Equality On Trial

Liveblogging Day 3: Daily Summary

January 13, 2010

Daily Summary

By Julia Rosen

Wow, what a day. Paul Hogarth cranked out eight different liveblog posts and still found time to do some legal analysis during the breaks.

Rick Jacobs will be back at the helm tomorrow, but Paul won’t be going far. We are pleased to announce that Paul is going to stick around and do some more longer form analysis. It is part of our efforts to beef up coverage, now that the trial will not be televised. So expect a few posts a day from Paul, along with Rick’s liveblogging and mine and Robert’s blogging.

And with out further ado, here is the daily summary of Paul’s postings.

Good morning! My name is Paul Hogarth, and I’m the Managing Editor of Beyond Chron (www.beyondchron.org). I’ll be your Courage Campaign live-blogger for the trial today. I’m in the overflow room of the Federal Building, literally the only place where you can watch it on video — thanks to the Supreme Court injunction. We’ll hear later today if the injunction is lifted, but for now I’ll do my best to brief you all on what’s goin’ on …

[UPDATE] 8:49 The Defense’s cross-examination of History Professor Chauncey continues, and they’re asking him about how much — as a historian — public opinion on same-sex marriage has changed in recent years. The fact that in 2000, Vermont Governor Howard Dean was denounced for supporting civil unions. Lotsa statsitics on polling data are being thrown about. The generational shift is noted — young people support it 4 times as much as their grandparents.

Thompson: “Spring 2004 was a decisive turning point in public opinion on gay marriage, correct? It’s hard to think of any group whose opinion has changed more quickly, correct?”

Based on the line of questioning, they’re clearly trying to show how “radical” treating same-sex couples equally — that it’s a recent phenomenon. It’s a bit surreal listening to it, because anyone must ask — why is quick change towards acceptance bad thing? But the courts are an inherently conservative institution (conservative with a small “c.”) You don’t win a case in court by arguing innovative ideas; you argue based upon precedent, so that Judges can feel safe knowing that what they’re doing is consistent. Interestingly, however, two of the most noteworthy and landmark Court rulings — Brown v. Board of Education and Roe v. Wade — read very differently from most cases, because they rely a lot less on precedent than upon sociological data.

[UPDATE] 8:59 Thompson is now cross-examining Professor Chauncey about changing medical and psychological opinions on homosexuality. It’s very apparent, based on his line of questioning, that Thompson is making Chauncey admit that things are just hunky dory for gays and lesbians — that we’ve “moved beyond” discrimination. That shows like “Will and Grace” are popular, that “Philadelphia” and “Brokeback Mountain” were successful box office hits, and that gays have a “powerful ally” in House Speaker Nancy Pelosi. I’ve been concerned by how many times that Chauncey is agreeing with the cross-examination’s line of questioning, until Thompson asked him about changing public perceptions at Yale.

Chauncey: “I would hardly call Yale a bellwether of public opinion in the United States.”

Thompson: “Thank heavens.”

[UPDATE] 9:11 Thompson says “it is true that Americans believe that homosexuals are more likely to get AIDS than heterosexuals, correct?” Ummmh … doesn’t this kind of prove we still have a long way to go? Again, the line of questioning — and the defense is trying to prove — that gays are a powerful lobby.

The reason he’s asking all these questions is that one of the three legal factors to determine who is a “suspect class” is whether the group is politically vulnerable. If sexual orientation is deemed a “suspect class,” it would be a big breakthrough for us — because then any law that discriminates against them would have to pass strict scrutiny. So far, only three state courts — California, Iowa and Connecticut — have recognized sexual orientation to be a “suspect class” and not coincidentally all three of those state supreme courts granted marriage equality for that reason.

[UPDATE] 9:17 Thank you for the comments! I’m new at this live-blogging, and it’s hard. It’s hard to transcribe the line of questioning, because it’s going rather quickly. But I will take the feedback to hear about separating that from my commentary. For those of you who don’t know me well, I used to intern for EQCA when I was in law school, graduated from Golden Gate in 2006 and have written extensive legal analysis at Beyond Chron on the issue of marriage equality. So I hope my commentary is helpful.

[UPDATE] 9:21 The last post was getting long, so I started a new one. Now, Thompson is going over statistics of Don’t Ask Don’t Tell.

Thompson: “Courts used to be able to confine homosexuals based on their ‘pathology.’ That doesn’t happen anymore, correct?”

Chauncey: Yes

T: “California, Iowa and Connecticut have all granted the rights of gay couples to marry. Doesn’t this measure an increasing acceptance of homosexuality?”

C: “Not really. Those court decisions went against much of public opinion.”

At first, I was glad that Chauncey answered this question that way — to show we still have a long way to go. But again, it makes me nervous for the reason that courts are an inherently conservative institution. Chauncey has now just admitted that CA, IA and CT courts are more the exception than the rule when it comes to jurisprudence on the issue of marriage equality, “outliers” as a lawyer would say. Rarely — think Brown and Roe — do courts deviate from tradition and precedent when it comes to decisions.

[UPDATE] 9:32 Now Thompson is getting absurd. He is asking Chauncey a whole line of questioning about how many religious groups and churches support marriage equality, that they are evolving. Finally, (thank God — no pun intended) Chauncey has pointed out that the religious groups he cited — MCC, Unitarians, etc. — are not the majority of Christian groups.

Chauncey: “There’s a growing debate [in religions], but most religious groups are not with us.”

Thompson: “Most evangelicals oppose same-sex marriage, but isn’t it true that demonization of homosexuals has become less accepted?” Now, they’re showing some video footage of Pastor Rick Warren — who said that everyone should be accepted and show “common grace to each other” but we shouldn’t be “redefining marriage.”

