Prop 8 trial: weak allies and powerful enemies
SAN FRANCISCO – President Obama’s name keeps coming up a lot during the trial challenging the constitutionality of California’s same-sex marriage ban. Wednesday, attorneys defending Proposition 8 played excerpts from a videotape of Obama’s speech before the Human Rights Campaign dinner last October. His remarks at that event and an earlier statement in which he said he is a “fierce advocate” for LGBT civil rights were offered as evidence that the LGBT community is a politically powerful group with powerful allies.
But the expert witness for attorneys challenging Proposition 8 dismissed the president’s words as just that—words. His “rhetoric far exceeds his actions,” said political science scholar Gary Segura on the witness stand.
“There’s a difference between giving a nice speech and actually accomplishing some sort of policy change,” said Segura.
Segura, a professor of political science at Stanford University, was on the stand to establish that gays and lesbians are a politically powerless group. Laws that target politically powerless groups are given greater scrutiny by the courts.
Gay people, said Segura, “do not possess a meaningful degree of political power and are politically vulnerable.”
The fact that President Obama signed into law a hate crimes bill that gay activists had been seeking for over 20 years, said Segura, did not prove gays were powerful.
“It was not a huge victory,” he said, because it was legislation aimed at ameliorating an existing disadvantage for gay people. “And to get passed, it had to be attached to a defense authorization bill.”
As evidence of gays’ political vulnerability, Segura pointed out that gays have lost about 70 percent of more than 200 ballot battles across the country on various discrimination measures, and 100 percent of ballot battles over marriage equality.
“No other group in American society…has been targeted” by hostile ballot measures more than gays and lesbians, said Segura. Ballot battles have been gay people’s Waterloo, he said.
Only six openly gay people have ever served in the U.S. Congress, noted Segura, only one percent of state legislators are openly gay and only a half percent of local elected officials are openly gay.
Segura talked about a survey instrument called a “Feeling Thermometer,” in use by the American National Elections Studies group since 1964, to gauge the relative popularity of various groups. Segura said the surveys have consistently shown gays and lesbians face “severe hostility.” A chart shown on a courtroom video screen summarizing Segura’s points noted that the public’s feelings about gays and lesbians is similar to that for Muslims after the 9/11 attacks on New York City and Washington, D.C.
Under repeated and vehement objections by the defense attorney Andrew Pugno—objections overruled by U.S. District Court Judge Vaughn Walker— Segura testified about the thousands of volunteers that were deployed by the Mormon and Catholic churches in California to campaign for passage of the anti-gay initiative. He said the documents showed that there was “very early involvement of organized religious communities, and really a national political campaign” to pass Proposition 8 in California.
Pugno and other defense attorneys continued to object to various documents—mostly emails—from being introduced into evidence, making various claims, including that some must be shielded to protect the First Amendment right to free exercise of religion for various participants in the Proposition 8 campaign.
But Judge Walker was unconvinced.
“This doesn’t fit the category of the famous Mrs. McIntyre,” said Walker, referring to a U.S. Supreme Court decision in favor of an Ohio woman, Margaret McIntyre, who distributed anonymous fliers against a proposed tax increase. “This,” he continued, “is a public campaign that was out in the open and people who advocate [for one side or the other] inevitably subject themselves to disclosures of the kind contained in these documents.”
Segura said one of the documents showed that “there was a two-way flow of information” between the religious groups and the Protect Marriage group that served as a front for supporters of Proposition 8.
“Strategic talking points were being provided to religious leaders by the campaign,” said Segura, “and religious leaders were providing volunteers.” The strategy, said Segura, was for Protect Marriage to “provide a respectable distance—plausible deniability”—for the religious groups.
One document indicated that the Mormon Church offered the Protect Marriage campaign 20,000 volunteers to go door-to-door on two Sundays. Another noted that Protect Marriage had the “political and financial” support of Focus on the Family, the Family Research Council, and the Arlington Group—a coalition of right-wing religious-oriented political groups.
“When you take together the legislative victories and defeats, the presence of hostile ballot initiatives and the absence of legal protections…and the host of [other] circumstances”—including the relatively small population, public hostility, the strength of opposing organizations, and other factors,” said Segura, “gays and lesbians lack sufficient power to protect themselves in the political system.”
In other testimony Wednesday, the court heard about the relative powerlessness of gay youth to protect themselves. The evidence came through dramatic testimony from a 26-year-old gay man from Colorado, Ryan Kendall, who recounted the hostility he endured between the ages of 13 and 16 after his evangelical parents found out he was gay.
Kendall said he knew from a young age that he was gay but kept it from his parents, knowing they considered gay people to be evil. But one day, his parents discovered his diary in which he had written about being gay. His mother, he said, told him she wished she had gotten an abortion instead of giving birth to him, “…or that I had been born with Down’s Syndrome or retarded,” instead of being gay.
Kendall 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 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 seemed barely able to respond.
“No,” he said, clearly choking back tears. “Things didn’t get better.” Over the next few years, he suffered loneliness and suicidal feelings, and he turned to drugs to “escape from reality [and] because I was really trying to kill myself.”
Kendall did survive, however, and now works for the FBI’s National Crime Information Center in Denver. He is a member of Log Cabin Republicans and chair of the Denver LGBT Commission that advises the city on LGBT issues.
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. But 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.
Attorneys for proponents of Proposition 8 sought to bar Kendall from the witness stand Wednesday morning, but Judge Walker rejected their 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.
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.