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Liveblogging Day 9: Daily Summary

Daily Summary Liveblogging

By Julia Rosen

I just got off the phone with Rick. He sounds like he is really looking forward to the weekend. I’d be lying if I said that I wasn’t as well. I’m sure your refresh buttons are as well. Even though it was a short week, it was action packed.

Today’s proceedings were a bit tedious, at least in the afternoon, as Nielson repeatedly attempted to get Professor Herek to say that gay and lesbians can change their sexual orientation. Dr. Herek hung tough and Nielson is lucky he didn’t totally tick off Judge Walker with his repetitive questioning.

Rick will be back liveblogging on Monday morning and we will have fresh content throughout the weekend, including a few guest posts from some new voices. Personally, I am looking forward to a post from my friend and coworker Caitlin who just proposed to her fiance Jen last weekend. They will be talking about this case and the difficulty in deciding where to get married, and have it be legal.

If you have appreciated all of the writing on this site, please consider making a donation to support the Courage Campaign Institute. We rely on thousands of small donors to fight for LGBT equality and a more progressive California and can’t do it without your support.

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And without further ado, here is your daily summary.


Judge: Next witness?

Boutrous: What is timing of the closing arguments?

Judge: I think given the volume of evidence we should have the closing argument sometime in the future, probably in the distant future. That way I can read and review the evidence, tease out questions in the closing. Does anybody have a problem with that?

B: Wants to enter into evidence some documents.

[UPDATE] 9:13

Cooper: We have done our counter depositions and are ready to enter those counter designations.

Boies: We are going through them now. I know we will object that some are outside of any expertise the witnesses have, but we’ll be ready to submit those this afternoon.

Judge: I gather you are not going to call them?

Cooper: We’ll respond by plaintiff’s calling our experts as his or her own witnesses.

Judge: That has been done before and can be done again.

B: Call Dr. Gregory Hererk (H). Examination to be conducted by Mr. Dettner (D).

H: Ph.D. in 1983 in social psychology and then at Yale as post-doctorate. Attitudes of Heteros toward Lesbians and Gay Men. Also attitudes toward HIV, which was a major issue then. Stayed at Yale as post-doc for two years. Asked to stay to teach for another year. Then went to teach at NYU—Interpersonal Psychology.

Associate Research Psychologist at UC Davis. All research. No teaching. 1999, full tenured professor. Teach “Sexual Orientation and Prejudice” and graduate course in conducting survey methodology and undergrad course as well as seminars in sexual orientation and prejudice.

(Herek is on numerous boards of journals and has published over 100 papers.)

H: I intend to offer an opinion on the nature of sexual orientation and how it is viewed by psychology and psychiatry today, the effect of intervention therapy and how stigma relates to Prop. 8

D: For the sake of efficiency, I have run these by Prop. 8 and they have no objection to the admission of these documents.

Prop. 8: Agrees.

Judge: Thank you for the cooperation.

H: Sexual orientation is a term we use to describe intense sexual attraction to men by men and to women by women and pattern of identification and behavior. (Three different aspects.)

H: In public health research, the focus is on STDs, so it’s defined in operational terms according to sexual behavior. In other contexts, would focus on identity because we look at discrimination.

D: Do ordinary people have an understanding of their sexual orientation (SO)?

H: We don’t use that term. We typically ask if people are hetero or gay, lesbian, bisexual.
Judge: By ordinary people you mean non-professionals?

H: Yes.

H: S.O. defined relationally. Whether talking behavior, attraction or identity, we talk about needs people have and forms of attachment.

H: Attachment is a core part of human behavior.

H: Am Psychiatric and Psychological and other major mental health organizations have all gone on record as saying homo is normal, not pathological.

H: No inherent relationship between SO and ability to contribute to society and lead a happy and fulfilled life.

D: What about in the past? Was there a different view?

H: 1952, Diagnostic and Statistical Manual of Mental Disorders (DSM) by Am Psychiatric Association included homosexuality in it. By 1973, Am Psych Assoc removed and then Psychological Association followed.

H: Looks at 1952 DSM to see homosexuality as a mental disorder. Then looks at policy statement that shows Am Psycho Assoc resolution passed in 1975 to endorse changed policy of Psych association. Pushes mental healthcare officials to lead in ending stigma.
Judge: What led to the change?

H: That’s a long story.

Judge: Well, we’re here for a while.

