Prop 8 witnesses debate scholarship on families

Star witnesses for both sides in the recent Proposition 8 trial agreed on one thing: Children of same-sex parents benefit from having two parents who are happily married to each other.

Michael Lamb
Michael Lamb

Star witnesses for both sides in the recent Proposition 8 trial agreed on one thing: Children of same-sex parents benefit from having two parents who are happily married to each other.

The conclusion was most stunning from David Blankenhorn, an expert witness for the defenders of Proposition 8.

“I believe that adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” he said, during his testimony as the last person to take the stand during the trial.

Dr. Michael Lamb, head of the Department of Social and Developmental Psychology at the University of Cambridge and an expert for the legal team challenging the California same-sex marriage ban, said that, “for a significant number” of children being raised by same-sex parents, “their adjustment would be promoted were their parents able to get married.”

The two men were far from similar in other respects, however.

Drawing on his more than 40 years of experience in developmental psychology, Lamb explained the professional consensus on what key factors affect the quality of a child’s development: the quality of the child’s relationship with his or her parents or the adults raising them, the relationship between those adults, and the circumstances in which the child is being raised. The last consists of economic, social, and emotional supports.

The factors that make a good parent, he said, are the same regardless of the parent’s gender. The important thing, he said, is that that person is committed to the child, loves and focuses on the child, understands the child’s signals and needs, and provides appropriate stimulation and guidance as well as limits.

Lamb contradicted an assertion made by the defense — that children who grow up without a father are more likely to leave school, live in poverty, and commit crimes. Lamb said that the research compared children who grow up with a single heterosexual mother to those who grow up with two heterosexual parents. He said one cannot conclude from such studies anything about a child who grows up with lesbian and gay parents.

When Blankenhorn took the stand on January 26, defense attorney Charles Cooper brought up many of the same studies Lamb had dismissed as irrelevant to lesbian and gay families. Blankenhorn endorsed the statements in them about children faring better when brought up by both biological parents instead of just one. Cooper did not have Blankenhorn attempt to counter Lamb’s criticism of trying to apply those research findings to same-sex couples.

Blankenhorn did speak near the beginning of his testimony about the importance of marriage as an institution that allowed children to grow up knowing both their biological parents. He and Cooper spent little time, however, trying to disprove the various studies Lamb had mentioned that showed children of same-sex parents do just as well on various measures of well-being.

However, another Yes on 8 attorney, David Thompson, tried to cast doubt on those studies during his cross-examination of Lamb. Thompson repeatedly asked Lamb whether any of the studies showing positive outcomes for children of lesbian and gay parents had compared the children of gay parents with control groups of children of married, biological parents. Most did not.

The plaintiffs’ attorney Matthew McGill addressed this during his redirect and had Lamb make an important point: that when comparing same-sex parents to straight parents, researchers must be careful to compare married same-sex parents to married straight parents or unmarried same-sex parents to unmarried straight parents.

The point of Thompson’s initial question—and Lamb’s eventual response under redirect—are worth examining more closely.

Dr. Abbie Goldberg, Assistant Professor of Sociology at Clark University, recently published Lesbian and Gay Parents and Their Children (American Psychological Association: 2009), a book that compiles decades of research on the subject. Goldberg thinks Thompson was off-base in his quest for a control group of married, biological parents. Comparing lesbian- and gay-parent families to heterosexual married biological parents, she wrote in an email, “would conflate sexual orientation with a number of other key variables that may have implications for family and child outcomes.” The variables include the possibility that the children were the product of a previous, heterosexual union, that they were adopted, and that they were biologically related to only one parent. Any of those factors might lead to differences with heterosexual, married, biological parents—but the differences might not be attributable to sexual orientation.

“We can always argue that we need the ‘perfect study,’” says Goldberg, “and yet we should be compelled by the consistency of the many studies that have been conducted which—again—consistently show that children who are raised by lesbian and gay parents do not show negative effects to their psychological adjustment.”

Goldberg is not alone in her thinking. The lead article in the February 2010 Journal of Marriage and Family is “How Does the Gender of Parents Matter?” by sociologists Timothy J. Biblarz of University of Southern California and Judith Stacey of New York University. They discuss the difficulty of separating out the parental factors that could contribute to children’s well being, including gender, sexual identity, marital status, biogenetic relationship to children and the number of siblings.

Based on their best efforts to look at previous research on the subject and compare apples to apples, they conclude, “At this point no research supports the widely held conviction that the gender of parents matters for child well-being. To ascertain whether any particular form of family is ideal would demand sorting a formidable array of often inextricable family and social variables. We predict that even ‘ideal’ research designs will find instead that ideal parenting comes in many different genres and genders.”

Instead of going up against that argument, most of Blankenhorn’s testimony revolved around the historical definition of marriage as an institution, and not on the question of whether children in fact fare better with one parent of each gender.

Blankenhorn spoke at length about his reliance on a variety of anthropological studies, particularly those of Claude Levi-Strauss and Bronislaw Malinowski, which shaped his thinking on the meaning of marriage.

Dr. Ellen Lewin, a professor of Anthropology and Women’s Studies at the University of Iowa, who has written many peer-reviewed publications about lesbian and gay families, said Blankenhorn’s sources, “are so old they have long beards, but the main thing about them is that I don’t think they actually show what they purport to show. . . .

“The basic story,” said Lewin, “is that the most common marriage form among humans is polygyny, and if the folks who claim 5,000 or however many years of human history as a justification want to use that, we’d have to endorse polygyny. Historically, marriage is not about love, or fidelity, or any of that stuff—it’s about devising the most efficient way of hanging onto, or acquiring new property and resources, children among them. The notion that marriage has to do with personal commitments is a very newfangled idea, that works in our culture and other advanced industrial societies. And once you say that’s what marriage is about, there’s no way to keep out same-sex marriage.”

Lewin also noted that the American Anthropological Association (AAA) submitted friend-of-the-court briefs to both the California and Iowa Supreme Courts in support of marriage equality. In the California brief, the AAA stated, “Anthropological research on households, kinship relationships and families—across cultures and through time—provide no support whatsoever for the view that either civilization or viable social order depend upon marriage as an exclusively heterosexual institution.”

It may seem odd that Blankenhorn, a supposed expert on fatherhood, spent so much time on the cultural understanding of marriage and so little time discussing the impact of parents’ gender on children. The defense might have decided that Thompson had already been over that landscape with Lamb, and that Cooper’s brief reprise of the research with Blankenhorn was enough.

Still, after plaintiff’s attorney David Boies elicited Blankenhorn’s testimony, on cross-examination, that allowing same-sex couples to marry would likely improve the well-being of their children, it would have been difficult for Blankenhorn to assert that such marriages were in some way detrimental to the children.

Instead, he was forced into an argument about the need to choose between two conflicting “goods”—what is good for lesbian and gay couples and their children, and what is good for “[renewing] our wider marriage culture.” This left the door wide open for Boies to pin him down on exactly how allowing same-sex couples to marry would weaken heterosexual marriage as a social institution. Instead of answering any of Boies’ questions directly, Blankenhorn seemed to fall back on nitpicking about the questions were worded—to such a degree that the judge felt the need to warn Blankenhorn that he may be undermining his own testimony.

During redirect, Cooper managed to get Blankenhorn to say that domestic partnerships would be an acceptable solution to help same-sex families but yet not weaken the traditional understanding of marriage. Earlier, however, under cross-examination, Blankenhorn confirmed that he had written that domestic partnerships and civil unions might endanger the institution of marriage by blurring the lines between marriage and nonmarriage relationships.

Side step on marriage, but step forward on DADT

President Obama side-stepped a question Thursday about what he’s doing “now” to ensure that gay couples “are treated as equal citizens,” but there was a signal from the Pentagon that same day that movement may be coming on “Don’t Ask, Don’t Tell.”

President Obama
President Obama

President Obama side-stepped a question Thursday about what he’s doing “now” to ensure that gay couples “are treated as equal citizens,” but there was a signal from the Pentagon that same day that movement may be coming on “Don’t Ask, Don’t Tell.”

The president hosted a town hall meeting at the University of Tampa January 28, less than 24 hours after delivering a State of the Union address. The purpose of the trip was to reinforce the message of the previous night—that the nation must do some more serious belt-tightening and strategic investment in infrastructure.

One message he did not repeat before the crowd in Tampa was his statement supporting repeal of the military’s policy of excluding openly gay people from the military. But a member of the audience brought it up. A University of Tampa student named Hector asked President Obama: “What are you doing now … so that same-sex couples and homosexuals are treated as equal citizens of the United States, i.e., same-sex marriages and the thousand-plus benefits that heterosexual couples enjoy after marriage?”

President Obama, echoing the words of President Clinton, said he believes the Constitution guarantees equal treatment “if you’re obeying the law, if you’re following the rules, that you should be treated the same, regardless of who you are.”

“I think that principle applies to gay and lesbian couples,” said the president. He said, at the federal level, his administration “actually has an opportunity of passing” a law to provide equal benefits to the same-sex partners of federal employees.

“I think it’s the right thing to do and it makes sense for us to take a leadership role in ensuring that people are treated the same,” said Obama.

“Look, if you are—regardless of your personal opinions, the notion that somebody who’s working really hard for 30 years can’t take their death benefits and transfer them to the person that they love the most in the world and who has supported them all their lives, that just doesn’t seem fair,” said the president. “It doesn’t seem right. And I think it’s the right thing to do.”

Meanwhile, a Pentagon spokesperson told reporters Thursday that Defense Secretary Robert Gates will provide details next Tuesday, February 2, as to how the Pentagon will go about to end the military’s “Don’t Ask, Don’t Tell” policy. According to a number of news reports, Pentagon spokesperson Geoff Morrell said Gates and Joint Chiefs of Staff Chairman Admiral Mike Mullen will make a presentation on Tuesday.

It was just seven months ago that Mullen told an ABC news program that he would need “some time…to look at—if this change occurs—to look at implementing it in a very deliberate, measured way.” And a timeline for such a change, he said, “would be set, obviously, after the law is changed.”

The Senate Armed Services Committee was already slated to hear from Gates and Mullen Tuesday regarding the annual bill reauthorizing Defense programs, now for fiscal year 2011. The portion regarding “Don’t Ask, Don’t Tell” is slated for noon to 1 p.m.

Gay reaction lukewarm to President’s call to repeal DADT

Gay leaders offered only a lukewarm reception Wednesday night for President Obama’s statement, in his State of the Union address, that he would work for the repeal of the military’s discriminatory policy against gays.

Barack Obama
Barack Obama

Gay leaders offered only a lukewarm reception Wednesday night for President Obama’s statement, in his State of the Union address, that he would work for the repeal of the military’s discriminatory policy against gays.

The statement came near the end of his address.

“This year,” he said, “I will work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.”

Even before the president finished the sentence, a cheer broke out from somewhere in the chamber and some members of Congress rose to applause. Television cameras flashed on the Joint Chiefs of Staff, who were sitting with considerable stoicism, as they did throughout the speech. Defense Secretary Robert Gates was standing and applauding.

The reaction of gay leaders fell somewhere in-between.

The Servicemembers Legal Defense Network issued a statement applauding the president’s remarks, calling for repeal of “Don’t Ask, Don’t Tell.”

“We very much need a sense of urgency to get this done in 2010,” said the group. “We call on the President to repeal the archaic 1993 law in his defense budget currently now being drafted, that is probably the only and best moving bill where DADT can be killed this year. “ The group also said that both “more attention and leadership” are needed to win repeal.”

Human Rights Campaign President Joe Solmonese posted a statement saying the president sent “a clear message” against the policy and adding, as did Servicemembers Legal, that the issue “will required continued leadership” from President Obama and Congressional allies.

But other reaction was more than guarded.

Kevin Cathcart, executive director of Lambda Legal Defense and Education Fund, issued a statement saying “We have heard promises before about ending ‘Don’t Ask, Don’t Tell.’” While Cathcart said Lambda was happy to hear President Obama’s remark, he added that “the time has finally come to fulfill that promise.”