[Complaining that we can’t be bigots anymore reminds me of what Jon Stewart said on the “Daily Show” after Maine after voters passed Question 1 (note: I traveled to Maine, and was very involved in the “no” campaign.) After quoting a right-winger who complained that homophobia is less accepted, Stewart says: “Well gee, if we can’t go after homosexuals — who can we? The Irish?”]

[UPDATE] 9:40 Finally! Thompson has brought up the 60 ballot initiatives “directed at homosexuals” — i.e., marriage amendments et. al. “How many of those were in California,” he asks. Thompson had asked Chauncey that isn’t true a lot of gays move to California away from more hostile places. In other words, he’s saying that because there have been fewer homophobic measures in California than the rest of the country — that somehow we’re a gay mecca and everything’s okay.

[UPDATE] 9:43 Now, Thompson just quoted from Barack Obama’s The Audacity of Hope that a “special place” should be “carved out” for gay relationships — i.e., civil unions. Because the plaintiff’s case is that Prop 8 was motivated by animus (anti-gay bigotry), Thompson is asking Chauncey if “isn’t it possible for someone to have the same opinion that President Obama articulated and is not motivated by animus?”

Because the federal courts have not recognized sexual orientation to be a “suspect class” (at least not yet), laws that discriminate do not violate equal protection as long as there was a “rational basis.” What that means is, as long as the Court can literally dream up a rational basis for justifying the law, it is okay. Romer v. Evans (1996) was an important case, because the Supreme Court struck down an anti-gay law — not because the only possible reason to pass it was animus, or IRRATIONAL BASIS. So under this standard, if the defense can prove that there were other, non-bigoted reasons, for passing Prop 8 they could win.

[UPDATE] 9:51 SF Deputy City Attorney Therese Stewart is objecting to Thompson’s line of questioning. “Chauncey was called as a witness based on his expertise of the history of anti-gay discrimination, not what people were intending when they voted for Prop 8.”

[I’ve said it before and I’ll say it again. Therese Stewart is one of the most impressive trial lawyers I know.]

9:55 AM: Now, Thompson is getting Chauncey to admit that support for gay marriage has not always been the unanimous opinion of the LGBT community. Bringing up Gay Male Liberation opinions that they didn’t approve of marriage.

T: “Some gay liberationists felt that marriage would dishonor the intimacy of these relationships, correct?”

[Obviously, Thompson is getting Chauncey to admit there are reasons for opposing gay marriage that are not based on hatred of homosexuals. If the defense can prove that not everyone voted for Prop 8 because they hate gays, they can try to distinguish this from the Romer case. But I’d say that most of the evidence Thompson is raising is historical — that the LGBT rights movement in the Sixties had a lot of radicals who didn’t approve of marriage. Did gays who don’t want to get married really vote “Yes” on 8? By 2008, you can’t honestly say that the most left-wing radical queer wanted Prop 8 to pass.]

Chauncey: “The right to marry evolved and became a more widespread and deeply held goal of the gay and lesbian community.”

[Thank God!! Now, Thompsons is asking for a ten-minute break. Chauncey’s answer clearly caught him off guard.]

[UPDATE] 10:26: We’re back from a short intermission — so I’m starting a new thread.

Thompson: Quoting a California legislator (Jack O’Connell) who supports domestic partnerships, but has difficulty supporting gay marriage. “Marriage is too steeped in tradition …” Wasn’t it the opinion of LGBT groups in the 1990’s that supporting civil unions was an “equitable” position?

Chauncey: This was a time when marriage was seen as far too distant a prospect — given the opposition to it. So in this context, they would be grateful to have supported it.chrome://foxytunes-public/content/signatures/signature-button.png

Thompson now wants to show video of people who were beaten up for supporting Prop 8. SF Deputy City Attorney Therese Stewart objects, because it is not relevant.

[Opponents of gay marriage love playing the victim. The irony of this is that during the Prop 8 campaign, “Yes on 8” folks tried to organize boycotts of businesses that gave money to “No on 8.” See: http://www.beyondchron.org/news/index.php?itemid=6222 — Once the Election was over, nobody talks about this anymore. All we hear about is “Yes on 8” people being boycotted and persecuted for their beliefs, when the EXACT SAME THING happened to our side before the election.]

Judge allows Thompson to continue line of questioning on religious groups being “defaced” — but won’t let him show a video.

T: Isn’t it true that some hostility to the LGBT community comes from these attacks on Yes on 8 supporters?

C: It seems unlikely on the face of it. You would have to bring a compelling case to me.

[UPDATE] 10:33 Thompson — Isn’t it true that people voted for Prop 8 based upon their sincere moral values?

C: Many people opposed desegregation and interracial marriage based upon their sincere moral values. [NICE!]

T: It’s part of the American tradition for people to vote based upon their moral religious views, correct?

[I thought we had separation of church and state in this country.]

Thompson now wants to show video coverage of the Wirthlins — the Mormon Massachusetts couple that objected that their kid was shown the book “King & King.” Judge approves — despite plaintiff’s objections — to show the video.

[start video]

Mr. Wirthlin said he was “shocked” that kids were learning that “men can marry other men.” Mrs. Wirthlin said, “Second Grade is too young to learn about homosexuality. They should at least wait until sex ed.”

Mrs. Wirthlin — “the tolerance that homosexuals called for is not reciprocated. We want to protect our children while they’re children. We don’t want them to have to deal with adult issues.”

[end video]

[UPDATE] 10:41: T: Shouldn’t parents who disapprove of gay marriage request that their kids not have ot learn it?

C: Well — what about if parents who disapprove of blacks and whites being together? Should parents be able to prevent tehir kids from reading about that in public schools? Gay marriage is a fact of life in Massachusetts. If parents have a problem with that, they can send thier kids to private school.