H: Prior to 1950s, no science, almost all hearsay. Then there was research and change in society that led to change. All culminated in change in 1973 when board of Psychi Asso voted to remove from DSM based on empirical studies.

Judge: You are saying that 1952 DSM was not based on empiricism, but the 1973 one is based on empirical data. Is that a fair statement?

H: Society had realized that homosexuality is not longer bad, but also there had been empirical work.

D: Do people choose their sexual orientation?

H: I did research that shows that vast majority of gay men and lesbians and bisexuals as well say that they experienced very little choice.

D: Reparative therapy?

H: Refers to intervention to change someone from being homo to hetero.

D: Have those types of those therapies been proven effective?

H: First, define “effective.” Does it consistently produce change and does so without producing harm to the person involved. With those definitions, no, reparative therapy has not been found effective.

H: These therapies have been around for a long time. The APA has considered them a number of times. Most recently was convened in 2008 or 2009, produced report in 2009. Evaluate their effectiveness, safety and whether or not they should be used.

H: Task force did thorough review of literature. First, not many high quality studies that showed effectiveness. When they did look at those, there was very little effectiveness and potentially harm.

Enduring change to a person’s sexual orientation is uncommon. The participants in this body of research continued to experience same sex attraction follow SOCE AND DI NOT REPORT significant change to their-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decrease same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare. …” Unlikely to reduce same-sex sexual attraction.

Also found many anecdotal reports that showed harm. Some in studies showed that individuals feeling harmed

Exhibit from APA after 2009 study:

Be it further resolved that the AM Psych Assoc reaffirms its position that homosexuality per se is not a mental disorder and opposes portrayal of sexual minority youths and adults of mentally ill due to their sexual orientation;

Further resolved that the APA concludes that there is insufficient evidence to support the use of psychological intervention to change SO.”

[UPDATE] 9:26

[Discussion that says that the bar for harm in any efficacy study is lower than for “cure,” because the first order is do no harm. These therapies do harm people.]

“Despite the general consensus of major medical, health, and mental health profession that both heterosexuality and homosexuality are normal expressions of human sexuality, efforts to change SO through therapy have been adopted through some political and religious organizations and aggressively promoted to the public. However, such efforts have serious potential to harm young people because they present ht e3view that the SO of lgb youth is a mental illness or disorder and they often frame the inability to change one’s sexual orientation as a personal moral failure.

H: LG can marry in California, but only to opposite sex.

D: Has that happened?

H: Yes. Sometimes they marry before they realize they were gay or lesbians. In other cases, may have known, but married because of intense social pressure or by marrying they would change, become hetero as a result, help them not to be gay anymore.

[I tried this. DO NOT DO THIS AT HOME. I became suicidal.]

H: If people do marry and one is g or l and other spouse did not know, likely to create conflict and problems for children, friends and family. Ripple effect.

D: In CA lesbians and gays can enter into domestic partnership (DP).

H: Yes, significantly the same rights as marriage.

D: Just a word, then?

H: No, not just a word. Public opinion data show that large proportion of public is willing to extend DP or civil unions, but not marriage. So in the minds of most Americans there is a difference between those words. Also, when g and l could get married in CA, thousands did. Fact that we are here today shows there is strong emotion and feeling about difference between marriage and DP.

D: Does marriage lead to stability of relationships?

H: Yes. Researchers look at reasons people stay together. They are brought together for many reasons. They love their partner, like being together. When people are married, there are legal and social barriers to dissolution. Family and community hoping that couple will stay together. Many barriers to dissolution. Relationships are more likely to be permanent when deal with rewards; barriers may keep people together when going through a rough patch. They may better get through that rough patch if married.

D: Do DPs create those same barriers?

H: We lack a great deal of empirical data, but I would say no.

H: In 2004, CA legislature enacted laws that increased responsibilities of DP. In 2004, CA Sec State mailed letter to all DPs saying that you should consider whether you want to change your DP due to changes in law. I find it difficult to imagine that if there were changes in tax laws that would affect married couples the state would send letter saying you might want to consider divorce before they go into effect. Way that marriage and DP are different.

[UPDATE] 9:38

H: Shows study that shows huge spike in dissolution of DPs before new law went into effect. Shows that people think more highly of their marriages than DPs through separate discussion.

H: Stigmatized people have less power than other individuals. Structural stigma is contrast to individual manifestations of stigma. Individuals may be ostracized, but structural may be codified in the law.

