David Boies: Junk Science, Fear and Prejudice Were Put On Trial and Lost
August 9th, 2010
David Boies, one of plaintiff’s lawyers for the gay couples successfully challenging the constitutionality of California’s Prop 8 in Federal District Court, was on CBS’s Face The Nation yesterday morning, where he eviscerated the Family Research Council’s Tony Perkins on their “junk science.”
It’s easy to sit around in debate and throw around opinions and appeal to people’s fear and prejudice, cite studies that either don’t exist or don’t say what you say they do. In a court of law, you’ve got to come in and you’ve got to support those opinions. You’ve got to stand up under oath and cross examination.
And what we saw at trial is that it’s very easy for people who want to deprive gay and lesbian citizens the right to vote [sic] make all sorts of statements in campaign literature or in debates where they can’t be cross examined. But when they come into court and they have to support those opinions, and they have to defend those opinions under oath and cross examination, those opinions just melt away.
And that’s what happened here. There simply wasn’t any evidence. There weren’t any of “those studies.” There weren’t any empirical studies. That’s just made up. That’s just junk science. And it’s easy to say that on television, but the witness stand is a lonely place to lie. And when you come into court, you can’t do that. And that’s what we proved. We put fear and prejudice on trial, and fear and prejudice lost.
Meanwhile, Ted Olson was on Fox New Sunday defending Judge Vaughn Walker against claims of “judicial activism.” Olson deftly defined “judicial activism” this way: “Most people use the term judicial activism to explain decisions they don’t like.”
Olson cited the case of Reitman v. Mulkey, in which the U.S. Supreme Court struck down California’s Prop 14 of 1963 because it violated the U.S. Constitution due to its racial discrimination, despite the fact that Californians overwhelmingly supported it at the ballot box. Money quote: “Would you like Fox News’ right to free press put up to a vote?”
Also this, on conservative values: “We believe that a conservative value is stable relationships and stable community and loving individuals coming together and forming a basis that is a building block of our society, which includes marriage.”
Prop 8 Rally in West Hollywood
August 5th, 2010
At about six last night I headed to the West Hollywood park to join others who were there to celebrate the outcome of Perry v. Schwarzenegger. I should have tried to get there earlier as the park was packed. Unlike the National Organization for Marriage’s ‘big park, few people’ dynamic, this was a smallish park with hundreds of people jammed in every space with others out on the sidewalk listening even though they couldn’t see.
There was a huge cross-section of the community. I stood behind a young Latina couple in their early 20′s and beside a couple of elderly gay men who brought their dog. Across the way I saw a go-go boy holding up his phone to take a picture of the speakers. I saw people that I know have a wide range of experiences and perspectives all there to celebrate our common cause for equality (the best T-Shirt I saw said “fiscally Republican, socially Democrat, sexually liberal”). Old friends and strangers, we were all family.
To my surprise this turned out to be the rally to be at. Not only were the plaintiffs and the board of the American Foundation for Equal Rights present, but Ted Olson and David Boies as well.
This was my first time to hear Ted Olson speak live, and it was fascinating. He has a deep voice and speaks slowly and I first wondered how he could keep the court’s attention. Then I realized something odd: while the crowd had been mostly attentive for other speakers, it was now completely silent. Olson’s inflection and word choice left you wanting to hear what he next had to say; it was not a courteous attention, it was a rapt attention.
It became clear to me the power of persuasion that this slow speaking man with his carefully measured words could wield and how extremely fortunate we were to have him on our side. When Olson speaks, you want to agree with him. And when he and Boies were done speaking I was convinced that we will take this to the Supreme Court and we will win.
It was thrilling. I’ve been to a lot of political rallies and heard a lot of speeches, but this event will stand out for me.
UPDATE: I finally found the quote. At the rally Boies said:
Most of what you’re going to hear from the other side is going to be a series of attacks,” he said. “They’re going to attack the judge, they’re going to attack the judicial system, they’re going to attack everything they can think of to attack except the court’s opinion because I guarantee you… most of the people that are going to criticize the opinion will not have even read it.”
Maggie, Brian, he might as well have called you out by name.
Prop 8 Reactions
August 4th, 2010
Attorney Ted Olson, who brought the suit to overturn Prop 8:
“We came to court to seek for Kris, Sandy, Paul and Jeff the same right to marry that all other Americans enjoy, and to ensure that they receive equal protection under the law as guaranteed to every American by the Constitution. Through its decision today, the court has acted in the best traditions of a legal system established to uphold the Constitution and the principles of equality upon which this nation was founded. On no less than 14 occasions, the Supreme Court has held that marriage is a fundamental right. This decision recognizes that Proposition 8 denied the plaintiffs, and tens-of-thousands of other Californians, that fundamental constitutional right and treated them unequally.”
Co-counsel David Boies:
“The Supreme Court has long held that marriage is a fundamental right. Equal protection under the law is guaranteed by the U.S. Constitution, and this ruling affirms that universal right of every American. Depriving the fundamental right to marry causes grievous harm to millions of Americans and their children.”
The White House:
“The President has spoken out in opposition to Proposition 8 because it is divisive and discriminatory. He will continue to promote equality for LGBT Americans.”
Governor Arnold Schwarzenegger :
“Judge Walker had the great responsibility of deciding whether Proposition 8 violates the Constitution of the United States. He heard in-depth arguments from both sides on fundamental questions of due process, equal protection and freedom from discrimination. There are strong feelings on both sides of this issue, and I am glad that all viewpoints were respected throughout the proceedings. We should also recognize that there will continue to be different points of view in the wake of this decision.
