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Case 2:04-cv-08425 Trial Day 1 Vol 2

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER DEBORAH D. PARKER, CSR 10342 OFFICIAL COURT REPORTER UNITED STATES DISTRICT COURT 411 WEST FOURTH STREET SUITE 1-053 SANTA ANA, CALIFORNIA 92701 (714) 542-8409 D.PARKER@IX.NETCOM.COM REPORTER'S TRANSCRIPT OF COURT TRIAL PROCEEDINGS RIVERSIDE, CALIFORNIA TUESDAY, JULY 13, 2010 10:30 a.m - 12:04 p.m. ) ) ) PLAINTIFF, ) ) vs. ) CV NO. 04-8425-VAP ) VOLUME II UNITED STATES OF AMERICA AND ) ROBERT M. GATES (SUBSTITUTED FOR ) DONALD H. RUMSFELD PURSUANT TO ) FRCP 25(D)), SECRETARY OF DEFENSE, ) IN HIS OFFICIAL CAPACITY, ) ) DEFENDANTS. ) ___________________________________) LOG CABIN REPUBLICANS, A NONPROFIT CORPORATION, UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION AT RIVERSIDE HONORABLE VIRGINIA A. PHILIPS, JUDGE PRESIDING

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER MAJOR PATRICK GRANT LITIGATION ATTORNEY 901 N. STUART SUITE 400 ARLINGTON, VIRGINIA 22203 RYAN BRADLEY PARKER JOSHUA E. GARDNER PAUL G. FREEBORNE TRIAL ATTORNEYS 20 MASSACHUSETTS AVENUE, NW WASHINGTON, D.C. 20001 and UNITED STATES ARMY LITIGATION DIVISION U.S. DEPARTMENT OF JUSTICE CIVIL DIVISION, FEDERAL PROGRAMS W. SCOTT SIMPSON SENIOR TRIAL COUNSEL FOR THE DEFENDANTS, UNITED STATES OF AMERICA AND ROBERT M. GATES (SUBSTITUTED FOR DONALD H. RUMSFELD PURSUANT TO FRCP 25(D)), SECRETARY OF DEFENSE, IN HIS OFFICIAL CAPACITY: EARLE MILLER DAN WOODS AARON A. KAHN WHITE & CASE, LLP 633 WEST FIFTH STREET SUITE 1900 LOS ANGELES, CALIFORNIA 90071 APPEARANCES OF COUNSEL: FOR THE PLAINTIFF, LOG CABIN REPUBLICANS, A NONPROFIT CORPORATION:

54 1 2 3 4 5 ARTHUR J. ENSLEY 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER JOINT EXHIBITS: 108 143 to 148, 160, 162, 166 to 175 165 E X H I B I T S IDENTIFICATION EVIDENCE 99 104 105 PHILIP LECROY BRADLEY 82 94 69 75 PLAINTIFF'S WITNESSES: TERRY HAMILTON DIRECT CROSS 57 REDIRECT 67 RECROSS I N D E X

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. PARKER: Q. A. Q. A. Q. Hello, Mr. Hamilton. Good morning. We've not met before. Nice to meet you. You testified on direct that you're the chairman of the My name is Ryan Parker. SANTA ANA, CALIFORNIA; TUESDAY, JULY 13, 2010; 10:30 A.M. THE COURT: MR. PARKER: Cross-examination. Thank you. CROSS-EXAMINATION You may inquire.

National Board of Directors of Log Cabin Republicans; is that correct? A. Q. That is correct. And as the chairman, you're responsible for, among

other things, ensuring that the organization complies with its articles of incorporation; is that correct? A. Q. Yes. Now, the Log Cabin Republicans are incorporated in the

District of Columbia; is that correct? A. Q. Yes. And it's your understanding that the Articles of

incorporation state that Log Cabin Republicans shall have one membership class; is that correct? A. Q. I don't know that that's what I remember, no. Okay. Well, why don't we look at the articles of DEBORAH D. PARKER, U.S. COURT REPORTER

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. And it's your understanding that the articles of incorporation. Can you pull up, John, JX110, please, page 2. THE COURT: little bit. MR. PARKER: BY MR. PARKER: Q. Mr. Hamilton, do you recognize this document? THE COURT: you can pull it up. THE WITNESS: Yes, I do. BY MR. PARKER: Q. And do you see the paragraph that says "Membership Thank you, your Honor. If you can't read it on the screen, Yes. And Mr. Parker, would you slow down a

Organization"? A. Q. Yes. And do you see -- I believe it's the second sentence

there -MR. PARKER: BY MR. PARKER: Q. That says: The corporation shall have one membership Thank you, John.

class. Do you see that, sir?

incorporation explain that members shall be individuals who DEBORAH D. PARKER, U.S. COURT REPORTER

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 support the purposes of the corporation and making financial contribution to the corporation each calendar year? A. Q. Yes. So if a member fails to pay dues, under the articles of

incorporation, they are no longer a member of the Log Cabin Republicans; is that correct? A. Q. Yes. During your testimony, you also mentioned the bylaws.

I would like to ask you a question about the bylaws, and that's Joint Exhibit 109, page 1. Do you recognize this document, Mr. Hamilton? THE COURT: MR. PARKER: I'm sorry. What exhibit number?

This is Joint Exhibit 109, and this

is at the first page there. BY MR. PARKER: Q. A. Q. Do you recognize this document, Mr. Hamilton? Yes. And is Article 2, the article that deals with

membership, chapters and annual meetings? A. Q. Yes. And in this document -- excuse me. This document states that Membership in Log Cabin Republicans shall be open to individual persons registered as Republican voters to persons who participate in their state Republican party and to persons who have DEBORAH D. PARKER, U.S. COURT REPORTER

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 page 1. BY MR. PARKER: Q. Mr. Hamilton, I just have a few questions about this publically self-identified as members of the Republican party; is that correct? A. Q. Yes. Now, Mr. Hamilton, you testified that there are

approximately 19,000 members of Log Cabin Republicans nationwide; is that correct? A. Q. Yes. And one of the ways that you know how many members

there are is by keeping records; is that correct? A. Q. That's true. So when a person pays dues and joins

Log Cabin Republicans, a record is created; is that correct? A. Q. That's correct. So if I wanted to know the date when an individual

became a member, I could look at those records? A. Q. That is true. Let's talk for a minute about exhibit -- Joint

Exhibit 340. MR. PARKER: If you can pull that up for me, John,

document. If you look below Mr. Nicholson's name where it says Mr. John Nicholson, III, it has an ID number with a DEBORAH D. PARKER, U.S. COURT REPORTER

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. Is that the date when Mr. Nicholson became a member of A. A. Q. "GA." What does the "GA" stand for? It stands for "Get Active." It stands for "Get Active." What does that designation indicate? "Get Active" is the company and the software that we

used to keep track of our records. Q. Let's look at the second page, just for a moment. On

the second page here, it says: 2006. Do you see that?