Rea Carey, executive director of the National Gay and Lesbian Task Force, said “the time for broad statements is over.”

“He must provide a concrete blueprint for his leadership and action moving forward—this includes his willingness to stop the discharges happening on his watch until Congress can fulfill its responsibility to overturn the law.”

“We wish we had heard him speak of concrete steps tonight,” said Carey.

Richard Socarides, a longtime Democratic activist who worked in the White House of President Clinton, said he found the lack of a game plan and timetable on the issue to be “extremely troubling.”

Charles Moran, a spokesperson for Log Cabin Republicans, a national gay political group, was much more harsh.

“President Obama is more concerned about protecting the rights of terrorists,” said Moran, “than he is about the rights of gay and lesbian Americans who are putting their lives on the line every day fighting to preserve peace and democracy in Iraq and Afghanistan and operate small businesses that are the backbone of the American economy.”

MSNBC’s Rachel Maddow asked Valerie Jarrett, a senior policy advisor to the president, when and how the president planned to follow through on his promise regarding Don’t Ask-Don’t Tell. Jarrett said the president would “begin the process right away” and that he was “very clearly” committed to the promise. Jarrett said she was also “very heartened” by the applause in the chamber in reaction to the president’s statement of commitment.

The president’s statement was no surprise. News of his intention to express support for repealing “Don’t Ask Don’t Tell” filtered to news media from Senator Carl Levin (D-Mich.), chairman of the Senate Armed Services Committee. Levin said he heard of the plan from “the Pentagon.”

In his speech, President Obama made note of the nation’s “incredible diversity” and on the Constitution’s “notion that we are all created equal, that no matter who you are or what you look like, if you abide by the law you should be protected by it; that if you adhere to our common values you should be treated no different than anyone else.” He said his administration is prosecuting civil rights violations and employment discrimination and noted, “We finally strengthened our laws to protect against crimes driven by hate.” The latter statement referred to the law long sought by national gay political groups to enable the federal government to help fund prevention of and prosecution for crimes that target victims for sexual orientation or gender identity, among other things. The president signed that law in October.

There was quiet inclusion of gay people in another way during Wednesday night’s event. A gay businessman from Indiana was seated in the balcony with First Lady Michelle Obama as one of her guests.

According to the Indianapolis Star newspaper, Trevor Yager was one of 23 citizens invited by the White House to sit with the First Lady during the speech. He told the paper the White House invited him at the suggestion of the National Gay and Lesbian Chamber of Commerce. A White House press release that went out identifying the guests did not identify Yager as gay.

Yager, a native of Michigan, operates a small advertising firm in Indianapolis that he says has benefited from President Obama’s stimulus legislation. His own company, Trendy Minds, has added seven employees in the past year and taken on four new accounts, according to the Star.

The company’s website indicates it does “branding consultation” for Penguin Group’s The Complete Idiot’s Guide series and work for NASCAR driver Kevin Harvick’s website.

The Republican response to the Democratic president’s State of the Union came from Virginia’s new governor Bob McConnell.

Rather than the folksy, at home delivery of Louisiana Governor Bobby Jindal—which did not play well last year—McDonnell staged his speech in the State House of Virginia, with an enthusiastically applauding chamber, creating a sort of miniature State of the Union look. Standing behind McDonnell, visible to the camera trained on his podium, was one black woman, one Asian man, one white woman, and one white, male service member in uniform.

Former Republican presidential candidate John McCain issued a statement following President Obama’s speech reacting specifically to the call for repeal of Don’t Ask Don’t Tell, calling it a “mistake.”

“This successful policy has been in effect for over fifteen years,” said McCain’s statement, “and it is well understood and predominantly supported by our military at all levels. … At a time when our Armed Forces are fighting and sacrificing on the battlefield, now is not the time to abandon the policy.”

This is not the first time a president has expressed support for a gay civil rights issue during a State of the Union. Democratic President Bill Clinton called for support of hate crimes legislation during his 1999 address.

“Discrimination or violence because of race or religion, ancestry or gender, disability or sexual orientation is wrong and it ought to be illegal,” said Clinton during the address. “Therefore, I ask Congress to make the Employment Nondiscrimination Act and the Hate Crimes Prevention Act the law of the land.” The hate crimes legislation passed 10 years later.

Prop 8 trial closes; Boies expresses confidence

There is nothing like turning an opponent’s own words against him to both rile his emotions and destroy his position, and that was the work of attorney David Boies Wednesday morning.

David Boies (Photo credit: Bill Wilson)
David Boies (Photo credit: Bill Wilson)

SAN FRANCISCO — There is nothing like turning an opponent’s own words against him to both rile his emotions and destroy his position, and that was the work of attorney David Boies Wednesday morning.

Boies is one of the lead attorneys on a team challenging the constitutionality of California’s same-sex marriage ban in a U.S. district court here. And Wednesday was the 12th and final day of the court proceeding in that case, Perry v. Schwarzenegger.

Boies’ mission was to tear down the claims by the pro-Proposition 8 supporters and, on this last day of the trial, Boies was finishing up his cross-examination of the second and final witness that attorneys defending the same-sex marriage ban brought to the court.

On the stand was David Blankenhorn, a man who clearly has a passion for reading, talking, and writing about marriage. He founded the Institute of American Values, a private think tank, to do just that —with a particular focus on how same-sex marriage has an impact on heterosexual marriages.

But although Judge Vaughn Walker allowed the defense to put Blankenhorn on the stand as an “expert witness,” Blankenhorn exhibited neither the depth of knowledge nor the experience that an expert witness must have to withstand cross-examination. And, with Boies, he was up against the best.

Both Tuesday and Wednesday, Boies took apart the defense’s claims about the purported harms of same-sex marriage. And as he did, Blankenhorn struggled to keep his composure and avoid giving testimony that contradicted the Yes on 8 team’s defense.

“Let me start with something I think we can agree on,” said Boies at the start of the morning, the resumption of cross-examination that had grown so contentious on Tuesday afternoon that the judge suggested it might benefit both sides to start fresh Wednesday morning.

“Marriage is an important public good,” said Boies.

“Yes, sir,” said Blankenhorn.

“And what do you mean by ‘public good’?” asked Boies, noting that it was a term that Blankenhorn used in some of his writings.

“It’s something that makes a contribution to society,” said Blankenhorn.

“And it benefits the participants and the children they raise, is that right?” asked Boies.

“Yes, sir,” said Blankenhorn.

“And do you believe that the legalization of marriage for gay and lesbian couples would benefit the gay and lesbian couples and their children?” asked Boies.

“I believe it would likely do so,” said Blankenhorn.

“Do you believe it would ‘likely’ do so or almost certainly do so?” asked Boies.

Blankenhorn hesitated and Boies pulled out a copy of Blankenhorn’s book, The Future of Marriage, and read aloud a sentence in which Blankenhorn wrote that marriage “almost certainly” would benefit gay couples and their children.

“And you believe that the rights of gays and lesbians should take second place to the needs of an existing social institution, right?” asked Boies.

Again, Blankenhorn hesitated.

Again, Boies read from Blankenhorn’s book: “the rights of gays and lesbians should take second place to the needs of an existing social institution.”

“The answer is yes,” said Blankenhorn, who attempted to offer an explanation for writing.

Boies had Blankenhorn look down a list of 20 “possible” benefits to society of same-sex marriage—ideas that appeared in Blankenhorn’s book. Blankenhorn insisted upon explaining that he had constructed the list in conversation with other parties interested in the issue, and he said he did not agree with all of them.

“You did not necessarily agree with every idea?” asked Boies. “Which of any of these possible consequences do you agree with?” He had Blankenhorn go down the list, one by one, and identify whether he agreed or disagreed with each statement.

“I only wish to say that each of them,” said Blankenhorn, “was a likely benefit, not a definite benefit.” The list, he said, was just “an attempt to predict” the impact of same-sex marriage in the future.

Boies insisted he identify which points he agreed with and the volley between the two men soon deteriorated to the point where the judge attempted to intervene with some advice for Blankenhorn and Blankenhorn shot back to the judge, “I don’t need instruction.” That drew a judicial warning.

Judge Walker gently but firmly advised Blankenhorn that, when a jury is instructed on how to view expert testimony, they are told “to consider a witness’s background, training, expertise, testimony” and a number of other factors, “…and that includes the demeanor of the witness.”

“I’m sure,” said the judge, “you would not want your demeanor on the stand to have negative consequences.” He advised Blankenhorn to answer only the questions Boies posed and to rely on the Yes on 8 attorneys to give him an opportunity to make explanations.

Over the course of the next three hours, Blankenhorn was continuously confronted with statements—many of them from his own writing. One stated that allowing gays to marry would probably lead to fewer divorces because there would be fewer closeted homosexuals marrying opposite-sex spouses. Another stated that allowing gays to marry could mean more couples “who might be interested in adoption and foster care,” thus leading to “fewer children growing up in state institutions.”

Blankenhorn also acknowledged, under cross-examination, that he believe domestic partnerships and civil unions—what he referred to in his writings as “marriage lite”—“could blur” the distinction between marriage and non-marriage in a way that could be detrimental to marriage.

Boies brought up a paper in which Blankenhorn had asserted there were three “rules” or essential characteristics of marriage: that it involved two people, that those two people were of the different sexes, and that the relationship was sexual. It was in examining support for these three rules that Blankenhorn seemed to become most rattled.

Boies asked him whether he was aware of any societies at any time in history for which there was no requirement that married partners be of different sex. Blankenhorn said no, but when pressed, he launched into a long and rambling discussion of a group of warrior men in Africa who, he said, paid gifts to parents in order to have sex with their young boys. Anthropologists, he said, often referred to this as “marrying.” He could think of no other instances, and when Boies mentioned ancient Greece, Blankenhorn said he did not consider same-sex relationships in ancient Greece to be marriages.

Boies asked him whether he was aware of any other instances throughout history in which marriage was something other than two people. Blankenhorn jumped into yet another long, rambling response.

When Boies suggested that polygamy might be an example, noting that many societies have accepted polygamy, Blankenhorn insisted that a man who marries several women does not necessarily engage in polygamy. He said each time the man marries, it is a marriage between “one man and one woman.”

And when Boies inquired about the existence of married couples in which a sexual relationship is not an expectation, Blankenhorn said he could think of no circumstances in which that would be the case. Boies noted that there had been U.S. Supreme Court decisions upholding the right of prisoners to marry, but Blankenhorn said he had no knowledge of such cases.

Boies finally read two statements and asked Blankenhorn whether he agreed with them. One statement said the institution of marriage is “constantly evolving” and the other said that there is “no single definition of marriage.”

Blankenhorn noted that he had written those words.

In closing the trial portion of the case, Judge Walker gave attorneys until February 26 to submit post-trial briefs. After that date, he reiterated, he would examine all the testimony and documents carefully in order to ask questions during closing arguments. Walker said he would set a date for closing arguments sometime after the briefs are due.

There has been considerable attention on this case, in part because of the participation of Boies and well-known conservative attorney Ted Olson—both uniting to challenge the anti-gay initiative. Many believe the case could end up in front of the U.S. Supreme Court and that the result could have both large and longstanding implications for the gay civil rights movement.

Final Yes on 8 expert concedes ‘no scientific evidence’ of harm

In the waning hours of the historic trial challenging the constitutionality of a state ban on same-sex marriage, the federal courtroom in San Francisco felt a little like a boxing arena.

David Blankenhorn leaving the courtroom today after his testimony (Photo credit: Bill Wilson
David Blankenhorn leaving the courtroom today after his testimony (Photo credit: Bill Wilson

SAN FRANCISCO — In the waning hours of the historic trial challenging the constitutionality of a state ban on same-sex marriage, the federal courtroom in San Francisco felt a little like a boxing arena.

After Yes on 8 attorney Charles Cooper massaged some testimony from his second, final, and reputedly best expert witness—David Blankenhorn—he sent him into the ring Tuesday with a man who has been dubbed as one of the best trial lawyers in the country, David Boies.