“For the hundreds of thousands of Californians in gay and lesbian households who are managing their day-to-day lives, this decision affirms the full legal protections and safeguards I believe everyone deserves. At the same time, it provides an opportunity for all Californians to consider our history of leading the way to the future, and our growing reputation of treating all people and their relationships with equal respect and dignity.
“Today’s decision is by no means California’s first milestone, nor our last, on America’s road to equality and freedom for all people.”
In case you missed it, Timothy Kincaid’s analysis of the decision is here.
Perry v. Schwarzenegger: closing arguments
June 16th, 2010
Today Judge Walker Vaughn heard closing testimony, a very active process in which the judge asked a great many questions. From an information perspective this was basically a recap of the case, with each side seeking to present their evidence in the best light. But it was the opportunity for the judge to get each side to clarify and flesh out exactly what legal theory they were using for their argument.
First up: Ted Olson, the conservative icon who surprised anti-gay activists by declaring equality to be a conservative principle and by leading the case to reverse Proposition 8.
Olson talked about the various perspectives of those who are involved in the fight. He pointed out that the supporters of Prop 8 had one story during the campaign (protect the children) and an entirely other one during the case (deinstitutionalization of marriage). But for the plaintiffs, this is the most important choice they can make as an adult: who to marry.
Olson talked about how other relationships were not the same as marriage and had not been considered the same in American history. Slaves could enter informal relationships, but when freed and able to marry they found that the “marriage covenant is the foundation of all our rights.” When Loving v Virginia overturned racial restrictions, it removed a stigma.
He discussed how marriage equality makes gay families and their kids “okay”. How it reduces the burden on gay families, but also make America more American (according to the defense’s witness, David Blankenhorn).
Olson told the judge that his decision to allow a full trial on the merits of the proposition has provided evidence and been an education. He compared it to Brown v. Board of Education (the 1954 case which tossed out the “separate but equal” racially discriminatory education system). He lays out the long string of cases in which the SCOTUS has moved towards greater equality, at times overturning previous decisions.
And he laid out the case’s strongest argument: this is government imposed stigma placed in the state constitution. Further, the California Supreme Court did not “create a window” of rights. The right to marry the person of one’s choice had always existed, the CA Court simply recognized that right. The SCOTUS has found the right to marriage to be a fundamental right, and in Lawrence they found that homosexual behavior was a constitutional intimacy right. Applying each case atop the other, Olson said:
It can’t be constitutional to take away a constitutional right because a person engaged in a constitutionally protected behavior.
Olson argued for strict scrutiny, but said the case fails on any scrutiny. There is no state interest and “Because I say so” is not a reason for continued discrimination.
The voters passed Proposition 8 so as to say that same-sex marriage is not okay, to say that gay people are not okay. That is malice. It is not a constitutionally valid reason for denying rights to a class of people. Proposition cannot be found to be supportable in this case by any good valid reason, because no good valid reason was presented to support it.
And that concluded Olson’s closing statements.
Therese Stewart, on behalf of the City of San Francisco, spoke about the costs to the city: institutionalized discrimination increases mental health cost, the policing costs associated with increased hate crimes, costs for addressing bullying, the cost of lost tourism. But it would also cost the city its ability to treat all of its citizens equally.
The Governor and the Attorney General formally waived their right to defend Proposition 8 with closing arguments.
The judge then made an interesting observation. It seems that in most counties when you apply for a marriage license, there is no requirement on the form itself that you be opposite-sex. That really, from an administrative perspective, the decision to issue a license is up to the county clerk. The same is true for the issuance of domestic partnerships to heterosexual couples under the age of 62.
I’m not sure where the judge was going with that. But then they broke for lunch.
After lunch, Charles Cooper presented his closing arguments in defense of Proposition 8.
He argued that restricting marriage to the opposite sex was fundamental to the existence and survival of the human race. The purpose of marriage is for procreation. And without state-defined marriage, society would come to an end.
The judge pointed out that because the state has no requirement that married couples procreate – or even have the capacity or intention of doing so – that there must be some other purpose for marriage. Cooper rhetorically pondered the ways a state might go about insisting on procreation, suggesting that they were ludicrous, but the judge agreed that for his argument to be logical that these would be reasonable steps. None of them are required.
Cooper revised the purpose of marriage to be a that of increasing the likelihood that natural procreation be within the confines of marriage. Walker countered that marriage obligations extend far beyond the control of sexual behaviors.
What happened next was the defense’s worst nightmare. The judge asked Cooper for the evidence to support his premise. Cooper tried to quote various sources but the judge pointed out that none of these sources testified, that defense had only brought one witness “and I think it’s safe to say his testimony was equivocal.”
Cooper was left replying that there was no need for a witness, that there was no need for evidence, that it was obvious. The judge was not much impressed with the “I ain’t need no evidence” defense.
Cooper argued that up until 30 years ago no one considered same-sex marriage. Therefore it just must automatically be tied to procreation. But now gay people want to marry.
The judge then asked if these changes in the past 30 years might not, as was the case with Loving, be at a tipping point at which the purpose for marriage has changed in the public conscience. Cooper struggled to explain how racist restrictions differ because they had no basis in historical definitions [he may want to read more history], that miscegenation laws created illegitimate children [he may not actually have been listening to the words he was saying].
Cooper argued that the sole distinction – the sole criteria for legitimate marriage – was the ability to procreate “normally”. The judge failed to see how assisted fertility could not also be applied.
So Cooper shifted gears again and declared that the state had a right to “strengthen social norms”. He discussed children born out of wedlock and that restricting marriage to heterosexual couples was a way to protect against this increasing trend.