Record created on April 28,

Log Cabin Republicans? A. Q. Yes. And you are talking about honorary membership; is that

correct? A. Q. No. Does the record state that Mr. Nicholson paid dues in

April of 2006? A. Can you go back to the first document, please? Could

you repeat the question, please? Q. My question was: Does this document indicate that

Mr. Nicholson paid dues in April of 2006? A. The two pages, yes. DEBORAH D. PARKER, U.S. COURT REPORTER

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Q. A. Q. A. The two pages indicate that he did pay dues in 2006? That is correct. And where does it indicate that? It indicates it by the Get Active receipt number and

the amount number. Q. And if I wanted to know if Mr. Nicholson had paid dues

in the years between 2006 and 2008 when this record appears as updated, do you keep records of when members paid dues to continue with their membership? A. Q. Yes. If we could go back to the second page. Mr. Hamilton, who made Mr. Nicholson a member of the Log Cabin Republicans? A. Q. I don't understand the question. It says here that he became a member. I would assume

that someone bestows membership upon someone, or gives them a certificate, or a receipt of some sort. Do you know who made Mr. Nicholson a member? I do not know. Do you know if he was made a member at the national

convention? A. Q. I do not know. And on this date, the 4/28, that's the date you

testified when Mr. Nicholson became a member of Log Cabin Republicans? DEBORAH D. PARKER, U.S. COURT REPORTER

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes. What does that mean? Does that mean that the payment, A. Q. Yes. Is that also the date when the initial complaint in

this action was filed? A. Q. A. I don't know. Do you have any reason to dispute that? No. MR. PARKER: for a moment. BY MR. PARKER: Q. On the first page, it says: Last updated -- this is Can we return to the first page, just

under the "payment information section" -- on March 18, 2010. Do you see that?

he paid on that date? A. I don't know if that refers to the payment information,

or whether it refers to any update to the record. Q. A. Q. And what other updates could be made to the record? Change of address. Could the date that we've talked about on the second

page have been updated at that time? A. Q. No, I don't believe so. Let me ask you a couple of questions about the survey

you mentioned on direct testimony. DEBORAH D. PARKER, U.S. COURT REPORTER

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 You testified that you conducted a survey by sending out an e-mail to your entire e-mail list; is that correct? A. Q. That is correct. And you sent a survey out in February of 2010; is that

correct? A. Q. I believe so, yes. So you sent a survey out more than five years after

this case was filed in October of 2004; is that correct? A. Q. Yes. And in the e-mail, you asked members of your

organization who are currently serving in the military or were military veterans to fill out the online survey; is that correct? A. Q. Yes. And you requested that the survey be anonymous; is that

correct? A. I didn't request it. I said that it would be

anonymous. Q. Let's take a look at Defendants' Exhibit 36, page 1. Mr. Hamilton, although your surveys asks that members of your organization who were currently serving in the military or were military veterans to fill out the survey, some respondents who had never served in the military filled out your survey; is that correct? DEBORAH D. PARKER, U.S. COURT REPORTER

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. That is true. And I want to ask you specifically about one of the In the column

responses here, the eleventh response down.

Have you been negatively affected by the "Don't Ask, Don't Tell" policy, this respondent said: Yes. It was used to

terminate my service; is that correct? A. Q. That's what it says. And then in the Tell us what happened category, he I was discharged in 1975 for being gay; is that

says:

correct? A. Q. That's what it says. And you're aware, Mr. Hamilton, that the "Don't Ask,

Don't Tell" policy wasn't enacted until 1993; is that correct? A. Q. I believe that to be true. Now, Mr. Hamilton, you testified that you sent this

survey out to all of the members on your e-mail list; is that correct? A. Q. Yes. And it's possible that you have multiple addresses for

some of these members; is that correct? A. Q. Yes. And some individuals may have received a survey in more

than one e-mail account; is that correct? A. That is correct. DEBORAH D. PARKER, U.S. COURT REPORTER

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to it. (Laughter.) THE COURT: MR. PARKER: BY MR. PARKER: Q. In fact, because the survey is anonymous, you have no Go ahead. Let me rephrase the question. Q. And those individuals could have submitted multiple

responses to your survey; is that correct? A. Q. That's possible. And because the survey is anonymous, you would have no

one of knowing whether individuals submitted multiple responses; is that correct? A. Q. Yes. In fact, because the survey is anonymous, you have no

way of verifying any of the information that respondents provided, do you, Mr. Hamilton? A. Yes. I have -- I'm sorry. Was that a do you believe?

Negative? Q. I'll ask the question again. THE COURT: I'll sustain the witness's objection

way of verifying any of the information that's been provided? A. I have no way of verifying the information that was

provided. MR. PARKER: No further questions.

DEBORAH D. PARKER, U.S. COURT REPORTER

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 please. A. Q. (Witness so complies.) According to the bylaws, there is a category of BY MR. MILLER: Q. You have the bylaws there, Mr. Hamilton, Exhibit 109. You were asked a question about Section 2.01 of the bylaws. Could you look at Section 2.02 of the bylaws, THE COURT: Redirect examination.

REDIRECT EXAMINATION

membership called "honorary membership" in the Log Cabin Republicans? A. Q. Yes. And does the Log Cabin Republicans have honorary

members? A. Q. They do. And is that something decided at a national level, a

local level, state level, or what level was that decided? A. Well, I can only testify based on the national level.

But my experience with the other chapter that I was associated with would indicate that there are some chapters who have honorary membership as well. Q. You were asked a question about whether April 28, 2006

was the date the original complaint was filed. MR. MILLER: And I would ask the court to take

DEBORAH D. PARKER, U.S. COURT REPORTER

66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 judicial notice that the original complaint was, actually, filed October of 2004. I have no further questions. THE COURT: Thank you.