H: Gay men and lesbians are stigmatized based on great amount research. Great amount survey data that shows that Americans feel disgusted by gay men. FBI and state of CA track hate crimes against LGB. National survey found that 1/5 of homos had experienced violence in lifetime. Slightly lower had experienced some form of discrimination in employment. Children in schools feel negative pressure if perceived as l or g. Two men walking down the street holding hands feel pressure.

H: Within broader social context, structural stigma provides permission to denigrate or attack stigmatized members of society. In some research when researchers want to ascertain reactions based on images, have sometimes used photos of same sex couples. Get substantially more negative reactions to photos of homosexual couples than heterosexual.

H: By definition, Prop. 8 is part of structural stigma.

D: Going back to some of your earlier testimony that shows people do not choose SO. Can I ask a couple of follow ups?

H: This is a paper that I published in 2009 with two colleagues in journal. As part of the study that is described in this paper, we asked about 2,200 people in Sacramento area how much choice they have in hetero vs. homo. For purposes of study referred to as essentialist beliefs. 87% of g said no choice or little, l, 79%. 88% of gay men said they had no choice at all. L said about 66% no choice by about 16% little choice.

[UPDATE] 9:40

D: Any studies asking heteros?

H: Not that I know of. Hypothesize that heteros would have similar response rate.

D: (Puts up statement from Helen Zia in this trial.) We for a brief moment in time we experienced a feeling of what equality is, what instead of having to go to the fountain that is just for gay and lesbian people, here we could go to the fountain that formerly said heteros only. And we tasted the water that was sweeter there. And our families experienced that.”

H: Some people define stigma as unwanted difference. That’s what Zia seemed to feel, the lifting of that difference.

D: No further questions.

(Mr. Nielson to cross-examine.)

[UPDATE] 9:55

N: Want to get to your definition of sexual orientation. Most define by attraction, identity, action or combination of those.

H: Yes. Also refers to patterns of behavior and identity as well as enduring patterns of affections.

N: Something that has some consistency over time, but how long is not specified.

H: General understanding that not fleeting, something that constitutes a significant period of a person’s life.

[So would they ask this about heteros who marry? Is there a definition for how long they are mutually attracted before they can get married?]

N: There may be a distinction between social and personal identity?

H: Social is based on a collective view. Personal is based on specific relationship.

N: Possible that someone does not feel part of larger collectivity.

H: Some people can people feel a sense of their identity alone and not part of lgb group.

N: Some might want to be not part of collective.

H: Yes.

N: You used term gay to define homos?

H: I frequently use gay, but sometimes use lesbian to make explicit that I include both sexes. Some women choose not to be labeled gay, prefer lesbian.

N: Person can be gay, but not be part of gay community.

H: Yes.

N: Could be that a person’s social ID is very much tied to being gay, but could be that it is not?

H: Some do, some don’t.

N: Although it’s often discussed in three categories, but it’s on a scale.

H: This is a way to think about sexual orientation that goes back to Alfred Kinsey that shows continuum, but we usually refer to three different groups.

N: Do you believe that sexual orientation is on a continuum?

H: Can be very useful way to think about sexual orientation.

N: Reads from binder of Dr. H’s depo that repeats above.

H: Correct.

N: SO is generally a characteristic that is not readily identifiable by looking at them.

H: Unless they wear a button or something, yes that’s generally true.

N: PX 0918

H: Entry I wrote for Psych Encyclopedia for definition of homosexuality.

N: Homo

N: These are your definitions of homosexuality: Sexual attraction, desire, identity, home environment (?), and communities.

H: Yes.

N: Such labels—homo, bi, hetero—represent oversimplification?

H: Can yes.

N: Homosexuality can be seen as counterpart to hetero.

H: Yes, but I we do see instances that people have attraction but don’t act on it.

N: Not all people display consistency in sexual behavior?

H: Correct.

H: Porcini Encyclopedia of Behavior definition I wrote.

N: (Reads)

N: Not all people with homo attractions do not engage in sexual acts and do not ID as gay?

H: Yes.

N: Many men have sex with other men but never label themselves as homo or bi.

H: This is phenomenon that has been observed.

[UPDATE] 10:23

Dr. Gregory Herek (H): IF we go back in time, we see that these ideas of homo/hetero emerged in 19th century medical discourse. May have been in some writing before, but that’s when we first find in medical discourse.

