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This Afternoon Testimony: Homophobia on Trial

Trial analysis

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.



  • 1. SFBay  |  January 14, 2010 at 11:47 am

    I guess my concern with having homophobia on trial is the fact the homophobic judges – being the homophobes they are – won't see this as an issue. I think this case still has to fall on overwhelming legal grounds.

  • 2. JimB  |  January 14, 2010 at 12:32 pm

    except for the fact that if we lose, it won't be a 'I wonder if they're homophobe or not' question.

    It will be a "this country doesn't want homos..period. We need to move"

    So, anyone for Southern France? 🙂

  • 3. SFBay  |  January 14, 2010 at 12:52 pm

    You are right. I just hope it doesn't come to that.

  • 4. Kelly  |  January 14, 2010 at 12:52 pm

    I was thinking the same thing today too. If this goes all the way to the US supreme court and marriage equality is shot down once and for all, I won't feel at home in my own country and there is no doubt that I would move. I'm willing to bet this country will lose a lot of contributing members to society if it doesn't pass.

  • 5. Leland  |  January 14, 2010 at 4:37 pm

    France (especially Southern France) is indeed beautiful, and probably the most gay-friendly nation in Europe by far. But in 2006 even France was able to determine that transforming marriage into a gender-neutral institution would be disastrous for society. And a special Parliamentary Commission said so in a 453 page Report on the Family and the Rights of Children. You can read an abridged English translation here:

  • 6. Leland  |  January 14, 2010 at 4:42 pm

    Sorry. That link was just the Executive Summary. This is the link for the full English text:

  • 7. ScottNH  |  January 14, 2010 at 4:58 pm

    Correct me if I'm wrong, but if this case goes to the US Supreme Court, and we fail, in a practical sense we are simply back to where we began. Emotionally devastated, certainly, but while the right of states to make these types of laws will be upheld, we will still be able to marry in Massachusetts and we can still fight for equality in Delaware, New Jersey,etc. etc.

    I'll also float the idea that if we do fail, that injustice (upon injustice upon injustice) might reverbate in society and ultimately change people's perceptions of us sexual minorities for the better in a way that a court ruling cannot.

  • 8. David Kimble  |  January 14, 2010 at 11:52 am

    Thanks, Paul, I concur with your very eloquent argument, that is Homophobia that is on trial here. I wonder, though was this the intent of the other side? Perhaps so, since they have attempted to discredit every one of the witness and make it appear there is no need to overturn Prop8, since we already have "Domestic Partnerships".

  • 9. Marlene Bomer  |  January 14, 2010 at 12:17 pm

    Separate but equal is also at stake, which is what DPs and CUs are. It violates every tenet of the Fourteenth Amendment.

  • 10. Christopher  |  January 15, 2010 at 12:42 am

    Maybe this is beyond the scope of this trial, but isn't this about same-sex marriage not gay marriage?

    So far they've talked about gays and lesbians but have completely forgotten the BT from LGBT who may also be discriminated against by Prop 8. Also, wouldn't some of these same-sex couples biologically be able to have children "accidentally" on their own?

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