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BLEND EXCLUSIVE: Trial analysis by the National Center For Lesbian Rights‘ (NCLR’s) Shannon Minter.
After two weeks of powerful and often emotional evidence, the plaintiffs presented their last live witness today. On Monday, after playing some videos of deposition testimony, the plaintiffs will rest their case, and then the defendants will have their turn. Typically, at the end of all witness testimony, the attorneys present closing arguments. This morning Judge Walker announced that there will be a two week break before closing arguments to give the parties a chance to review the evidence.
Today, we heard expert testimony from Dr. Gregory Herek, a professor at U.C. Davis, who is an authority on sexual orientation and stigma.
On direct examination by the plaintiffs’ attorney Ethan Dettmer, Dr. Herek explained that a person’s “sexual orientation” can be defined based on an enduring pattern of attraction to men, women, or both, and can also include a person’s own self-identification, as well as their pattern of sexual behavior. Dr. Herek testified that since the 1970s it has been the consensus in the field of psychology that homosexuality is not a mental disorder and that sexual orientation has no inherent connection to a person’s ability to contribute to society, be happy, and lead a normal life.
Strongly supporting one of the plaintiffs’ core arguments, Dr. Herek testified that there is no evidence “conversion therapy” is effective in changing a person’s sexuality. In fact, he testified, the American Psychological Association has expressed concern about LGBT adolescents participating in “conversion therapy,” which sends a harmful and false message to young people that homosexuality is a disorder.
Dr. Herek testified that “structural stigma” in the form of laws that discriminate against LGBT people (like Prop 
directly encourages social stigma, harassment, and violence.
Dr. Herek’s cross examination by the proponents’ attorney Howard Nielson lasted for more than five hours, and was characterized by monotonous and repetitive questions largely focused on the definition of “sexual orientation.” Nielson attempted to get Dr. Herek to admit that definitions of sexual orientation vary widely. (The proponents have argued that LGBT people don’t deserve constitutional protections because, they claim, it is impossible to define “sexual orientation.”) Showing admirable patience, Dr. Herek simply reasserted that sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers face in defining sexual orientation are no different than those they face in defining other characteristics such as race.
Nielson asked a series of questions aimed at establishing that sexual orientation is not constant, that peoples’ preferences change over time, and that a gay identity does not guarantee exclusively same-sex experiences. Dr. Herek agreed that over the course of a lifetime sexuality can evolve, particularly because most young people face significant social pressure to be heterosexual and to engage in different-sex relationships even if they ultimately come to realize that they are lesbian, gay, or bisexual. Dr. Herek repeatedly testified that defining sexual orientation is not nearly as complicated as Nielson was suggesting, because for nearly all people, self-identity (as gay, straight, or bisexual) correlates closely with both behavior and desires.
A quick note about yesterday’s testimony from Dr. Bill Tam. Some readers have asked for more information about why Judge Walker required Dr. Tam to testify, but may still allow him to withdraw from the case as a party. The key here is the difference between being a party and just being a witness. Once a person has entered into a case as a party — either by suing, by being sued, or by intervening, as the Prop 8 proponents (including Dr. Tam) did in order to defend Prop 8 — that person does not have a right simply to withdraw from the suit. For example, if you hit someone with your car and the person sues you, you can’t just tell the judge that you would rather not be involved. You must continue to participate until the lawsuit is over. Here, Dr. Tam and the other proponents specifically asked Judge Walker to allow them to join the case. But then, having made himself a defendant, Dr. Tam asked to withdraw from the case. He is not entitled to do so, although Judge Walker has the power to allow him to.
Separately from being a party, Dr. Tam is also a witness. As an official proponent of Prop 8 and a leader in the campaign, he was able to testify yesterday about the messages the Yes on 8 campaign used, his own reasons for fighting to pass Prop 8, and other evidence that relates to the plaintiff’s claim that Prop 8 was the product of anti-gay bias. The plaintiffs had the right to call him to testify for that reason. Even if Judge Walker decides to allow Dr. Tam to withdraw as a party, his testimony will still be part of the record in the case.