[Mr. Nielson, the lawyer for the defense, who is conducting this cross-examination has a monotonous, flat voice. His orange hair, white shirt, red tie and blue suit make him stand out physically, but he’s very soft-spoken.]

N: Indeed two leading researchers in this area estimated that only half of those who have same sex sexual ID as lesbian, gay or bi.

H: Can be limitations in defining all who are not hetero because not all have broad personal or social ID but still occasionally have sex with same sex.

N: The world in which today’s youth come to understand their sexual orientation is vastly different than before.

H: World is vastly different today in many ways.

H: Among youth we see embracing of the word queer and they use that as label of description and yet that was an epithet. Youth self ID as queer, so gay, l and bi may not be fully applicable.

H: Chapter from book I co-edited in 1990s, research of l and g in military entitled “Why Tell if You Are not Asked.”

N: You write, “Although hetero and homo behaviors alike have been common throughout human history, the way cultures have dealt with governing them have varied widely.”

H: Yes.

N: “In US today, popularly understand as two types of people, homo and hetero.”

H: But sentence began with “For at least a century today and in Europe…”

N: This classification system differs from other possible ways of defining sexuality because it focuses on the individual…”

H: Yes.

N: Creates two ideal types.

H: Again I would say that there has been an expansion in the last few decades that includes bisexuality.

N: Hetero, homo, bi trichotomy creates three types?

H: I’m careful about using ideal type because it’s a sort of category.

H: By saying ideal type, not saying what we should strive for, but clean, clear distinction and that’s what’s meant by ideal type.

N: Defining oneself as gay or lesbian and more recently queer, provides entry into social communities?

H: Yes.

N: I have a copy of the book here. Do I have to show it?

Judge: Let’s let the witness make that decision.

H: I would like to see the book.

Judge: Do you have a copy?

N: No.

N: Are you familiar with this book?

H: Never seen before.

N: Edited by Badgett. Do you know her?

H: Yes, I do.

N: Chapter about economics and beyond.

H: Familiar with Badgett, but never read this article before.

Judge: Why don’t you ask a question?

N: We’ve identified the books and have designated articles, but have not wanted to copy entire books for copyright reasons, true of both sides.

Judge: Why don’t we try a question…(impatient).

N: Reads from book. Do you agree that homosexuality covers several potentially distinct dimensions.

H: Certainly a difference in behavior and attraction, so yes.

N: One approach that I have used with social survey data involves relative lifetime frequency of same sex partners. If had same or more ss as hetero partners since 18, lgb.

H: She is trying to draw conclusions from national surveys. She found that almost 90% were consistently hetero and 1-2% consistently homo. Some in between. I believe what she is doing is trying to develop rationale based on lack of data.

N: Do you agree with rationale?

H: I have not read it.

N: Do you agree that if person had as many same sex as hetero partners since 18, they are lgb?

H: We have to make assumptions and we have to explain assumptions so other scientists can see what we have done. Prof. Badgett had to report lgb as someone who had at least as much sexual contact with same sex as with hetero. Not ideal type, but she has spelled it out. We will evaluate data based on her explanation.

H: In area of studies of sexual orientation, she is well regarded, but as a non-economist I cannot attest to how she is viewed by economists.

N: Want to move whole book in.

Judge: Whole book? (nods head quizzically)

(Back and forth because N is confused. Keeps interrupting Judge. We’ll admit three pages and reserve on chapter and book.)

[UPDATE] 10:48

N: Reads from another part of another book by Badgett and shows that H was acknowledged in her book. (N wants to make the point that there are multiple definitions of homosexuality. Obviously, he wants to make clear that if there is ss marriage, we’ll not have a good definition of homos. On the other hand, heteros have been getting married for years but without definition; hence, some homos marry heteros and it does not go so well.)

H: Everyone is influenced by economic trends.

H: I’m not sure what she (Badgett) means by “heated theoretical debate” over definition of sexuality. Without having the context of having read this book recently, I cannot comment on that sentence and know exactly what she meant by it.

N: Your honor, we have confirmation that opposing counsel was given the whole book?

Judge: Nods head (as in why are you telling me that).

H: I cannot comment on that observation unless I have read the book.

N: The sexual orientation definition has provoked a heated theoretical debate. Do you agree?

H: I don’t know context of what she is talking about. If you can explain to me the writers on each side and what they are commenting on, perhaps I can comment on it.


N: Alright, thank you.