[So Cooper has within this testimony declared the purpose of marriage to be encouraging procreation so as to further the survival of the species; he then changed his definition to be channeling possible procreation into marriage; and then changed it again into discouraging irresponsible procreation, almost the opposite of his original contention]
Cooper next argued that this case should be subjected only to a rational basis standard. And because of this, he need not prove that the voters had any particular intention to discourage irresponsible procreation (or whatever his current purpose for marriage might be) but only that it is conceivable that they could have used this logic had they so wished. Not that they did, but that a rational person could.
This vein of questioning ended and Cooper clarified his request to have the 18,000 marriage invalidated. He’s said that if this caused irreconcilable differences, it would be better to toss out 18,000 marriages than to disregard the will of the voters. But otherwise, the defendants are fine with them continuing to be recognized as grandfathered-in.
The judge asked Cooper about whether gender (as opposed to incarceration, responsibility or ability to procreate) was the sole exception to marriage being a fundamental right. Cooper said that gender is the definitional feature of marriage.
The judge then asks if because Cooper claims that sexual orientation is only a social construct, then how it differs from gender. And the argument began it’s descent down the ex-gay path.
Cooper claimed that sexual orientation was not immutable and was not an “accident of birth”, i.e. no one is born gay. [I've long believed that the immutability of sexual orientation is the basis in which our eventual civil equality will be found.] They discussed how that while religion is not immutable, its rights are found in the First Amendment, not through heightened scrutiny.
Cooper insisted as “plainly right” that sexual orientation is not an immutable trait. He declared that 2/3rds of women change their orientation [a gross misstatement of the facts].
He further insisted that gays are not politically powerless. When the judge quoted a litany of discrimination, Cooper agreed that gays have been victims of discrimination, but insisted that history of discrimination is not by itself sufficient to warrant heightened judicial scrutiny.
The arguments took a veering to discuss whether Blankenhorn is a qualified witness. To support this, Cooper had nothing additional to add.
(to be continued… check back later)
Perry v. Schwarzenegger closing arguments
June 16th, 2010
Today is the last day of Perry v. Schwarzenegger, the legal challenge to Proposition 8. By the end of the day, the case will be in the hands of Judge Vaughn Walker. Karen Ocamb has a guide to of the final day’s expected events.
The legal team of Ted Olson and David Boies have crafted a compelling argument for why this proposition should be found to be in violation of the US Constitution. And much of it was supported by the defense’s own witnesses.
There is no question that Prop 8 harms gay individuals and families. There is no question as to whether it discriminates against gay people. The only questions are whether it was motivated by malice and whether there are state interests sufficient to justify the discrimination.
And in answering Judge Walker’s questions, Olson and Boies were eloquent.
The extensive evidence that Prop. 8 was in fact motivated by moral disapproval of gay men and lesbians underscores its unconstitutionality. Indeed, where, as here, a law is subject to heightened judicial scrutiny, the “justification[s] must be genuine, not hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533 (1996). Accordingly, the messages presented to voters during the Prop. 8 campaign and the voters’ motivations for supporting Prop. 8 are relevant to whether Prop. 8 was enacted to further a sufficiently important interest to survive constitutional scrutiny. Proponents’ laundry list of purported state interests, invented after Prop. 8 was enacted and for the purposes of this litigation, cannot be considered under heightened scrutiny if Prop. 8 was not in fact enacted to further those interests. See id.; Doc # 605 at 12-15. And, if Prop. 8 was motivated simply by moral disapproval of gay men and lesbians, then it cannot survive any standard of constitutional scrutiny. See Romer, 517 U.S. at 634.
In other words, all the crap they came up with during the case is irrelevant. It’s not the pseudo-scientific sounding justification for Prop 8 that was presented in court that tells us the intent of the voters; it’s the campaign commercials. The intent and motivation of the proposition is reflected in the vile, nasty, campaign of hate and bigotry that waged on the airways in 2008.
We will have to wait and see when the Judge will announce his determination. But we have reasons to be hopeful that this very careful judge will weigh the evidence and come to the only possible conclusion: that marriage discrimination against gay people serves no legitimate state interest, is based in animus, and is contrary to the protections enacted in the Constitution of the United States.
Another Conservative for Gay Marriage
January 29th, 2010
This time, it’s Don Imus on Fox Business:
Perry v. Schwarzenegger: day five summary
January 16th, 2010
Today began with testimony from Dr. Michael Lamb, Head of the Department of Social and Developmental Psychology at Cambridge University. Michael McGill led the questioning. Dr. Lamb is highly qualified, prolific, and respected in the areas of child development and devolopmental psychology.
In the 1970′s Dr. Lamb began with the assumption that a father-mother household was better. His views changed based on his research. By the 90s this change was accepted in the field.
Articles document conclusively that children raised by gay or lesbian parents are just as likely to be well adjusted as those raised by heterosexual parents. This is based on a great volume of study of children of different ages and further buttressed by results that affect children of broader range of children.
Studies conducted include both convenience samples and representative samples, longitudinal and cross-section. Over 100 studies have been taken. All mental health organizations agree.
Lamb refuted some of the pseudo-scientific claims of Prop 8 proponents, including the use of the term “gender disorientation pathology” in a Ron Prentice email repeating “21 Reasons why Gender Matters” (Perhaps those listed at NARTH). This term is not used in psychology.
Lamb refutes the canard that gays and lesbians are more likely to be child abusers, nor are their children likelier to be gay (though they are likelier to reject sex-stereotypical occupations).
