Perry v. Schwarzenegger: day seven summary

Timothy Kincaid

January 20th, 2010

Thanks to Courage Campaign and FireDogLake

Today the ex-gay movement was on trial. This may seem like it is a long way from the question of marriage, but in reality it sits at the heart of whether anti-gay discrimination is legal.

Olson and Boies are trying to convince the court that gays and lesbians are a “suspect class”. If so, then any laws that distinguish by orientation and discriminate against gays and lesbians would be subject to strict scrutiny (ie the presumption is that such laws are illegal).

The considerations that generally go into whether a group of people are a “suspect class” are:

  • Is the group a “discrete” or “insular” minority?
  • Do they possess an immutable trait (except in the case of religion)?
  • Is there a history of discrimination?
  • Are they powerless to protect themselves via the political process?

For this reason we have heard the defense try and argue that, unlike race, sexual orientation is hard to define (so is race, actually). They’ve attempted to show that gay people are politically powerful and that discrimination against gay people is all a thing of the past.

But the plaintiffs’ testimony has been pretty solid in confirming that gays and lesbians are a discrete minority with a history of discrimination and they lack the ability to achieve equality and protection though the political process. Today their focus was to show that sexual orientation is an immutable trait.

The day started with the defense (the Prop 8 guys) adding four witnesses to their list:

David Boies started with a taped deposition of Dr. Paul Nathanson and Katherine Young, two Prop 8 witnesses that dropped out.

On tape Boies got Nathanson to admit that the Catholic Church and the Southern Baptist Church use terms such as sinful, evil, a perversion, abomination, deviant behavior, manifestation of a depraved nature in talking about homosexuality. Dr. Nathanson said that half of the Prop 8 voters may have supported the initiative due to religion.

This guy comes off sounding like a witness for the plaintiffs. And, indeed, there is word that he may be gay and supports marriage even though he was called as a witness for the proponents.

Boies: Do you believe that the teaching of certain religions that homosexuality is a sin and abomination leads to gay bashing?

Nicholson: Yes.

Next was taped deposition of Katherine Young. She gave a long list of cultures in which same-sex relationship comparable to marriage were tolerated: Hidras in India, Berdache in a number of American Indian tribes, cultures in West Africa and China, Romans during the Emperors. In addition there were many cultures that tolerated non-marriage same-sex relationships.

She also testified about the link between anti-gay religious teaching and hate crimes, that marriage would be beneficial to gay couples and their children, and that religion had been used as a basis for discrimination and bigotry against women and blacks.

(I can see why they “dropped out”)

Next to the stand was Ryan Kendall, a man who unsuccessfully went through ex-gay therapy. The Prop 8 proponents sought to keep him off the bench, but the Judge pointed out that they introduced reorientation to the case.

Kendall was raised in a very religious family. When they found out at age 13 that he was gay (his journal), they sent him to a counselor to make him heterosexual. Focus on the Family recommended that he be sent to NARTH and his parents began systematic emotional abuse. After a few years of this, at 16, he couldn’t take it any more and asked the Department of Human Services to help him become emancipated.

He went through a rough patch, jobs, school, drugs for about four years until he pulled himself together. He’s been working for the police department now for about two years.

(In yet another demonstration that this is a bi-partisan trial and not the ‘conservatives v. liberal radical homosexuals’, it turns out that Kendall is a member of Log Cabin Republicans.)

In cross-examination, James Campbell for Prop 8 asked him if he’d ever met anyone who had been successful. Kendall said, “publicly yes”. In redirect, Boies had him clarify:

Q: Have you met anyone who succeeded in conversion therapy?

A: Yes, Nicolosi trotted out his perfect patient, named Kelly, who (when the doctor left the room) told me that he was going to a gay bar that night and was pretending success in conversion for his family.

Next up was Dr. Gary Segura, a political science prof at Stanford, president of the midwest political science association, and head of the Stanford Center for Democracy, which studies American elections.

He looks at how the public influences decision makers. His focus is minorities, particularly Latino and gay. One of his article dealt with self-identification of those minorities who can ‘pass\’ as others. He was there to speak about the powerlessness of gays and lesbians in American politics.

Segura had three opinions:

1. Gays and lesbians are not able to protect their interests because they do not possess meaningful political power.

2. They are not subject to political exclusion and suffer political disabilities greater than other groups that have received suspect class protection.

3. The opinions of the Proponents expert Dr. Kenneth Miller are fundamentally flawed and incorrect.

Segura explained how a favorable outcome may still lack political power. For example, Houston just elected a lesbian as mayor but had also just voted against allowing partners of city employees to get benefits, so the new mayor cannot provide benefits to her partner of 19 years.

He pointed out that in those few states where there are protections, generally these are not designed to advance the interests of gays and lesbians but rather to correct harsh discrimination against them. “You have laws against discrimination because there IS discrimination.” Segura testified that no group has been the target of punitive or discriminatory initiatives more than gay people.

Segura talks about under-representation and how that impacts the discussions about people who are not present. “Some public officials have compared gay marriage to marrying a box turtle.” (you go, Segura!!)

Segura testified that the incidences and the intensity of hate crimes against other groups has decreased, but not for gays. He ties a recent surge in hate crimes to Proposition 8.