N: Reads from Badgett: Do you agree that someone who has had as many same sex as opposite sex partners is not strictly hetero?

H: Probably depend upon number of partners in each group. If a person reports having had one of each in whole life, could be difficult to determine because we don’t know when they had those relationships. Could have had one or other a long time ago and don’t know length of time of each. Can’t know without looking at data set.

N: Leaving aside data set, do you agree that as many same sex as hetero partners mean they are not hetero?

H: You can’t leave aside data set. You have to see the context.

N: Of people who have had one or more same ssex partners, 49% are hetero. 59.8% identify as homo if they have had equal or more same sex partners than homo partners, but only 15% as hetero.

H: This is her way of breaking out data.

N: Does her way of breaking out data affect of definition of homo?

H: No. 90% hetero. Another core group consistently ID as l or g. Badgett is looking at group in the middle to try to get to some way of dealing with data.

N: Sexual orientation is not an observable characteristic as sex or ethnicity.

H: Typically cannot tell by looking at person if homo, but may not always be able to tell race or ethnicity, either.

N: I want to admit whole book.

(Plaintiff objects)

Judge: I’ll admit these pages. When might we take a break?

N: The questions about sexual orientation go to our theory of the case so I’ll keep questioning the witness.

Judge: That’s fine, but when might it be a good time to take break?

N: I’d be happy to do that whenever the court wishes.

Judge: Very well, then. Why don’t we do it now?

[Nielson for Prop. 8 is trying to show that there is no consistent definition of homosexuality and that people’s orientation changes throughout their lives. I presume that they will then try to show that we cannot have same-sex marriage because we cannot define it and it will force people into categories that are not appropriate. What does not make sense here is that there is no definition of heterosexual marriage by Nielson’s logic. People marry in that institution because they can. Given the option, we know that lots of homosexuals will marry; they already have. Is he going to show that there will be lots of legal problems over time with this? Does he want to prove that “gay” is not real, that by opening up all institutions to gays and lesbians, we’ll get more gay people because then people can “choose?” He does not understand we do not choose to be gay or lesbian or bisexual. Why would we?

This is the key to the essence of the votes. Observant religious folks may not want to accept homosexuality because of their belief system. Many do not accept evolution, either. But the majority of Americans are inherently fair. If they know that we do not choose and if they see us and our stories, they will change their minds. The next generation already is.

And let’s keep in mind that it does no good to attack religion. In fact, as Courage’s research shows, that’s counterproductive. As we saw with Dr. Tam yesterday and from Gerry Shih’s excellent NYT story this morning about the Christian Chinese community, they believe what they believe. We do not advance our cause by attacking them. ]

[UPDATE] 11:27

We’re back.

[Back and forth about admitting entire book. Nielson wants to. Our side does not, saying that they had a chance to cross-examine Badgett when she was here. There’s a lack of foundation. Judge Walker asks Nielson why he wants to admit entire book? Finally, the judge says that he’ll admit the excerpts.]

Judge: What does “operational” mean for lay people?

Dr. Gregory Herek (H): One might have a textbook sense of “socio-economic status,” but you cannot ask in a survey “what is your socio-economic status?” because people won’t understand that. So you ask “what was your income last year?” for example and that becomes the operational definition.

Judge: So it’s a proxy for the theoretical definition?

H: Yes. We are almost always going to miss something in the operational definition.

Nielson (defense lawyer conducting the cross): Asks about article by Prof. Meyer and if you are familiar with him.

H: Yes, I am familiar with him.

N: Reads from Meyer’s article in which Meyer says only 15% of women and 24% of men fit all three categories that H has used.

H: Core group that self-identifies as gay or l or bi. But there was a group that has same sex desire as self-expressed. That is largest group that is not hetero. Then there were others who said they had engaged in same sex behavior.

N: Do you agree with these numbers?

H: Well, I don’t remember the numbers specifically as from my work, but I am willing to accept these numbers.

H: I’m not sure what Meyer means by “identity labels vary.” We certainly have seen differences in how ethnic or racial groups self-describe. Category of bisexual men as self-described much more likely to include Hispanic and non-Hispanic black men than women.

N: Reads that 42% of all men who have had ss sex never had it again after age 18.

H: Whenever you ask about time periods. If you specify a longer period of time, you’ll get higher response rate. If you ask someone if they have done something in the past year you get a difference response than if you ask if they have done that in the past twenty years.