Boies had just that morning finished his almost nine hours-long cross–examination of defense expert Kenneth Miller, a cross-examination in which Boies had thrown into question both Miller’s credibility and purpose as a witness. But while Miller was somewhat timid in his responses to Boies’ blistering inquisition, Blankenhorn was defiant and combative.

Boies went after Blankenhorn’s credibility immediately, noting that he apparently had only one peer-reviewed article to his credit and that was a thesis on a labor dispute between cabinetmaker unions in Britain.

Although Blankenhorn was being offered as an expert witness on how same-sex marriages are detrimental to heterosexual marriages and children, Boies noted that Blankenhorn’s education had been in history.

“You’ve never taught a course in college,” said Boies, “and you have no degree in psychology, psychiatry, sociology, anthropology.…”

“No,” said Blankenhorn, interrupting.

“And in preparation for this testimony, did you undertake any scientific study of what effects permitting same-sex marriages have been in any jurisdiction where same-sex marriages have been permitted?” asked Boies.

“No,” said Blankenhorn. And that’s about when Blankenhorn began to resist Boies’ punches. Rather than answer the yes-or-no questions that Boies posed, Blankenhorn began to try and give explanations for his points of view. But clearly some damage had already been done and, when time came for Judge Vaughn Walker to decide whether Blankenhorn could be qualified as an expert witness, it was clear the judge had some hesitation.

Walker noted that the U.S. Supreme Court’s guidance on whether someone can be qualified as an expert witness requires that the expert have “specialized skills as opposed to the insights of an intelligent layperson.”

“If this were a jury trial,” said Walker, the decision “might be a close one. But I will permit [the witness] to testify and weigh the testimony in light of his qualifications.”

Blankenhorn, who founded an organization called the Institute of American Values, was on the witness stand to help the defenders of California’s same-sex marriage ban define a rational governmental purpose for Proposition 8. He said the purpose was to provide to children the optimal environment of two biological parents who are married to each other.

“Marriage can look very different in different places and times,” said Blankenhorn, during questioning by Yes on 8 counsel Cooper, but he said “it’s always doing this thing—so this thing must be pretty important, fundamental, at the species level, and is critical to society’s success.”

When Cooper asked him to clarify what “this thing” is, Blankenhorn said it was “the need for a child to know and be known by the two people—the biological parents—who are also the social and legal parents.” Family forms that stray from that configuration, he said, are not “child centric” families but “adult centric” ones.

When Cooper asked him whether he could find any animosity towards gay people to explain opposition to same-sex marriage, Blankenhorn said no and emphasized that he personally regrets and deplores homophobia in society “and wish it would go away.”

Blankenhorn said that in his efforts “to understand and wrestle with the evidence of why marriage evolved” the way it has, he found no evidence of any “animus toward gay and lesbian people or that hatefulness toward homosexual persons.”

“I’m not saying no such evidence exists,” said Blankhorn. “If such evidence exists, I want to know it. But I’ve looked for it and cannot find it.”

Blankenhorn showed no signs of homophobia or dislike for gay people himself and spoke frequently of his “conversations” with national Freedom to Marry director Evan Wolfson and his co-authorship with openly gay journalist Jonathan Rausch. Blankenhorn and Rausch co-authored an essay in the New York Times last fall, suggesting that opponents and proponents of marriage equality make a “deal.” They proposed the federal government agree to recognize civil unions with a broad stated exception that no religious institution need recognize these unions “against their will.”

But Blankenhorn repeatedly butted heads with Boies during cross-examination as Boies elicited testimony to show that Blankenhorn knew of no scientific studies showing that a child with same-sex parents had any worse outcome than a child with two straight biological parents and that Blankenhorn had no evidence that allowing same-sex couples to marry did anything to affect the rate of heterosexual marriage or divorce.

Cross-examination resumes Wednesday morning and counsel on both sides have indicated to Judge Vaughn that they think the can wrap up the case by noon. Cooper also indicated to the judge that the defense team would not attempt to bring to the witness stand Frank Schubert, the paid campaign manager for Yes on 8 and on the referendum in Maine, which overturned that state’s marriage equality law last November.

Boies also wrapped up Tuesday his blistering cross-examination of the defense’s only other witness, professor Kenneth P. Miller.

Miller, who was on the stand both Monday and Tuesday, was called by the legal team defending the Yes on 8 campaign to explain how gays are a politically powerful minority. Should the judge agree with that assessment, the defense might need to demonstrate only a simple rational reason for having Proposition 8 treat gays differently from straight couples when it comes to marriage licenses.

Boies challenged Miller’s credentials as an expert on gay political power and challenged the simple logic and consistency of his views. Where Miller claimed gays benefited from the power gained from forming coalitions with a number of powerful groups—including organized labor—Boies confronted him with exit polls showing that 56 percent of households with a member of organized labor in them supported Proposition 8.

He asked Miller about a survey that found that 88 percent of adults would vote for a qualified woman candidate, 87 percent for a qualified Hispanic, 72 percent for a qualified Morman, 57 percent for a candidate who had been married three times, but only 55 percent would vote for a qualified homosexual candidate.

“Does this tell you something about discrimination against homosexuals in this country,” asked Boies. “Yes or no.”

“It’s a data point,” said Miller, clearly resisting giving testimony that disputed the defense team’s contention regarding power.

Miller, like Blankenhorn frequently resisted giving direct answers to Boies’ questions and that eventually provoked an indirect admonishment from Judge Walker. That came when Boies began questioning Miller on whether there is a generally accepted view by political scientists that it is “undesirable” in this country for a religious majority to impose restrictions on a religious minority.

“In a general sense, that’s a principle that many political scientists would agree with,” said Miller, but he continued, suggesting that it might be argued that abolitionists had imposed their religious views on slaveholders, in early American history.

Boies seemed incredulous and pursued.

“And were slaveholders a minority that needed protection?” asked Boies.

Miller hesitated and squirmed; Boies pressed harder.

“You’re saying slaveholders may have had a religious basis for their views?” asked Boies.

Yes on 8 defense attorney David Thompson jumped up to object, but Judge Walker quickly shot him down.

“Counsel is attempting to inquire [as to] the witness’ comment,” said Walker. “If the witness would respond directly to a question, he might not have to.”

Thompson tried to continue his objection, but Walker cut him off with a blunt, “Overruled.”

Boies continued.

“As an expert in political science,” he said, “is it not the generally held view by political scientists that it is not appropriate for a majority religion to impose its views on a religious minority?”

Miller rambled briefly in qualifying his remarks then conceded, “probably a majority of political scientists would agree.”

Following Boies’ cross-examination, the Judge invited a representative from Attorney General Jerry Brown’s office to question Miller concerning the defense’s contention that the Attorney General’s office had used its power to help opponents of Proposition 8, including in the formation of the language of the measure. Apparently not satisfied by the exchange, Judge Walker jumped in.

“Can an Attorney General do more than provide a neutral title and summary?” of a ballot measure, asked the judge.

“In different states…” started Miller, but the judge cut him off.

“We’re talking about California,” he said.

“I’m not aware of any time when the Attorney General has done more,” said Miller.

“That’s not the question,” bristled the judge. “Can the attorney general do more” as a matter of authority, he asked.

Miller allowed that the attorney general could “publically oppose” a measure, but the judge clearly saw that as yet another evasion of the question.

“So, you don’t know, that it?” quipped the judge.

The question of the attorney general’s role appears to be an important one for Judge Walker. On the opening day of the trial, he inquired of attorneys whether they thought the Attorney General had the power to keep an unconstitutional measure off the ballot from the start.

He also questioned Miller about Miller’s statements suggesting that his views had changed over time about initiatives that target minorities. Boies had brought out a 2009 article in which Miller had stated that such initiatives actually undermine democracy.

On re-direct, defense attorney David Thompson gave Miller a chance to explain that his views had changed and he now has a “more favorable view” of such initiatives. Miller said he now believes they “can provide a check on judicial activism,” especially when courts are “expanding rights beyond what the people want.”

“Are you saying that it is never appropriate for the judiciary to intervene in the initiative process?” asked Judge Walker.

“No,” said Miller.

“Then, when is it appropriate?” asked Walker.

“Whenever the initiative …violates…the federal constitution,” said Miller.

“And who makes that determination?” asked Walker.

“It’s a question,” said Miller, “for the courts to decide.”

Mid-day report: Day 11 Prop 8 trial

Except for one very brief outburst in the courtroom by a man who has been ranting on the streets of downtown San Francisco, the predominance of drama in the Proposition 8 trial Tuesday morning has been coming from the intense cross-examination delivered by David Boies.

David Boies (Photo credit: Bill Wilson)
David Boies (Photo credit: Bill Wilson)

SAN FRANCISCO — Except for one very brief outburst in the courtroom by a man who has been ranting on the streets of downtown San Francisco, the predominance of drama in the Proposition 8 trial Tuesday morning has been coming from the intense cross-examination delivered by David Boies.

The nationally recognized trial lawyer leading the challenge to the constitutionality of the California same-sex marriage ban in U.S. district court here could be said to have pulled out the wisdom teeth of the defense team’s first expert witness tooth by tooth.

By the lunch recess today, college professor Kenneth P. Miller’s views had also been challenged by counsel representing the state Attorney General and by District Court Chief Judge Vaughn Walker himself.

Miller, who was on the stand for a total of almost nine hours, was called by the legal team defending the Yes on 8 campaign to explain how gays are a politically powerful minority. Should the judge agree with that assessment, he would be able to demand of proponents only a simple rational reason for having Proposition 8 treat gays differently from straight couples when it comes to marriage licenses.

But on cross-examination yesterday and today, Boies has disputed both Miller’s credentials as an expert on gay political power and even on the simple logic and consistency of his own views. Where Miller claimed gays benefited from the power gained from forming coalitions with a number of powerful groups—including organized labor—Boies confronted him with exit polls showing that 56 percent of households with a member of organized labor in them supported Proposition 8.

He asked Miller about a survey that found that 88 percent of adults would vote for a qualified woman candidate, 87 percent for a qualified Hispanic, 72 percent for a qualified Morman, 57 percent for a candidate who had been married three times, but only 55 percent would vote for a qualified homosexual candidate.

“Does this tell you something about discrimination against homosexuals in this country,” asked Boies. “Yes or no.”

“It’s a data point,” said Miller, clearly resisting giving testimony that disputed the defense team’s contention regarding power.

Miller frequently tried to resist giving direct answers to Boies’ questions and that eventually provoked an indirect admonishment from Judge Walker. That came when Boies began questioning Miller whether there is not a generally accepted view by political scientists that it is “undesirable” in this country for a religious majority to impose restrictions on a religious minority.

“In a general sense, that’s a principle that many political scientists would agree with,” said Miller, but he continued, suggesting that it might be argued that abolitionists had imposed their religious views on slaveholders, in early American history.

Boies seemed incredulous and pursued.

“And were slaveholders a minority that needed protection?” asked Boies.

Miller hesitated and squirmed; Boies pulled harder.

“You’re saying slaveholders may have had a religious basis for their views?” asked Boies.

Yes on 8 defense attorney David Thompson jumped up to object, but Judge Walker quickly shot him down.

“Counsel is attempting to inquire [as to] the witness’ comment,” said Walker. “If the witness would respond directly to a question, he might not have to.”

Thompson tried to continue his objection, but Walker cut him off.

“Overruled.”

Boies continued.

“As an expert in political science,” he said, “is it not the generally held view by political scientists that it is not appropriate for a majority religion to impose its views on a religious minority?”

Miller rambled briefly in qualifying remarks then conceded, “probably a majority of political scientists would agree.”

Following Boies’ cross-examination, the Judge invited a representative from Attorney General Jerry Brown’s office to question Miller concerning defense’s contention that the Attorney General’s office had used its power to help opponents of Proposition 8, including in the formation of the language of the measure. Apparently not satisfied by the exchange, Judge Walker jumped in.

Can an Attorney General do more than provide “neutral title and summary” of a ballot measure, asked the judge.

“In different states…” said Miller, but the judge cut him off.

“We’re talking about California,” he said.

“I’m not aware of any time when the Attorney General has done more,” said Miller.

