Perry v. Schwarzenegger: day three synopsis

Timothy Kincaid

January 13th, 2010

Again much appreciation to Courage Campaign for their liveblogging (along with others in the media). As the US Supreme Court has decided that, for now anyway, the proceedings will take place out of the sight of the public, their contribution to creating an informed public is of immense value.

The Defense\’s cross-examination of History Professor George Chauncey continued. Prop 8’s David Thompson sought to get Chauncey to agree that gay people are not really subject to discrimination. This is an attempt to battle Olson/Boies’ goal of establishing sexual orientation as a subject suspect class and thus more highly protected from discrimination.

(Because race is a subject suspect class, the legal assumption is that any discrimination against them is probably unconstitutional. Left-handedness, not currently an oppressed minority subject to regular and insidious discrimination, is not a suspect class and therefore they need to prove that any specific discrimination against them is unconstitutional).

Thompson also sought to get Chauncey to agree that not everyone who opposes marriage (e.g. our “fierce advocate”) does so out of bigotry. He attempted (unsuccessfully) to get Chauncey to agree that a portion of the gay community opposed marriage and therefore supported Proposition 8. Chauncey responded, “The right to marry evolved and became a more widespread and deeply held goal of the gay and lesbian community.”

In redirect Terri Stewart had Chauncey draw parallels between the growing desire in the gay community for marriage to that of the black community who did not seek desegregation when they were simply seeking basic existence.

She had him illustrate that while some faiths were supportive there was strong religious animosity to gay people. Chauncey read from statements from the Vatican and the Southern Baptist Convention. Their point is that sincere religious objection to gay equality can be based in stereotypes and bigotry, just as were sincere religious objections to racial equality.

And then we find out exactly why Hak-Shing William “Bill” Tam sought to be removed from the case. Stewart played a tape of their deposition of Mr. Tam. It seems that Mr. Tam was invited to be an integral part of the campaign focusing on outreach to Asians. He raised substantial amounts of money and orchestrated rallies. He wrote to Asian language newspapers and produced flyers.

One flyer claimed that the San Francisco city government was under the control of homosexuals who wanted to legalize sex with children. Tam feared not only same-sex marriage, but children would learn about gay people and then become gay themselves. Tam seemed to believe that Proposition 8 would stop gay couples from being able to adopt.

Next to testify was Dr. Letishia Peplak, a social psychologist from UCLA with extensive credentials on same-sex relationships. She is an expert on four issues: (a) marriage brings important benefits, (b) relationships between same-sex and heterosexual couples are similar, (c) gay couples who can marry have the same benefits, (d) gay marriage will not harm heterosexual marriage.

Peplak testified that same-sex relationships are very similar to opposite-sex relationships in terms of stability, durability, process, and level of love.

She said that while there is no evidence, it’s been suggested that homosexual relationships are shorter. She also testified that heterosexual co-habitation relationships are shorter than married relationships. She reported a study that married same-sex couples in Massachusetts reported being more committed and to having more benefits.

Nicole Moss questioned Peplak in cross-examination. Moss argued that a 25 year old article shows that gay men are less monogamous than heterosexual married men. Peplak points out that is an “oldie” from a time when gay relationships were secretive. Moss continues with outdated studies of non-representative sample groups.

Peplak has said that she is not an expert on relationships in foreign nations, but Moss presented statistics on marriage in Belgium and the Netherlands. In Belgium 5% of gay couples marry compared to 42% of heterosexual couples. In the Netherlands, 8% of gay couples and 43% if straight couples marry. (I hope that the plaintiffs have statisticians that can speak to the meaning of these numbers and whether they accurately explain current marriages as opposed to cumulative marriages).

Peplak notes the discrepancy with the Massachusetts numbers and speculates that American gay couples may be more pro-family.

In redirect, Peplak notes that studies about lack of monogamy were from a time when there were neither marriage nor domestic partnerships.

Overall, I’m not getting the impression that Peplak was a stellar witness.