[Wow! I wish we had made that argument in the “no on 8” campaign. Thompson clearly is uncomfortable with how Chauncey is very effectively turning around all the “objections” parents may have about their kids being taught about gay marraige in schools, into — well, what about parents who object to their kids being taught about racial tolerance and interracial marriage]

Cross-Examination is over. Now, SF Deputy City Attorney Therese Stewart has re-direct.

S: Does Prop 8 say antyhing about when sex ed takes place? What parents can teach their kids? What parents can object to in what’s in the schools?

C: Yes.

S: Are there fairy tales (childrens books) of men and women falling in love?

C: Yes, of course.

S: Are heterosexual weddings considered an “adult issue” that children are not exposed to?

C: No, children are present and even play a role in heterosexual marriages.

S: How far back is there historical evidence of recognizing homosexuality?

C: In Puritan New England, case of Nicholas — although people did not call him a “homosexual,” he had developed a reputation over 30 years in his small town as someone who persistently indicated sexual interest in other males. At the time, people didn’t use identity — they used “character.” A lot of attention has been paid to the culture of romantic friendship in the 19th Century. What’s striking when you do the research are the moments — [talks a bit about feminist activists in the 1860’s who were attracted to other women, and gay men in early 20th century New York] — There were people at that time who identified themselves on that basis.

S: During the 60s and 70s, what were some of the priorities of the LGBT civil rights movement?

C: Fundamental priorities was to stop the policing of everyday life, raids on bars and restaurants — and to achieve fundamentla protections from discrimiantion in the workplace and housing. And to come out, and be openly known as gay free of such harassment.

S: Before the mid-70’s, were they trying to get the medical establishment to change its view?

C: Yes.

S: During the period when black civil rights were being sought, were there black people pushing segregation — not in favor of de-segregation?

C: Yes, there were debates in the black community — about what was the best place to go.

[This is good. Therese Stewart is taking on directly the notion that just because some gay people are not crazy about marriage (or want nothing to do with it) does not debunk the notion that Prop 8 was motivated by animus.]

S: Is there still employment discrimination today?

C: Yes- on the basis of sexual orientation.

S: Why do people move to California to find a more open society?

C: They do so to face hostility and discrimination in other places to live. Just like the Great Migration, blacks moving from the Deep South in the 1940’s.

[UPDATE] 11:01 More of SF Deputy City Attorney Therese Stewart’s redirect examination of Professor Chauncey.

C: In 2004, I had written optimistically that marriage equality was on the way … but since then, with the number of states passing constitutional amendments I am less inclined to believe this.

S: Mr. Thompson talked about religious organizations that supported marriage equality. What were some of the churches against marriage equality?

C: Baptists, Catholic Church — a whole range of religious groups that represent far more people than supportive churches.

S: [Quoting from a Vatican document re: recognition of same-sex unions.] Please read this:

C: [Reading Vatican statement] “There are no grounds to believe homosexual unions are equivalent to God’s plan to marriage and family. Homosexual unions” [more on how homosexuality is sinful and immoral]

S: Please read the Vatican statement re: allowing children

C: “Allowing children being adopted by gay couples would do violence to these children. Their condition of dependency would stunt their full human development.”

S: Please read the Vatican statement of legal recognition of gay unions:

C: “Legal recognition would mean not only the approval of deviant behavior — but would obscure basic values that …”

S: Are these statements more “moderate” views of homosexuality?

C: Compared to some statements, they are. But they express the fundamental view of gays being inferior.

S: Dr. Chauncey, this is a resolution from Southern Baptist Convention re: same-sex marriage. Please read fourth pargagraph:

C: “Whereas legalizing same-sex marriage would be societal approval of homosexual lifestyle, which the Bible calls sinful.”

S: Read the next resolution. [She asks him to quote from various excerpts of Southern Baptist REsolutions.]

C: “We oppose all media efforts to mainstream homosexuality … Whereas legalizing gay marriage denies the fundamental sinfulness of homosexuality … We urge all Christian pastors in California to speak out against homosexuality, and the urgent need to protect Biblical marriage. We pray the people of California to right this terrible wrong that the Supreme Court imposed.”

S: Are all these consistent with the religious beliefs voiced in support of Prop 8?

C: Yes.

S: Assume religious beliefs in favor of Prop 8 are sincere. Would you say they derive from stereotypical views of gays?

C: Yes.

S: When religious people supported segregation and opposed interracial marriage, was that also rooted in prejudice?

C: Yes. These beliefs, though sincere, are shaped by the culture that they believe. I don’t question the sincerity of people in the South who believed that interracial marriage was against God’s will.

S: Has there been significant progress? Is there still significatn discrimination against gays?

C: Yes and yes.

[Stewart wants to show video of Mr. Tam, a Prop 8 supporter. Thompson objects, because Chauncey had not been deposed on this subject. Stewart says Thompson opened the door on the subject by trying to argue there are non-bigoted reasons for supporting Prop 8. T says that Mr. Tam had “nothing to do with the campaign” (although Mr. Tam was an official proponent of Prop 8.) S vigorously disagrees with Thompson’s assertion that Mr. Tam had “nothing to do with the campaign.”]

This must be some pretty explosive stuff — if they’re objecting so strenuously to this.

Judge appears to agree that, given that Tam was an “official proponent” it should be viewed. Moreover, Stewart points out that Thompson opened the door, by asking Chauncey to comment on Prejean’s earlier comments. Judge agrees to view it.

