David Boies (Photo credit: Bill Wilson)

SAN FRANCISCO — Except for one very brief outburst in the courtroom by a man who has been ranting on the streets of downtown San Francisco, the predominance of drama in the Proposition 8 trial Tuesday morning has been coming from the intense cross-examination delivered by David Boies.

The nationally recognized trial lawyer leading the challenge to the constitutionality of the California same-sex marriage ban in U.S. district court here could be said to have pulled out the wisdom teeth of the defense team’s first expert witness tooth by tooth.

By the lunch recess today, college professor Kenneth P. Miller’s views had also been challenged by counsel representing the state Attorney General and by District Court Chief Judge Vaughn Walker himself.

Miller, who was on the stand for a total of almost nine hours, was called by the legal team defending the Yes on 8 campaign to explain how gays are a politically powerful minority. Should the judge agree with that assessment, he would be able to demand of proponents only a simple rational reason for having Proposition 8 treat gays differently from straight couples when it comes to marriage licenses.

But on cross-examination yesterday and today, Boies has disputed both Miller’s credentials as an expert on gay political power and even on the simple logic and consistency of his own views. Where Miller claimed gays benefited from the power gained from forming coalitions with a number of powerful groups—including organized labor—Boies confronted him with exit polls showing that 56 percent of households with a member of organized labor in them supported Proposition 8.

He asked Miller about a survey that found that 88 percent of adults would vote for a qualified woman candidate, 87 percent for a qualified Hispanic, 72 percent for a qualified Morman, 57 percent for a candidate who had been married three times, but only 55 percent would vote for a qualified homosexual candidate.

“Does this tell you something about discrimination against homosexuals in this country,” asked Boies. “Yes or no.”

“It’s a data point,” said Miller, clearly resisting giving testimony that disputed the defense team’s contention regarding power.

Miller frequently tried to resist giving direct answers to Boies’ questions and that eventually provoked an indirect admonishment from Judge Walker. That came when Boies began questioning Miller whether there is not a generally accepted view by political scientists that it is “undesirable” in this country for a religious majority to impose restrictions on a religious minority.

“In a general sense, that’s a principle that many political scientists would agree with,” said Miller, but he continued, suggesting that it might be argued that abolitionists had imposed their religious views on slaveholders, in early American history.

Boies seemed incredulous and pursued.

“And were slaveholders a minority that needed protection?” asked Boies.

Miller hesitated and squirmed; Boies pulled harder.

“You’re saying slaveholders may have had a religious basis for their views?” asked Boies.

Yes on 8 defense attorney David Thompson jumped up to object, but Judge Walker quickly shot him down.

“Counsel is attempting to inquire [as to] the witness’ comment,” said Walker. “If the witness would respond directly to a question, he might not have to.”

Thompson tried to continue his objection, but Walker cut him off.

“Overruled.”

Boies continued.

“As an expert in political science,” he said, “is it not the generally held view by political scientists that it is not appropriate for a majority religion to impose its views on a religious minority?”

Miller rambled briefly in qualifying remarks then conceded, “probably a majority of political scientists would agree.”

Following Boies’ cross-examination, the Judge invited a representative from Attorney General Jerry Brown’s office to question Miller concerning defense’s contention that the Attorney General’s office had used its power to help opponents of Proposition 8, including in the formation of the language of the measure. Apparently not satisfied by the exchange, Judge Walker jumped in.

Can an Attorney General do more than provide “neutral title and summary” of a ballot measure, asked the judge.

“In different states…” said Miller, but the judge cut him off.

“We’re talking about California,” he said.

“I’m not aware of any time when the Attorney General has done more,” said Miller.

“That’s not the question,” bristled the judge. “Can the attorney general do more” as a matter of authority?

Miller allowed that the attorney general could “publically oppose” a measure, but the judge clearly saw that as an evasion of the question.

“So, you don’t know, that it?” quipped the judge.

The question of the attorney general’s role appears to be an important one for Judge Walker. On the opening day of the trial, he inquired of attorneys whether they thought the Attorney General had the power to keep an unconstitutional measure off the ballot at the start.

He also questioned Miller, after Thompson’s re-direct, about Miller’s statements suggesting that his views about initiatives that target minorities had changed over time. Boies had brought out a 2009 article in which Miller had stated that such initiatives actually undermine democracy.

On re-direct, Thompson gave Miller a chance to explain that his views had changed and he now has a “more favorable view” of such initiatives. He said they “can provide a check on judicial activism,” especially when courts are “expanding rights beyond what the people want.”

“Are you saying that it is never appropriate for the judiciary to intervene in the initiative process?” asked Judge Walker.

“No,” said Miller.

“Then, when is it appropriate.”

“Whenever the initiative …violates…the federal constitution,” said Miller.

“And who makes that determination?” asked Walker.

“It’s a question for the courts to decide.”