N: Reads out title of another article, Lesbian Gay Bisexual … By Prof. Meyer, Dean.

[Think about this. The Prop. 8 lawyers and witnesses have to SAY over and over again, things like “same-sex sex,” gay, lesbian, bisexual, homosexual. They have to say it. By saying it over and over again, the friction around those words disappears. This trial is having the effect of making this talk normal.]

N: Do you agree that the degree of one’s self definition of sexuality varies greatly?

H: Yes, I’d agree.

N: Lesbian, gay, bisexual identity is complex and variable?

H: We have been discussing that it’s complex. As to variable, since definitions only available since 19th century, they have changed.

N: Do you agree that throughout history and cultures definitions of sexual orientation shift and change?

H: I would say those definitions have changed (because it is relatively new to medical science).

H: Term homosexual started to appear in medical literature started to appear in the late 19th century and heterosexual appeared shortly thereafter. Gay and lesbian appeared in popular culture in the 1960s and has become widely used.

N: Do you agree that there is still no widespread agreement on the meaning of the terms gay, lesbian, bisexual.

H: Well, let’s look at the rest of the paragraph. This is about the way in which studies define the terms: attraction, behavior and identity. I would not phrase it as no consensus, but depending upon research need, you would define it in one of those ways.

N: Do you believe that the statement that there is no widespread consensus is a reasonable statement?

H: If we are saying that the three definitions collectively define LGB. Different researchers use for different research. There is not broad consensus that there is no one definition used in all research.

N: Asks if it’s an unreasonable statement to say there is no one definition?

H: I must admit I am confused by your question. If they are talking about studies that use one of the three dimensions, then I don’t agree (that it’s unreasonable). If you are saying they are saying, which I think they are not, that one of these dimensions of sexuality is the definition, that is unreasonable.

N: Reads Meyer’s study that shows that 1-4% are homo.

H: Yes. Keep in mind that a number of people would say they find same-sex sex attractive, but do not identify as homo.

[UPDATE] 11:43

[This is slow going. Nielson is trying to create a pattern in science that there is no basis for a stable definition of homosexuality.]

N: Introduces article by Dr. Peplau who was plaintiff’s witness.

Judge: Do you have some questions about this article? This does not compose the same problem as does whole books.

N: Old and new Paradigms for Comparing Men’s and Women’s sexual orientation. Label on bottom is old perspective: sexual ID form discreet categories. New perspective: sexual ID and attraction can be varied, complex.

H: What Peplau is pointing out, just as used to be gender non-conforming and a medical problem, there are individuals whose sexual behaviors and identity don’t match up perfectly.

N: She writes, More broadly, sexual orientation are not fixed, but are highly variable.”

H: She is writing about history. If she is saying that contemporary women’s experiences cannot be generalized to all people over all time. Same with men.

N: In contemporary society, woman’s identity as hetero or lesbian or bisexual for various reasons. Her labeling herself as one or the other, does not mean that’s who they are.

H: People arrive at their adult sexual orientation through different pathways. There may be a variety of different experiences and maybe even biological effects that bring someone to their SO. There are different pathways to SO.

N: Do you agree that knowing that a woman IDs self as hetero, homo or bi, does not necessarily inform us of her current erotic thoughts and behaviors?

H: Most people who ID with hetero or homo or bi does not mean that everyone ids that way. Some people have attractions to opposite sex sometimes and same sex sometimes, but small minority.

H: Sexual Orientation in Women by Peplau et al.

N: Are you familiar with this article?

H: I believe so, but I can’t tell if it’s from book, article or journal. Can you?

N: I think the answer is yes. (Laughter).

H: A person’s attractions and identities sometimes do not match identity label. Sometimes there are individuals whose identity label does not match their behavior.

N: Do you believe that there is no inherent link between behavior and label?

H: I don’t know what “inherent link” means.

H: If you are a betting person and someone tells you they are hetero, very likely they are. But it is the case that some heteros have some same sex attraction. Cannot say that all heteros have exclusively opposite sex attraction nor that all homos have same sex attraction.

Judge: Admits as evidence.

[UPDATE] 12:17

H: If you pick it and you say it is not ambiguous, then you have an unambiguous definition. If you say you are going to measure homo and hetero in American population, what these researchers did was then to define those terms. Ambiguous if you just use words, “homosexuality” or “heterosexuality.”

N: Do you think there is a single definition of homosexuality?