Lamb dismisses Dr. Joe Nicolosi (ex-gay proponent) and his notions that childen of gay couples are going to be emotionally and socially traumatized. He says that adopted and artificially conceived children are as likely to be well adjusted as those raised by natural parents. He says that the only one in the field of child psychology who holds that view is David Blankenhorn.
In cross-examination, David Thompson for Prop 8 has Lamb admit he’s a “committed liberal”. Thompson tried to get Lamb to agree that science and research only give the results that government wants and that there is a vast liberal conspiracy to make scientific results be what the liberals want them to be. He references the East Anglia climate control scandal. This is an insult to anyone with a brain.
Thompson argued that men are cretins (he referenced Homer Simpson) and women are weak little caretakers. Liveblog synopsis:
Women spend more on children than men. Some occupations are specific to genders. Men are more likely to perpetrate sexual abuse than women. Step fathers more likely to molest children, abuse children than women. Molestation is bad for kids. Evidence that men who are married to women drink and gamble. You are not saying that men and women are completely interchangeable.
(My favorite argument so far:) Men can’t breast feed. Breast feeding clearly has benefits for children. (yup, well that settles it, children whose mothers can’t breast feed them should be left out for the wolves.)
Thompson read an article in which Lamb stated that biological parents were more important than involvement in raising the children; it was written in the 1970s. He quoted Lamb stating that it was disconcerting that fathers’ roles were devalued; Lamb was a grad student. Thompson read from Lamb’s The Role of Fatherhood in Childhood Development, 1976 version.
Lamb: Citations are to 1961, two from 1950s, one from 1965. We’ve had a lot of research since that was written. As you’ve pointed out, there have been subsequent editions of this book, that have updated these citations.
Thompson reminds Lamb that he described David Blankenhorn’s book as “most provocative commentary published in 1995″. Lamb said that Blankenhorn thought his review was negative.
Thompson somewhat desperately tried to get Lamb to agree that having both a male and a female in the house is essential to good childhood development. Lamb didn’t play along.
(At this point we discover that a few witnesses for Prop 8 have been withdrawn because of “fear for their personal safety”. But wasn’t that why there is no video recording? Personal fear? Or is it that those witnesses realized that their peers would find out what they had testified through bloggers and knew that they would be mocked and reviled in their professional fields for selling their soul to the cause of discrimination and injustice. After lunch, Boutrous pointed out to the court that the witnesses who were skurrrred of being recognized dropped out after the SCOTUS said they didn’t have to be televised. He said that in pre-trial he predicted they would drop out because they were afraid of what they would have to say during cross-examination.)
Quite a bit of time was taken establishing that children do better in homes with both parents rather than with a single parent. Much emphasis that step-fathers are more likely to sexually abuse than genetic fathers. Lamb continues to point out that they are comparing heterosexuals to heterosexuals.
I get the impression that Thompson is out of his element. At one point he objects that the US Census is not a random sample. Lamb points out that if a sample includes the entire population, it’s better than a random sample. Thompson tries to argue that studies of gay people are faulty because they only study those who identify as gay; he seems not to notice that if we are talking about marriage, there aren’t going to be many non-LGBT-identifying folk who marry a person of the same sex.
After lunch the judge asked Lamb why adopted children seek out their natural parents. Lamb said it was due to a natural curiosity about where they came from and not due to maladjustment. Walker then asked about priest abuse in the Catholic Church. Lamb clarified that it was predominantly heterosexual and that gay abuse occurs at about the same rate as heterosexual sexual abuse.
During Thompson’s efforts to discredit the rather extensive research on the subject, he looks for anything that was not included to suggest that it throws all of the evidence out the window. His stabs include the financial resources of grandparents, the genetic intelect of the children, the educational achievement of grandparents, etc. He tries to sound incredulous that these studies didn’t include these less obvious factors. What comes out in court, however, is the rather extensive number of factors that actually have been considered.
He cites Walter Shum of Kansas State Universite. Lamb dismisses Shum by saying, “I’ve seen it before. It was published in a journal where one has to pay to have it published, so it’s not really considered part of the literature. But I have seen it in past cases.”
(A non-peer reviewed pay-to-get-published article? Gee, where have we seen that before?)
Thompson is trying to get Lamb to agree that only middle class gay and lesbian families were studied. And that the control groups of straight parents in the studies were not necessarily limited to married biological parents.
I’m wondering at the extent of this effort. I assume that is because when Blankenhorn argues that heterosexuals are better – based on his opinion – then Prop 8 will argue that we can just ignore all research whatsoever and go on Blankenhorn’s opinion. It’s just one opinion against another. While that might work well in a media campaign, I wonder if it’s effective strategy to present to a judge.
Further, it appears that Thompson knows far less about the “gotchas” that he wants to drop on Lamb. He appears to have forgotten the first rule of jury testimony, don’t ask a question to which you do not know the answer. He also confused references to studies as being separate studies and seems not to know what meta-analysis is.
Thompson says, “We’re trying to show that optimal way to raise kids is in heterosexual households.”
(Yes, Mr. Thompson, you are trying to show that. Unfortunately for you, the science isn’t behind you.)
In redirect, McGill has Lamb clarify that the largest comparative studies included census data and thus compared gay couples (married and unmarried) with heterosexual couples (married and unmarried) and that gay children did not fare worse.
McGill then plays deposition tape of Dr. Marks, a Prop 8 witness that withdrew “cuz he’s skurrrrred of the cameras”. It seems Marks made a wise decision. In the tape he contradicted himself and ends up – in this clip – undermining his assertion that biological families are preferable.
McGill had Lamb read a portion of his review of Blankenhorn’s book illustrating how it was not favorable.
