sex marriage would lead to legalized prostitution. Boies got him to admit that issue had nothing to do with Prop 8.
"You knew that?"
"Yes," Tam said.
"But you wrote that anyway?" Boies asked.
Before the onslaught on Thursday, Tam had been sitting in court for several days, listening to testimony and waiting to be called. When his time came, Boies sought to lash him to the official Yes on 8 campaign, citing e-mails that referred to Tam as part of its leadership.
"I don't believe I am," Tam said.
But you didn't correct the e-mailer, Boies pointed out.
When someone says something nice, Tam said, you shouldn't protest. "That's common sense," he said.
For their friendly cross-examination, Cooper & Kirk attorney Nicole Moss attempted to distance Tam from the official Yes on 8 campaign. None of the rhetoric probed by Boies was directed or approved by campaign staff, Tam said.
"I was acting independently," he said.
Moss didn't challenge any of the Boies inquiry about the substance of Tam's campaign communications. After Boies had Tam acknowledge his support for domestic partnerships and civil unions, he had brought up a letter in which Tam claimed civil unions opened the door in Sweden to marriage between siblings.
"So any problem here ... is coming not from marriage, but from the civil unions you said you support?"
"I said I support domestic partnership, not civil unions," Tam said.
"You don't remember me asking you about civil unions, just, like, two minutes ago?" Boies asked.
Tam: "I don't know about civil unions, I support domestic partnership."
"What's the difference?" Boies asked.
"Civil union seems closer to marriage," Tam said.
"Because of the name?"
Boies went in for more. Tam had said allowing same sex-marriage would force similar recognition for other groups, like polygamists.
"Can a brother and sister become domestic partners?"
"I don't think so."
"No, I don't think so either," Boies said.
Boies also asked about Tam's claim that the Netherlands legalized polygamy and incest after same-sex marriage. "What gave you that idea," Boies asked.
"It's on the Internet," Tam replied.
Trial continues Friday morning at 8:30 a.m. in Chief Judge Vaughn Walker's courtroom.