H: Homo can be understood to be an ongoing attraction or SS sex, or ID.

N: Sounds like three definitions.

H: What they show in this report is that for most who ID as homo or bi, these three definitions coincide.

N: Puts up Venn diagram for women. Tries to show that no clear definition of homosexuality.

H: (This is very complicated. Hard to read exactly what data mean. H has to explain it carefully so that N does not to leap to conclusions.)

N: Now, turn to diagram for men.

H: 34 men for whom desire, behavior and identity coincide. If you accept the researcher’s own writing you can see that all of the men who ID as homo had desire, identity or behavior. 9 had desire and behavior but not identity. The 3 that identified as gay but did not have same sex sex made an error in filling out form according to researchers.

N: Do you disagree that this analysis demonstrates a high degree of variability in our society?

H: You have to take this with what I’ve already said. There is a core group that identifies as homo and exhibits all three behaviors, there are others that fall into different groups.

N: Do you agree that homosexuality has multidimensional phenomenon?

H: That’s what I’ve been saying for the past few hours.


H: Title page of 1948 Kinsey book.

N: You relied on this document to form your opinions in this case?

H: At least on some of it. It’s a very massive document.

N: (Reads from Kinsey study) Males do not represent two distinct populations of homo and hetero. Not everything is sheep or goats. Not everything is black and white. The world is a continuum and the sooner we learn this in human behavior the sooner we’ll understand human sexuality.

Record also shows that considerable percentage of population that has had homo and hetero experience and psychic attraction. …
H: I would qualify that Kinsey is speaking here about his sample. We now know it could not be assumed that his sample applies to general population. If you do, you will see that 50% of American men have had homo sex or attraction. We can’t use his percentages for general population, but his research is good.

N: Puts up Kinsey graph that is 0-6 along the bottom that reflects degree of homo and hetero (H had to correct him to get that definition.)

Reads out numbers:
0=Exclusively hetero with no homo.
3=Equally hetero and homo
6=Exclusively homo

H: Kinsey was never out to measure sexual orientation. This scale has been used to measure attraction and behavior but not identity. Those are two of the three definitions.

N: Puts up study from 1970s by Scheiber (?). Shows two continua of affectional and then physical homo. “The bipolar view of homo as strictly physical and that hetero at expense of homo and homo at expense of hetero” is not correct.

N: By putting together the graphs of homo sex and homo affection, ranging from not at all to very on both. Correct?

H: This is from time that people were looking at masculinity and femininity scales. Presumed that if you were high on masc, no fem and vice versa. But found later that’s not true. Some are high on masc and feminine which was later labeled androgynous. Applied to homosexuality, but looking at physical affectional preferences, but not at behavior or the way they self identify.

[UPDATE] 12:31

K: Reads statement of paper that has Klein’s sexual orientation grid.

H: Not unreasonable for 1985, but since then we have learned a lot more.

K: Puts up list of Klein’s Sexual attraction, behavior, sexual fantasies, emotional behavior, social preference, self-identification… total of seven.

K: Another scale of 1-7 other sex only to same sex only.

K: Another scale 1-7 hetero only to gay only.

H: Turns out this is too burdensome because you are asking people to fill out grid with 21 variables. When you boil it all down, it comes to those three we’ve talked about all morning.

H: Those studies have shown that there is one core-underlying dimension here. Not that Klein was misrepresenting data. Just that when someone puts down data, subject to empirical review. Might be useful to apply Klein grid, but it’s too burdensome. You get to same point by asking three questions about identity, behavior and attraction.

Judge: Let’s break and come back at 1:20.

[This is really tedious. Prop. 8 is trying so hard to show that there is no one good definition of homosexuality. Then, they will state that you can’t have same-sex marriage because you can’t define it. Prof. Herek is more than holding his own. He keeps making the point that there is a core group of homosexuals and bisexuals and then there are others that have some of the three pieces of the definition. What we have not yet seen, because we cannot know, is how many people who do not identify as gay would identify as gay if there were no social stigma. And that too is what Prop. 8 wants to prevent. They want to prevent people from feeling okay to identify as gay. In short, while they love to talk about the 1st amendment when convenient (and it’s not convenient when it comes to parody), they do not want people to have the right to live their lives openly and unfettered, without stigma.)]

[UPDATE] 1:41

Judge: Says to Boutrous <B), “So if the defendants finish their cross 90 minutes before 4:00PM, you’ll finish your case today?”