Lamb concludes by testifying that the field shares his conclusions because of the consistency of the outcome of hundreds of studies. Outliers which are not replicated don’t change conclusions based on cumulative work.
In one final dig about Lamb being a “liberal” and donating to PBS:
McGill: Did the corporation on public broadcasting affect your opinion in this case?
Lamb: No, it did not.
To end the day, Helen Zia, an Asian-American told the story of her life. She talked about discrimination and fear. She spoke of the humiliation of signing up for the first local domestic partnerships in San Francisco at the window where dog licenses were issued. She talked about how marriage changed her life. Her Chinese grandmother finally had a word to describe Leah, her wife. Her in-laws now saw her brother as extended family. She spoke of cruelty and hostility she experienced in Oakland during the Prop 8 election season.
Chu: How does getting married change things.
Zia: In most immediate sense, it was in how our families related to us. When we first got married. We have a niece, 2 years old, only known us Auntie Helen and Auntie Leah. WHen she saw Leah and me, she gave us a big hug, said, Auntie Leah, now you’re really my auntie. I thought, well, you’ve always known her as your auntie. Somehow it made a difference. It made a difference to our parents. When you say you’re a domestic partner. When people say “who’s this person?” I can’t count the number of times who said “Partner in what business.” We’d say “partners in life.” Often it was bewilderment. What business is life, od yo umean life insurance. It’s a matter of how our families relate to people. For me to show up at every event. People ask who’s she. For her 90-something auntie to say, here’s Leah’s friend. She must be a really good friend, suddently there were able to say, Helen is my daughter in law. My mother is an immigrant from China. She dosent’ get waht partner is. I would be around her, I could hear them say, sometimes in Chinese, sometimes in English, that’s Helen’s friend. Then it changed, she would say, this is my daughter-in-law. Whether they got it or not, you don’t insult someone’s wife, you don’t insult someone’s mother. We’re not partners in life or in some business. It changed things on a huge level. Marriage in how it affected our families. Our families related to each other differently. Marraige is joining of two families. My family and Leah’s family now relate to each otheer differently. My brother lived about 5 minutes away from Leah’s father when he was still alive, in those 15 years, they didn’t make an effort. After we were married, Leah’s father would stop by, drop things off. My brother is quite active in HI, Leah’s brother’s wife, my sister in law. Has a sister who runs in same circles. He will now say she’s my in-law.
And this ended the day. The case will resume Tuesday morning. The plaintiffs expect to end testimony on Wednesday.
It is difficult to predict how long it will take the Prop 8 defendants to present their testimony now that four of their six witnesses have dropped out cuz they’re skurrred of the evil homosexual menace that will hunt them down and piddle in their petunia. All, it might be noted, after the SCOTUS gave in to their demands of no televising and no video at all outside of a live-feed to another room inside the same courthouse.
Somehow I think they really wanted to lose the battle over the cameras. As we saw from Dr. Marks’ video deposition, their witnesses may be far more worried about their own inadequacies and dents in their reputation than they are about marauding bands of drag queens and dykes on bikes chanting, “we’re here, we’re queer, you’re a bigot, get used to it” while they try to order a latte at their local Starbucks.
I suspect that they wanted an excuse to drop their witnesses so they could use this to appeal the trial of fact. But the SCOTUS may have unintentionally called their bluff and left them with only the flimsiest of wacky excuses (“we were skurrred of the evil homosexuals in the overflow room; they might hit us with their laptops). And now they only have two witnesses who are willing to be cross-examined.
Perry v. Schwarzenegger: day four summary
January 14th, 2010
Again, thanks to liveblogging by Courage Campaign and FireDogLake
The day starts with testimony from Edwin A. Egan, Chief Economist for San Francisco. His job includes determining the economic impact of legislation.
His argument: marriage equality means more married couples. Those who marry tend to accumulate wealth, spend more, increase property values, etc. Married individuals also engage in healthier behavior which leads to greater productivity and a positive economic influence.
Egan also discussed how companies treat marriages differently from domestic partnerships when it comes to heath care.
(This direction be an argument unique to San Francisco in which, due to demographics, economic influences on the gay population can have a significant impact on the city’s economy as a whole. It may be difficult for Prop 8 to argue that such an impact is immaterial to a city like SF)
Egan discussed direct economic benefits to the city from legal marriages (event costs, hotel, restaurant). He noted that if DOMA were lifted, income taxes per couple would be reduced on average by $440, some of would be spent in the city thus increasing sales taxes and improving the economy.
In cross-examination, Peter Patterson challenged some of Egan’s calculations.
First he tries to present the idea that all of those who wish to marry already did so in the narrow window. This argument is strangely and poorly crafted by arguing that because there were few appointments for marriages in November (when marriage was not legal) then there was no demand.
Patterson made points by noting that Egan bases his three year projection on the rate of marriages during last summer, not allowing a drop off for a lessening of “pent-up demand”. Further, he argues that Egan’s estimates assume that over 100% of current couples would marry within two years (he does not allow for new couples or couple migration).
Egan may have redeemed himself by showing that his assumptions about marriage expenditures and guests are based on conservative estimates (spend 25% of what straight marriage spend and only 10% of guests from out of town).
Patterson argues that while same-sex marriages may increase, opposite-sex marriages may decrease. (This may actually be true for the short window in a city like SF. There may have been limited marriage facilities and resources and some straight folk may have waited until after the marriage window. Over time, the laws of supply and demand would provide for adequate marriage resources)
In redirect, Egan clarifies that despite dispute over the numerical accuracy of his calculation, marriage would increase health coverage and that, coupled with marriage expenditures, would financially benefit the city.
