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Prop 8 Monkey Trial: Will Court Accept Evolution of Science?

Trial analysis Uncategorized

By Paul Hogarth

Rick described today’s cross-examination of psychologist Michael Lamb as a replay of the “Monkey Trial” — a cultural battle where two world views duke it out in the courtroom.  But what I find interesting is how the defense has cherry-picked studies of the “need” for kids to have a mother and father — and Dr. Lamb’s responses that those studies are old, and research results over time change.  It reminded me of the following passage from Brown v. Board of Education (1954):

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding [that school segregation has a detrimental effect on black children] is amply supported by modern authority.  Any language in Plessy v. Ferguson contrary to this finding is rejected.” [You can read the full case here.]

That passage was the crux of the legal case in Brown — that just because the Court may have come up with one conclusion in 1896 (because of what was “science” at the time) does not mean that scientists don’t make mistakes.  Over time, additional research can disprove what were once accepted theories.  The great thing about scientists is that they’re constantly second-guessing prior assumption, doing more research to see if old assumptions are correct.  What’s bad about Judges is that they have to rely on what’s already been said — and a lawyer wins his case by convincing the Court what they are doing is consistent with past precedent.

Brown was a unanimous decision, but it was a very different Supreme Court — and I worry about whether at least five Justices in this current Court will have the guts that the Warren Court had at the time.  Do the right thing, because science can change.

Fortunately, Brown was not the last time the Court went out on a limb to say “we’re going to reject this precedent, because what was considered acceptable at the time.”  More recently, the Court said: “[The Founding Fathers] knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

That was Lawrence v. Texas, the 2003 case that repealed anti-sodomy laws. And the author of that decision, Anthony Kennedy, is going to be the swing vote if (or when) the Prop 8 case comes to the Supreme Court.  We’re likely to have four votes against us (Thomas, Scalia, Roberts and Alito), so we will need Kennedy’s vote to win.  Fortunately, he will agree with the above-passage in Brown and remember what he wrote in Lawrence to agree with Dr. Lamb — science changes, and the Court must recognize that.


  • 1. Scottie  |  January 15, 2010 at 5:24 am

    Kennedy also wrote the decision in Romer v. Evans and also, Scalia said, in his dissent in Lawrence v. Texas: ""`Preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples," and that there's less reasons to oppose same sex marriage, the opposition arguments are on "shaky ground."

    He didn't say that because he approved, either.

  • 2. Bry  |  January 15, 2010 at 5:28 am

    Wow am I just outta it or does that sound like Scalia was actually kinda-sorta not insane when he wrote that dissent?

    And I heard yesterday something about Roberts once standing up for gay rights or some such phrasing

  • 3. Scottie  |  January 15, 2010 at 5:31 am

    No, Scalia's dissent was a threat. He was saying that the majority ruled the wrong way and because of that there will be a slippery slope to same sex marriage, because there won't be any arguments left.

    And yeah, Roberts worked on a pro bono gay rights case at his firm in 1996. It was a landmark case that defeated antigay discrimination in… I think employment?

  • 4. Warren  |  January 15, 2010 at 5:38 am

    Roberts' firm was working with Lambda on Romer vs. Evans. He was assigned to the case and by all accounts did a great job researching and helping in the preparation. But he didn't argue the case or write any legal briefs, probably because he was too junior. Thus he was only doing his job, albeit well. The promising aspect is that he could have asked not to work on the case due to personal feelings and he didn't, but we have no idea what his reasoning for not doing so was (he could have feared it would have been a career limiting move). I would like to think it indicates he is able to separate his personal moral opinions from the law (something Scalia, Thomas and Alito aren't capable of) but I am not holding my breath.

  • 5. Mr. HCI  |  January 15, 2010 at 5:51 am

    I love saying this, 'cause it's true:

    I wonder how ol' Antonin would feel if he knew a homosexual punk rocker took one of his precious sons to see the Dead Kennedys?

  • 6. Lymis  |  January 15, 2010 at 5:27 am

    Good points, but the Justices aren't in the same situation.

