Perry v. Schwarzenegger: day nine summary

Timothy Kincaid

January 22nd, 2010

Thanks to Courage Campaign and FireDogLake

On stand today is Dr. Greg Herek, a leading authority on the psychology of sexual orientation. Herek will discuss three opinions:

  • Nature of sexual orientation and how it is understood in sociology and psychology
  • The immutability of sexual orientation
  • Stigma and prejudice against gays and lesbians and how that intersects with Proposition 8

First Herek clarified that there are three different ways of observing sexual orientation: behavior, attraction, and identity. Because their focus is on STDs, health professionals use behavior. But when psychologist study discrimination, they focus on identity, since that is how people are singled out for prejudice. They measure in terms of relationships and attachments as these are a core part of human behavior.

Herek testified that the APA has considered reparative therapy many times, most recently in 2009, and found it ineffective. Further, there was anecdotal evidence that such efforts may cause harm.

Herek discussed how structural stigma give permission to discriminate against and to mistreat gay people. He presented studies that showed that gay people believe they had no choice of very little choice in their orientation.

In cross-examination, Neilson, attorney for Prop 8, distinguishes between social identity and personal identity (ie some persons may not want to identify with the gay community). Neilson tried to break the assertion that sexual orientation can be a distinct category by suggesting that different measures get different collections of people. Herek testified that there are small numbers of people for whom that might be true (ie those who have same-sex behavior but don’t call themselves “gay”), but that for most, the population is the same.

This is a very important aspect of the trial as this is where the Prop 8 supporters seek to attack one of the four qualifications for being a suspect class: the group is a discrete or insular minority. If a group is not a class, then they cannot be a suspect class. (However, while I’m not an attorney I seem to recall that Romer v. Evans established that gay people are a class – or rather Amendment 2 set them as a class and the SCOTUS didn’t disagree. This establishment of a class of people was, I believe, reinforced in Lawrence v. Texas).

In one fascinating interplay, Neilson tried to get Herek to agree with a statement from one of Lee Badgett’s books that there’s a “heated debate” over the definition of sexual orientation. Neilson kept asking and Herek kept saying that he’s not read the book and doesn’t know what she meant by that sentence. The Prop 8 supporters kept trying to enter the whole book based on questions asked to Herek even though they did not ask Badgett about her own book. This appears on the surface to be an exercise in deception.

He continued quite a bit in that vein, pulling a sentence from a book and demanding to know if Herek found it “unreasonable” (obviously going for the idea that it is “reasonable” that there’s no definition of homosexuality). Herek kept consistent, insisting that studies have different goals and thus different measurement criteria but that does not mean that we have no understanding of how to define sexual orientation: “It could be understood as an ongoing pattern of attraction, sexual behavior, or self-identification.”

Neilson is also very fond of old sources, the older the better. His quotes tend to come from books or articles from the 80s, and even include Kinsey’s research in the 50s.

One of Neilson’s gotchas is that most people who engage in same-sex behavior before 18 do not identify as gay. Thus “only 24 percent of men fit in all three categories” (attraction, behavior, and identity). He showed Venn diagrams. But Herek illustrated that those who identify as gay experience both behavior and attraction and that other measures are so vague that they can be meaningless (e.g. would having sex with another woman be “somewhat appealing”?)

(At one point in the afternoon Neilson may have erred in discussing social construction (the way that culture defines how people view reality). He and Herek got in a bit of a debate about whether it was appropriate to see sexual orientation and race only as social constructs and without merit as definitions. Neilson allowed sexual orientation to be equated with race.

And, indeed, the more that testimony goes in this vein, the more I see the comparisons to race. Is race measured by ancestry? I have a friend who has one black parent and one white parent and identifies as white while his brother identifies as black. Ironically, if one were going by skin hue and general appearance, you’d reverse the order. Are they the same race?

Or is “behavior” a measurement of ethnicity? I once dated someone who had Latino ancestory and appeared Latino but who “behaved” as though all of his ancestors were on the Mayflower. His brother deliberately cultivated an accent and adopted a style of dress and walk that was stereotypical. Are they the same ethnicity?

Or can we go by skin hue or appearance? I know many Latinos (and some blacks) with lighter skin than my own. I have a friend who is black/white but appears to be a Pacific Islander, a friend who is Italian/Native American but appears to be Latino/Asian.

The answer is that to study medical questions we might use genetic definitions while for discrimination we might use identity or appearance and cultural anthropologists might look to community or behavior.

Race, an immutable characteristic defining a suspect class, is no easier to define than sexual orientation.

Yet we know, without quibbling or arguing or looking for exceptions at the fringe, that most people can be clearly identified by race. Only a fool or a bigot would argue that discrimination against Aretha Franklin cannot be illegal because we can’t define her race.)