In the afternoon, Dr. Ilan H. Meyer, Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified about the stigma and prejudice gay and lesbians individuals face in society. Christopher Dusseault is plaintiff’s counsel for this section.
Meyer argues that societal stigma assigns gay people the roll of not desiring intimate relationships and being incapable of them. Society defines intimate relationships to mean marriage, husband, wife, family and community to the exclusion of gay people. (Think The Boys in the Band)
As illustration, Dusseault has Meyer read from Everything You Wanted to Know About Sex, But Were Afraid to Ask:
What about all the homosexuals who live together happily for years?
What about them? They are mighty rare birds among the homosexual flock. Moreover, the “happy” part remains to be seen. The bitterest argument between husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.
Meyer argues that domestic partnerships do not have the same social meaning as marriages and thus Proposition 8 imposes structural stigma. He talks about social stressors, both event (a bad thing happens) and non-event (something expected and looked forward to does not happen). Because all children expect to marry some day, denying marriage to gays is a non-event stressor. Meyer identified the processes that create minority stressors as prejudice events, expectations of rejection and discrimination, concealing–not being out, and internalized homophobia.
Some stressors may have little real impact, such as filling out a form, but “the form evokes social disapproval and rejection and memories of events, including large events that have happened in the past.” So travel, banking, vehicle registration, many simple things have minority stressors with great impact.
And actual abuse need not occur for the person to experience stressors.
Many times people avoid situations, or swallow those situations of slurs and just move on because they don’t want to get into a fight, but the anticipation causes stress.
All of the additional sexual minority stressors lead to increased risk and disease.
Dusseault: Do you have a view if mental health outcomes for gay and lesbian in CA would improve if Prop. 8 were not law?
Meyer: Yes. Consistent with my work and findings that show that when people are exposed to more stress than less stress they are more likely to get sick, consistent with a law that says to gay people you are not welcome here, your relationships are not valued vs. the opposite has significant power. Clearly it’s not the only thing that determines prejudice and discrimination, but it’s a major factor.
Al Wilson cross-examined Meyer for Prop 8. Wilson tried to identify disagreement between studies and to identify exceptions between theory expectation and results.
In particular, he focused on old studies (this does seem to be a consistent but inexplicable tactic of the Prop 8 side in this trial)
Wilson: Well, were your studies inconsistent with older studies?
Meyer: No. I would say the older studies were inconsistent with my new findings.
Wilson tried very hard to get Meyer to discount his own findings. He tried to dismiss the sample size but Meyer used meta analysis. He tried to argue that population definition is impossible, but Meyer pointed out that all populations are difficult to define
You’re trying to suggest it’s some big problem. It’s not. The population is elusive in every study. This is the first step of trying to study. If I wanted to study men, I’d have to define the cohort, age, location, etc. What is a Latino? Do you include Mexicans or Puerto Ricans? The first step is to define the general population and then the sampling population.
(Meyer seems to be quite good)
Wilson: Could you ask someone if they were African American ever or were last year?
Meyer: Yes. That does vary. There are people who move into the US as Caribbean, their parents do not describe themselves as black, but after their kids socialize do say they are African American. Identities change and are responsive to the social context, but how people refer to themselves might change.
Meyer: well attraction is very fluid. Woman might say another woman is attractive, but that doesn’t make her a lesbian. for example, if you want to measure race by skin tone, you’ll have a different result than by identity. That’s why I don’t use attraction, but sometimes use identity. when you’re measuring HIV risk, you need to ask about behavior to assess exposure.
(This is an interesting response. If racial definitions were based solely on skin tones, I’ve met quite a few Latinos and even some African Americans who have fairer skin than I do. I once had one fellow lecturing me about discrimination against ‘brown people’ until I held my arm up against his. Yet my ethnic heritage and overall appearance tends to lead me to identify as “Caucasian” while theirs leads to minority ethnic identities. And discrimination and its inherent stressors are not based on either skin hues or internal attractions, they are based on internal and external identities.)
Wilson spent quite a lot of time in discussing why some racial minorities do not experience as poor mental health as might be expected within the models (the answer is because of being raised and nurtured in and supported by racial minority communities). He seemed to be dancing around the idea that gays are mentally deficient.
Wilson tried to make a peculiar (and specious) argument that if domestic partnerships stigmatize, then why would pro-gay groups have ever supported them? (Duh, because they stigmatize less than having nothing, never, ever)
In redirect, Dusseault had Meyer clarify the distinctions between racial stressors and sexual minority stressors (communities, as noted above). He also cleared up the distinction that domestic partnerships stigmatize, though not to the same extent as no recognition.
Yes, what it means that you can’t have either, the message is even more severe. If a state doesn’t offer marriage, it’s great stigma, but if a state offers domestic partnerships it’s almost like saying go to the back of the bus.
Over all, Meyer’s testimony (as liveblogged) seemed strong.
Perry v. Schwarzenegger to continue to be taped
January 14th, 2010
At trial today it came out that the supporters of Proposition 8 had appealed to have the taping of the trial terminated. They do not want any record of their argument to be retained beyond the bare minimum.
The judge countered that he needed the taping for his purposes and that it would not be televised. Chuck Cooper seemed content with that.
This is good news. As long as a tape is recorded, there is always a hope that some future legal argument can make this recording available to the world. If not now, then this evidence will undoubtedly be useful for social historians looking back upon this time of legal discrimination.
Perry v. Schwarzenegger: day three synopsis
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.