    WIth Brown, they needed an overriding reason to come to a different conclusion than a previous Supreme Court decision, that at the time was based on current knowledge.

    In this case, it isn't a question of overruling a previous Supreme Court decision, but rather making the first one.

    They should be using current science, not 40 year old sociology, based in part on an entirely different definition of family. The defense isn't likely to introduce Medieval Alchemy texts, or Aristotle.

    All the plaintiffs witnesses should have to show is what current knowledge is. That may include explaining why older science isn't valid, but the COURT shouldn't have to make that choice.

  • 7. James Sweet  |  January 15, 2010 at 5:37 am

    In this case, it isn’t a question of overruling a previous Supreme Court decision, but rather making the first one.

    Not quite true. While the gay marriage issue specifically has not been ruled on, in order for this lawsuit to succeed it is highly likely that LGBT must receive a suspect classification. And SCOTUS does have recent precedent on this: Romer v. Evans, which was only fourteen years ago.

  • 8. F Andrews  |  January 15, 2010 at 6:34 am

    The Colorado Supreme Court invoked the suspect class doctrine. SCOTUS rejected it in favor of an enhanced form of Rational Basis, which requires that "it bear a rational relation to some legitimate end". With respect to Amendment 2, "its 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." Kennedy's decision in Romer is notable for some extremely sharp remarks.

    See this old article by Emily Bazelon:

  • 9. Lymis  |  January 15, 2010 at 7:57 am

    But they have never declared LGBT people NOT a suspect class. Even in Lawrence, they had to go out of their way to say that they weren't even considering that aspect of it because they were able to rule without doing so.

    While it is clear that (at least in the past), they weren't hip to make the declaration, the fact that they've chosen to tap-dance around it on several occasions may mean that once they are cornered, they have to admit that we are.

    At the same time, they may also issue a very narrow ruling specifically on Prop 8 on some technicality and deliberately avoid the issue again.

    Honestly, you'd have to have the brains and empathy of a haddock NOT to see that Prop 8 was pure and simple animus.

    All they have to do is invoke Romer v Evans, point out the animus, and strike down Prop 8, without ever even touching general principles about gay rights or whether we are a suspect class.

  • 10. waxr  |  January 15, 2010 at 5:39 am

    We should keep in mind that scientific studies of same sex families were virtually non-existent before the '60s and '70s. Before that most statements about same sex families were non-scientific.

  • 11. David  |  January 15, 2010 at 5:49 am

    We should keep in mind that most studies even into the mid '90s were nearly impossible because a) same-sex "families" were almost mythical and b) widespread workplace and housing discrimination was still commonplace so many were in the closet outside of the gay ghettos in the cities like Boystown in Chicago, the Castro in SF and the West Village in NYC.

  • 12. Kelly  |  January 15, 2010 at 5:41 am

    I'd also keep in mind that the make-up of the current Supreme Court may not remain the same. Scalia isn't doing too well health-wise and many things could happen between now and then (whenever 'then' is).

    Roberts doesn't have the best track record either. He's a stronger moderate than Conservative though he does tend to lean that way. (And for being the Chief Justice, he's written very little.)

    And who knows? The Conservative justices are considered Conservative for their decisions in adhering to precedence and the Constitution, not so much with Conservative ideals. We could see another Brown.

  • 13. Mike  |  January 15, 2010 at 5:46 am

    Don't be so sure about that. Even though conservative judges may not agree with the idea of gay marriage, they have a long history of standing on precedent. that being a given its entirely possible there will be more than 5 votes if the case gets to the Supremes. Separate but equal has already been shown to be inferior and unconstitutional. The Pro prop 8 people will be hard pressed to get the court to change that view.

  • 14. Tavin  |  January 15, 2010 at 5:54 am

    I'm glad to see that with all that's happened so far, we are still looking forward to when this will be in front of SCOTUS. That's where the real battle will take place, and I, for one, am not convinced that the current makeup of the SC will rule in our favor…I would love to see Pres. Obama have the opportunity to name another Justice before this case ends up in front of them. Not wishing ill on anyone, just hoping one of the current conservative Justices sees a need to retire sooner rather than later.