Judicial -- I think there could be a stipulation as to the date the original action was filed, which was -MR. MILLER: THE COURT: MR. PARKER: "amended complaint." THE COURT: on those dates. October 12, 2004, your Honor. So stipulated? Your Honor, I meant to say the I apologize. All right. So why don't we just agree

The original complaint was filed The amended complaint was filed

October 12, 2004. April 28th, 2006.

So stipulated? MR. MILLER: THE COURT: Thank you. Yes, your Honor. Thank you. You may step down.

And you may call your next witness. MR. MILLER: THE CLERK: He's right outside, your Honor. Please raise your right hand.

ARTHUR JAMES ENSLEY, PLAINTIFF'S WITNESS, SWORN THE WITNESS: THE CLERK: I do.

Please be seated. Thank you.

THE WITNESS:

DEBORAH D. PARKER, U.S. COURT REPORTER

67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. MILLER: Q. A. Q. Good morning, Mr. Ensley. Good morning. Would you please tell the court your occupation, THE CLERK: it for the record. THE WITNESS: THE CLERK: My full name -Please state your full name and spell

Full name, please. -- is Arthur J. Ensley, Jr.

THE WITNESS: THE COURT:

Spell it, please. A-R-T-H-U-R; James, J-A-M-E-S;

THE WITNESS:

Ensley, ENSLEY; Jr, J-R. THE COURT: Thank you.

You may inquire. MR. MILLER: Thank you, your Honor.

DIRECT EXAMINATION

please. A. Yes. I'm an SBA lender for Wells Fargo Bank, in

Atlanta, Georgia. Q. And are you a member of the Log Cabin Republicans

organization? A. Q. Yes, I am. How long have you been a member of

Log Cabin Republicans? A. About 1999. Over 10 years.

DEBORAH D. PARKER, U.S. COURT REPORTER

68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Do you belong to a local chapter of

Log Cabin Republicans? A. Q. A. Q. A. Q. Yes. To which local chapter do you belong? The Georgia Log Cabin Republicans. Is that a statewide chapter? Yes, sir. Does the Georgia chapter of the Log Cabin Republicans

have a board of directors? A. Q. Yes. Have you ever been a member of the board of directors

of the Georgia chapter? A. Q. Yes. How long have you been a member of the Georgia

chapter's board? A. Q. Since 2002. Do you hold any other position with the Georgia

chapter? A. Q. A. Q. Yes. Can you tell the court what position you have, please? I'm the president of the Georgia chapter. And when did you become the president of the Georgia

chapter of Log Cabin Republicans? A. Q. In January 2006. Do you still have that position today? DEBORAH D. PARKER, U.S. COURT REPORTER

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Yes, I do. Mr. Ensley, have you ever served on the national board

of directors of Log Cabin Republicans? A. Q. A. Q. A. Q. A. Q. A. Yes. When did you become a member of that board? In 2008. And are you still a member of the national board today? Yes. And do you know Mr. Ensley, a Mr. Alex Nicholson? Yes, I do. And when did you meet with Mr. Nicholson? I met Alex at the national convention in Washington,

D.C. in April 2006. Q. And did Mr. Nicholson become a member of the Georgia

chapter of the Log Cabin Republicans? A. Q. Pardon? Come again?

Did Mr. Nicholson become a member of the Georgia

chapter of the Log Cabin Republicans? A. Q. Yes. And were you involved in his becoming a member of the

organization? A. Q. Absolutely. Can you -- did that happen while you were president of

the Georgia chapter? A. Yes, it did. DEBORAH D. PARKER, U.S. COURT REPORTER

70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And can you explain how Mr. Nicholson became a member

of the Georgia chapter of the Log Cabin Republicans? A. Certainly. I met Alex at the convention in Washington, He served on a panel. He was with a

D.C. in April 2006.

group called "Called to Duty."

And that's when I learned

that Alex was a student at a North Georgia college, and he was a fellow Georgian, and he was doing remarkable things, going around the country, speaking to universities and other folks to change hearts and minds on the "Don't Ask, Don't Tell" policy. And I approached Alex at the convention and asked him if he would be interested in being involved with Log Cabin. And I conferred with our other board members at

the meeting, and we gave him an honorary membership to our organization. Q. Do you recall, Mr. Ensley, when the Georgia chapter

made Mr. Nicholson an honorary member? A. Q. A. Q. Yes. It was in April 2006, after the convention.

Do you remember the exact date? Yes. It was on April 28th, 2006.

And how was it, Mr. Ensley, that you're able to

remember the exact date? A. That was a very eventful weekend for me. During that

weekend, Congressman Deal's office arranged a private tour of the Capitol to me and also a tour of the White House, and DEBORAH D. PARKER, U.S. COURT REPORTER

71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I had the tour of the White House that Friday, the 28th, that morning. And then, the meeting where Alex spoke to the And then I talked to him that

panel was in the afternoon.

evening and invited them, after confirming with the board, to join our organization. Q. And can you explain why the Georgia chapter made

Mr. Nicholson a honorary member? A. Sure. We are a nonprofit organization. It's not like

we can hand out a lot of cash and prizes.

But it is like

the biggest honor we can give someone for doing -especially, a Georgian doing remarkable things to advance the quality for LGBT Americans. We considered him an

American hero being a past serviceman, too. Q. Are there other honorary members of the Georgia

chapter? A. Q. A. Yes, there are. Approximately, how many honorary members are there? Well, we just have a handful. It's not like we hand

these things out like candy, but -We have Representative Mike Jacobs. He just

passed the anti-bullying legislation in Georgia. Our representative, Jill Chambers, she was the only Republican to vote against the anti -- the marriage amendment to our Georgia state Constitution. And Brian Bates, he's a city councilman, in DEBORAH D. PARKER, U.S. COURT REPORTER

72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Doraville, Georgia, who became the first openly gay Republican elected in the South. Q. Since Mr. Nicholson became an honorary member of the

Georgia chapter, has he attended meetings of the chapter? A. Yes, he did. While he was a student at Georgia -- at I

North Georgia College, he came to most of our meetings. would say probably 99 percent of them. Q. Does Log Cabin Republicans have an annual national

convention? A. Q. A. Q. A. Yes, we do. Do you attend those conventions? Yes, I do. Have you seen Mr. Nicholson? Yes, I have. THE COURT: You need to slow down. Okay.

