A great coup for a trial attorney is to get the other side’s expert to admit that you’re right about the part of your case that he has been called to testify about. David Boies pulled that off today — the first defense witness in the Perry v. Schwarzenegger trial described the Federal Defense of Marriage Act as official discrimination against gays and lesbians. Which shows that the guy is intellectually honest, at least. Still, that’s the sort of thing you’d have expected a plaintiff’s witness to have said in trial. It’s unclear if he made a similar pronouncement against Prop. 8 itself, although it’s hard to see how he could not, given the very similar wording between Prop. 8 and DOMA. Seems to me the defense would be better off saying, “Well, of course it discriminates against gays and lesbians. We can do that, because we’re the State of California and homosexuality is not a suspect class under the Federal Constitution.” That, however, would be a legal and not a factual argument.
Hat tip to Box Turtle Bulletin.