January 13th, 2010

I thought Steplak did well, but unfortunately the way she phrases things (albeit correctly) are lost to the methods of persuasion. She is a researcher, and her language shows it (e.g. “on average” when looking at statistics, particular non-monogamous gays). We are wont to over-generalize, something she knows very well within social psychology. She’s also a slight disadvantage since there hasn’t been much access or time to assess statistics on gay relationships when afforded the full faith and credit of “marriage” within the United States.

I’m disappointed with the redirect which could have cleared up a lot of what Moss was mucking around.


January 13th, 2010

Re: the lower statistical percentages cited in Belgium et al, was there any attempt to highlight the different legal types of marriage in Europe (ie civil unions, domestic partnership, etc)? Because it’s slightly different from country to country over there.

Hopefully the outdated nature of Moss’ citations is emphasized more in future testimony.

A. B. Potter

January 14th, 2010

Last sentence of 2nd graf, first sentence of 3rd, you have “subject class” instead of “suspect”.


January 14th, 2010

Judge Walker is not a jury, so I wouldn’t worry about whether the language she used was too statistical.

And Peplak made some very important points about marriage bringing quantifiable health benefits to same-sex couples. That stuff can’t become part of Judge Walkers findings of fact if someone like Peplak isn’t on the stand to put it into evidence. As to whether gay men get married at the same rate as other couples or maintain monogamy at the same rate, well, the data is what it is and if the answer is no then you can’t expect an expert witness to claim otherwise. She did note the age of those studies, and she listed a whole series of ways in which same-sex relationships ARE just like opposite-sex relationships, so at best I think the monogamy thing is a footnote.

Dr. Scott

January 14th, 2010

The article makes repeated references to minorities’ entitlements to being legally regarded as a “subject class.”

It’s very difficult to take seriously a reporter who fails to notice that the correct term is “suspect class” not “subject class.” One has to wonder what other distortions and errors may underly their reporting and judgement.

The California Supreme Court , already identified LGBT people as a Suspect Class, a very important fact of which Box Turtle Bulletin reporter Timothy Kincaid seems to be completely ignorant.

That designation is NOT in question in Perry v. Schwartzeneggar, and to interpret the trial preceedings as hinging upon that distinction is woefully naieve of the legal underpinnings of this case.

Box Turtle, where are your fact checkers?


January 14th, 2010

“In Belgium 5% of gay couples marry compared to 42% of heterosexual couples. In the Netherlands, 8% of gay couples and 43% if straight couples marry. (I hope that the plaintiffs have statisticians that can speak to the meaning of these numbers and whether they accurately explain current marriages as opposed to cumulative marriages).”

Peplak got stoned here. As did the rest of the gay monogamous community. Maybe he wasn’t an expert on relationships in foreign nations but if what you first stated “he is an expert on four issues: … (b) relationships between same-sex and heterosexual couples are similar, …” then it would follow that she had to have extensive knowledge on foreign nations. How can you be an expert on same-sex relationships and its similarities with hetero relationships and then be completely clueless about the non-relation presented in other countries. ARE YOU KIDDING ME!?

Obviously the other side is going to get their information against gay marriage in countries that already have it(or something similar to it) and not limit themselves like Peplak, to ones own country where gay marriage is newer than others. Naive… i hope Olso/Boies saw this coming and are prepared to starkly rebuke that(if possible of course).


January 14th, 2010

What bothers me about the whole “gays don’t want monogamy argument” is that it’s based on a faulty assumption: That rights should only be granted to a particular class of people if a certain percentage of people in that class want to exercise them. The thing is, the fact that we have a given right means we have the option of exercising it. Some will choose that option, others will not. The latter is perfectly valid. And in reality, they’re exercising their right in their own right.

Look at it another way: There are hundreds of millions of Americans who aren’t interested in protesting. Does that mean we can or should get rid of the right to protest? If you apply the underlying principles of the “gays don’t really want monogamy” argument consistently, the answer is yes. But somehow, I don’t foresee the prop 8 crowd coming to that conclusion.