“That’s not the question,” bristled the judge. “Can the attorney general do more” as a matter of authority?

Miller allowed that the attorney general could “publically oppose” a measure, but the judge clearly saw that as an evasion of the question.

“So, you don’t know, that it?” quipped the judge.

The question of the attorney general’s role appears to be an important one for Judge Walker. On the opening day of the trial, he inquired of attorneys whether they thought the Attorney General had the power to keep an unconstitutional measure off the ballot at the start.

He also questioned Miller, after Thompson’s re-direct, about Miller’s statements suggesting that his views about initiatives that target minorities had changed over time. Boies had brought out a 2009 article in which Miller had stated that such initiatives actually undermine democracy.

On re-direct, Thompson gave Miller a chance to explain that his views had changed and he now has a “more favorable view” of such initiatives. He said they “can provide a check on judicial activism,” especially when courts are “expanding rights beyond what the people want.”

“Are you saying that it is never appropriate for the judiciary to intervene in the initiative process?” asked Judge Walker.

“No,” said Miller.

“Then, when is it appropriate.”

“Whenever the initiative …violates…the federal constitution,” said Miller.

“And who makes that determination?” asked Walker.

“It’s a question for the courts to decide.”

U.S. Reps call for action against Ugandan bill

Three openly gay members of the U.S. House of Representatives, along with 91 of their colleagues, have sent a letter to President Obama urging him to do everything he can to stop a bill in Uganda that calls for harsh penalties against gays.

Tammy Baldwin
Tammy Baldwin

Three openly gay members of the U.S. House of Representatives, along with 91 of their colleagues, have sent a letter to President Obama urging him to do everything he can to stop a bill in Uganda that calls for harsh penalties—including life imprisonment and the death penalty—against gays.

The proposed law in Uganda, which calls for life imprisonment for anyone convicted of having sex with a person of the same gender, also triggered a U.S. Congressional hearing this month.

The January 21 hearing took place in the House’s Tom Lantos Human Rights Commission, created two years ago to “promote and advocate” for rights adopted in the international Universal Declaration of Human Rights.

Openly gay U.S. Rep. Tammy Baldwin (D-Wisc.), a member of the Commission’s Executive Committee, called the Ugandan legislation, “An extreme and hateful attempt to make people criminals not because of anything they do, but because of who they are and who they love.”

The bill was introduced to the Ugandan Parliament by Member David Bahati and expands upon an already existing statute that outlaws homosexuality. The new bill seeks to impose life imprisonment for anyone convicted of having sex with or trying to contract a marriage with someone of the same sex. In certain cases, such as when the person tests HIV positive, the penalty is death.

In addition to targeting gays, the bill seeks to go after anyone who “promotes” homosexuality or “aids, abets, counsels or procures” someone else to engage in homosexual acts. Such persons could face up to seven years in prison. Anyone who is aware of someone breaking the law but does not report this fact to authorities faces a fine and three years in prison.

“The severity of the Ugandan legislation requires a severe response,” said Baldwin in her opening remarks at the Commission hearing. Bills, such as this, she said, are “contemptible statements of hate and bias,” have “serious consequences,” and are “enormous obstacles to effectively addressing HIV/AIDS.”

At the hearing, Baldwin and Commission Co-Chairman James P. McGovern (D-Mass.), along with other Commission members, heard testimony from Karl Wycoff, Deputy Assistant Secretary of State, as well as a panel of expert witnesses: Cary Alan Johnson of the International Gay and Lesbian Human Rights Commission; Julius Kaggwa of the Civil Society Coalition on Human Rights and Constitutional Law, Uganda; Rev. Kapya Kaoma of Political Research Associates; and Christine Lubinski of the HIV Medicine Association, Infectious Diseases Society of America.

Kaggwa told members of the Commission that, because the Ugandan bill also targets anyone who “promotes homosexuality,” it should be opposed not only by LGBT-rights supporters but also those who advocate for free speech and greater democracy.

Baldwin said in an interview she hopes the hearing will help Congress to “direct our actions in a more focused way.”

Assistant Secretary Wycoff testified that, while it is important for the U.S. and other countries to make public statements and meet privately with Ugandan government officials, many in Uganda view these communications as outside meddling. That, he said, could embolden proponents of the legislation. Wycoff’s remarks led to a discussion of the importance of supporting the activists in Uganda and the coalition they are building to oppose the legislation internally.

But Baldwin said opposition against the bill could take many forms, including support for the non-governmental organizations that are part of the coalition fighting the bill.

“It may also mean figuring out further venues for heartbreaking stories of oppression and violence and humiliation to be told both internally to Uganda, but to a larger world audience,” she said.

On January 21, 94 U.S. representatives—led by Reps. Baldwin, Barney Frank (D-Mass.), and Jared Polis (D-Colo.)—sent a letter to President Obama and one to Ugandan President Yoweri Kaguta Museveni, asking them to help stop the bill. One day earlier, 12 U.S. senators sent a letter to President Museveni with a similar message.

Baldwin said she and the other House members who signed the letter to President Obama think the president could do more than he has. The White House issued a written statement in mid-December, saying that the president “strongly opposes” the legislation. Secretary of State Hillary Clinton has also expressed concern about it. The House letter, however, asks the President to “speak out publicly” on the matter, especially given his popularity in Africa.

This week, Shin Inouye, a spokesperson to the LGBT media for the White House, said, “The President has strongly opposed legislation that would criminalize homosexuality anywhere—including Uganda—and the Department of State has made this opposition clear to the Ugandan government. We appreciate the interest of Congress in that matter, and will continue to make our opposition to this bill clear, and to support human rights around the world.”

The House members believe, too, that they can bring economic pressure to bear. Should the bill pass, they wrote to President Museveni, it could endanger the $300 million in President’s Emergency Plan for AIDS Relief (PEPFAR) funds to Uganda.

“If you can’t reach men who have sex with men and be able to talk honestly about prevention and early intervention and treatment,” said Baldwin, “those [PEPFAR] funds are not going to be used according to congressional intent. Baldwin said no one at the hearing called for a complete halt to the AIDS funding for Uganda, but rather “more a review of who gets it, how it’s used, how it will be overseen and supervised if the law passes.”

Baldwin said the PEPFAR funds comprise 2.6 percent of the Ugandan economy, and thus have significant impact.

Currently, the U.S. and Uganda have extensive bilateral relations. If the bill passes, Baldwin says, it could affect those ties. Sweden has already threatened to cut its assistance to Uganda if the bill passes.

Rep. Frank, who signed the letter but was not at the hearing, agreed that the bill would affect future cooperation between Uganda and the U.S. If it passes, Frank said, he would oppose any debt relief and aid from the World Bank to Uganda, areas where he has some influence as chair of the House Financial Services Committee.

One undercurrent of the issue is the influence of U.S.-based religious groups in Uganda.

“As has happened elsewhere, this proposed legislation appears to be the product of Americans recruiting prominent African religious leaders to campaign to restrict the human rights of LGBT individuals in their countries,” said Baldwin at the hearing.

Last year, three American evangelical Christians gave a seminar in Uganda on “the gay agenda,” saying it threatens traditional families. The speakers were Scott Lively of Abiding Truth Ministries, classified as a hate group by the Southern Poverty Law Center; Caleb Lee Brundidge of the International Healing Foundation (IHF), which encourages people to “heal” themselves of their same-sex attractions; and Don Schmierer of Exodus International, a group that says it promotes “Freedom from homosexuality through the power of Jesus Christ.”

Their Ugandan host was Stephen Langa of the Family Life Network, a non-governmental organization focused on “the restoration of family values and morals.” Langa has admitted helping to draft the anti-gay bill, according to a January 3 report in the New York Times. The report said Lively also acknowledged meeting with Ugandan lawmakers about the legislation.

All three Americans have now posted statements on their organizations’ Web sites denying they intended such harsh actions. Exodus sent a letter to President and Mrs. Yuseveni, condemning the criminalization of consensual homosexuality, saying it interferes with the church’s task of helping homosexuals. IHF sent a similar letter to the Ugandan parliament, saying the bill would “frighten all people from seeking the very help they need, and that many want.”

The International Transformation Network (ITN), another U.S.-based evangelical group that works to turn people away from homosexuality, has reportedly established a training network of approximately 14,000 evangelical churches in Uganda, according to journalist Bruce Wilson of the Web site Talk To Action. Wilson has detailed ITN’s involvement in Uganda and says President Museveni and his wife Janet have hosted ITN representatives at state dinners. Janet Museveni has attended, or sent a representative to, several of ITN’s world conferences. Their daughter Patience runs a church whose members are being trained by ITN, and David Bahati, sponsor of the Anti-Homosexuality Bill, has been one of the attendees of that church.

“We need to be mindful that those voices of the conservative religious evangelicals in Uganda are not being appropriately balanced by voices of truth-tellers who are reaching out,” said Baldwin, in an interview.

“We need to have U.S. voices,” said Baldwin, “and people who have person-to-person cultural exchanges, political exchanges, etc., that have a different message and can counter the lies with truth.”

Baldwin said the January 21 hearing gave the commission a chance to hear ideas for doing just that.

“Most of the women in the Ugandan parliament are supporting the bill, as are some women’s rights groups,” Baldwin related. One idea mentioned by several panelists at the hearing was that First Lady Michelle Obama and women in Congress speak to Ugandan women. There was also a suggestion that the Congressional Black Caucus could make a statement.

“I think we’ll follow up on all those very helpful pieces of advice,” Baldwin said, “especially knowing that they came from people in Uganda who have a sensibility about what will be effective and what won’t.”

The letter to President Obama from members of the House asks the president to not only to speak out publicly against the legislation in Uganda but also to work towards the decriminalization of homosexuality worldwide.

“More than two-thirds of African countries have laws criminalizing consensual same-sex acts, and over 80 countries worldwide currently have in place sodomy laws or other legal provisions that criminalize their LGBT communities,” said Baldwin.

Uganda, she said, is part of “an alarming trend.”

Yes on 8 expert contends gays wield coalition power

Defenders of Proposition 8, the 2008 initiative that amended California’s constitution to ban same-sex marriage, began their effort Monday to defend the measure in a U.S. federal district court.

Kenneth Miller (Photo credit: Bill Wilson)
Kenneth Miller (Photo credit: Bill Wilson)

SAN FRANCISCO – Defenders of Proposition 8, the 2008 initiative that amended California’s constitution to ban same-sex marriage, began their effort Monday to defend the measure in a U.S. federal district court.

The court, presided over by Chief Judge Vaughn Walker, has already heard nine days of testimony put on by the legal team challenging the constitutionality of the law—including 17 witnesses. This week, with only a few reporters still watching and the courtroom audience thinning out, the defense prepared to bring just two expert witnesses to the stand.

First up was Kenneth P. Miller, a professor of government at Claremont McKenna College, a private college outside Los Angeles. The defense offered Miller Monday as an expert in the political power of gays and lesbians—a designation which plaintiffs’ attorney David Boies attacked even before Miller’s testimony began.

Using a trial procedure known as voir dire, Boies formally challenged Miller’s credentials, showing, among other things, that Miller has to his credit only one peer-reviewed journal article on the topic and was so unfamiliar with the gay movement that he did not know what the Mattachine Society was. The peer-reviewed article was in a French journal of American studies. The Mattachine Society was one of the earliest gay political groups in the country.

Miller acknowledged that he was “not an expert on the full history of the gay and lesbian rights movement,” but said he had “read about it.” But when Boies pressed him on what books he had read, Miller could not confirm having read any notable histories. When Miller suggested his “deeper knowledge” of the movement was from the mid-1970s on, Boies quizzed him about two of the first openly gay people elected to office—Elaine Noble in 1975 and Allan Spear in 1976—neither of whom he knew.

Boies asked the judge to limit Miller’s qualification for expert testimony, and Judge Walker did so—to the role of gay and lesbian Americans and California politics.

Under questioning by Yes on 8 attorney David Thompson, Miller told the court that, although gays were a tiny portion of the population, they gained considerable political power through their affiliation with the Democratic Party and labor unions and that they benefit from the support of newspapers, corporations, and celebrities.

