SAN FRANCISCO – A significant dispute broke out today in court over whether Yes on 8 campaign manager Frank Shubert can be called to the witness stand by the legal team defending the constitutionality of California’s same-sex marriage ban.

Plaintiffs, the legal team challenging Proposition 8, had sought, during deposition, to elicit testimony from Shubert—who was also instrumental in putting together both the Yes on 8 campaign and the campaign to repeal of Maine’s marriage equality law. But during that deposition, defense attorneys repeatedly instructed Shubert not to respond.

“We asked Shubert over and over” about various campaign documents, said plaintiffs’ attorney Ted Boutrous to U.S. District Court Chief Judge Vaughn Walker, who is presiding in the case. “Everything we asked, they blocked our inquiry. Now, [defense] is saying it wants [Shubert] to testify for first time on the stand and to give the explanations we were seeking in deposition.” Boutrous said the behavior of defense attorneys was “extraordinary” and hindered their ability to adequately cross-examine him.

Yes on 8 attorney Nicole Moss defended the move, saying her team was concerned about documents which the plaintiffs might introduce and decided to notify them that they might call Shubert just in case they needed Shubert to respond to any claims as to various Yes on 8 campaign materials or involvement.

Judge Walker said he would wait to see what documents plaintiffs introduce before making his ruling on whether Shubert can take the stand, should defense attorneys choose to do so.

The plaintiffs then proceeded to introduce their remaining evidence—a number of videotapes and documents that demonstrate the tactics and messages of the Yes on 8 campaign. The evidence included videotapes of Proposition 8 proponents making often shocking claims against gay people – that they were attempting to “indoctrinate” children to homosexuality, promoting pedophilia, and aiming for the “annihilation of marriage.”

One video showed a young man from an ex-gay group claiming that, if Proposition 8 failed in California, it would have a “domino effect throughout the country.” A young woman sitting next to him said it would mean “pedophiles could marry six, seven, and eight-year olds.” She claimed that marriage equality in Massachusetts enabled a man there to petition for the right to marry a horse.

“Mothers could marry sons,” she said. “….Any combination would be allowed.” The videotape did not identify the two young people but the bottom of the videotape screen indicated the program was affiliated with the ex-gay ministry Exodus.

The purpose of the evidence is to establish that the motive behind Proposition 8 was to promote a message of hatred against gay people. The U.S. Supreme Court has ruled—in Romer v. Evans—that animus cannot be a driving force behind a law.

Plaintiff attorney Christopher Dusseault also introduced documents showing instances of federal government discrimination against gays, including documents from the files of D.C. activist Frank Kameny—documents from the 1960s and 1970s. Dusseaulty referred to them as “ancient” files, a designation that prompted a challenge from the judge. Dusseault explained that court rules—not he—designates documents more than 20 years old as “ancient.”

Among the ancient documents submitted was a 1974 letter from the Internal Revenue Service rejecting an application for a gay civil rights group to receive tax-exempt status. The letter said the group’s existence posed a “serious risk of contributing to more widespread development of homosexual tendencies …and deviant sexual behavior,” and thus could not be approved.

After the plaintiffs submitted their remaining documents, the defense began its case in support of Proposition 8. Their first witness was Kenneth P. Miller, a professor of government at Claremont McKenna College, a private college outside Los Angeles. The defense offered Miller as an expert in the political power of gays and lesbians — a designation which plaintiffs’ attorney David Boies attacked.

Boies, in challenging Miller’s credentials during a process known as voir dire, showed that Miller has to his credit only one peer-reviewed journal article on the topic and was so unfamiliar with the gay movement that he did not know what the Mattachine Society was. The Mattachine Society was one of the earliest gay political groups in the country.

When Miller attempted to suggest that his expertise is mainly with the gay movement since the mid-1970s, Boies pointed out to him that, at deposition, Miller had no knowledge of such pivotal gay movement figures as Allan Spear of Minnesota and Elaine Noble of Massachusetts, among the first openly gay elected officials in the country.

Boies tried to have Miller’s expert testimony limited to only gay-related ballot initiatives. Judge Walker did not grant the request per se but indicated Miller’s testimony could be allowed insofar as it was related to the “role of gays and lesbians in American and California politics.”

Miller’s testimony resumes at 1:10 p.m. Pacific time.