Mid-day report: Day 7 Prop 8 trial

Gary Segura

SAN FRANCISCO – The courtroom let out a collective gasp at the testimony: A 26-year-old gay man from Colorado recounted what his mother said to him—at the age of 13—when she found out he was gay.

“She said she wished she had had an abortion,” recalled Ryan Kendall, choking up on the words, “…or that I had been born with Down’s Syndrome or retarded,” instead of being gay.

Kendall, who works for the FBI now in Denver, was on the witness stand to convey two points—that sexual orientation is an immutable trait and that gay people experience an inordinate amount of discrimination. Kendall’s parents found out he was gay when they read his diary and forced him to go to a therapist who purported to be able to change his sexual orientation from gay to straight.

As the therapy failed, Kendall’s parents grew more and more hostile, with his mother frequently telling him that “she hated me or I was disgusting or I was repulsive.” By the age of 16, Kendall said he knew he would kill himself unless he left home, so he did and sought help with public services in his hometown of Colorado Springs.

“Did things get better?” asked San Francisco deputy city attorney Ronald Flynn.

Kendall could barely speak.

“No, things didn’t get better,” he said. Over the next few years, he wandered in and out of jobs, feeling “incredibly suicidal,” and turning to drugs to “escape from reality [and] because I was really trying to kill myself.”

Kendall did survive, however, and, in addition to working for the National Crime Information Center, he is a member of Log Cabin Republicans and chair of the Denver LGBT Commission that advises the city on LGBT issues. His testimony will likely go a long way toward plaintiff attorneys’ effort to illustrate the intensity of discrimination against gays and the lack of evidence that any gay person can change their sexual orientation. The testimony is important for attorneys challenging the same-sex marriage ban, who need to demonstrate that homosexuality is an immutable trait in order to meet one of the legal standards that will subject Proposition 8 to the harshest level of judicial review.

Attorneys for proponents of Proposition 8 sought to bar Kendall from the witness stand Wednesday morning, but U.S. District Court Judge Vaughn Walker rejected that request. Walker seemed to be tough on defense attorneys for making the request, noting that they had, themselves, brought up the issue. He read excerpts from several of their documents and statements at trial in which they said they would show that “many people freely choose their sexual orientation,” that sexual orientation “can shift over time and does so for a significant number of people,” and that no aspect of sexual orientation is immutable.

“What evidence, other than cross-examination [of plaintiffs’ experts] will you have?” asked Walker.

One of the defense attorneys replied that they “may call our own experts to show this,” but that they would “primarily” rely on cross-examination.

During cross-examination, the defense elicited testimony to show that Kendall did not have a willing attitude going into conversion therapy, perhaps with the idea of arguing that Kendall could have changed his sexual orientation but for the right frame of mind.

Following Kendall’s testimony, plaintiffs called to the stand a political scientist, Gary Segura, from Stanford University. Segura’s testimony was aimed at making a case for gays and lesbians as being politically powerless. That, too, is a criteria for prompting the court’s harshest scrutiny of Proposition 8.

Although he was not asked to repeat this in court, an exhibit that was displayed in court during Segura’s testimony indicated that his examination of various studies had found that the public’s attitude toward gays and lesbians was “similar to Muslims after 9/11.”

Attorneys for both sides have been arguing numerous times in recent days over various witnesses and whether they and their statements can or cannot be put into evidence.

The judge rejected an unusual request from the team challenging Proposition 8 to subject one of the key proponents, Ron Prentice, to a second deposition before he takes the witness stand in a few days. Plaintiffs’ counsel Ted Boutrous said the deposition was necessary to cover documents from Prentice that the defense team had withheld until only recently and thus were not available during Prentice’s first deposition.

Defense attorney Nicole Moss said it would be too difficult for the defense team to put Prentice through a deposition while it is preparing him for trial. The judge agreed.

But before lunch recess Wednesday, attorneys for Proposition 8 were trying to avoid the introduction of testimony by pastors who organized a “Pastors Rapid Response Team” in support of the ban on same-sex marriage. Their attorney, Vincent McCarthy, claimed that forcing them to provide information about sermons they delivered would violate their First Amendment rights. But Judge Walker seemed unconvinced, noting that the sermons had presumably been delivered to “a third party.” Walker asked attorneys on both sides to try and work out an agreement during lunch.

The court session resumes at approximately 1:10 Pacific time.

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