BEGIN DR. TAM VIDEO:

So far, nothing too exciting. This is a video of Dr. Tam’s deposition in the lawsuit (12/01/2009.) Tam says he became an official proponent of Prop 8, because ProtectMarriage.com invited him. As an official proponent, he dedicated substantial resources. He organized several rallies — attended by thousands of voters (aggregate) — coordinated volunteers from Asian American community and raised a lot of money. Tam says he communicated with Ron Prentice, Frank Schubert and Andrew Pugno. Tam is explaining the dissemination of info to churches about the “Yes on 8” rallies. Various pastors spoke at the rally. Mentions that Ron Prentice spoke at several of the rallies. Tam also says he authored a lot of writings for the passage of Prop 8, and sent it to Chinese newspapers.

Tam is now being asked to read one of the flyers he wrote.

[INTERRUPT VIDEO]

Now, Stewart is asking Chauncey to read the same flyer. [JUDGE WON’T LET HIM READ IT OUT LOUD.]

S: Do you believe that this flyer reveals more hostility towards gays than what we’ve talked about?

C: No. It talks about the right to marry leading to prostitution and having sex with children. And gay marriage is a product of San Francisco government run by homosexuals. This “repeats the theme” of a long history of “anti-gay demonization.”

[RESUME VIDEO]First paragraph of Tam’s flyer: “SF city government is under rule of homosexuals. After legalizing same-sex marriage, they want to legalize prostitution. What next?” Dr. Tam confirms that he wrote that. What does gay agenda mean to you, Mr. Tam?

“Do you believe that part of the gay agenda is the legalizing of sex with children?” Yes, says Mr. Tam. Tam is the Executive Director of the Traditional Families Coalition — which advocated the passage of Prop 8.[INTERRUPT VIDEO]

Now, Stewart wants Chauncey to look at the second paragraph of that “Message from Bill Tam.” It says the education curriculum in Alameda County will “brainwash” children into supporting gay marriage.

[RESUME VIDEO] Dr. Tam says he participated in three public debates on Prop 8. He was asked by ProtectMarriage.com to take part in that debate. Now, they’re asking Tam to look at a news article about the Prop 8 debate — Tam was quoted that children would be harmed if Prop 8 fails, because they would be “exposed to homosexuality.” Tam agrees with that statement.

Tam says: “If same sex marriage is legalized, every child will grow up thinking they can either marry John or Jane. That would cause a lot of problems for the parents. I also talked about the problem of 1st graders attending a wedding of two lesbians.” [INTERRUPT VIDEO]

S: Regarding whether children can think they can grow up gay. What do you think?

C: It’s consistent with the major ads in the Prop 8 campaigns — it reinforces the deep fear that simple exposure to same-sex marriage will lead children to become gay. The phrasing here is that the issue here is not just marriage itself — but overall acceptance of homosexuality. They’re not afraid of just gay marriage. They’re afraid of kids learning about gay people.

[RESUME VIDEO] Dr. Tam: “We believe civil rights to be about skin color — something you can’t change. My concern is that if homosexuals will define themselves as another minority. That to me is a concern.”

Lawyer now quotes Tam saying “gay marriage will encourage kids to expeirment with the gay lifestyle — which carries with it all sorts of disease.” Tam confirms that he said this, and then says it means “that kids will be able to have an option. That they will be able to choose who they can marry. My daughter told me kids in her school that girls who had problems dating boys, can just go ahead and try girls. So children did experiment.”

What do you mean by diseases? “I meant sexually transmitted diseases.” Tam says it’s very easy to “find reports” online that gays have a “higher proportion” of getting AIDS and syphillis than straight people. [INTERRUPT VIDEO]

Stewart asks Chauncey — How does the messaging relate to prior messaging of antipathy towards gay people?

C: It’s pretty consistent we’ve seen in earlier campaigns. The theme that homosexuality is a choice. That children are exposed to homosexuals in any form are likely to become homosexuals — deep fear of instability of children’s sexuality. It’s premised on a notion of inequality and a strong hostility towards homosexuality. [References Anita Bryant]

[RESUME VIDEO] Tam is being shown Traditional Families Coalition newsletter, and he agrees he had editorial control over this document. The newsletter speaks out against Brokeback Mountain for disseminating the notion that homosexual affairs are “more noble” than traditional affairs. In Scandinavia, said Tam in newsletter, gays teamed up with liberal politicians to lower the age of consent for sex and legalized prositution — which demeaned marriage. [INTERRUPT VIDEO]

Thompson objects the relevance of submitting the next document. Judge sustains the objection.

[RESUME VIDEO] Mr. Tam’s columns are published in Chinese Christian Herald. And he wrote a book called “America, Return to God.” In these columns, Tam said that “children would benefit the most” if Prop 8 passes, because the children would then have “both sexes” as parents which is “good role models.” Kids adopted by gay couples (which will happen if Prop 8 fails) do not have “two genders” as parents. Now, plaintiffs’ attorneys are showing Tam columns he wrote about “parenting.” [INTERRUPT VIDEO]

Thompson objects, because we don’t know when those columns were written – and that Tam’s first language is not English. Judge tells Stewart that we have “exhausted this topic.”

[UPDATE] 12:06 Stewart asks Chauncey if there’s any messaging that Tam has mentioned tha ..

C: It re-inforces for me that, while gay marriage was the topic at hand, the arguments being made for Prop 8 were really about gay rights. It expressed the kind of hostility of homosexuality, and draws on the long history of hostility and fear.

S: Based on your knowledge of history, has there been a gay agenda?

C: That term was used to support referenda that overturn gay rights measures [Anita Bryant, et al].

S: In Mr. Thompson’s questions, he asked about Christian teachings that “everyone is a sinner.” Have there ever been efforts that try to forbid adulterers of the right to marry?

C: No, I’m not aware of that.

S: What did you mean in your books about “erased”?

