CMC Professor Testifies in Prop 8 Case

Ken Miller, an Associate Professor of Government at CMC, was called to testify on Jan. 25 in the federal lawsuit challenging the constitutionality of Proposition 8.

“Prop 8” was a controversial 2008 California ballot initiative amending the state constitution to define marriage as a union between a man and a woman.

Chief U.S. District Judge Vaughn Walker began hearing arguments for the case, Perry v. Schwarzenegger, on Jan. 11. The suit was brought to bear by two gay couples who were denied marriage licenses in May 2009 and is being heard in the U.S. District Court for the Northern District of California in San Francisco.

Miller, a Pomona College alumnus with a law degree from Harvard Law School and a PhD from UC Berkeley, was called by the defense to discuss which legal mechanisms were best suited to address the issue of same-sex marriage.

“My testimony focused on the question of whether [this issue] should be decided by courts or through democratic processes,” said Miller, who specializes in California politics and constitutional law.

Miller is the author of Direct Democracy and the Courts, published in 2009, which discusses how popular referendums should be interpreted by the judicial system. According to a New York Times account of the testimony, he was called by the defense to refute the assertion that the LGBT community lacks sufficient political power to overcome potentially discriminatory measures that are put to the popular vote, thereby necessitating protection by the courts.

Miller testified that the LGBT community has an extensive network of political support in California, noting that the “No On 8” campaign raised more than $43 million. Prop. 8 (also known as the California Marriage Protection Act) passed in November of 2008 with a 52 percent majority, overturning a California Supreme Court ruling issued in May stating that same-sex couples’ right to marriage is protected by the state constitution.

Judge Walker has not set a date for issuing his decision but is expected to begin hearing closing arguments in March. The case is expected to be appealed to the 9th Circuit Court of Appeals regardless of outcome, after which it is likely to go on to the Supreme Court.

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