In California, especially, said Miller, the Democratic Party is a dominant force and can “basically do whatever they want” politically. Although Republican Governor Arnold Schwarzenegger has twice vetoed legislation to provide marriage equality in the state, Miller said he is generally supportive of equal rights for gays and opposed Proposition 8. Many leaders in the state opposed Proposition 8, said Miller, as did every newspaper, numerous corporations, and 51 mainline religious denominations.

“Do all those denominations perform same-sex marriages?” asked Judge Walker.

“No,” said Miller.

“Which do and which do not?” asked Walker.

“I would have to take a closer look at that,” said Miller.

Miller’s testimony seemed to suggest he had only cursory knowledge in any area regarding gay political power. When asked about gay political power nationally, he spoke about the “upward trajectory of power” for the movement in its efforts to repeal the Defense of Marriage Act (DOMA) and “Don’t Ask-Don’t Tell” (DADT). And he testified that President Obama has given “significant support” to the community during his first year in office. And he talked about the Gay & Lesbian Victory fund having boasted that most openly gay candidates are elected.

Boies objected on a number of occasions, pointing out that Miller “didn’t know any of this during deposition,” and suggesting he had been spoon-fed the facts sometime between deposition and the trial. On cross-examination, he asked Miller to look over a list of the materials he had purportedly considered in preparing his expert testimony and circle the ones that he had not been given by defense counsel. The process took considerable time and Judge Walker began rapping his fingers on the bench after about five or ten minutes while the courtroom waited for Miller to finish marking up the list. Miller indicated that there were some that he couldn’t remember whether he found himself or defense counsel had provided them to him.

Boies spent all Monday afternoon shooting down Miller’s testimony concerning gay political power. The team challenging Proposition 8 needs to establish that gays are politically powerless in order to have Judge Walker give his toughest scrutiny to the stated purpose for the same-sex marriage ban. If gays are considered to be a powerful minority, then Walker can accept a simple rational reason for the law.

Power, of course, is relative and Miller tried to avoid answering some of the more difficult questions from Boies. For instance, when Boies asked Walker which group has the more political power—women or gays—Miller said he wouldn’t be able to answer that questions without doing more analysis. But Boies is decidedly relentless in his cross-examinations and asked Miller which group has the more political power—women or lesbians. Miller then acknowledged that, yes, lesbians probably have less political power than women.

There was another significant tussle in court Monday over whether Yes on 8 campaign manager Frank Shubert can be called to the witness stand by the legal team defending the constitutionality of California’s same-sex marriage ban.

Plaintiffs had sought, during deposition, to elicit testimony from Shubert—who was also instrumental in putting together both the Yes on 8 campaign and the campaign to repeal of Maine’s marriage equality law. But during that deposition, defense attorneys repeatedly instructed Shubert not to respond.

“We asked Shubert over and over” about various campaign documents, said plaintiffs’ attorney Ted Boutrous to Judge Walker. “Everything we asked, they blocked our inquiry. Now, [defense] is saying it wants [Shubert] to testify for first time on the stand and to give the explanations we were seeking in deposition.” Boutrous said the behavior of defense attorneys was “extraordinary” and hindered their ability to adequately cross-examine him.

Yes on 8 attorney Nicole Moss defended the move, saying her team was concerned about documents which the plaintiffs might introduce and notified them that they might call Shubert to the stand just in case they needed him to respond to any claims made by plaintiffs concerning various Yes on 8 campaign materials or involvement.

Judge Walker said he would wait to see what documents plaintiffs introduced before making his ruling on whether Shubert can take the stand, should defense attorneys choose to do so.

That evidence included a number of videotapes and documents that were introduced to demonstrate the tactics and messages of the Yes on 8 campaign. It included videotapes of Proposition 8 proponents making often shocking claims against gay people – that gays were attempting to “indoctrinate” children to homosexuality, promote pedophilia, and aim for the “annihilation of marriage.”

One video showed a young man from an ex-gay group claiming that, if Proposition 8 failed in California, it would have a “domino effect throughout the country.” A young woman sitting next to him said it would mean “pedophiles could marry six, seven, and eight-year olds.” She claimed that marriage equality in Massachusetts enabled a man there to petition for the right to marry a horse.

“Mothers could marry sons,” she said. “…Any combination would be allowed.” The videotape did not identify the two young people but the bottom of the videotape screen indicated the program was affiliated with the ex-gay ministry Exodus.

The purpose of the evidence is to establish that the motive behind Proposition 8 was to promote a message of hatred against gay people. The U.S. Supreme Court has ruled—in Romer v. Evans—that animus cannot be a driving force behind a law.

Plaintiff attorney Christopher Dusseault also introduced documents showing instances of federal government discrimination against gays, including documents from the files of D.C. activist Frank Kameny –documents from the 1960s and 1970s. Dusseault referred to them as “ancient” files, a designation that prompted a challenge from the judge. Dusseault explained that court rules—not he—designates documents more than 20 years old as “ancient.”

Dusseault noted that the documents were also part of an archive at the Library of Congress.

“The Library of Congress maintains files such as this?” asked the judge.

“Apparently so,” replied Dusseault.

Among such ancient documents submitted was a 1974 letter from the U.S. Internal Revenue Service rejecting an application for a gay civil rights group to receive tax-exempt status. The letter said the group’s existence posed a “serious risk of contributing to more widespread development of homosexual tendencies …and deviant sexual behavior,” and thus could not be approved.

Hawaii Senate approves civil unions, House votes soon

The mood among supporters of a bill to allow civil unions in Hawaii is “Imua!”—the Hawaiian word for “Forward!” said State Senate Majority Leader Gary Hooser. The bill passed the state senate Friday, January 22, by a vote of 18 to 7.

Gary Hooser
Gary Hooser

The mood among supporters of a bill to allow civil unions in Hawaii is “Imua!”—the Hawaiian word for “Forward!” said State Senate Majority Leader Gary Hooser. The bill passed the state senate Friday, January 22, by a vote of 18 to 7.

“I’m very pleased that 18 members feel that equality is important and have voted to pass this bill,” said Hooser, a Democrat and sponsor of the legislation. “It sends a strong message to our community and people everywhere that this is an important issue.”

Tambry Young, co-chair of Equality Hawaii, one of the organizations spearheading the push for civil unions, agreed.

“We’re very proud the Senate did the right thing,” said Young. “An overwhelming majority stood up for all families in Hawaii.”

The bill is far from law, however. Although a version of the legislation passed the House 2009 session, the Senate version must go back to the House for a vote during the new session.

The Senate version, unlike the House bill, includes a statement that, “It is not the Legislature’s intent to revise the definition or eligibility requirements of marriage.” It also expands civil union eligibility to opposite-sex couples.

Hooser said he hopes the strong support in the Senate for the bill will give the House the “confidence” to approve it.

He also praised the “incredible work” of LGBT advocates in building a broad-based coalition in support of the legislation, including church groups, labor groups, and students.

Oddly, the Senate bill language indicates the bill’s effective date as January 1, 2010—something Hooser tried to amend Friday. There had been some question of whether the back-date would invalidate the bill or make it easier for Republican Governor Linda Lingle to veto, claiming it would provide no time for state officials to prepare for implementation. But the state’s Attorney General said the date would not invalidate the measure, and some supporters resisted the idea of delaying the measure for an amendment.

Hawaii was the first state to push for legal recognition of same-sex marriages. That was in 1993. But, after the state Supreme Court ruled that denying marriage licenses to same-sex couples was unconstitutional, the state legislature moved quickly to ask voters to give it the authority to amend the constitution. After voters did that, in 1998, the legislature amended the state constitution to ban recognition for any marriage other than for straight couples.

The state did, however, create the status of “reciprocal beneficiaries” in 1997, to give a limited set of benefits to couples who were unable to marry, including hospital visitation rights and the right to inherit from each other in the absence of a will. Civil unions would, however, give couples all the state benefits of marriage except the name.

The federal Defense of Marriage Act, which passed Congress in 1996, was seen as a direct response to the effort in Hawaii to win recognition for same-sex marriages.

Hawaii’s past still has lessons for the present. Marriage equality advocates, such as Evan Wolfson, executive director of the national Freedom to Marry organization, see strong parallels between the Hawaii Supreme Court cases and the current federal trial over the constitutionality of California’s Proposition 8, which limits marriage in that state to unions of one man and one woman.

“The presentations, cross-examination, and bottom-line conclusions [in the Proposition 8 trial] all uncannily echoed what unfolded in the Hawaii courtroom in 1996,” wrote Wolfson on January 21 in the Huffington Post.

The current Hawaii effort has not proceeded without a struggle. In the days leading up to Friday’s vote, advocates for and against the bill rallied at the state capitol and elsewhere on the islands.

Bishop Clarence Silva of Honolulu sent out a letter in mid-January urging congregants to ask their legislators to vote against the civil unions measure. He also urged them to join a January 17 rally sponsored by the conservative Hawai’i Family Forum. In his letter, Silva wrote, “not all discrimination is unjust.”

A civil union, he said, was simply “ a euphemism for same-sex marriage.”

Republican State Senator Sam Slom, who has been a vocal opponent of the bill, was the only senator to speak against it before the final vote. He, too, tried to paint civil unions as redefining marriage, reported Tony Wagner, the Human Rights Campaign’s Western Regional Field Director, on the HRC blog.

The Hawaii House could take up the bill as early as next week. House Majority Leader Blake Oshiro said he will be meeting with the Democratic caucus on Monday, January 25, in order to decide on a course of action.

Although there has been some talk that the House would not vote unless it was assured of a veto-proof supermajority, Oshiro said he would try to push for a vote.

“We owe that to the public as well as to the advocates who have been pushing for it,” he explained. “I’m hoping some of the representatives see that fear-mongering is no reason not to do this.”

Young said she and her group will continue to talk with House members and explain to them the “irrational” views of the opposition. “We’re confident we still have a lot of support on the merits of the issue,” she asserted.

Although the Senate passed it with a supermajority of two-thirds, the House would need to do so, too, in order to overcome a possible veto from Governor Lingle. The governor has not indicated whether she will sign the bill.

“I hope she recognizes that equality is important,” said Hooser. “I hope she realizes the time is overdue.”

Mid-day report: Day 10 Prop 8 trial

A significant dispute broke out today in court over whether Yes on 8 campaign manager Frank Shubert can be called to the witness stand by the legal team defending the constitutionality of California’s same-sex marriage ban.

goldengate_200SAN FRANCISCO – A significant dispute broke out today in court over whether Yes on 8 campaign manager Frank Shubert can be called to the witness stand by the legal team defending the constitutionality of California’s same-sex marriage ban.

Plaintiffs, the legal team challenging Proposition 8, had sought, during deposition, to elicit testimony from Shubert—who was also instrumental in putting together both the Yes on 8 campaign and the campaign to repeal of Maine’s marriage equality law. But during that deposition, defense attorneys repeatedly instructed Shubert not to respond.

“We asked Shubert over and over” about various campaign documents, said plaintiffs’ attorney Ted Boutrous to U.S. District Court Chief Judge Vaughn Walker, who is presiding in the case. “Everything we asked, they blocked our inquiry. Now, [defense] is saying it wants [Shubert] to testify for first time on the stand and to give the explanations we were seeking in deposition.” Boutrous said the behavior of defense attorneys was “extraordinary” and hindered their ability to adequately cross-examine him.

Yes on 8 attorney Nicole Moss defended the move, saying her team was concerned about documents which the plaintiffs might introduce and decided to notify them that they might call Shubert just in case they needed Shubert to respond to any claims as to various Yes on 8 campaign materials or involvement.

Judge Walker said he would wait to see what documents plaintiffs introduce before making his ruling on whether Shubert can take the stand, should defense attorneys choose to do so.

The plaintiffs then proceeded to introduce their remaining evidence—a number of videotapes and documents that demonstrate the tactics and messages of the Yes on 8 campaign. The evidence included videotapes of Proposition 8 proponents making often shocking claims against gay people – that they were attempting to “indoctrinate” children to homosexuality, promoting pedophilia, and aiming for the “annihilation of marriage.”