Jason D

January 14th, 2010

considering that the documented attendance at swinger conventions vastly outnumbers the largest estimate of gay people — in other words, there are more confirmed non-monogamous straight couples than there are possible gay couples — the point is very much a footnote.

Dr. Scott

January 14th, 2010

I agree with the other commentors that the Prop 8 defendant arguments do not hole water as a legal basis for denying marriage rights.

However, isn’t it obvious that they only try to float these flimsy arguments because they CAN’T defend their real underlying motivation: they believe that homosexuality is inherently immoral.

Dr. John Corvino (google him for some grat videos, unless you live in China) has addressed the question of homosexuality and morality in great detail, and quite effectively.

The real problem is that the Prop 8 gang didn’t arrive at their objections to homosexuality via rational means in the first place, and so refuse to accept any rational rebuke, no matter how inescapable it is.


January 14th, 2010

Dr. Scott:

It’s kind of hard to take seriously your umbrage at the easy typographical slippage of “suspect class” to “subject class” (I knew what he meant) when you follow it up with “hole water.”

Timothy Kincaid

January 14th, 2010

A. B. Potter,

Thanks for catching that slip-up. It’s corrected now.

Dr. Scott

Box Turtle Bulletin doen’t have “fact checkers” and I am not a “reporter”. This is a blog site with no employees and only volunteer contributors who have full time jobs but write here in their free time.

And you are incorrect about whether suspect class is on trial. While the CA Supreme Court found that gays are a suspect class (as has Connecticut and Iowa), Perry v. Schwarzenegger is not being tried under the CA Constitution. This is a federal case under the US Constitution and the SCOTUS has not yet found gays to be a suspect class.

Priya Lynn

January 14th, 2010

Dr. Scott had a premature adjudication.

Richard W. Fitch

January 14th, 2010

Priya – you should be ashamed of yourself! ROFLAO!!


January 14th, 2010

I didn’t find Peplak disappointing, much, from what I read of it.

I liked it when she refocused one question, indicating that the questioner was forgetting that relationships were about both “entry” and “exit”. We forget that ‘promoting marriage’ is really promoting a contract that is fully dissoluble, despite the Great Hopes that people have for it.

The questions about the marriage uptake rate in the Netherlands or in Belgium could be used to suggest all kinds of things. We don’t know yet, how it will be summarized – proof that gay marriage is about a Left-agenda, not marriage; proof of a radical alteration of the ‘institution’; how little we know about this ‘new stuff’ to take such a ‘big step’. (Personally, I think that it has a lot to do with people who grew up in an age when people were focused on avoiding the police and whatnot, rather than getting relationship recognition…but those habits and attitudes are ending).

Suffice it to say, it all will be to give an excuse to those on the bench who might be looking for one. Indeed, one can imagine the opposite, frankly, the day when marriage advocates say, “Even the gays are getting married, why aren’t you?”


January 14th, 2010

What bothers me about the whole “gays don’t want monogamy argument” is that it’s based on a faulty assumption: That rights should only be granted to a particular class of people if a certain percentage of people in that class want to exercise them. The thing is, the fact that we have a given right means we have the option of exercising it. Some will choose that option, others will not. The latter is perfectly valid. And in reality, they’re exercising their right in their own right.

Exactly. It’s totally irrelevant. Look at adoption rights. How many gays really plan on adopting children or have done so already? I would argue far fewer than would seek legal recognition of their monogamous relationship. And yet it’s an indispensable right for those who want to raise families, and one that has held up to political challenge far better than same sex marriage.

Timothy Kincaid

January 14th, 2010

Less than 3% of all black women in America marry white men. Clearly this is not something that the majority of black women want to do.

But Mildred Loving did. And it was not the desire or intention of all of the other black women in America that mattered to the Supreme Court. It was Mildred’s right to marry whom she chose.

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