Next Neilson, the Pro-8 attorney, sought to attack the fixed nature of orientation. To prove that sexual orientation is mutable, they pointed out all of the gay people who used to be heterosexually married. (While that might work well in a high-school debate class, I doubt anyone really believes that this proves that gays can become straight).

Herek did agree that women’s sexuality can be fluid and change over time. But he pointed out that the much-touted studies that showed mutation in orientation of women was between the “bisexual” and the “no identity” categories and reflected change in labeling, not attraction.

Neilson pointed out that many of those who identify as gay have had heterosexual intercourse. (Shocking!! Surely, oh surely no gay folk here have ever had heterosexual intercourse at some point in their life!! Meh.)

Next the discussion revolved around the ex-gay studies. First was Dr. Spitzer’s sad little telephone survey. Then Freud’s 1935 letter. But he didn’t want to talk about Exodus, it seems.

Then much of the afternoon was spent trying to prove that women’s orientations are whimsy, undefinable, and due to education.

In redirect, Detmer walked Herek back over the very very lengthy cross-examination to see if it changed any of his views. It did not.

Herek pointed out that all of the pro-8 discussion was about those persons who fall on the edges, the exceptions. He reiterated that other groups (like race and ethnicity) have difficulty with definitions.

Herek reiterated that most gay and lesbian people are consistent within their orientation and that very few indicated any choice in the matter. And then Detmer brought the whole argument back into perspective:

Detmer: If two women want to marry, are they lesbians?
Herek: Yes
Detmer: If two men want to marry, are they gay men?
Herek: Yes

On Monday morning the plaintiffs will show ninety minutes of video and then the Prop 8 proponents will begin their testimony.


January 22nd, 2010

Timothy, you have NO peer in boiling down the conservation to it’s essence. I have read every single word of the blogs as they were produced and I’m just thankful to have you as a resource to come and find out what the hell the were talking about.

You just make me think, “Oh! Yeah. Now I get it.”


Timothy Kincaid

January 22nd, 2010

thank you, Ray


January 22nd, 2010

As a biological anthropologist I’d argue that race is much more difficult to define than sexual orientation, mainly because race does not exist as a biological category in humans – it is solely a cultural construct.


January 22nd, 2010

Nielsen: Indeed two leading researchers in this area estimated that only half of those who have same-sex sex sexually ID as lesbian, gay or bi.

Which is pretty clear evidence that there is still strong stigma against identifying as LGB, since so many people behave as LGBs but refuse to identify as such. Thanks for making a point in our favor.


January 23rd, 2010

Patrick: While I’m not a biological anthropologist, I’ll agree with that. Also, based on what I’ve studied, race is also based on historical perspectives. For instance, the Irish was once considered to be a race in this country and these faced an enormous amount of discrimination.

Priya Lynn

January 23rd, 2010

The definition of gay seems pretty concrete to me. If you’re same sex attracted you’re gay, if you’re opposite sex attracted you’re straight, if you’re attracted to both sexes (to whatever degree) you’re bisexual. I don’t find that hard to define at all.

Ben in Oakland

January 23rd, 2010

But priya, it couldn’t possibly be that simple.

could it?

Priya Lynn

January 23rd, 2010

Ben, I don’t buy any of this “gay is an identity” crap. If you’re same sex attracted you’re gay whether you “identify” as gay or not.

Ben in Oakland

January 23rd, 2010

Priya: I was making a small attempt at humor.

Priya Lynn

January 23rd, 2010

Yes, I knew that Ben, I’m sorry I sounded harsh.


January 24th, 2010

I am following the ADF through twitter and the summary of the last day sounded very positive for them… among the things they said was that the expert psyc of the plaintiffs, ” 5) their expert on marriage admitted that major historic purpose of marriage was to meet the child’s need to be emotionally, morally, practically, and legally affiliated with the woman and man whose sexual union brought the child into the world….7) Their developmental psych admitted differences between men/women that affect child dev, there is evid that absence of father has greatest/predictable effect earlier in child’s life, and that it’s important for infants to attach to both their father + mother.”

Ive seen no trace of the argument for the broken father figure being discussed so i would assume this is true, and that as for the historic purpose theres only a hint of it being discussed here

peter abbott

January 24th, 2010

Thank you for the summaries.
I have been fortunate, having found a seat in the public spectatator rows in the court room on 4 days, not getting there early, just walking in. It is however so very slow and tedious, I usually stay for only a couple of hours. I therefore only have 2 or 3 puzzle pieces. You give me the whole finished picture.

Timothy Kincaid

January 24th, 2010


I read the liveblogging and based my summaries on what I believe was the result of the complete testimony. ADF tweets in the moment and has a long history of reporting spin rather than fact.

If there are differences between the tweets of ADF and the liveblogging of Courage Campaign, all you have to do is read the transcripts to see who is right.

Or, I suppose, you can just do what it seems you have done and just believe ADF. That’s not exactly the wisest choice, but I guess I can’t stop you.

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