One video showed a young man from an ex-gay group claiming that, if Proposition 8 failed in California, it would have a “domino effect throughout the country.” A young woman sitting next to him said it would mean “pedophiles could marry six, seven, and eight-year olds.” She claimed that marriage equality in Massachusetts enabled a man there to petition for the right to marry a horse.

“Mothers could marry sons,” she said. “….Any combination would be allowed.” The videotape did not identify the two young people but the bottom of the videotape screen indicated the program was affiliated with the ex-gay ministry Exodus.

The purpose of the evidence is to establish that the motive behind Proposition 8 was to promote a message of hatred against gay people. The U.S. Supreme Court has ruled—in Romer v. Evans—that animus cannot be a driving force behind a law.

Plaintiff attorney Christopher Dusseault also introduced documents showing instances of federal government discrimination against gays, including documents from the files of D.C. activist Frank Kameny—documents from the 1960s and 1970s. Dusseaulty referred to them as “ancient” files, a designation that prompted a challenge from the judge. Dusseault explained that court rules—not he—designates documents more than 20 years old as “ancient.”

Among the ancient documents submitted was a 1974 letter from the Internal Revenue Service rejecting an application for a gay civil rights group to receive tax-exempt status. The letter said the group’s existence posed a “serious risk of contributing to more widespread development of homosexual tendencies …and deviant sexual behavior,” and thus could not be approved.

After the plaintiffs submitted their remaining documents, the defense began its case in support of Proposition 8. Their first witness was Kenneth P. Miller, a professor of government at Claremont McKenna College, a private college outside Los Angeles. The defense offered Miller as an expert in the political power of gays and lesbians — a designation which plaintiffs’ attorney David Boies attacked.

Boies, in challenging Miller’s credentials during a process known as voir dire, showed that Miller has to his credit only one peer-reviewed journal article on the topic and was so unfamiliar with the gay movement that he did not know what the Mattachine Society was. The Mattachine Society was one of the earliest gay political groups in the country.

When Miller attempted to suggest that his expertise is mainly with the gay movement since the mid-1970s, Boies pointed out to him that, at deposition, Miller had no knowledge of such pivotal gay movement figures as Allan Spear of Minnesota and Elaine Noble of Massachusetts, among the first openly gay elected officials in the country.

Boies tried to have Miller’s expert testimony limited to only gay-related ballot initiatives. Judge Walker did not grant the request per se but indicated Miller’s testimony could be allowed insofar as it was related to the “role of gays and lesbians in American and California politics.”

Miller’s testimony resumes at 1:10 p.m. Pacific time.

Prop 8 trial resumes today; defense to argue power and kids

Today begins Day 10, Week 3 of the federal trial challenging the constitutionality of California’s ban on same-sex marriages, Proposition 8. The day will begin with the final presentations from the Ted Olson-David Boies legal team.

california_sealSAN FRANCISCO – Today begins Day 10, Week 3 of the federal trial challenging the constitutionality of California’s ban on same-sex marriages, Proposition 8.

The day will begin with the final presentations from the Ted Olson-David Boies legal team. They plan to present some documents and videotape. So far, they have used the introduction of videotaped evidence to great effect in the trial, showing expert witnesses from the other side making statements that undermine the other side’s case.

The other side, led by conservative Charles Cooper, will then begin to present its case in defense of Proposition 8.

While the Olson-Boies team called 17 witnesses to the court before U.S. district court Chief Judge Vaughn Walker, Cooper – at this point – has indicated he will bring only two or three.

One, who will likely take the witness stand this afternoon, is Kenneth P. Miller, an associate professor in the Department of Government at Claremont McKenna College. The second witness will be David Blankenhorn of a group called the Institute for American Values. The group’s website says it is an organization “contributing intellectually to the renewal of marriage” and “key American values.”

Miller’s testimony is expected to try and persuade the judge that gay men and lesbians are a politically powerful group. One of the criteria for deciding what level of scrutiny to apply to a law is whether the group the law targets for disparate treatment is a group that has little political power of its own to seek redress, such as at the ballot box.

Blankenhorn’s testimony is reportedly focusing on a key question in the case: What’s the purpose of Proposition 8? Laws have to have a purpose, although previous U.S. Supreme Court cases have signaled that the courts must give the legislatures and the voters considerable deference – the laws just need to have some simple rational justification. Blankenhorn is expected to say that justification is to promote procreation among straight couples and to “protect the children.”

Boies, who executed a stinging cross-examination of adverse witness William Tam last week, will cross-examine both of the defense’s experts this week.

On Sunday night, there was a report circulating that the defense might call a third witness – Frank Shubert, the Yes on 8’s paid campaign consultant and the man credited with constructing the successful anti-gay ballot campaigns in both California in 2008 and in Maine last November. The courtroom will, no doubt, be very crowded should Shubert take the stand.

The judge announced last Friday that the trial would not move straight into closing arguments after the evidence is presented. Instead, he will take “several weeks” to review the testimony and documents and formulate questions to pose to the legal teams during those closing arguments.

Olson said last Friday that he would be delivering the closing arguments for the plaintiffs, two same-sex couples who seek to obtain a marriage license. Also delivering a closing argument on behalf of the city of San Francisco, which is also a party to the case challenging Proposition 8, is Therese Stewart, the Chief Deputy City Attorney for the city. Cooper is expected to do so for the Yes on 8 team defending the law.

Prop 8 defenders: No sharp line between gays and straights

The legal team defending California’s ban on same-sex marriages is in the very odd position of having to argue that most people—including heterosexuals—feel an attraction to people of the same sex at some time in their lives.

Judge Vaughn Walker
Judge Vaughn Walker

SAN FRANCISCO – The legal team defending California’s ban on same-sex marriages is in the very odd position of having to argue that most people—including heterosexuals—feel an attraction to people of the same sex at some time in their lives. They must argue that there’s no sharp line between heterosexuality and homosexuality, and that the image any person might have of a “mate” can be “infinitely variable.”

These are not the sorts of ideas put forth by the Yes on 8 campaign in 2008, when it sought passage of Proposition 8, to amend the state constitution to define marriage as including only “one man and one woman.” But the battle has moved from the political arena—where the general public can be swayed by appeals to numerous emotions—to the legal arena, where judges must scrutinize the logic and reasonableness of various arguments.

And one of the things U.S. District Court Chief Judge Vaughn Walker must decide is whether Proposition 8 targets a “discrete” and “insular” minority whose members share an immutable trait, have experienced a long history of discrimination, and are politically powerless to protect themselves. If Judge Walker decides that gays constitute such a minority, he must then determine whether there is—not just a simple reason that barely passes a giggle test, but—a compelling need for Proposition 8 to disadvantage gays.

And that’s why defense attorney Howard Nielson spent most of the day Friday trying to elicit testimony from the plaintiffs’ expert witness, social psychologist Gregory Herek, acknowledging that it’s “not immediately evident” that a person is gay “from simply looking at a person.”

Nielson read from journal articles saying there were “heated debates” among professionals about how to identify a person’s sexual orientation. He quoted articles that noted a person who might identify as straight at one point in their life might identify as gay later in life. And he asked Herek about a study suggesting that between one percent and 21 percent of people are “gay or lesbian to some degree, while the rest are heterosexual or bisexual to some degree.”

Nielson brought up the studies of Alfred Kinsey from the 1940s and 50s that suggested everyone’s sexual orientation falls along a continuum from exclusively heterosexual to exclusively homosexual. And he quoted another researcher as saying, “nearly all heterosexual people are capable of some homosexual response and nearly all homosexuals are capable of some heterosexual response…and hence no sharp line distinguishes between homosexuality and heterosexuality.”

Like other expert witnesses brought by the plaintiffs thus far, Herek was not particularly vulnerable to taking bait. When Nielson asked him whether he agreed that every heterosexual was capable of some homosexual response, Herek replied that it would be important to define what one means by “capable.”

“If it means ‘theoretically possible’,” said Herek, “I could certainly allow that that seems like a reasonable assumption to make, but I don’t know what data [the researcher] is relying on to make that statement.” He said the other terms, too, would have to be defined, such as what is a “heterosexual response.”

“Would you agree there is no stark line between homosexuality and heterosexuality?” asked Nielson.

The key, again, said Herek, would be how one defines the terms homosexuality and heterosexuality.

When Nielson pointed out that different researchers use different definitions of sexual orientation for their studies, Herek explained that different studies often required very specific—and different—definitions in order to tease out the particular information for which they are looking.

“If a researcher is studying sexually transmitted diseases, they would probably want a definition that focuses on sexual behavior,” said Herek. “If they were studying discrimination, they might want a definition that focuses on sexual identity.”

Nielson’s cross-examination, like that of several other defense attorneys, seemed unusually tedious and prolonged and included a repetitive sequence in which he plucked one sentence out of an article to get Herek’s to say whether he thought the comment was “reasonable.” Each time, Herek – without missing a beat—responded by reading the sentences before or after the plucked statement in order to show the comment context. That often demonstrated that the researcher was making a point somewhat different than the one Nielson’s chosen statement seemed to be asserting.

Then Nielson would ask Herek the reverse: Was the original statement was “unreasonable”?

During his questioning by plaintiffs’ attorney Ethan Dettmer, Herek identified sexual orientation as “an enduring sexual, romantic…and affectionate attraction to men, women, or both.” The “enduring” designation is important because it supports the notion that sexual orientation for gay people is “immutable.”

Herek discussed the results of two recent studies he helped conduct—one published in the Journal of Counseling Psychology this year and one accepted for publication in another journal, but not yet published. The studies asked gay and bisexual people “how much choice they had” about being gay, lesbian, or bisexual. The first study, which involved 2,200 people, found that 87 percent of gay men and 70 percent of lesbians said they felt they had no or little choice.

Dettmer also asked Herek to offer his understanding of reparative therapy, another question aimed at establishing that sexual orientation is immutable. Herek testified about a 2009 study from a American Psychological Association task force that found available studies have found reparative therapy to have “very limited effect” and to be potentially harmful to its participants.

There was, said the report, “insufficient evidence to support use of psychological interventions to change sexual orientation.”

With attorneys on both sides, the process of reading aloud quotes and data from various articles and exhibits bound together in four-inch black loose-leaf binders is de rigueur. But the seemingly endless number of quotes and studies being reviewed by the defense has provoked grumbles from both the judge and the audience watching in the courtroom. Often, the audience lets out an audible moan when an attorney approaches the podium carrying a large stack of binders or an assistant enters the courtroom rolling in a pile of boxes filled with binders. The courtroom is a virtual sea of black binders – so many, in fact, that there is a temporary, long, metal bookshelf erected next to the plaintiff attorneys’ table with three rows of binders on it—more than 50.

After black binders, the most common site in the courtroom is the abundance of black laptops—one in front of every attorney (and none of them are Macs).

There is an occasional surprise in the generally staid and repetitive proceeding, and on Friday, it came at the beginning: a surprise announcement by Judge Walker that he would delay the delivery of closing arguments in the case until at least several weeks after all the evidence has been presented.

“Given the volume of material” being introduced into evidence in the lawsuit, said Walker, he thinks it would be “much more productive and useful if I have a chance to tease out some questions.”

Friday was Day 9 of the historic trial to determine whether the California state constitutional ban on same-sex marriage licensing violates the U.S. Constitution’s guarantee of equal protection of the law.

Herek, who was today’s first and only witness, is also the last witness which attorneys challenging Proposition 8 plan to bring to the witness stand. On Monday, they plan to introduce a number of documents into evidence, and then the case swings to the legal team presenting a defense of Proposition 8. The defense has already indicated it is withdrawing most of its original witnesses but they indicated in court Friday afternoon that they would bring two or three witnesses to the stand next week.

NH House panel nearing vote on repeal measures

A New Hampshire House committee is expected to vote soon on two bills seeking to restrict marriage licenses to straight couples only.

new_hampshireA New Hampshire House committee is expected to vote soon on two bills seeking to restrict marriage licenses to straight couples only.

The House Judiciary Committee held a hearing on the measures January 20.

