Prop 8 – Day 5: The defense stalls and pleads fear factor

Helen Zia

SAN FRANCISCO – It’s not often one hears these words in a federal courtroom: “Dyke. You fucking dyke. You’re going to die and go to hell.”

Those were the words lesbian writer Helen Zia testified she heard when she and her spouse were handing out fliers opposing Proposition 8 in San Francisco prior to the November 2008 vote that approved the measure. Zia, 57, and a former executive editor of Ms magazine, said the ballot initiative which amended the California constitution to ban recognition of any relationship other than a heterosexual marriage was “degrading and devaluing” of her relationship.

Zia was one of two on the witness stand Friday for plaintiff attorneys who are challenging Proposition 8 as a violation of the federal constitutional guarantees of equal protection. The other witness was Cambridge University scholar Michael Lamb, an expert in child development generally, and the development of children of gay and lesbian parents specifically.

While Zia’s testimony was aimed at illustrating how Proposition 8 harms gay people, Lamb’s testimony was aimed at explaining how the availability of marriage to same-sex couples could benefit their children.

Lamb was on the stand for five and a half hours –most of it responding to defense attorney David Thompson’s repetitive listing of documents, one by one, and asking the same two questions for each:

“Is this another study that you relied on in making your conclusions?” asked Thompson.

“Yes,” said Lamb.

“And this study did not include a control group of married biological parents, did it?” asked Lamb.

Lamb’s answer varied from time to time, from “I don’t know,” to “It probably did not,” and in some cases to “This was a review of literature, not a study.”

Judge Vaughn Walker beckoned Thompson at least twice to summarize the documents, but Thompson continued—as defense attorneys have been doing all week—drawing out the cross-examinations for no reason that is apparent.

When Thompson was performing cross-examination, he began by attempting to impeach Lamb’s credibility by pointing out that Lamb must be a “committed liberal” because he is a member of the ACLU, the National Organization for Women, and the Nature Conservancy and because he gives money to National Public Radio. He suggested Lamb’s reliance on scientific studies must be questionable because, over time, many scientific beliefs have proven wrong over time—for instance, phrenology, where some scientists believed mental health could be determined from the shape of the skull. And at one point, Thompson even asked Lamb, “Can we agree that men can’t breastfeed?”

But Lamb delivered and stood by his two basic points: First, that children whose parents are a same-sex couple would benefit from having those parents marry because it would provide the child with a sense of being an accepted part of society. And second, that the best parents for any child are two parents who are committed to, engaged with, and focused enough on the child to be “effective at reading the signals of the child, understanding what the child needs,” and providing for those needs. It does not matter, says Lamb, whether the two parents are mother and father or two mothers or two fathers.

During this discussion, President Obama’s name emerged for the second time in the trial. This time, it was plaintiffs’ attorney Matthew McGill who brought into evidence a statement by President Obama concerning the importance of fathers. In the statement, which Obama delivered in a speech during the presidential campaign, he said “children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and 20 times more likely to end up in prison.”

Lamb criticized the statement, saying it did not reflect research that includes same-sex parents and blurs the line between cause and correlation.

“It also doesn’t acknowledge,” said Lamb, “that…the majority of children in families without a father are perfectly well-adjusted.”

There was some other drama in and outside the courtroom Friday, too, when plaintiffs’ attorneys basically accused the defense of cheating. It came during Thompson’s cross-examination of Lamb. The plaintiffs claimed that Thompson was trying to enter the testimony of his own witnesses—who have since withdrawn and refused to appear at trial—by asking Lamb to comment on their studies. In doing this, said the plaintiffs, the defense was trying to avoid having their own witnesses cross-examined.

Thompson insisted that his witnesses were not appearing because “They were extremely concerned about their personal safety and didn’t want to appear.” He said the fact that the proceedings were being videotaped—even though the videotapes were not being viewed anywhere outside the courthouse—made them afraid to appear.

But during a lunchtime press conference, plaintiff attorneys David Boies and Ted Boutrous said the tactic was just an attempt to avoid cross-examination of the defense experts by plaintiffs.

“The experts they withdrew were ones that [gave deposition statements] that simply disagree with their thesis,” said Boies. He said plaintiffs would introduce evidence later to show that the defense’s own experts have “admitted that they did not have a basis for believing that same-sex marriages would harm heterosexual marriages and no reason for depriving gay and lesbian couples marriage [and doing so is] depriving gay and lesbian couples harm. They admit that,” said Boies, “and it guts the case of defendants.”

The trial resumes on Tuesday with more witnesses lined up to testify against Proposition 8.

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