This has been an unbelievable week, with testimony that ranged from highly technical and informative to deeply personal, emotional, and moving. The plaintiffs put on an impressive array of witnesses whose testimony, taken as a whole, overwhelmingly supports their case and underscores the profound harm Prop 8 has caused to LGBT people. Next week, the proponents’ witnesses will take the stand.
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Related:
* Visit the Blend for exclusive legal analysis of Federal Prop 8 trial by NCLR
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 1
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 2
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 3
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 4
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 5
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 6
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 7
* Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 8
* Key commentary from the PHB Shannon Minter live blog on the fed Prop 8 trial
12 Comments
I am very impressedI am very impressed with the case that the Olson/Boies team, and the City of San Francisco, have put together. It’s comprehensive, thorough, clear, articulate and has hit all the elements they need to win on any theory of the case. I don’t expect much from the Prop 8 proponents that hasn’t already been refuted. Now, I pray that Judge Walker has the guts, which I think he does, to follow where the evidence leads and declare Prop 8 unconstitutional, preferably on all the theories the plaintiffs have advanced.
I just wanted to say thank you for posting all these summaries, it’s been much easier for those of us without the legal training to not only follow, but to understand why certain issues were brought up and discussed as part of the testimony.
I can’t wait to see what the Christers come up with next week.I find myself thinking it may well be the funniest thing we’ve seen since Green Acres went off the air.
ME TOO.The Blend has the best analysis around, thank you so much Pam and Shannon!!
I can’t wait for the cross examination of Prop 8 Supporters!I’m really looking forward to how well they will be able to defend their misleading and criminal lies about the LGBT community…
Should be a barrel of fun!
No Biological Evidence?Why the psychological approach rather than any of the evidence mounting about the trait being immutable? Although not certain, does it not add more weight than psychological studies alone? In other words, that the courts should tread lightly on taking away rights to a group that is biologically made gay seems a strong argument than psychological arguments.
…The natural sciences have not formed a consensus on the biological causes of sexual orientation yet. Ironically, although the social sciences are a bit more complicated and intuitive, they offer more concrete answers than biology can provide at the moment. All we know is that sexual orientation is at least partially a matter of biology; and genetics and biological development both play a role. We don’t yet know what those roles are.
Also, something being biological in origin says nothing about whether it will have a negative or positive impact on society. If you could prove sexual orientation has a biological cause, what’s to stop the haters from declaring it a “birth defect”?
In a broader sense all of this is bullshit. We protect people from discrimination on the basis of religion in this country, even though religion is in no sense biological.
I don’t think you need to showthat this is a certainty. Just offer it as one of many bits of circumstantial evidence that builds a greater case for the hardwiring. The case law at the state level- one of the cases- actually makes exactly that point I just made. That whether it is pychological or biological, the reality is that it is hard wired somehow. And, no you could not argue that something biological would have a negative impact on society. this is not how the immutable argument works. Or else it would be meaningless.
I believe it was the Iowa decisionthat the courts there found that as a part of their decision a novel wait to address immutability- that it was a combo of psychological and biological indicators that suggested it must be hard wired even if we can not precisely determine how it is so wired.
Howard Nielson’s *logic*If something “impossible to define” doesn’t “deserve const. protections”, then how was this something impossible to define in fact denied const. protections? Charlatan’s nonsense and absurdity.
FAIL, troll!How about the failure of the defendants to prove that gay marriage harms straight marriages? Failure to enunciate a secular theory of marriage that applies only to M+F and not to same-gender marriage?
So what if half of self-identified gays could look at a little gay porn, then try to fantasize that the wifie is actually a man and manage to get it in. Is it so wonderful that after the 2 kids in the first few years of marriage, sex is absent? So what if self-identified lesbians can be as anorgasmic as the typical heterosexual wife with a typical inept husband, and just lay there.
A So. Baptist leader has called homosexuality a birth defectand advocated hormonal or other therapy in utero. Not abortion, of course. Screening of parents’ genes, selective in vitro fertilization with gay-depleted eggs and sperm – that would be fine by him.