One bill seeks to repeal the state’s newly enacted marriage equality law; the other seeks to amend the state constitution to define marriage as “one man and one woman.”

State Rep. Jim Splaine, an openly gay supporter of marriage equality, said about 100 people attended the hearing, divided fairly evenly between those supporting and opposing repeal. Among those opposing the repeal were several newly married same-sex couples, said Splaine.

House Bill 1590 was introduced by Republican Rep. Alfred Baldasaro and has only four co-sponsors in a chamber with 400 members—56 percent of them Democrats. In proposing to repeal marriage equality, the bill does not propose restoring the state’s previous law allowing for civil unions.

Constitutional Amendment Concurrent Resolution No. 28 also seeks to restrict the definition of marriage to “one man and one woman.” It was introduced by Republican Rep. Dudley Dumaine with two other co-sponsors.

The House Judiciary Committee must discharge the bills before February 18 and Splaine said he expects a vote within a week or two. Splaine said he expects the committee to recommend that the full House reject the measures.

“I think we will be successful there, too,” said Splaine.

Splaine said he and marriage equality supporters are working simultaneously to lobby town meeting members in about 130 towns where opponents of same-sex marriage have put the issue on local town meeting agendas. The proposals seek to have the towns tell the state legislature to put a measure on the ballot statewide to allow New Hampshire citizens to vote on the marriage equality law.

Mid-day report: Day 9 Prop 8 trial

Friday morning’s court session began with the surprising announcement by U.S. District Court Chief Judge Vaughn Walker that he would delay the delivery of closing arguments in the case until at least several weeks after case is presented.

Judge Vaughn Walker
Judge Vaughn Walker

SAN FRANCISCO – Friday morning’s court session began with the surprising announcement by U.S. District Court Chief Judge Vaughn Walker that he would delay the delivery of closing arguments in the case until at least several weeks after case is presented.

Walker, who engaged in an unusually active questioning of both sides during their opening statements, has the aggressive approach of a Supreme Court justice rather than a district trial level juror.

“Given the volume of material” being introduced into evidence in the lawsuit challenging Proposition 8, said Walker, he thinks it would be “much more productive and useful if I have a chance to tease out some questions.” That, of course, means he intends to have an equally active questioning of both sides during closing arguments.

This is Day 10 of the historic trial to determine whether the California state constitutional ban on same-sex marriage licensing violates the U.S. Constitution’s guarantee of equal protection of the law.

Today’s first witness—social psychology expert Gregory Herek—is also the last witness which attorneys challenging Proposition 8 plan to bring to the witness stand. Then they plan to introduce a number of documents into evidence, and then the case swings to the legal team presenting a defense of Proposition 8. The defense has already indicated it is withdrawing most of its original witnesses and it is unclear at this point whether they will bring any to the stand.

During his testimony, Herek identified sexual orientation as “an enduring sexual, romantic…and affectionate attraction to men, women, or both.” The “enduring” designation is important because it supports the notion that sexual orientation for gay people is “immutable.” And groups that are targeted for disparate treatment under the laws because of an “immutable” trait can expect the courts to scrutinize those laws with the strongest level of scrutiny—strict scrutiny.

Herek discussed the results of two recent studies he helped conductone published in the Journal of Counseling Psychology this year and one accepted for publication in another journal, but not yet published. The studies as gay and bisexual people “how much choice they had” about being gay, lesbian, or bisexual. The first study covered 2,200 people. 87 percent of gay men in the study said they felt they had no or little choice. Seventy percent of lesbians said they had no or little choice.

Plaintiff attorney Ethan Dettmer asked Herek to offer his understanding of reparative therapy, towards establishing whether sexual orientation was immutable. Herek testified about a 2009 study from a American Psychological Association task force that found available studies have found reparative therapy to have “very limited effect” and potentially harmful to its participants.

There was, said the report, “insufficient evidence to support use of psychological interventions to change sexual orientation.”

On cross-examination, defense attorney Howard Nielson was clearly aimed at trying to establish that there is no clearly identifiable group that can be considered gay/lesbian. In order for Proposition 8 to receive the most stringent judicial review, the law must be said to target an clearly defined population.

Boies grills Prop 8 supporter over attacks against gays

William Tam is what lawyers call an “adverse” witness. The head of a small coalition of Asian Americans in the San Francisco area who are opposed to same-sex marriage, Tam made a name for himself by propagating some of the most virulent public comments and literature in support of Proposition 8.

David Boies (Photo credit: Bill Wilson)
David Boies (Photo credit: Bill Wilson)

SAN FRANCISCO — William Tam is what lawyers call an “adverse” witness. The head of a small coalition of Asian Americans in the San Francisco area who are opposed to same-sex marriage, Tam made a name for himself by propagating some of the most virulent public comments and literature in support of Proposition 8. He told a local Chinese-language newspaper that same-sex marriage would lead to siblings marrying siblings. He told a San Jose newspaper that it would lead children to choose a disease-ridden homosexual lifestyle. In various other media, he claimed it was a step toward the gay agenda’s aim of legalizing sex with children and that gays are twelve times more likely to molest children than straights.

The purpose of having Tam testify was to demonstrate that hatred was the driving force behind those who campaigned for Proposition 8. Not surprisingly, attorneys defending Proposition 8 sought to block Tam’s testimony and tried to show, on cross-examination, that Tam campaigned for Proposition 8 on his own with little or no direction from the official Protect Marriage group or its paid consultants.

When confronted, by plaintiffs’ attorney David Boies, with various e-mails, web pages, and campaign fliers that included statements linking Tam to Protect Marriage and its consultants, Tam often said he could not remember the connections to Protect Marriage or that the evidence was not what it seemed to be.

For instance, Boies showed Tam an email that was sent to Tam by a staffer at California Family Council, an affiliate of Protect Marriage. The email addressed Tam as part of the Protect Marriage leadership. Tam brushed off that reference as a political nicety. When Boies confronted him with fliers that advertised rallies he organized that included speakers from Protect Marriage and other groups, Tam said his only involvement was inviting Protect Marriage’s executive director Ron Prentice to speak, and that he couldn’t remember who invited the other speakers.

Tam attributed nearly all his negative information concerning homosexuality to “the Internet”—a response that he repeated often enough that the courtroom began to laugh each time he said it. And when Boies asked him whether he had anything to do with remarks claiming a link between homosexuality and bestiality—remarks that appeared on a website Tam was associated with—Tam said he was only the secretary of the organization that ran the website and that his colleagues ignored his objections to the statement.

Near the end of the day, Tam described himself as feeling like a “naughty boy being put in front of the classroom and being laughed at,” but he said little else to elicit any sympathy. His claims not to know the answers to some questions and not to remember the answers to others strained the boundaries of believability at times. Initially, he claimed not to know whether Focus on the Family and the Family Research Council were part of the Protect Marriage coalition, along with his group. When Boies noted that he got a lot of emails from the groups, he responded that he gets a lot of emails and doesn’t read them all. Then, just a few minutes later, Boies asked him to look at a list of groups that were part of the Protect Marriage coalition and identify the ones he knew to be part of the coalition. Among the groups he read off were Focus on the Family and the Family Research Council.

Tam also acknowledged being told by Protect Marriage officials to participate in certain debates on behalf of Proposition 8, and an email he wrote to his own TFC group’s members stated that he was “still waiting for Protect Marriage for instructions on when to start signature collection” to get the measure on the ballot.

Except for a brief cross-exam to try and paint some distance between Tam and the Protect Marriage campaign, defense attorneys spent little time with Tam. But earlier in the day, U.S. District Court Judge Vaughn Walker had to urge defense attorney David Thompson several times to move along on another of the defense’s inordinately long cross-examinations. Thompson’s cross-examination of political science expert Gary Segura began on Wednesday and finished just before the lunch break on Thursday.

While Thompson is clearly an experienced and able lawyer, his tactics are also clearly recognizable to the plaintiffs’ expert witnesses. Thompson, for instance, would get Segura to read only one sentence of a paragraph in a document—a paragraph that said something that appeared to suggest that the gay community is a powerful political force. But in answering the question, Segura, as did other experts, found a way of incorporating the context surrounding that sentence –context that often contradicted Thompson’s point. When Thompson tried to force Segura into a yes or no response or to restrict his full response, plaintiffs’ attorney Ted Boutrous, on re-direct, enabled Segura to answer.

This may not be as dramatic as courtroom television dramas, but it is often a riveting legal battle and one with important significance, depending in large part on how much Judge Walker already knows or doesn’t know about the context of civil rights political battles. During an important exchange Thursday morning, Walker appeared to demonstrate that he knows quite a bit.

The discussion was around boycotts, with Thompson attempting to illustrate that part of the reason voters supported Proposition 8 might have been their dismay with the gay community’s effort to organize boycotts against businesses that were helping to fund the initiative’s campaign. He pointed to a post-election article in the New York Times which said harassment and boycotts by gays against supporters of Proposition 8 would likely dissipate the ability of the LGBT community to “appeal to the notion of fairness,” in fighting for its cause. Segura begged to differ, noting that the black civil rights movement had made considerable gains through use of boycotts, as had other groups through the years.

Walker interrupted to ask Segura whether he had considered what the effect of the riots, vandalism, and boycotts that were aspects of the black civil rights movement in the 1960s had on the political support blacks garnered for their cause and on the political climate.

“As a general rule of thumb,” said Segura, any form of organized violence or disorderly behavior has a negative impact on public opinion.” But a non-violent tactic, such as a boycott, he said, “plays much better.” And he noted that the riots in Los Angeles that followed the verdict in the infamous Rodney King police brutality case “set into motion” a “Rebuild Los Angeles” program that sought to ameliorate the conditions of poverty that had contributed to the riots there.

“I’m not defending the actions,” said Segura, “but there are moments when acts [such as riots] are interpreted as a cry for help, an expression of frustration, or even the ultimate expression of powerlessness.”

The focus of the Thursday morning testimony was on the relative political power of the gay and lesbian community.

Judge Walker seemed particularly interested in documents and testimony relating to various religious organizations and people and their support or opposition for Proposition 8 and to same-sex marriage.

Defense attorney Thompson’s questions tried to downplay earlier testimony that showed a large and well-funded coalition of religious entities—including the Catholic and Mormon churches—were the primary organizers of the pro-Proposition 8 campaign. He asked Segura to convey to the court information from a survey that showed that “100 percent of people who identified as Quakers” supported the right of gay couples to marry. That would seem to suggest that the battle over Proposition 8 was not a David v. Goliath battle between powerless gays and the overwhelmingly powerful and mammoth church institutions.

But, once again, Segura, a clearly an experienced and unflappable expert witness, noted that the survey Thompson was referring to included only three people who identified as Quaker.

Thompson also introduced evidence—news reports mostly—that seemed to document several incidents in which people who supported the Yes on 8 campaign said they were assaulted by people who opposed it. None of the reports, including a Fox News program hosted by Bill O’Reilly, included quotes from the alleged perpetrators, and plaintiffs’ attorney Boutrous objected to each of the reports as hearsay. But Judge Walker, who acknowledged that he was approaching the introduction of most evidence with a “welcoming” attitude, did allow them into evidence. He also allowed plaintiffs to introduce into evidence the controversial television ad promoted by the National Organization for Marriage—called “The Gathering Storm.”

Defense attorney Thompson objected, saying the National Organization for Marriage was not part of the Protect Marriage group.

The trial resumes Friday morning.

Mid-day report: Day 8 Prop 8 trial

Defenders of Prop 8 are continuing to draw out the trial with prolonged cross-examinations of the plaintiffs’ expert witnesses. One attorney acknowledged in court that the legal team’s case is “primarily” based on cross-examination and that defense plans to bring only two witnesses.

scalesDefenders of Proposition 8 are continuing their process of drawing out the trial with prolonged cross-examinations of the plaintiffs’ expert witnesses. One attorney acknowledged in court late yesterday that the legal team’s case is “primarily” based on cross-examination and that defense plans to bring only two witnesses itself when it starts to present its case tomorrow or Monday.