  • 15. Lymis  |  January 15, 2010 at 8:00 am

    At the same time, any Obama appointment would be in the face of the pending gay rights case(s).

    If you think the Republicans planted hooves and came up with litmus tests before, wait until they see themselves appointing the swing vote on whether gay people are equal.

  • 16. Loraine Brown  |  January 15, 2010 at 5:54 am

    I'm very grateful for the "tracking". I've learned a lot. I'm the mother and aunt of two family members who died of AIDS. I was also their caregiver during their dying. The extent of their suffering as "outcasts" extended far beyond their physical pain.

    I pray that Judge Walker has an open heart, an open mind, and wisdom. Thank you.

  • 17. Warren  |  January 15, 2010 at 5:58 am

    Loraine I'm so sorry for your losses. You are the true example of Christian charity.

  • 18. James  |  January 15, 2010 at 6:20 am

    It seems that Prop 8 is arguing that children are better served by married parents. If such is the case, why deny the children of gay couples the stability of marriage?

  • 19. michael  |  January 15, 2010 at 7:03 am

    Their questioning seem to lead to that rational conclusion, however do any of their arguments seem anywhere near rational to begin with?

  • 20. John B.  |  January 15, 2010 at 6:26 am

    I don't think anybody doubts or disagrees that kids raised by two heterosexual parents in a stable long-term relationship are generally better off than kids raised by a single parent, or by divorced parents living separately. But how do these studies relate to kids raised by gay parents? Is this about having two opposite-sex parents per se, or is it just about having two parents, period? Are there any studies that directly compare kids raised by two parents in stable straight vs. stable gay relationships?

  • 21. Lymis  |  January 15, 2010 at 8:04 am

    Yes, those are the ones he keeps trying to cite – they show that the kids turn out almost identical, without any significant difference in development or attitude.

    The only measurable differences were that the kids grew up with less rigid feelings about gender roles (like women should be nurses or teachers but not engineers, and men shouldn't do housework or be secretaries), and that the kids were more willing than kids of straight couples to say that if they grew up to fall in love with someone of the same sex it would be okay.

    (umm… duh.) Other than that, no differences.

  • 22. Steffi  |  January 15, 2010 at 6:39 am

    I have the strong feeling that they wana argue that since science changes over time and so do definitions and results it is very likely that todays findings will be proven wrong in futur and that children in the end will suffer from ss-marriage after all though today's science indicates differently also that ss-marriage will have a bad influence on economics and on straight marriages though science today proofs differently….

  • 23. Tim  |  January 15, 2010 at 6:54 am

    But that doesn’t make sense. That argument (don’t take this personally! I know you’re saying that the defendants are posing this argument) is that future research could show that gay marriage is the absolute worse thing for children, and thus we should not allow it. But what if it’s actually true that gay marriage is the BEST thing for children, better than heterosexual marriage? By banning it, we actually made the lives of many children WORSE! So that kind of argument is complete rubbish, especially when the latest research, as Lamb is saying, suggests that homosexual parents are just as good as heterosexual. (If we applied the same logic to biomedical research, how in the world could any new treatments ever emerge? What if research in the future shows that a promising new cancer drug actually makes cancer worse in people who drink coffee? Or in people from Puerto Rico? Or in basketball players? Or in Puerto Rican basketball players who drink coffee?)

    I think their arguments really show why K-12 science education is SO important. Science should NOT be taught as the memorization of facts, as it is often taught today. Kids need to be taught that “science” constantly repositions itself based on the latest available data; the “truth” is whatever can best explain the most data at the present moment. The defense lawyer’s numerous “gotcha” moments using reports from 50 years ago would only suggest that science is contradictory to people who DON’T understand science (aka them). That science is in a way self-correcting is one of the BEST parts of science. Yes, that was the state of our understanding 50 years ago. The fact that our understanding has changed since then is a testament to the hard work of many researchers during this time–we have more data now than 50 years ago, and today’s “truth” is hopefully closer to how things really work. Using “Climategate” to suggest that science is biased and unreliable is also extremely low; as this is not a jury trial, I hope that the judge will not fall for that.