C: For a long time, there was no real study of gay history. It was actively discouraged, even within my career. I found when I wanted to write a dissertation on gay history, it would be “career suicide.” When I got a professor job in 1991, I was only the second in the country to get a tenured-track job in LGBT studies. There’s very limited literature to study on that.

[LUNCH BREAK — WE WILL RESUME AT 1:40 PM]

[UPDATE] 12:58 The Court is now on lunch break — having concluded the testimony of Professor Chauncey. I had a tough time doing a rough transcript earlier in the morning, injecting my opinions and legal analysis along the way. But I think such commentary is more appropriate during these intermissions — so I can focus more on transcribing what’s being said. Now that we’re on break, here are my thoughts.

Dr. Tam’s video was critical in showing how an irrational fear of gays motivated at least some supporters of Prop 8. Kids growing up with gay parents isn’t going to change whether or not we have gay marriage — so the bigots who want to take away our rights to marry aren’t just against that — they simply don’t want us to exist. I don’t see how we can’t prove that hate was at least A reason.

Meanwhile, the defense tried this morning to prove that Prop 8 was motivated by other reasons. They don’t “dislike” gays — they just believe in the “tradition” of marriage, “protecting” the children, or allowing parents the freedom to choose how they want to raise their kids. Just because there are bigots out there, they said, there was still a rational basis for why Prop 8 passed.

The reason that’s effective is because the federal courts — at least not yet — have not found sexual orientation to be a “suspect class,” so laws that discriminate against them are okay as long as some rational basis can be found to justify it. (If gays are a “suspect class,” then the burden is on the law to prove it was passed for a compelling reason that was narrowly tailored through the least restrictive means.) But Romer v. Evans (1996) showed when the US Supreme Court overruled an anti-gay ballot measure in Colorado, IRRATIONAL BASIS (i.e., bigotry) is not acceptable — even though gays are not a “suspect class.”

I’m not sure, however (and I’ll have to re-read the case) if Romer explicitly said that animus alone could not invalidate an anti-gay law. If so, you also have to prove that there was no other possible justification for passing Prop 8 besides bigotry. Therefore, the plaintiffs also must prove not only that Prop 8 was passed by bigots — but that there simply was no other reason to pass it. The most effective way to do that is to link the other reasons cited back to bigotry. That’s what the plaintiff side did this morning.

One of the most persuasive moments (in my opinion) was when Chauncey said segregationists and those who opposed interracial marriage truly and honestly believed they were upholding “tradition.” This was effective because it means the “tradition of defining marriage” simply comes back to a hostility against gays and lesbians. I hope the plaintiff side elaborates on this point further. We can certainly prove that bigotry motivated Prop 8. But we also should prove that the other reasons being cited — “tradition” — really come back to irrational bigotry in some other form.

Chauncey’s rebuttal to the “gay marriage will be taught in public schools” line that — “do we object to teaching interracial marriage” — also nicely fell into that line. When Prop 8 supporters talk about parents having the right to raise their children, and “protecting” them, it really is based on an irrational fear of homosexuals — that leads back to the bigotry argument.

As for the Judge, he was far less engaged today than he was in prior days — and quite deferential, I would say, about admitting evidence. But it’s clear he was not willing to keep going with the Dr. Tam testimony (viewing it as tangential), and the evidence was already overwhelming. Again, to prevail I believe the plaintiffs will have to link the reasons cited for passing Prop 8 — “tradition” or “protecting children” — is simply a subterfuge for the real beliefs that homosexuality is “wrong” and “sinful.”

UPDATE: Justice Kennedy’s opinion in Romer v. Evans: [The Colorado anti-gay amendment’s] sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests [my emphasis]. Unfortunately, the Supreme Court is likely to interpret this as saying that just because you prove animus factored into Prop 8 does not make it unconstitutional. You also need to prove that there were no other reasons besides animus. In other words, we would need to link the other possible reasons — tradition, protecting children, parental rights — back to an irrational basis.

[UPDATE] 1:53 PM: We’re back from lunch … no news yet from the Supremes about whether the trial can be broadcast on YouTube. I believe that Frank Schubert (who ran the “Yes on 8” campaign in California, and “Yes on 1” in Maine) is in the same room with me right now. I’m doing my best not to pay attention to him … they only want us to be angry at them.

They have just trained a new witness: Dr. Letishia Peplak, social psychologist from UCLA — an expert on relationship research. She has done research work on same-sex couples since the 1970’s, and has been a pioneer in this field. Not sure who the plaintiff’s attorney is. Will hopefully get the name later …

Peplak says 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: Many people view getting married as an important life goal. 91% of Americans have either been married or plan to.

Attorney: Do lesbians and gay men feel the same way?

Peplak: Yes, most would want to get married if they could.

A: Do people value domestic partnership as much as marriage?

P: There were studies to see how many gay couples took advantage of domestic partnerships. Whereas only 10-12% of gay couples in the first year that civil unions took advantage of it, 37% of Massachusetts gay couples took advantage of marriage during the first year. This suggests that gay couples are three times more likely to act on marriage than civil unions …

[UPDATE] 1:57 PM: The US Supreme Court just ruled — no cameras. It was a 5-4 decision. www.scotusblog.com

P: Married couples live healthier, less likely to engage in dangerous behavior, less likely to smoke, less likely to drink in excess.

A: Why?

P: Selection effect. Maybe people who are healthier are more likely to attract a partner. The second theory is the “protection effect” — there are things associated with marriage that enhance and contribute to health.

A: Why a protective effect?

P: Four reasons — Marriage brings a change in identity. Attaining a life goal brings higher self-esteem. Marriage also brings a sense of maturity — “now I’m an adult, so I’m going to be more responsible. I’m no longer just in it for me — I’m in it for my partner.” There are ways for married couples to help each other and support each other. There’s a broader social network for when people get married. Marriage links two families — so that now you have two networks or groups of people to help them.