Perry v. Schwarzenegger: day two synopsis
January 12th, 2010
Today’s testimony consisted of two witnesses (thanks again to Courage Campaign):
Professor Nancy Cott, author of Public Vows: A History of Marriage and the Nation, continued her testimony about the meaning of marriage. She explained how marriage evolved from the government directing gender roles as we moved from an agrarian society.
Cross-witness sought to get Cott to own the statements of other marriage supporters so as to get her defending ideas other than her own but she wasn’t having it. Opposing counsel tried to get her to make predictions, she didn’t.
Then opposing counsel sought to show that marriage was actually Christian doctrine filtered through marriage law. (I can think of a few reasons why he really wouldn’t want to go there, one being that Olson/Boies can put the leaders of several denominations on the stand to talk about Christian doctrine).
In redirect, Cott explains that same-sex marriage was not likely to lead to polygamy because the central theme to marriage is consent and the central theme to polygamy is despotism. (Interestingly, if “children” is the sole purpose of marriage, then polygamy could be a next step – or, rather, a step back to tradition).
In the afternoon, Terri Stewart questioned Dr. George Chauncey, an expert in LGBT studies. Dr. Chauncey gave a lengthy discussion about discrimination and oppression of gay people in America.
Dr. Chauncey showed how the themes of Anita Bryant’s “Save Our Children” campaigns in the 70′s were successfully carried into the 80′s and 90′s and are the central themes of Proposition 8. He sees them as part of a continuum.
Stewart: Do you believe Prop. 8 ads perpetuate the stereotypes of the history you describe?
Chauncey: I think they do, but they are more polite than the Anita Bryant ads. Society has changed such that what you can say in polite society is different, but most striking is the image of the little girl who comes in to tell her mom that she can marry a princess. There’s a strong echo of this idea that simple exposure to gay people will lead a generation of young people to become gay.
Cross examination tries to paint Chauncey as “an advocate”. They tried that with Cott. I’m not sure what’s going on there as I think it’s clear that all witnesses on all sides are probably going to be advocates for their position. Certainly Blankenhorn is.
Prop 8 supporters fight to keep cameras out of the courtroom
January 9th, 2010
Judge Vaughn Walker has decided that the Olson-Boies case to find Proposition 8 in violation of the US Constitution will be recorded and available on YouTube. Those defending the proposition and seeking to keep California from legally recognizing same-sex marriages are desperate that this not happen.
Their public argument is that video coverage would turn the case into a “media circus” and that they would be targets of retribution. In a fiery denunciation of the judge’s decision, National Organization for Marriage’s Maggie Gallagher raged:
On Oct. 22, the Heritage Foundation released a report titled “The Price of Prop. 8,” which concluded that “supporters of Proposition 8 in California have been subjected to harassment, intimidation, vandalism, racial scapegoating, blacklisting, loss of employment, economic hardships, angry protests, violence, at least one death threat, and gross expressions of anti-religious bigotry.”
To deliberately and needlessly expose these people to a new wave of publicity and attacks by televising the trial is outrageous.
And indeed one of the five official sponsors of Proposition 8 (whom I’ve never heard of) has requested to be removed from the case.
On Friday, Tam told U.S. District Court Judge Vaughn Walker that he fears for his and his family’s safety. In his court filing, Tam’s lawyers say the trial will bring him unwanted publicity and expose him to retribution from gay marriage supporters.
Tam also says the case has been more time-consuming and more intrusive into his personal life than expected.
But what Gallagher and Tam and the other supporters of Proposition 8 fail to mention is that they volunteered for this case. In fact, when Governor Schwarzenegger and Attorney General Brown expressed no interest in defending the initiative, Tam petitioned the court requesting that he be allowed to do so.
And their concern that they be identified or targeted seems disingenuous. The proceedings are not going to occur in a secluded and private setting where the witnesses will be kept a secret. Every witness will be known and every testimony blogged about.
Tam certainly got more media attention from dropping out of the case than he would have if he’d just gone through with it.
And yet they are frantic that there be no video. The supporters of Prop 8 appealed the judge’s decision, but yesterday they were denied (SJ Merc)
A federal appeals court on Friday rejected a bid by Proposition 8 supporters to block the broadcast of the upcoming trial involving a challenge to California’s same-sex marriage ban, refusing to stop a plan to post the proceedings on YouTube.
In a one-paragraph order, the 9th U.S. Circuit Court of Appeals said that the Proposition 8 campaign had not presented reason for “intervention by this court” in the broadcast issue.
But this wasn’t the end of their effort. They have now made an emergency application to the Supreme Court asking Justice Kennedy to block camera coverage. The Olson-Boies team has until noon on Sunday to respond (the case starts on Monday).
I do not believe Gallagher and the Prop 8 supporters’ public reasons for wishing to keep the trial from being recorded. I think that their true motivation is better understood from another argument they made. (Law.com)
Lawyers representing the Yes on 8 campaign objected to any broadcast beyond an overflow room in the San Francisco federal building, arguing that witnesses would be intimidated, or change their testimony. [emphasis added]
Change their testimony?
If their witnesses are telling the truth, wouldn’t their testimony be the same in either case?
It seems not. And here is why.
There is a record made of every word said at every trial. But this record generally is not readily accessible to the public. Words said, arguments made, all are lost to dusty volumes and forgotten.
Further, few people ever hear or read what any individual witness has to say. In a high profile trial, reporters will provide the gist of a testimony or paraphrase but the public doesn’t really hear or see
But a video recording of testimony makes their words accessible and permanent. There will be transcripts posted across the internet and for the rest of our lives there will be ready and immediate access to video of each witness making statements in support of banning gay Californians from marrying.