THE WITNESS: THE COURT:

And you need to wait until he finishes

the question before you begin your answers so the reporter can get your answer down. BY MR. MILLER: Q. Have you seen Mr. Nicholson at annual conventions at

the Log Cabin Republicans? A. Q. Yes. Do you remember, approximately, how many times you've

seen him at these annual conventions since he became a DEBORAH D. PARKER, U.S. COURT REPORTER

73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. SIMPSON: Q. Hello, Mr. Ensley. I don't think we've met before. Simpson, representing the defendants here. DEBORAH D. PARKER, U.S. COURT REPORTER I'm Scott member? A. Well, he was at the 2006 convention, of course, and I

saw him at the last year's convention in Washington, D.C. Q. Does Mr. Nicholson's honorary membership in the

Log Cabin Republicans Georgia chapter continue today? A. Q. Yes, it does. Has he been a member of the Georgia chapter of

Log Cabin Republicans since April 28th, 2006? A. Q. Yes, he has. Does that make him a member of the national Log Cabin

organization? A. Q. Yes, it does. As a member of Log Cabin Republicans, as president of

the Georgia chapter and a member of the national board of directors, do you believe that Mr. Nicholson has been a member of the Log Cabin Republicans since April 28, 2006? A. Yes, I do. MR. MILLER: THE COURT: No further questions, your Honor. Thank you.

Cross-examination. CROSS-EXAMINATION

74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. Q. A. Q. Thank you. The Georgia chapter of LCR has a website; correct? Yes, we do. Is the URL of that website: Yes, it is. On the home page is a link that says "membership"? Yes. When someone clicks on that link they get a page that The annual dues for membership are $25? LCRGA.com?

says: A. Q.

Yes, it is. Now, if someone pays those dues one time but then stops

paying them, they cease being a member; correct? A. No, not necessarily. We send out a renewal notice.

But we do keep up a list, and I suppose they would be considered a former member. Q. A. Therefore, no longer a member? Inactive member. That's correct. It would be an

active -- yeah, an active member and past members, I guess. We have a database. We have about 1200 people on it. And

some people identify themselves as Log Cabin members that are on the database. But I guess active members, we would

consider paid-up members. Q. So, again, if they stop paying dues, they would no

longer be an active member? A. That's correct. DEBORAH D. PARKER, U.S. COURT REPORTER

75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. Now, you testified that the Georgia chapter conferred

honorary membership on Alexander Nicholson on April 8th, 2006? A. Q. A. Q. That's correct. That was during the national convention at OCR? That's correct. Was Mr. Nicholson given any document reflecting his

honorary membership? A. No. Again, we were -- actually, the Georgia chapter is We're

a separate legal entity from the national chapter.

fully recognized as such by the secretary of state of the great sovereign state of Georgia, and I'm president and CEO of that entity. So whoever we put forth as a member, active

or honorary, is honored by the national organization. Q. Now, an honorary member does not have to pay dues;

correct? A. Q. That's correct. And, in fact, as an honorary member, Mr. Nicholson did

not pay dues? A. Q. A. Q. A. Q. That's correct. He did not pay dues in 2006? No. Or in 2007? No. Or in 2008? DEBORAH D. PARKER, U.S. COURT REPORTER

76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. A. Q. A. No. Or in 2009? No. Or 2010? No. He's still an honorary member. Honorary members

are not required to pay membership dues. Q. Can you explain to me, Mr. Ensley, as an honorary

member during all of those years, Mr. Nicholson had all the privileges of membership? A. Q. Yes. Is there any difference between the privileges of

membership between an honorary member and a dues-paying member? A. Q. Come again? Is there any difference in the privileges of membership

between an honorary membership and a dues-paying member? A. Q. No. So except for the fact that Mr. Nicholson's membership

was honorary, it was your belief that he was a member of the Georgia chapter and of the national organization, just like any other member? A. Q. That's correct. Mr. Ensley, did you sign a declaration for this case on

April 1st, 2010? A. Yes, I did. DEBORAH D. PARKER, U.S. COURT REPORTER

77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And you said in that declaration that Mr. Nicholson was

still an honorary member as of that date? A. Q. A. Q. That's correct. So that's what you said on April 1st of this year? That's right. So, is your understanding on April 1st of this year

that Mr. Nicholson was still an honorary member of the organization? A. Q. Yes, he is. And it was your understanding that he had not paid dues

still as of that date? A. Again, Mr. Nicholson is not required to pay dues Our

because he is an honorary member of our organization.

other honorary members are not required to pay membership dues either. Q. Now, more recently, have you become aware that

Mr. Nicholson has now paid dues to LCR? A. He didn't pay it through the Georgia chapter. If he

did, that would be his -- you know, if he wanted to make a donation or so, he's not required to. Q. Again, my question is: Have you become aware that

Mr. Nicholson has paid dues to the national organization? A. No. And I'm not privy to that information. I don't

see the rolls of the national organization, so... Q. You just don't know? DEBORAH D. PARKER, U.S. COURT REPORTER

78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. A. Q. I don't know. You said that you have a handful of honorary members. Can you be more specific than that? Yeah. Again, we have Representative Jill Chambers,

Representative Mike Jacobs, Brian Bates, Alex Nicholson and Gerard -- I can't pronounce his last name. Q. He was also --

Is the "Gerard" you mentioned, is that Gerard

Chaplowski? A. Q. Yes. That's how you pronounce it. That's right.

Do you know Mr. Nicholson to be the head of an

organization that advocates for gay rights? A. Q. A. Q. Yes, I do. What is the name of that organization, if you know? Servicemen United, or something like that. Is Mr. Chaplowski involved in that organization, if you

know? A. I don't know. But Gerard did serve on our board. I,

actually, approached both of them at the convention, but Gerard ended up serving on our board. Alex didn't have time

to serve on our board, but both of them were awarded honorary memberships. Q. I believe you said that Mr. Nicholson served on a panel

during the 2006 convention; correct? A. Q. Yes. And it was because of his serving on the panel that you DEBORAH D. PARKER, U.S. COURT REPORTER

79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 made him an honorary member? A. They were Georgians. Both of them went to North

Georgia College, did remarkable things to advance the quality. And, you know, to have folks, young folks like

that, going around, changing hearts and minds was something pretty remarkable, so we agreed to give them honorary memberships to our chapter. Q. We were glad to do it.