The burden in a case such as this is, of course, on the plaintiffs who are challenging the existing law. But U.S. District Court Judge Vaughn Walker urged defense attorney David Thompson several times this morning to do what he can to finish up his cross-examination—begun yesterday—of political science expert Gary Segura, and he finally did, just before the lunch break.

While Thompson is clearly an experienced and able lawyer, his tactics are also obviously well known and observed by the plaintiffs expert witnesses. Thompson, for instance, will get a witness to read only one sentence of a paragraph in a document—a paragraph that says something that appears to suggest that the gay community is a powerful political force. But in answering the question, the witnesses, like Segura, find a way of incorporating the context surrounding that sentence—context that often contradicts Thompson’s point. When Thompson tries to force witnesses into a yes or no response or effectively inhibits their ability to respond with context, plaintiffs’ attorney Ted Boutrous, on re-direct, enables them to do so.

This may not be as dramatic as courtroom television dramas, but it is a riveting legal battle and one with important significance depending in large part on how much U.S. District Court Judge Vaughn Walker does or does not know about the context of civil rights political battles already.

During an important exchange this morning, Walker revealed that he knows quite a bit.

The discussion was around boycotts, with Thompson attempting to illustrate that part of the reason voters supported Proposition 8 might have been their dismay with the gay community’s effort to organize some boycotts of businesses that were helping to fund the initiative’s campaign. He pointed to a post-election article in the New York Times which said harassment and boycotts by gays against supporters of Proposition 8 would likely dissipate the ability of the LGBT community to appeal to the notion of fairness,” in fighting for its cause. Segura begged to differ, noting that the black civil rights movement had made considerable gains through use of boycotts, as had other groups through the years.

Walker interrupted to ask Segura whether he had considered what the effect of the riots, vandalism, and boycotts that were aspects of the black civil rights movement in the 1960s was on the political support blacks garnered for their cause and on the political climate.

“As a general rule of thumb,” said Segura, any form of organized violence or disorderly behavior has a negative impact on public opinion.” But a non-violent tactic, such as a boycott, he said, “plays much better.” He also noted that the riots in Los Angeles that followed the verdict in the infamous Rodney King police brutality case “set into motion” a “Rebuild Los Angeles” program that sought to ameliorate the conditions of poverty that contributed to the riots there.

“I’m not defending the actions,” said Segura, “but there are moments when acts [such as riots] are interpreted as a cry for help, an expression of frustration, or even the ultimate expression of powerlessness.”

The focus of this morning’s testimony was on the relative political power of the gay and lesbian community.

Judge Walker seemed particularly interested in documents and testimony relating to the support various religious organizations and people and their support or opposition to same-sex marriage.

Defense attorney Thompson asked Segura to convey information from a survey that showed, for instance, that “100 percent of people who identified as Quakers” supported the right of gay couples to marry. That would seem to suggest that the battle over Proposition 8 was not a David v. Goliath battle between powerless gays and overwhelmingly powerful and mammoth church institutions.

But, once again, Segura, a clearly an experienced and unflappable expert witness, noted that the survey Thompson was having him read included only three people who identified as Quaker.

Thompson also introduced evidence—news reports mostly—that seemed to document several incidents in which people who apparently opposed Proposition 8 assaulted supporters and vandalized their property. None of the news reports, including a Fox News Bill O’Reilly show interview, included quotes from the alleged perpetrators, and plaintiffs’ attorney Boutrous objected to each of the reports as hearsay. But Judge Walker, who acknowledged that he was approaching the introduce of such evidence with a “welcoming” attitude, did allow them into evidence. He also allowed plaintiffs to introduce into evidence the controversial television ad promoted by the National Organization for Marriage—called “The Gathering Storm.”

Defense attorney Thompson objected, saying the National Organization for Marriage was not part of the Protect Marriage group. He will, no doubt, raise such objections this afternoon, as plaintiffs call William Tam, an “adverse witness” because he was an official and public proponent of Proposition 8. Tam has made some unusually caustic and hostile remarks concerning gay people—remarks that defenders of Proposition 8 have attempted to distance themselves from.

Court reconvenes at 1:10 Pacific time.

Prop 8 trial: weak allies and powerful enemies

President Obama’s name keeps coming up a lot during the trial challenging the constitutionality of California’s same-sex marriage ban.

Ryan Kendall (Photo credit: Bill Wilson)
Ryan Kendall (Photo credit: Bill Wilson)

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.

Mid-day report: Day 7 Prop 8 trial

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.

Gary Segura
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.

Prop 8 opponents score hits against defense claims

Testimony in the Proposition 8 trial Tuesday began with emotional testimony by San Diego’s Republican Mayor Jerry Sanders and ended with a clear hit against the claim that same-sex marriages will somehow do harm to straight marriages.

Jerry Sanders (Photo credit: Bill Wilson)
Jerry Sanders (Photo credit: Bill Wilson)

SAN FRANCISCO — Testimony in the Proposition 8 trial Tuesday began with emotional testimony by San Diego’s Republican Mayor Jerry Sanders and ended with a clear hit against the claim that same-sex marriages will somehow do harm to straight marriages.

The former testimony was the more riveting, but the latter was the more important in terms of the legal case against the ban on recognition of same-sex marriage in California.

Attorney David Boies, one of the lead attorneys challenging California’s ban, promised last week that he would demonstrate how experts from the team defending Proposition 8 disagreed with the team’s key arguments. And today, he delivered.

Boies was questioning a pro-gay marriage expert—economist Lee Badgett—when he asked her to comment on a statement by defendant expert Douglas W. Allen concerning the decline in straight couples marrying in The Netherlands. Charles Cooper, the defense’s lead attorney, objected, noting that the defense had withdrawn Allen as a witness.

But federal Judge Vaughn Walker, who will decide the case, Perry v. Schwarzenegger, allowed the testimony.

What the defense expert had said—during his deposition in September—was that any trend downward in the number of straight couples marrying in The Netherlands since same-sex marriage became available there in 2001 could be attributed to a larger “secular trend” witnessed by most western countries. In fact, he said, there was “no doubt” about that.

That statement helps undermine the defendants’ claim that allowing same-sex couples to marry hurts the institution of marriage.

San Diego Mayor Jerry Sanders, another witness called by opponents of Proposition 8 Tuesday, said his lesbian daughter Lisa’s marriage to her same-sex partner had not weakened his marriage to his wife but made it stronger.

“It’s not harmed our marriage or anybody else’s in the world,” said Sanders. Lisa Sanders joined her father in the courtroom. During much of his testimony, Sanders acknowledged that he needed to look away from Lisa in order not to become teary, something he did a number of times, especially when talking about Lisa’s marriage. Lisa and her spouse traveled to Vermont to marry.

“It made me feel pretty bad that they had to go all the way across the country to get married,” said Sanders, “without family or friends.”

Defense attorney Brian Raum, on cross-examination, noted that Sanders had once supported civil unions as a reasonable alternative to marriage for same-sex couples. But Sanders was repeatedly emphatic that his previous views had been based in prejudice. They volleyed when Raum tried to suggest that Sanders’ prejudice had not been the same thing as animus.

“What do you mean animus?” asked Sanders.

“What does animus mean to you?” returned Raum.

“Animus means hatred or bigotry,” said Sanders.

“And can’t reasonable people disagree … and not necessarily be [basing their support of Proposition 8] on animus or ignorance?” asked Raum.

“It can be not based on animus,” said Sanders, “but it’s grounded in prejudice.”

Raum asked Sanders if he thought it was possible for someone to oppose Proposition 8 based on their religious views, without it being an expression of animus or hostility.

“It’s still grounded in prejudice,” said Sanders. “… Good faith beliefs do not negate the fact that one group is being treated entirely differently.”

The issue of whether Proposition 8 was grounded in animus or not is one of the important legal questions which Judge Walker must decide. The U.S. Supreme Court has ruled, in Romer v. Evans, that laws cannot disfavor certain minorities based on animus for those minorities. So Cooper and his team is trying to lay down a case for the idea that people could support Proposition 8 for reasons other than hatred of gay people.

The testimony by Badgett, a researcher for the Williams Institute in California and at the University of Massachusetts-Amherst, has attempted to establish that there is “very clear” evidence that same-sex couples see domestic partnerships as discriminatory designations. She also provided testimony indicating that many same-sex couples have children who could benefit from their parents’ marriage the same as do children of straight couples. Twenty-eight percent of the same-sex couples who have married in Massachusetts, she said, have children, and 93 percent of those couples reported feeling that their children “were happier and benefited from” the marriage.

These arguments help establish an important government interest in supporting equal marriage rights and, in so doing, contradict claims by proponents of Proposition 8 that there is some governmental need to ban same-sex marriages.

Cooper spent considerable time on cross-examination, attempting to discredit Badgett’s reported findings in a number of ways, including by suggesting that she is a “gay rights activist” and, thus, subjective in her studies.

And most interestingly, however, it was during Cooper’s cross-examination of Badgett that he made statements that seemed to indicate that he himself believes that marriage equality in California is inevitable. It came during his questioning Badgett’s claim that the state could benefit financially from allowing same-sex marriages because more couples would travel to California to get married.

“Dontcha think a lot [of those people] … will have already gotten married,” asked Cooper, “and will continue to get married between now and the time California will enable [them], through whatever means, to get married?”

Mid-day report: second Tuesday morning Prop 8 trial

Tuesday morning’s testimony in the Proposition 8 trial began with riveting and emotional testimony by San Diego’s Republican Mayor Jerry Sanders, but the legal team scored a big victory during more testimony concerning economics.

Lee Badgett
Lee Badgett

Tuesday morning’s testimony in the Proposition 8 trial began with riveting and emotional testimony by San Diego’s Republican Mayor Jerry Sanders, but the legal team scored a big victory during more testimony concerning economics.

The legal points were scored when David Boies, a lead attorney challenging Proposition 8 was able to introduce into the record a statement made by one of the defendants’ now-withdrawn experts.

Boies asked plaintiffs’ expert Lee Badgett to comment on a statement by defendant expert Douglas W. Allen during his deposition. Allen said this about a statistical drop in the number of heterosexual marriages in the Netherlands in recent years: “Like most western countries, this is no doubt part of a secular trend.”

Defendants’ lead attorney Charles Cooper made repeated objections, but U.S. District Court Judge Vaughn Walker said he thought it was an appropriate question.

Allen’s statement appears to counter the defense team’s argument that allowing same-sex couples to marry damages the institution of marriage, by suggesting that the drop has been part of a larger trend generally toward fewer heterosexuals choosing marriage.

It also appears to support statements made in press conferences by Boies that the defense team has been withdrawing many of its witnesses because they have made statements in deposition that contradict the defense team’s arguments, and not because they fear harassment.

The testimony by Badgett, a researcher for the Williams Institute in California and at the University of Massachusetts-Amherst, has attempted to establish that there is “very clear” evidence that same-sex couples see domestic partnerships as second-class designations, and that they benefit significantly from marriages. Badgett said that same-sex couples in California sought marriage licenses at roughly the same rate as same-sex couples in Massachusetts did. She said that 28 percent of the same-sex couples who married in Massachusetts have children. And she said that one in ten children who are adopted in California are adopted by gay and lesbian parents.

These arguments help establish an important government interest in supporting equal marriage rights and, in so doing, contradict claims by proponents of Proposition 8 that there is some governmental need to ban same-sex marriages.

Cooper has spent considerable time, on cross-examination, in attempting to discredit Badgett’s reported findings by suggesting that she is a “gay rights activist” and, thus, subjective in her studies. At lunch recess, he advised the court he has about two hours more cross-examination of Badgett this afternoon.

San Diego Mayor Jerry Sanders, the first plaintiffs’ witness on the stand today, told with more detail a story that has become very familiar to the LGBT community. In testimony that was often choked with tears, Sanders described how he came to reverse his own opposition to same-sex marriage after his daughter came out to him and he discussed his plans to veto the city’s participation in a brief in support of same-sex marriage in 2008.

Sanders said his own transformation from “prejudice” to understanding about gay people came from his pride in his daughter, but also important conversations he had with openly gay staff and neighbors.