A: Present four articles that Dr. Peplau had looked at to base her opinion on the benefits of marriage. Now let’s talk about similarities of gay and straight relationships. Have there been studies to prove that?

P: Yes, there have been quite a few and it has been well received.

A: What are the primary topics of studying this body of work?

P: It has studied the quality of same-sex relationships. We’ve looked at stability, durability,– and the process of these relationships.

A: Does this research show there’s a similarity?

P: One of the striking things about it is the consistent findings of great similarity across couples.

[UPDATE] 2:07 PM: Peplau — Researchers have done observational studies, they have measured the “level” of love. How much warmth does the couple express for each other? What’s the quality of their interaction? Despite many different methodologies, the consistent findings are that gay and straight couples are very similar.

A: Any stereotypes?

P: Yes, there’s a stereotype is that same-sex relationships are inferior and less stable. But there’s no foundation for it.

A: Has relationship been done comparing stability of gay v. straight relationships?

P: Yes. One of the best studies was by Carpenter and Gates in the journal Demography. 61% of lesbians said they were in loving cohabiting relationships, with 46% of gay men. 62% of heterosexuals.

A: Are there professional organizations that have weighed in?

P: My own organization — American Psychological Association has recently been adopted a position paper on that topic. [She then is asked to review that position paper.] One of the findings says “Many lesbians and gays have formed durable relationships.” Another finding is “satisfaction, stability and commitment is relatively the same between gay and straight.”

A: Is it true that gay relationships don’t last as long as straight ones?

P: No evidence, but it’s been suggested. One reason could be because marriage has a stabilizing form. Another is the stigma of homosexuals.

JUDGE (First time he asked a question today): What’s the difference between married straight couples and co-habitating straight couples? Is there a difference in the durabiilty?

P: Yes. On average, straight co-habitating relationships are shorter than straight married relationships.

[UPDATE] 2:18 PM: Peplau talks about the rate that couples argue with each other.

A: Is there a consensus in the research that the similarity exists between gay and straight couples?

P: Yes. There is a similarity.

A: Do you have an opinion whether gay and lesbian couples would benefit by having the right to marry?

P: Yes, and I support it. And the American Psychiatric Association has issued a policy statement.

[UPDATE] 2:23 PM: Plaintiffs have submitted the American Psychiatric Associations’ policy paper on gay marriage — “In the interest of maintaining and promoting mental health, APA supports gay marriage.”

Attorney: Have there been any studies on the effects of gay marriage on same-sex couples?

Peplau: My belief is based on the large body of research on heterosexual couples. Based on that, I would predict that same-sex marriage would have a beneficial impact. I looked at the marriage and divorce rate in Massachusetts — during the 4 years before marriage equality, and the 4 years after. What’s very clear to me is that there has been no change …

[So excuse me … tell me how marriage equality harms traditional marriage?]

A: What is the effect of same-sex marriage in Massachusetts on same-sex couples [in a survey]?

P: Many say that it makes them feel “more committed” and that their families are now “more approving.” They say they felt “less worried” about legal problems. One-third now said that they now have health access to employers which they did not have access to. 25% of the couples in the survey had children — and 95% of them said their children had benefited from the marriage.

A: What’s your opinion on what impact gay marriage will have on the stability of heterosexual marriage?

P: It would have no impact. By “stability,” we mean two things. Does it mean fewer straight people will marry (“entry”), and does it mean we will have more divorces (“exit”)?

BEST QUOTE FROM PEPLAU: “I have a hard time believing that a straight couple is going to say, “Gertrude we’ve been together for 30 years. But now we have to throw in the towel because Adam and Stewart down the street are getting married.”

A: Let’s talk about exposure to marriage. What percentage of married couples would be same-sex couples?

P: I would say about 2% of all couples would be gay.

[UPDATE] 2:46 Nicole Moss (the defense attorney) is now going to cross-examine Dr. Letitia Peplau.

Moss: Your first opinion — that marriage confers physical and psychological benefits. You’re talking about straight couples, right?

Peplau: Yes.

M: Because you don’t have data on same-sex couples, right? There has been no proof, right?

P: Research on straight married couples are relevant — and there have been studies on gay couples.

M: And there’s only been one study on gay couples, right? And there haven’t been any studies done on the physical and psychological benefits of domestic partnerships, right?

P: There has not been a direct comparison between marriage and civil unions — but we can hypothesize the differences.

M: Civil unions — there’s been relatively no research done on their benefits.

P: The reason there haven’t been many on government statistics on registered domestic partners.

M: Some of the benefits of straight couples — You can’t rank or assess which aspect of marriage has caused the observed increase.

P: I’ve outlined a number of factors, and I believe they work together and simultaneously. I think it would vary from one couple to another.

M: To the extent that domestic partners can get health benefits, wouldn’t they be healthier too?

P: There’s no doubt that civil unions have been beneficial to same-sex couples. But they are not equivalent to marriage. And if you’re not allowed to be in the most highly regarded institution in the country, civil unions are not going to be the same. We all know the impact that stigma and second-class has on people, and on relationships. It seems to me that being prevented by the government from being married — is similar to other stigmas we have seen.

M: You talk about marriage being a legal contract — and an enforceable legal contract.

P: No, not really. Marriage is about enforceable trust — it enhances the trust and commitment that these acts will be enforceable. People associate with marriage a seriousness and gravitas that people will take their relationships seriously.

M: But don’t people in domestic partnerships also take their relationships seriously?

P: One thing about couples is that they are very resilient. Many gay couples — without domestic partnerships or marriage- have lasting relationships. But it is obvious to me that these relationships will be enhanced and stabilized by having access to marriage.