And clearly some of their witnesses are reluctant to testify publicly. They want to say words that the public will never hear and for which they will never be held accountable.
What is it that they don’t want the public to know? What are they reluctant to say in front of the voters who they claim to defend?
“Those who want to ban gay marriage spent millions of dollars to reach the public with misleading ads, rallies and news conferences during the campaign to pass Prop. 8. We are curious why they now fear the publicity they once craved,” said Chad Griffin, Board President of the American Foundation for Equal Rights. “Apparently transparency is their enemy, but the people deserve to know exactly what it is they have to hide.”
I suspect that regardless of the outcome of the lawsuit, this case is a winner for us. This lawsuit will expose the intents, methods, and agenda of those who oppose equality. And video of their testimony will be, I believe, a very valuable tool to achieving equality.
And voter initiative battles will never be the same.
Gallagher and crew aren’t afraid that they will be targeted for hateful email or a vengeful grocery clerk squishing their tomatoes. They aren’t worried that their witness will have someone call them a bigot.
I think that what they truly fear is that what they have to say in court will look ugly and obscene when played on the news or in commercials during the next “protect marriage” battle.
Olson/Boies Prop 8 trial to be recorded and available
January 6th, 2010
On January 11, Ted Olson and David Boies will begin their case against Proposition 8, arguing that it runs contrary to the US Constitution. In a strange turn of events, the case will be recorded but not made available for live media coverage. (SJ Merc)
Chief U.S. District Judge Vaughn Walker approved court-operated cameras in his courtroom for delayed release on YouTube, but rejected a bid by media organizations to televise the proceedings themselves for live broadcast.
Walker, by approving some broadcast of the Proposition 8 trial, became the first federal judge in the West to make use of an experimental program put in place recently by the 9th Circuit Judicial Council, which sets policy for federal courts in nine states, including California.
Supporters of Proposition 8 had argued against any public presentation of the trial, saying that their witnesses were reluctant to testify if their testimony was made available to public scrutiny.
They used one of the anti-gay community’s favorite arguments: fear of retaliation. Personally, I believe that their objection is based in fear of exposure. I suspect that the purposes and beliefs of the funders, organizers, and administrators of Proposition 8 are not aligned with the public, not even the majority of those who voted for the proposition.
9th Circuit to Olson/Boies: No access to Prop 8 internal docs
December 14th, 2009
On the 4th, we reported that a three judge panel had blocked the turn-over of insider communication of the Proposition 8 supporters to Ted Olson and David Boies. Olson/Boies are suing to have Prop 8 declared in violation of the Federal Constitution and are using as part of their argument the fact that Prop 8 is primarily based in anti-gay animus.
But they will have to do so without access to documents that could prove that the campaign’s strategy consisted of inflaming anti-gay bigotry. (SFGate)
In a unanimous ruling Friday, the Ninth U.S. Circuit of Appeals tossed out the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.
Walker had said lawyers for two same-sex couples and a gay-rights group were entitled to see internal memos and e-mails between Yes on 8 strategists to look for evidence that the campaign had exploited prejudice against gays and lesbians.
The trial starts January 11th.
No Prop 8 insider documents for Olson/Boies
December 4th, 2009
Part of the Ted Olson/David Boies case against Proposition 8 is based on the argument that the campaign and its voters denied rights to gay couples out of animus. And to prove animus, they subpoenaed the internal communication of the pro-8 campaign.
Although the presiding judge agreed that such communication should be turned over to Olson/Boies, an appeal to the 9th Circuit has suspended that decision until they can hear it. (SF Chronicle)
The Ninth U.S. Circuit of Appeals in San Francisco suspended the order that Chief U.S. District Judge Vaughn Walker issued in October against backers of Prop. 8, which state voters approved in November 2008.
Prop. 8 sponsors argued that their discussions were constitutionally protected and that orders such as Walker’s would discourage candid communications in political campaigns.
The three-judge appeals court panel said the sponsors “have made a strong showing that they are likely to succeed” in their arguments. The court, which held a hearing on Walker’s order on Tuesday, said it would issue a ruling soon.
This always seemed a bit of a long-shot to me anyway.
October 27th, 2009
One of the chief arguments against same-sex marriage (especially that of Catholics) is that the purpose of marriage is to ensure that procreative activities occur within stable families best able to raise the resulting children. And when challenged about the elderly or the barren, the argument is that while some specific married persons cannot procreate, their activities are procreative in nature.
So it is with interest that we observe an amusing anecdote that has emerged from the Olson/Boies challenge to Proposition 8. (NYTimes)
The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”
Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95, and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”
Mr. Cooper said no.
As Judge Walker is not willing to buy into religious presumptions, Mr. Cooper may find it difficult to articulate in this case just exactly why the voters can have excluded a subset of the populace from enjoying the rights afforded to other citizens for reasons other than animus. And if he is unable to do so, that may bode well for this lawsuit.
Olson/Boies Lawsuit Survives First Hurdle
October 14th, 2009
There was a hearing today regarding whether the lawsuit to overturn Proposition 8 brought by Ted Olson and David Boies should be thrown out in summary judgment. (SF Chron)
Chief U.S. District Judge Vaughn Walker, in a ruling from the bench in San Francisco, said a trial was needed to resolve crucial issues, including whether gays and lesbians are persecuted minorities entitled to judicial protection from discriminatory laws. He has scheduled the trial for January.
And in a clue to Judge Walker’s thinking,
But Walker said the Supreme Court, in striking down laws against interracial marriage and by allowing prisoners to marry, had defined the right to wed as fundamental without limiting it to certain groups.