Again, was it his service on the panel during the

national convention? A. Not just the panel, but what he -- while he was on the He

panel, called to duty tour, his involvement in that.

was -- he was speaking to the national -- to the national convention, talking about what they were doing around the country, the good things they were doing. Because of his

efforts and remarkable things, we decided to award them both honorary memberships. Q. Mr. Ensley, one further question. Another honorary

member you mentioned is Brian Bates? A. Q. Yes. Can you tell me why he was conferred honorary

membership? A. Sure. Brian served on the Georgia Log Cabin board as He ran for the Doraville, City Council, a

vice president.

suburb of Atlanta. Doraville Georgia City Council. It's a suburb

DEBORAH D. PARKER, U.S. COURT REPORTER

80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. PARKER: Q. Mr. Bradley, good morning. DEBORAH D. PARKER, U.S. COURT REPORTER outside of Atlanta. And he won that and became the first

openly gay Republican elected in the South. Q. So it's fair to say that most of your honorary members

are in political positions? A. Yes. I guess that would be -MR. SIMPSON: THE COURT: MR. MILLER: questions, your Honor. THE COURT: Thank you. You may step down. And the No further questions, your Honor. Redirect examination.

Thank you.

I don't believe -- we have no

And plaintiff may call its next witness. name of your next witness. MR. MILLER: (Pause.) THE CLERK: Please raise your right hand. I do. Philip Bradley.

THE WITNESS: THE CLERK:

Please be seated and state your full

name and spell it for the record. THE WITNESS: It's Philip Lecroy Bradley. Philip,

P-H-I-L-I-P; Lecroy, L-E-C-R-O-Y; Bradley, B-R-A-D-L-E-Y. THE COURT: Thank you.

You may inquire. DIRECT EXAMINATION

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. Q. Good morning. Can you please tell the court your occupation or

profession, please? A. I have an Allstate Insurance agency, in Charleston,

South Carolina. Q. A. Q. Are you a member of the Log Cabin Republicans? I am. And how long have you been a member of the

Log Cabin Republicans? A. I've been a member since 2002, and I've served on their

board since 2004. Q. A. Q. And you belong to a local chapter? South Carolina chapter. And were you the person who founded the South Carolina

chapter? A. Q. I did. Have you served as the president at the South Carolina

chapter? A. I did for the first two years and turned it over to

someone else. Q. Are you involved in the national Log Cabin Republicans

organization? A. Q. A. Yes. I've served on the board since 2004.

Have you served on committees of the national board? I served on the politics and policy committee. DEBORAH D. PARKER, U.S. COURT REPORTER

82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And how long have you been a member of the national

boards of directors? A. Q. A. Q. Six years. And that would take us back to 2004? Correct. Do you remember exactly what month of 2004 you became a

member of the national board of directors? A. Q. I believe it was April. Now, are you personally acquainted with an individual

whom we have referred to in this case as "John Doe"? A. Q. A. I am. And how long have you known him? I've known him for 12 or 13 years. It was '97 or '98

when we met. Q. And how often have you been in contact with him during

those years? A. Off and on, periodically, at least once a month we'll

e-mail or catch up by phone. Q. Okay. Do you understand that John Doe is a member of

the armed forces? A. Q. A. Q. A. Yes. Do you know what branch of the service he's in? He's in Army Reserves now. Do you know what his rank is? He's a Lieutenant Colonel. DEBORAH D. PARKER, U.S. COURT REPORTER

83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q. And since you have known him, has he received

promotions? A. He has received two promotions since I've known him.

He was a captain when I first met him, and he was in the Army at the time. And then, he became a major and

Lieutenant Colonel now in the reserves. Q. A. Q. A. And do you know whether he has been deployed overseas? He has. Can you tell us about that, please? He just came back two months ago from a deployment in

Iraq. MR. PARKER: (Pause.) THE COURT: MR. MILLER: What's your response? We are in this awkward position, your Objection. Hearsay.

Honor, because Colonel Doe can't come and speak for himself. This individual has personal knowledge about this man's service. THE COURT: Well, I'm going to sustain the

objection as to the last question, because you haven't laid a foundation as to his knowledge of the overseas deployment. MR. MILLER: BY MR. MILLER: Q. Can you, please, tell the court, Mr. Bradley, what Thank you.

source or sources of information you have about whether DEBORAH D. PARKER, U.S. COURT REPORTER

84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what -THE COURT: MR. PARKER: THE COURT: BY MR. MILLER: Q. And when did you first speak to Colonel Doe about the Well, he hasn't -- not yet, he hasn't. Okay. The objection is overruled. Colonel Doe has served overseas? A. How do I know he served overseas? He told me. We

corresponded when he was over there in Iraq. Q. A. How recently was he deployed to Iraq, if you know? He was there for a year. MR. PARKER: Objection. Hearsay.

He's testifying about what John Doe told him. THE COURT: BY MR. MILLER: Q. Did you ever have discussions with Colonel Doe about The objection is sustained.

the possibility of him becoming a member of the Log Cabin Republicans? A. I did. Several years ago. Objection. Hearsay. He's telling

MR. PARKER:

prospect of becoming a member of Log Cabin Republicans? A. When I got involved with it in 2002, we exchanged I knew he was a conservative. I

e-mails several times.

sent him the Inclusion Wins newsletter that Log Cabin put out. We corresponded several times about issues. DEBORAH D. PARKER, U.S. COURT REPORTER And when

85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I became a member and got more active and especially when I served on the board in 2004, I was trying to get him more involved with it. Q. Okay. Were you trying to persuade him to become a

member of the Log Cabin Republicans? A. Q. Yes. Did he express any concerns to you about joining the

Log Cabin Republicans organization? MR. PARKER: MR. MILLER: Objection. Hearsay. Obviously,

Yes, your Honor.

