Pride Jewelry

by Matthew S. Bajko and Cynthia Laird
m.bakjo@ebar.com

Plaintiffs’ attorneys David Boies and Theodore Olson are wrapping up their case in the Prop 8 trial.

As lawyers for the plaintiffs put their last witness on the stand Friday morning, the judge in the case delayed closing arguments for several weeks so that he and the attorneys can go over the evidence in the two-week trial.

The case, Perry v. Schwarzenegger, began January 11 in U.S. District Court in San Francisco. Federal Judge Vaughn Walker is presiding over the non-jury trial in which two same-sex couples who were denied the right to marry are challenging the constitutionality of Proposition 8, which bans same-sex marriage in California.

During a noon press conference, attorneys for the plaintiffs said they had proved their case, while lawyers for the Yes on 8 campaign said their opponents had “fallen short.”

Andrew Pugno, an attorney for Yes on 8, told reporters that if the case were a political campaign, “I would say that they had a well-orchestrated presentation.”

“But this is a legal case about the constitutionality of Prop 8 and we feel they have fallen short of showing their case,” Pugno said. “As long as there is a reasonable basis for voters to decide what they did, the courts are hands off.”

He was pressed by reporters about whether he thought that his sexual orientation could be changed from heterosexual or homosexual but he refused to answer those questions.

For their part, attorneys for the plaintiffs said they had made their case to the judge.

“We are pleased to be finishing our case today,” said co-counsel David Boies.

“At the beginning of this trial we said we would prove three points: that marriage is a fundamental right; that gays and lesbians, and the children they are raising, are harmed from the prohibition of their being able to marry; and allowing them to marry will not harm anyone,” Boies said.

Boies said they have “proved all of those points.”

“Allowing gays and lesbians to marry is critical to the well-being of gay and lesbian people and the children they raise,” he added.

“Even their own witnesses have proven that,” Boies said, referring to depositions from a pair of Canadian professors where they acknowledged that granting gay and lesbian couples marriage rights would increase family stability and improve the lives of children.

Boies said that fear is driving opponents of same-sex marriage.

“The only excuse for Prop 8 is it is a remnant from past decades of the discrimination and unfounded fears of gays and lesbians,” said Boies.

Theodore Olson, who will be delivering the closing arguments for the plaintiffs, said that the right to marry is also a right to equality and “is something the Supreme Court has said again and again is a fundamental right.”

The defense expects to call two witnesses next week.

Last witness
On Friday, the plaintiffs put University of California, Davis professor Gregory M. Herek, Ph.D., on the stand. Herek, a social psychologist, teaches a course on sexual orientation and stigma.

Under questioning by plaintiff attorney Ethan Dettmer, Herek said that sexual orientation is not so much about who a person has sex with as whom they form relationships with.

“Sexual orientation at its heart is a relational structure,” Herek said. “It is really about meeting the needs of intimacy and attachment.”

He added, “There’s no inherent relationship between a person’s sexual orientation and their ability to contribute to society and live a happy, healthy life.”

Herek also discussed how in the 1970s, the American Psychological Association removed homosexuality as a mental disorder from its Diagnostic and Statistical Manual of Mental Disorders (DSM-II). Herek said the reason homosexuality was listed as a mental disorder in the first place was not because of empirical data to support it but rather because that was the common wisdom of psychiatrists in the 1940s and 1950s. Leading up to the change in 1973, in the 1960s and 1970s there was more research showing there was no problem with people being homosexual. The culture was also changing, Herek noted.

Dettmer asked Herek if homosexuality is a choice. Herek said that he has found the vast majority of lesbians and gay men, as well as most bisexuals, said they have experienced no choice or very little choice about their sexual orientation.

Herek also was asked about whether reparative therapy is effective. Herek responded that an effective intervention is one shown to consistently work, meaning it does what it sets out to do and doesn’t cause harm. Under those standards he said no, reparative therapy has been found to be not effective.

Herek referred to an August 2009 report from the APA that said there is insufficient evidence for reparative therapy and instructed mental health practitioners to avoid offering it.

Herek also talked about a study he did with several colleagues published in 2009 where they asked 2,200 people in the Sacramento area if being gay or lesbian is a choice. Of the respondents, 87 percent of the gay men said no choice or little choice; 13 percent felt there was some choice. Among women, 70 percent of lesbians said no choice. Among bisexuals, 59 percent of bi men and 45 percent of bi women said there was no choice.

In a study yet to be published, Herek said that 80 percent of gay men said there was no choice while 7 percent said there was a small amount of choice. Sixty-eight percent of lesbians said no choice, while 5 percent said small choice. For bisexual men, the breakdown was 38 percent choice and 22 small choice. For bisexual women, the findings showed 40 percent choice and 15 percent small choice. The sample size of the study was not given during Herek’s testimony.

Under cross-examination, defense attorney Howard Nielson argued that because homosexuality is a fluid construct of sexuality it would be impossible to define who is gay or lesbian and therefore impossible for the government to find sex orientation as a suspect class.

He asked Herek whether a person can label themselves gay and not feel part of the community. Herek said that is correct.

Nielson asked if it were correct that sexual orientation ranges along a continuum. Herek acknowledged that Alfred Kinsey talked about this scale from one to six in his Kinsey scale. Herek said it is generally assumed that the continuum exists.

Not all people who have homosexual attractions identify as gay, Herek said.

Nielson said that many men have sex with other men and never label themselves gay or bi.

Herek said that, yes, this is a phenomenon that has been observed.

Nielson also talked about how not all manifestations of contemporary use of sexuality can be adequately labeled as gay, lesbian, or bisexual.

Herek said yes, that is correct. Today’s youth, he said, now embrace the term “queer,” which used to be a derisive term. Many younger people now use that as an identity label, he said.

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