[UPDATE] 2:52 PM: Barriers to exit in a marriage are a factor. Versus civil unions, Peplau says getting out of a civil union isn’t really all that recognized or understood.

Moss is citing a study by Kimberly Baulson that Dr. Peplau had relied upon.

M: Research found that same-sex couples not in civil unions were more likely to break up than those in civil unions. There was a significant difference. [She moves it into evidence]

M: Dr. Peplau, you talked about how gay couples are similar to straight couples. Let’s talk about gay men … Would you agree that the practice of monogamy in gay male relationships is different than in heterosexual relationships?

P: One way in which gay men differ is that there’s a higher percentage who say they don’t value monogamy. Sexual exclusivity is not a marker of a happy marriage among gay men.

M: Referring to study she did with David Blasben. Sexual Exclusivity vs. Monogamy in Gay Couples. She wrote that sexual exclusivity may be “more the exception than the rule” in gay male relationships. That sexual affairs can be a “complement” to a steady relationships.

P: The article is 25 years old — an “oldie.” I think we’d have a different study today. Back then, nobody was talking about same-sex marriage. Gay relationships were far more secretive, there was much more of a stigma. I’m not retracting what I said of what I found at the time. What we’re talking about is whether statements are accurate today.

[UPDATE] 3:01 PM: As an openly gay man, I find the current line of this cross-examination to be extremely offensive.

M: You write about a study that says 36% of gay men said it’s important to be monogamous, vs. 70% of lesbians, 80% of straight women and 75% of straight men. Is it still a fact that less gay men believe that monogamy is important?

P: I agree, as a generalization that the percentage differs.

M: You found 74% of men in closed relationships had sex with at least one other person.

P: It’s been probably two decades since I’ve reviewed that paper. This study was a sample of gay men in Los Angeles, and is not necessarily the most representative sample.

M: Regarding your desire of gays and lesbians to marry, you said 74% of gays and lesbians say that they would like to get married some day … [Bringing into evidence studies on gays in Belgium and Netherlands …]

P: I am not an expert on marriage in foreign countries … I can read the statistics, but I would not be qualified to comment.

Moss is providing evidence on married and single people in Belgium. Dr. Peplau, would you agree a conservative estimate of gay couples in Belgium is 2%? [Plaintiff sides objects because she’s only an expert on America, but Judge overrules]

M: If 2% of the population in Belgium is LGBT, that would mean we have XXXX gay married couples. The Belgian government has a list of gay married couples — and breaks it down by men and women, broken down by year. So there are 11,000 same-sex married individuals in Belgium.

[Moss is walking Peplau through this painstaking process of calculating the number of couples in Belgium. It’s a little difficult and frustrating to follow.]

3:23 P.M.: Judge has finally lost patience with Moss. “Can you ask the bottom-line question?”

M: If 5% of gay couples have taken advantage of same-sex marriage, and 43% of straight couples have taken advantage of marriage that would be a significant difference, right?

P: Wait a minute … You’re not saying that 5% of gays are getting married. You’re really saying that 5% of married couples are gay.

M: No, I said that 5% of gays in Belgium are getting married.

P: But I”m struck by the difference between that data (based on your hypothetical) with the research I have done in Massachusetts. Assuming your hypothetical are correct, it may be because Americans are more “pro-family.”

[UPDATE] 3:28 PM: Now, Moss is bringing out statistics from the government of the Netherlands. “Thankfully, unlike in Belgium they have their information available in English — so I didn’t have to translate it.”

According to Moss’ hypothetical math calculation, 8% of Dutch gays are married — and 42% of Dutch straights are married.

P: It would be a difference, but I would have no way to understand or think or explain what that’s telling us.

M: Do you agree that one of the reasons of marriage is that (hopefully) fewer children will be born out of wedlock?

P: Well, by definition. Because “wedlock” means “out of marriage.”

M: Are gay and straight couples similarly situated about accidentally having children out of wedlock? Do you agree that gay couples accidentally have children? It has to be planned — it has to be an intentional birth, right?

P: I would agree that same-sex couples do not have accidental pregnancies.

[New York high court upheld banning gay marriage on the rational basis that straight couples “might” have kids, and so the state has a “greater interest” in allowing straight people to get married. So the NY constitution does not mandate marriage equality. This is clearly what the defense is pushing for.]

3:34 PM: Moss asks Peplau if she’s not an expert on the “social meaning” of marriage.

P: Well, I’ve done some analysis of public opinion on marriage. But I’m not a sociologist. On the other hand, I’ve done studies on the attitudes of marriage — division of labor, etc.

M: We’ve established that you haven’t done research on the relative benefits of domestic partnerships.

P: I have not done that empirical research, no.

M: The only survey on the benefits of gay marriage is the one Massachusetts survey.

P: Well, I’ve drawn conclusions based upon numerous studies on the effects of marriage.

M: Was it a representative sample?

P: It was a volunteer sample — based upon 500 people’s opinions that were solicited.

M: Yeah, but this survey was disseminated by a large gay and lesbian rights advocacy organization.

P: The group had a large e-mail list, so the Mass Dept of Health chose to collect information.

M: We know that 40% of the respondents in the survey said they got married because of “society’s visibility” of gay relationships.

P: Well, they were asked to pick a whole series of choices (and could do more than one.) 93% chose “love.”

M: Wasn’t the sample 90% white? And the average age of respondents was 48 years old (… high levels of education, 52% of them were wealthy.)

P: Well, lesbians and gays on average have high levels of education.

M: And it was a self-reporting survey, right?

P: All surveys are self-reporting. That’s the nature of that kind of research.

M: So there’s no way of knowing if the “happiness” of these people is representative of gay couples?

P: That’s an issue that every study has done.