Colonel Doe can't testify, himself, because the government will not allow him to testify here in this courtroom without running the risk of being discharged. So this

information -- this is the only way this information about Colonel Doe's membership in the Log Cabin Republicans can come in. The information is reliable. The witness can be

cross-examined about it. THE COURT: Well, I'm not sure that the

information -- considering the court's earlier rulings on this issue about or part of the issue about John Doe -The court has made certain rulings already in its ruling on the motion for summary judgment as to standing and there are -- counsel for the defense brought this up at the last pretrial conference as to what was left open for trial. So I looked at this, again, as to what the extent of the DEBORAH D. PARKER, U.S. COURT REPORTER

86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 court's ruling is both as to lieutenant Colonel Doe and as to Mr. Nicholson. But as to Doe, the only issue for trial, after the court's ruling on the summary judgment motion on the standing issue, is whether he was paying dues through a third party before, as of or before the date of filing of the original complaint, which is October the 12th, 2004. So, I think some of the testimony that you're attempting to elicit is unnecessary, in light of the findings that the court has already made, which I could go through, again, and state but I don't need to because they are in my ruling on the motion for summary judgment. MR. MILLER: I think it's helpful, your Honor, for

him to be testifying about any discussions he had with Colonel Doe in 2004 and when they happened in 2004. think also the hearsay issue is not an issue. And I

Because

really I guess what you're saying is what John Doe's state of mind is. I think it falls under that exception as well. Well, are you -- so you're offering

THE COURT:

it -- well, if you are offering it under the exception to the rule against hearsay under the state of mind exception, what issue are you offering it for? or the First Amendment issue? MR. MILLER: confidentiality. DEBORAH D. PARKER, U.S. COURT REPORTER Both. Colonel Doe's concerns about On the standing issue,

87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: So, the state -- if you are offering

it under the state of mind exception, you're offering it to show what his state of mind was at the time but not for the truth of the matter; right? That would be the First Amendment issue. MR. MILLER: THE COURT: MR. MILLER: THE COURT: MR. PARKER: Yes. Not the standing issue. I suppose that's right. All right. Mr. Parker.

Your Honor, we would say all that is

relevant is the date he became a member and that all the other questioning is irrelevant. THE COURT: Well, as to the standing issue but not

as to the First Amendment issue. MR. PARKER: THE COURT: That's correct. If you are both saying correct, then I So it's going to come in on the

think we're in agreement.

First Amendment issue, the state of mind exception, and it comes in on the -- it doesn't really come in as to -- his testimony is not revelant to the standing issue. with Mr. Parker. I agree

The only issue for trial on the standing

issue is the date which -- testimony isn't being elicited at this point as to that issue. Do you remember the question? THE WITNESS: I'm sorry?

DEBORAH D. PARKER, U.S. COURT REPORTER

88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Do you remember the last question? No, ma'am. I'll start again.

THE WITNESS: MR. MILLER: BY MR. MILLER: Q.

Let's go back for a minute. When were you having these discussions and

communications with Colonel Doe? A. Q. A. About becoming a member? Yes. It was in 2004 when I came on the board. Part of my

responsibility as a board member was to recruit members and try to get people involved in the organization. Q. I think you've already said that was about April 2004

when you became a member of the board? A. Q. That's correct. In your discussions with Colonel Doe, did he express

concerns to you about joining the Log Cabin Republicans? A. Yes. He did not want to become a member officially, or

be on an e-mail list, or mailing list of any sort for the fear of being outted. So it was -- he enjoyed getting

e-mails and so forth from me indirectly, but he did not want to be on the e-mail list, or on the rolls of any sort with Log Cabin. Q. Okay. And did you tell him what might possibly be done

to both join the organization and remain confidential? DEBORAH D. PARKER, U.S. COURT REPORTER

89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PARKER: THE COURT: subsequent actions. Go ahead. THE WITNESS: becoming a member. so forth. We had the discussion of him Objection. Hearsay. Goes to

The objection is overruled.

He did not want to be on the rolls and

When we started talking about the case, then we

decided at that point that he would have to do something in order to be a part of the organization to be a part of the court case. BY MR. MILLER: Q. And what did you say -- what did you and he discuss

next about that? A. That there was a possibility of us -- my responsibility And me and one other

was to find the plaintiffs originally.

person knew who the four original plaintiffs were at that time and they were all people that I knew that were either already in Log Cabin Republicans or were getting the newsletter. And he was one of them. And I told him that he

could, at least, just meet with the attorney and find out what they would -- what the process would be, and if he would be comfortable with it. And he felt pretty

comfortable after having met with the attorneys that his name would be kept off of any rolls and remain anonymous. Q. What was the name of the attorney that you directed him DEBORAH D. PARKER, U.S. COURT REPORTER

90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question. BY MR. MILLER: Q. When were the discussions with Colonel Doe that you to speak with? A. Q. That was Marty Meekins. In your discussions with John Doe that follows that,

did he tell you about becoming a member of the Log Cabin Republicans? A. Yes. We followed up after he met with Marty. I was

not present for that meeting.

But after he met with Marty,

he called and he told me that he felt very comfortable with it. And he explained the process of filling out the He felt comfortable at

paperwork that he did, and so forth.

that time with the assurance from Marty that everything would remain anonymous. Q. And approximately when was that? THE COURT: MR. PARKER: Excuse me. Objection. He's now testifying as to

the date of membership and when that occurred. We would say that that's hearsay. MR. MILLER: I'm sorry. I'll rephrase the

just referred to? THE COURT: MR. MILLER: THE WITNESS: Did you say "where" or "when"? When. Those discussions were -- I can't

DEBORAH D. PARKER, U.S. COURT REPORTER

91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pinpoint the exact time frame. I know that that was

probably in May, June, July of 2004. BY MR. MILLER: Q. Okay. And to your knowledge, are Colonel Doe's dues

with the Log Cabin Republicans current? A. Again, he was very concerned about putting his name on He has made a

any kind of roll whatsoever with Log Cabin.

contribution to Log Cabin since he has entered into the reserve program. But before that, he was absolutely adamant

about not putting his name on the rolls. Q. So to what -- to your understanding, what did he do to

become a dues-paying member without putting his names on the rolls? A. He signed a declaration -MR. PARKER: THE COURT: Objection. Hearsay.

No, the objection is overruled. After I followed up with him, he He had paid

THE WITNESS:

told me that he had filled out the application. the dues to Marty.

And he filled out the declaration

application for membership and paid a dues check to Marty, which was made out to -THE COURT: I'm sorry. The question -- you need

to listen carefully to the question that's asked and answer only the question. THE WITNESS: Okay.

