January 14, 2010
By Paul Hogarth
Rick did a great job live-blogging Dr. Ilan Meyer’s testimony this afternoon on what was clearly heavy emotional stuff to digest. Again, there was not much “law” in here per se — but it does really get to the heart of this case: homophobia is on trial. By bringing in an expert to argue that LGBT people suffer a psychological stigma that affects even trivial parts of their lives, the plaintiffs showed that merely giving legal benefits to same-sex couples in a “parallel institution” like civil unions is not sufficient.
It reminded me of the plaintiff’s case in Brown v. Board of Education (1954). The problem wasn’t just that black children were being sent to inferior schools with less resources — it was the mere separation that created the stigma of inferiority. In fact, the NAACP in Brown chose Topeka, Kansas because the black segregated schools there were comparatively better than in other places. California is like Topeka, in the sense that gays comparatively have it “better” here than most states because our domestic partnership law is one of the most comprehensive in the country.
So how would Dr. Meyer’s testimony help — on a legal theory — to overturn Prop 8? Well, he argued that the mere passage of Prop 8 — taking away the rights of same-sex couples to marry — was a manifestation of the lifelong stigma that LGBT people go through in everyday lives. The plaintiffs have to prove there is no way to separate Prop 8’s purpose from animus — and what was useful about Dr. Meyer is that he said Prop 8 itself (as opposed to its supporters’ motivations) is the irrational basis.
It’s good to go after the motivations of Prop 8 supporters (see Brian’s excellent post on Dr. Tam), but what I’m worried is the Court may discount that as a few right-wing nutjob who happen to support Prop 8. Again, it’s not just enough that bigotry was a motivating factor behind Prop 8 — we need to prove that all other factors link to bigotry, that the mere act of it was animus.
Like Brown, this case is going to rely heavily on scientific data and psychology — as opposed to legal theories and precedents that normally guide these cases. It makes it an unusual case that could be groundbreaking like Brown, but the risk is that it also could be rejected if the Court doesn’t believe the science. That’s why the defense cross-examination didn’t really push legal theories like they did yesterday — e.g., asking Dr. Peplau if gay people don’t “accidentally have kids.” What they sought to do today with Dr. Meyer was to impeach his credibility by questioning the whole stigma that gay people go through.
Homophobia itself is on trial here, which illustrates how much is really at stake here.