M: But we know that it was sent out by a gay rights advocacy organization. And 40% of them said (as one of the 3 reasons) the need to have gay relations be visible?

P: Gay marriage is a well-discussed national issue. Every gay person who gets married (although its private) knows that it will be

M: You said that gay marriage won’t hurt straight marriage, and won’t increase the divorce rate. What about the harm to the institution of marriage — as opposed to harm to individual married couples?

P: The issue — as far as the health of the institution of marriage — is “entry” and “exit” (i.e., divorce.) That’s what I’m concerned about …

M: Quoting in a study by Peplau — “there is growing acceptance of divorce, and unmarried co-habitation.” You also state that no-fault divorce laws make it easier for couples to end marriage. And those are factored by “growing individualism.”

P: Part of the studies are that in earlier terms, when a more important part of marriage was marriage as an economic unit — that over time, we have come to expect personal fulfillment through marriage as a bigger factor. “Marriage is no longer just a place where the laundry is made … It’s more about achieving our potential.”

[UPDATE] 3:52 PM: Peplau talks about “shifting American values (individualism) has changed marriage. The gay rights movement has had nothing to do with those. The higher divorce rate is completely independent of the marriage equality movement.”

Moss is now quoting the fluctuating divorce rate in Massachusetts.

P: If you look at these kinds of data, what you see is minor fluctuations. That’s why my study is that there really hasn’t been a change since gay marriage was legal.

M: Have you analyzed divorce rates in Massachusetts with other states, and nationally.

P: No, I did not.

[The Prop 8 side is opening up a can of worms. Massachusetts currently has the lowest divorce rate in the nation.]

P: If we really want to get technical, the average divorce rate in Massachusetts is lower now than when it was before 2004.

M: As to the effect same-sex marriage will have any impact on individualism, you don’t know because you’ve done no studies?

P: The question is do I think gay marriage will lead Americans to become more or less individualistic?

M: Really, have you studied that issue so you can offer an expert opinion on it. [Her tone is hostile and obnoxious.]

P: My opinion that gay marriage will not cause harm is based on a lot of research of marriage and same-sex couples. All the theories about it lead to “no harm.” Any possible theories that it would cause harm are not there. And I’m confident with that asssessment.

RE-DIRECT EXAMINATION BY PLAINTIFF’S ATTORNEY:

A: Do you believe there is more enforceable trust in marriage than domestic partnership?

P: Yes, I believe that there is.

A: On the issue of exclusivity — that study of gay men was done 25 years ago, when there was no marriage?

P: And … there were no domestic partnerships.

A: So none of the findings of that study have anything to do with married couples?

P: No it doesn’t.

A: And there are no restrictions in the country of exclusivity on straight married couples?

P: No, there isn’t.

A: Do you know how long opposite-sex marriage has been legal in Belgium and Netherlands?

P: I imagine it’s been a long time.

A: Individualism — Has your study found that gay couples have more emphasis on individualism than straight couples, or less concern ofr the well-being of children?

P: No.

A: Massachusetts — Do you feel you need more data from them to have an opinion?

P: I don’t, because my opinion is based on so much more than the Massachusetts data.

It’s 4:09 p.m., and the Court has adjourned for the day. What did we learn this afternoon? That when faced with overwhelming evidence on the value of marriage, the stability that married couples bring, that same-sex couples are just as capable of loving each other — that the opposition will sink to start scapegoating gay men, bringing out all the worst stereotypes that we’re promiscuous and spread diseases. It doesn’t matter that they cherry-pick studies that are 25 years old, when practically no one was talking about domestic partnerships — let alone gay marriage. If there was more proof that the motivation behind Prop 8 is animus, the defense proved that once again during their cross-examination.

From a legal standpoint, I found the fact that the defense brought up the fact that gay couples cannot “accidentally” have children is very instructive. As I mentioned briefly in a prior post, the high Court in New York — unlike California, Connecticut or Iowa — actually upheld the state law that said marriage was between a “man and a woman.” Because since sexual orientation has not been recognized as a “suspect class” (outside of those 3 states), laws that discriminate against gays and lesbians need only have a “rational basis” to be upheld. And it need not be the reason why the law was enacted — any rational basis that the Court can literally dream up will do.

In New York, the Court said that because straight people might “accidentally” produce children out of wedlock, that the state had an interest in letting them get married. Whereas gay people can’t accidentally have children out of wedlock, so there’s “less of a need” to expand marriage rights. So although that question elicited laughter, it’s clearly the legal angle they’re going for.

Again, it proves how hard it is to repeal a law on the “rational basis” test — because the plaintiffs’ burden is to prove there is no other conceivable reason to uphold Prop 8 besides sheer animus, hatred of homosexuals. In other words, any other reason that may be justified for Prop 8 — like “tradition,” the “rights of parents” and “protecting children” — need to be linked directly back to animus. The burden on the plaintiff will be to argue that the “out-of-wedlock” argument is irrational.

Finally, one thing I found very interesting was how much the defense relied on circular reasoning. Not that I wasn’t surprised — it’s the only thing they have. One of my FAVORITE moments of Dr. Peplau’s cross-examination was her answer to teh question: “do you agree one of the purposes of marriage was to avoid having children born in wedlock.” Her answer: “Well, by definition — the term ‘wedlock’ means ‘out of marriage.'” Similarly, gay marriage opponents always argue in Court that gay marriage should not be legal because marriage has always been a “man and woman.” Of course, it’s been that because they’ve never allowed us to get married.

It was a pleasure doing this today. Stay tuned for tomorrow, when Rick Jacobs will be back …

Tags: David Thompson, George Chauncey, Judge Walker, Letitia Peplau, Nicole Moss, Terry Stewart

Day 3 Live-Blogging Wrap-Up Quick Hits: Day 3