DEBORAH D. PARKER, U.S. COURT REPORTER

92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 remember? MR. MILLER: THE COURT: BY MR. MILLER: Q. Have you checked to see if Colonel Doe's dues are No, I don't. I'm sorry. you. THE COURT: The question didn't ask what he told

The question asked you something else. Do you want to repeat the last question? Do you

Why don't you start over again.

current with Log Cabin Republicans? A. Q. I have not checked to see if they are current. What did he tell you he did to become a member of

Log Cabin Republicans? MR. PARKER: THE COURT: BY MR. MILLER: Q. Is it your belief as a member of the Objection. Hearsay.

The objection is sustained.

Log Cabin Republicans, a member of the national board and the founder of the South Carolina chapter that Colonel Doe became a member in the early summer of 2004? A. Absolutely. MR. PARKER: THE COURT: MR. MILLER: THE COURT: Objection. Overruled. No further questions, your Honor. Thank you. Leading.

Mr. Parker, you may cross-examine. DEBORAH D. PARKER, U.S. COURT REPORTER

93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. PARKER: Q. A. Q. Good morning, Mr. Bradley. Good morning. We've never met before. My name is Brian Parker. CROSS-EXAMINATION

Now, you are personally acquainted with the declarant known as "John Doe" in this matter; is that correct? A. Q. Yes. And it's your testimony that Joe Doe is currently a

Lieutenant Colonel in the United States Army Reserves; is that correct? A. Q. Yes. And it's your testimony that John Doe has been a member

of the Log Cabin Republicans since at least 2004? A. Q. Correct. And it's your understanding that John Doe paid his --

I'm sorry. And it's your understanding that John Doe paid his dues to Mr. Martin Meekins, who is also a member of the board at that time? A. Q. That's correct. And you don't have personal knowledge of when or

whether Mr. Meekins transferred those dues to the Log Cabin Republicans; is that correct? DEBORAH D. PARKER, U.S. COURT REPORTER

94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A. I know that he did not transfer the dues to

Log Cabin Republicans, because that would put John Doe on the rolls, and he did not want that to happen. Q. So Mr. Meekins did not transfer John Doe's dues to the

Log Cabin Republicans? A. I don't have knowledge of that. But he did not want

his name to appear on the rolls.

So whether the money ever

made it to Log Cabin, I don't know that. Q. And you don't know if John Doe paid dues to Mr. Meekins

in 2005, do you? A. Q. A. Q. A. Q. I do not know that. And you don't know if he paid dues in 2006? No. Or 2007? I don't know that. Mr. Bradley, does John Doe's name appears on logs, or

records that the Log Cabin Republicans keep? A. The records that I've seen up until 2000 and -- I

looked at the logs from 2004, 2005, to see if his name appeared during that time frame and his name never appeared on that, which was me trying to protect him, because I didn't want his name to appear if it did show up. Q. And you don't have personal knowledge about whether his

name appeared on the logs in subsequent years? A. I do not know that. DEBORAH D. PARKER, U.S. COURT REPORTER

95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one. DEBORAH D. PARKER, U.S. COURT REPORTER witness. MR. MILLER: Your Honor, what I thought I would do MR. PARKER: THE COURT: MR. MILLER: THE COURT: No further questions. Redirect examination? No questions, your Honor. Thank you. You may step down.

THE WITNESS: THE COURT:

Thank you, ma'am.

And plaintiff may call his next

now, if I might, is to introduce some more exhibits. THE COURT: MR. MILLER: Go ahead. I have some more responses to

requests for admissions, and the first batch is in Exhibit 108. Exhibit 108, your Honor, are the government's supplemental responses to the first set of requests for admissions made pursuant to an order of Magistrate Eick. We would offer the responses to request for admissions 81 through 105 in this set of supplemental responses. THE COURT: objection here. Well, I understand you want to make an

But before you do, as to the response to

83, I would not admit that one, because it doesn't -there's neither an admission or denial. MR. MILLER: You're correct, and I withdraw that

96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. GARDNER: Your Honor, I do have objections:

One, obviously, the objections are incorporated in the defendants' supplement; but, two, I think, now we're looking at brass tacks. The fact that the government has deleted the "Bahamas" from that -THE COURT: your objection to. MR. GARDNER: different one: example. It's an example. I can do a That's the one that I would sustain

Estonia.

That's just to give you an It

The fact is, this simply is not revelant.

makes no fact in this case more or less true.

And more If

fundamentally, it's cumulative of the expert testimony. they want to introduce this in evidence, I would suggest they pull their experts who are testifying about foreign militaries, assuming as an initial matter, the foreign military experience is at all relevant to whether or not congressional enactment in 1993 was Constitutional, an inquiry that, frankly, is irrelevant too. THE COURT:

Well, as to the objection that this is

cumulative to the expert testimony, to the extent that at this point in the trial I'm familiar with the expert testimony, I'm only familiar with it to the limited extent there was a preview of it in connection with the motions in limine. DEBORAH D. PARKER, U.S. COURT REPORTER

97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sorry. But the expert testimony on this subject, which is the subject of -- if it's the second expert -- the third expert that was mentioned in the opening statement by plaintiff's counsel today, these responses form a part of the basis for the witness' testimony. cumulative. So it's not

It's a necessary part of the basis for the So that basis for the objection is not

expert's testimony. well taken.

It's not cumulative.

To the extent that you are arguing that these admissions are irrelevant, the objection is overruled. So except as to 83, which has been withdrawn and that is all of the -- that's all of the responses to the request for admissions and the supplements for the entire Exhibit 108 is ordered admitted. (Joint Exhibit 108 received in evidence.) MR. MILLER: Thank you, your Honor.

I would next like to turn to Exhibit 105, which are the government's responses to a second set of requests for admissions. I have a number of these that I would like

to offer into evidence. So the first group would be 139 through 148. THE COURT: MR. MILLER: I misspoke. THE COURT: Are there others? Yes, I'm sorry. 154, 155, 156. I'm

Not those. I'm sorry.

But 159 and 160. So not 154 through 156?