He testified that government censorship of sex ed classes, HIV prevention efforts, and even bans on funding for gay-themed art all add to the disempowerment of gays. He said the “mommy, I heard in school that I can marry a princess” ad was part of the continued theme of seeking to censor out gay people.

Segura dismissed the idea that gays have powerful allies. He pointed out the failure of the Democratic Party to do anything meaningful and listed the many instances in which Our Fierce Advocate has filed briefs and defied courts in order to keep anti-gay positions in place and has done little to nothing to address our needs.

He said that if two groups were about the same size, the one with no opponents has a real significant advantage. He then was asked about the Mormon involvement in the campaign. He laid out the organization and power of the supporters of Proposition 8, especially the involvement of Jim Garlow, pastor of Skyline Church.

(An attorney for Jim Garlow and Miles McPherson sought to keep their sermons, speeches, and statements from being presented as evidence. The pastors want on one hand to be political but they want that political activism to have the protections of religious speech. The decision goes to Magistrate Judge Spiro.)

Boies put up a redacted correspondence from the Catholic Conference of Bishops:

The Catholic Conference has played a substantial role in inviting Catholic faithful to put their faith in action by volunteering and donating. Led by the Knights of Columbus national donation of $1.5 million, other million dollar donors, and the countless major donor and with a significant percentage of the 90,000 online donors, the Catholic community has stepped up. Of course this campaign owes an enormous debt to the LDS Church. I will comment specifically at a later time (under separate cover) about their financial, organizational and management contributions to the success of this effort.

Segura reviews other documents noting that the campaign was very early focused on religion, was national in scope, and contained unusual coalitions of churches who seldom align.

Andy Pugno for Prop 8 then fought tooth and toenail (unsuccessfully) to keep out documents that would demonstrate the intense involvement of the Mormon Church. Documents were entered which showed that the LDS Church was very active in the campaign, especially in funding and grassroots organizing but sought to keep plausible deniability about their involvement. Documents showed that the church actively sought to have its members individually donate to the campaign and used the church structure to do so.

Segura discussed the deposition of Dr. Miller, a witness of the proponents who dropped out. Miller lacked knowledge of gay history, social work, and anything outside of California laws. He knew nothing about the lack of protections in most states.

In cross-examination, Thompson lists a bunch of accomplishments that gay people have been able to achieve in terms of legislation. He uses New Hampshire as an example, but Segura notes that there are currently efforts to reverse marriage in that state.

Expert is asked about certain politicians (eg Nancy Pelosi is an ally but not one who moves legislation forward on gay issues), union support, ACLU, high tech companies, etc.

The case will continue until tomorrow or perhaps Friday.


January 20th, 2010

[This comment has been removed because the commenter did not provide a valid email address]


January 20th, 2010

Well, it didn’t take long for the videos of the depositions to be pulled.


January 20th, 2010

It’s for that reason that I’ve been saving the transcripts found here:

Wish I’d done the same with the videos. Oh well.

R Holmes

January 21st, 2010

*Do they possess an immutable trait (except in the case of religion)?*

One of the things that really sticks in my throat is the way religious fundemantalists claim that they are persecuted and that gays are seeking special rights, when the above shows that it is the religious who have special rights.


January 21st, 2010

@Gary. Partial transcripts of the pulled videos available on Pam’s House Blend:

Interesting, ADF’s analysis of Wednesday’s trial clarifies their objection to Kendall (a Colorado resident) as a witness. ADF actually makes a valid point, and I think Boies and Olson should have selected a Californian expert on conversion therapy able to say something valuable about marriage in the context of the “ex-gay” movement. For example: therapists themselves are often failed ex-gays, secondly therapists often pressure “patients” to marry a person of the opposite sex and produce children as proof of “conversion” success. Lawyers for the plaintiffs would have made a stronger case for equality by concluding, for example, that the psychologically damaging conversion therapy industry would be nearly put out of business if all young gay people knew they had guarantees of full equality (marriage, jobs, housing, federal protections, etc.). While Kendall’s testimony was valuable, a Californian’s would have been more appropriate.

David Farrell

January 21st, 2010

a law discriminating against gay people should be upheld because discrimination of gays and lesbians is a thing of the past?

that would be funny if it wasn’t so sad.

Priya Lynn

January 21st, 2010

Timothy said “Hidras in India”.

That should be Hijras.


January 22nd, 2010

“She gave a long list of cultures in which same-sex relationship comparable to marriage were tolerated: Hidras in India, Berdache in a number of American Indian tribes, cultures in West Africa and China, Romans during the Emperors.”

For the record, none of those cultures (except possibly Chinese which I’m not educated in) are not at all equivalent to gay or lesbian relationships as understood in modernity. The hijras, berdarches, and African relationships are same sex but not same gender (better compared to modern transgender concepts). Basically, they show how and why gay and lesbians issues have always been transgender issues and vice versa.


January 22nd, 2010

Congrats on the box-turtle shout-out, the turtlers are now one step closer to immortalized.

(Judge “Spiro” is Judge Spero, for the record – you never want to piss off a judge, if you can avoid it, right?)

For someone who didn’t follow Prop8 personalities, I found out more about Any Pugno. If you weren’t paying attention, like myself, you might not know he was part of the “core group”.

Also, according to his website, he’s running for CA State Assembly.

Voters finding out that “this campaign [Prop8] is entirely under priesthood direction” used to be something that would put a politician dead-in-the-water.

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