  • 24. Warren  |  January 15, 2010 at 8:01 am


    I'm feeling pretty good about today's testimony is showing that there is no legitimate state interest that is served by denying gays marriage rights.

    Playing a bit of fantasy here, let's say we get a favorable ruling from the SCOTUS. Is it possible for them to rule that while prop 8 is unconstitutional, the constitution does not establish a right to marriage. i.e. it would strike down ssm bans in the states that have them. This would mean that CA would have legal marriage thanks to the marriage cases of 2008, but TX wouldn't unless the state or courts there found for it? This would mean that NY and NJ would still need their political/court processes to play out and we are still left with the DOMA issue? In fact it seems that this is the only ruling they can make, anything else is too broad?


  • 25. Patrick  |  January 15, 2010 at 8:30 am

    If they rule narrowly that there was obviously animus in PROP8, and therefore rule it unconstitutional but don't address the suspect class issue, that would be like a compromise position. It would result like the Romer case. Our side would win, but narrowly, and the suspect class issue would be left undecided.

    While it is possible for this to be the result, it's hard to imagine that in this environment they'd be able to not address the core issues. Even they MUST know that issue is headed towards them, and why not address it now, finally.

    I go back and forth on this a lot, as I also know this court almost ALWAYS chooses to decide as narrowly as possible.

    I think in the end, if I'm putting my money on the table now, early in the game, they will overturn propH8, but will not decide the suspect class issue.

  • 26. Warren  |  January 15, 2010 at 8:53 am

    I agree with your conclusion. That still would be a pretty great result as it would mean that CA, IA, MA, CT, NH and VT are safe from future challenge (unless NH votes to repeal) and other states would follow in time as the nonsensical claims of the crazies would be proved to be unfounded.

  • 27. Lymis  |  January 15, 2010 at 8:09 am

    There is another case wandering through the system where the State of Massachusetts is suing the federal government because DOMA discriminates against the gay people they are calling married.

    They could rule this one narrowly, but the other one will still be heading at them. The timing could possibly put them in play at the same time. Certainly, they will rule on whichever comes first with an eye towards its influence on the other.

    If DOMA falls, depending how it falls, it could still allow states to refuse to marry people but still have to recognize marriages performed in other states, which accomplishes pretty much the same thing, other than forcing people to travel for their weddings.

  • 28. Patrick  |  January 15, 2010 at 8:34 am

    In truth, this will likely be the result! The feds can't force the states to solemnize any marriages, but the constitution requires the states to uphold the laws of the other states. (though it would be easier for us all to have marriages in our home areas, this isn't a bad position. Afterall, if the feds could decide who could marry, they wouldn't let us marry in any state currently. It is only the fact that marriage is left to the states that we have the 5 states we currently have!)

  • 29. Warren  |  January 15, 2010 at 8:50 am

    The precedent here is Loving. Essentially that ruling said Virginia couldn't tell the Lovings they were not married in VA when they were in DC. It falls under the commerce clause that forces states to recognize each others drivers licenses, etc.

    The other part of DOMA also is plainly unconstitutional and I think this is what MA is arguing, so again the ruling may be narrower than we think. Basically MA says the US has no reason to not recognize its marriages since marriage is a right that is left to the states to regulate. On that basis the DOMA case is at least as important as this one and the fact that it is flying under the radar is not a bad thing.

  • 30. Elw  |  January 15, 2010 at 12:30 pm

    Very interesting insight for this non-esq. I am learning so much.

  • 31. Let the Parenting Tests C&hellip  |  January 15, 2010 at 1:03 pm

    […] to unravel here. Rather than focusing on the legal vs. scientific aspects of this argument, which Paul has done so well, I wanted to look at where the logic of this argument takes us and what the potential policy impact […]

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