DEBORAH D. PARKER, U.S. COURT REPORTER

98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 171. misspoke. THE COURT: MR. MILLER: your Honor. All right. THE COURT: MR. MILLER: Can I continue? Yes, go ahead. 166, 167, 168; and then, 169, 170 and I think that does it So your group now, is it 159? 159 through 162. Not 161, I'm sorry, MR. MILLER: Correct, your Honor. I'm sorry. I

And then, 172, 173, 174 and 175.

for this set. THE COURT: So that's 139 through 148, 159, 160,

162 and 166 through 175. MR. MILLER: THE COURT: (Pause.) THE COURT: All right. I have -- before I -- I'm Yes. All right.

going to probably rule in favor, just to save time. MR. SIMPSON: THE COURT: I understand. I

Let me stay with my tentative.

would not admit the request or the response to 139, 140, 141, 142. As to 140 and -- although there is an admission to it and a straight admission, and one -- it's irrelevant. And 141 -- as to 141, 142 -- well, it's not -- I think there's an issue with relevance as to this poll, but as DEBORAH D. PARKER, U.S. COURT REPORTER

99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 value. and 144. As to 145, I would admit it so long as the plaintiffs agree that the correct word is the one used in the response. reviewed. MR. MILLER: THE COURT: admit 145. 159, it's a denial, so there is no evidentiary I will not admit 159. I would admit 160 and 162, 166 through 175. MR. MILLER: and 140, please. THE COURT: MR. MILLER: qualification. Go ahead. These are admissions without Your Honor, can I circle back to 139 Yes, your Honor. All right. We'll accept that. The last word in the quote should be to -- or the poll that's referenced in the request for admissions. But, particularly, as to 141 and 142, the response is such -- the main basis for my ruling would be that the response to the request is not an admission, and there's a dispute between the parties as to the contents of the poll. So there isn't an admission and the response really has no evidentiary significance. I would admit the request and the response to 143

With that, then I would

I think they are revelant, as you'll hear,

DEBORAH D. PARKER, U.S. COURT REPORTER

100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because the congressional record includes information about polls that existed in 1993 and the changing poll numbers is relevant for our case. If Congress was willing to consider

poll numbers when it enacted the law, we ought to be allowed to, at least, introduce evidence that those polls now show very different outcomes. MR. GARDNER: Your Honor, first of all, the fact

that the polls were what they were is completely irrelevant to what -Sorry. Your Honor, with respect to whatever polls

may or may not say back in 1993 or currently is absolutely irrelevant as to whether or not "Don't Ask, Don't Tell" is facially unconstitutional. The fact that public sentiment

may have changed, if anything, is reason why Congress is, you know, taking appearance, right now. But it doesn't,

again, go to whether or not it's facially constitutional. It's simply irrelevant. correct, your Honor. THE COURT: MR. MILLER: I'm going to sustain the objection. Your Honor, that's fine. Your first instinct, frankly, was

As long as we are now able to say, as counsel suggests, that to the extent Congress relied on polls in enacting the statute, that's an illegitimate basis for enacting the statute. MR. GARDNER: That's fine. And, your Honor, having said that, I

DEBORAH D. PARKER, U.S. COURT REPORTER

101 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think the legislative history speaks for itself. Congress

made findings and those findings were based upon unit cohesion, privacy and sexual tension. I think sections of the -THE COURT: And those findings were based on poll I

results which are referred to in the legislative history. think -Well, let me just say this:

I am going to sustain

the objection, not necessarily for all the reasons that you've stated but in part, or some of them. It doesn't mean

that the -- to the extent that one or more of the expert witnesses may rely on this information, they can. If it's

information that an expert would know and rely on, they can; but they can't refer to the admissions because the admissions have not been moved into evidence. All right. MR. MILLER: All right. And, your Honor, I just

have a couple more and then we're done. THE COURT: MR. MILLER: THE COURT: MR. MILLER: THE COURT: have admitted? More? In this set, yes. Sorry.

More that you wish to argue? A few more from this set, yes. From this set, or that you wish to

Or you wish to argue? I wish to have admitted.

MR. MILLER:

DEBORAH D. PARKER, U.S. COURT REPORTER

102 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 oh, 165. Well, as the response -- 165 is admitted, but the response, to the extent that it's a partial admission only and with your objection noted, the same objection. MR. SIMPSON: Understood, your Honor. Honor. THE COURT: But I thought you already covered -THE COURT: All right. Well, before we move on

from the ones that you've already identified, did you wish to argue on any others? MR. SIMPSON: Judge, just the same objections

we've previously made that this type of information is entirely irrelevant in the context of facial Constitutional statute -- facial Constitutional challenge to a statute. THE COURT: All right. Thank you.

That objection is overruled. And so, to make the record clear, the ones that are being admitted are: 143, 144, 145. That's correct.

146, 147 and 148. One -- excuse me. through 175. (Joint Exhibits 143 to 148, 160, 166 to 175 received in evidence.) THE COURT: MR. MILLER: And which others from this set? 165 is the only other one, your Not 159, but 160, 162 and 166

DEBORAH D. PARKER, U.S. COURT REPORTER

103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. THE COURT: All right. Take up the rest of the THE COURT: All right. So 165 is admitted to the

extent it's a partial admission. (Joint Exhibit 165 received in evidence.) THE COURT: We'll recess for lunch. I have a

meeting at lunch out of the building.

Ordinarily, I

wouldn't take an hour and a half for lunch, but I have to today. Ordinarily, we would take just an hour. How many more witnesses do you have this afternoon? MR. MILLER: The next witness will be longer, your

afternoon, do you think? MR. MILLER: THE COURT: I believe so. Well, we can -- do you think with

cross-examination we could finish that witness this afternoon? MR. MILLER: I can't predict that, I'm sorry.

This is -- the next witness will be Professor Frank. THE COURT: Well, the only reason I ask is to

finish, to accommodate the witness, if necessary, we could go beyond 4:30. 7:00. That's all. We're not going to go until

We are not even really going to go to 6:00, but we

could go til 5:30 or so, if necessary, to accommodate the witness, especially since I'm taking a somewhat longer DEBORAH D. PARKER, U.S. COURT REPORTER

104 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DEBORAH D. PARKER, U.S. COURT REPORTER ____________________________________ Deborah D. Parker, Official Reporter Date: July 13, 2010 CERTIFICATE I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. -oOolunch. MR. MILLER: I think that's fine, your Honor. His

travel plans do not require him to leave tonight. THE COURT: if we could. Thank you. I'll see you at 1:30. It would be good to finish him today,

(At 12:04 p.m., proceedings were adjourned.)