B: Yes.

Nielson (N): That’s a target, but unrealistic.

Judge: We have something to shoot for and can be optimistic.

N: Another article.

K: Given measurement problems, one could seriously doubt that sexual orientation is a serious concept at all. Do you think that is unreasonable?

Dr. Gregory Herek (H): Well, I think they are raising that (hard to hear due to static) as philosophical way of discussing various positions.

H: Philosophical debate. SO is a real construct. It’s something they feel and believe themselves. I realize they (article’s writers) were doing this in a summary fashion. Nuanced social constructionist’s view. When social constructionist talk about sexual orientation, they refer to the construction of these concepts at the social level in the same way we have race, ethnicity and class. Those are social constructions. But to say that there is no such thing as class, race, ethnicity or SO is not right. They are not saying that that is the way individuals see things, but that individuals see things through social construction.

H: Most social constructionists would say that social structure builds on raw materials. Social constructionists would say race is entire construction, but it is built on physical attributes. Does not mean that individual does not experience their sexual orientation as a certain thing and that it will just change tomorrow.

[So can you imaging waking up and saying, “oh, I think I’ll be straight today.” Or, “Oh I think today is gay”? This gives “gay days” at Disneyland a whole new meaning.]

[UPDATE] 1:48

H: Title page from Handbook of Applied Developmental Science, V. 1.

H: Chapter 5 by Lisa Diamond and Rich Savin Williams (?) are both developmental psychologists held in good regard.

K: There is currently no scientific evidence…that defines people as gay, lesbian or hetero. …

H: Note that this is part of a handbook and it seems to deal with young people. Here it mentions a 15-year-old boy who has fantasized about boys since 11. For adolescents, it’s difficult to define orientation for those people.

K: No consensus on definitions.

H: Consensus means unanimity. No unanimity on anything like this.

K: Few individuals form individuals report uniform intercorellations across their attractions, behaviors and desires.

H: Inter correlations cannot occur with one person. Have to be with more than one. Not accurate.

K: Do you believe it is an unreasonable statement?

H: Not unreasonable if you don’t have data, but we do have data.

K: Do you think this is outside of the mainstream?

H: I would be hesitant to judge work of my colleagues by looking at one or two statements out of context.

[K keeps asking about “reasonableness.” They are going to try to show at a higher court, I’m guessing, that the plaintiffs have not met a threshold of reasonableness.]

K: Concept of sexual orientation not as straightforward as every day conversation would imply. Complex dimensionality and fluidity.

H: She starts off by saying, “ As suggested in the introduction” lays out examples in which there were inconsistencies in behavior and self-identity, that’s reasonable.

[UPDATE] 2:10

This all refers to another article in which K is trying to show that homo is mutable.]

H: It’s at least possible for some heteros to have homo response and vice versa. When we look at Lowen study, we would say that many people say that they don’t experience attraction to people of their own sex. I’m not sure what is meant here by homo and hetero response.

H: He’s using the general construct of homosexuality and heterosexuality as conceived along a continuum, which means there is no sharp line by definition.

H: Lesbian Health by Andrea Solarz. I’m familiar with it. I may have read portions of it. It was released about ten years ago and I may have read portions then.

K: In introduction, second p around middle, “Lesbians do not constitute a homogenous, identifiable population for research study.” Do you agree with that statement?

H: (reading context to himself) I think that their point is that the lesbian population is not a homogeneous population. Say that some women identify with lesbian women’s’ community. Some do not. Age, economics, etc. mean that they do not constitute a homogeneous population.

K: Identifiable?

H: I believe that they are saying that not all women will identify in a survey due to stigma or it may mean that they don’t fit all three categories in definition that we have discussed all day.

H: Views vary across different groups, institutions and traditions. That’s how you could have different views of what it means to be a lesbian.

K: “In general, sexual orientation is behavioral and cognitive. Women may exhibit different degrees of same sex behavior, identity along a continuum.”

H: They are referring to Lowen again, those Venn diagrams. There are groups that are consistent in their identity and some that are not. They are trying to be as inclusive as possible.”

H: For a researcher designing a study about lesbian health must use information at hand. If you are studying sexual diseases, want sexual behavior. If identity, want to study those factors.

H: The actual percentages cannot be generalized to general population. Also makes sense that they are saying high percentage of women have heterosexual sex because of society and how they are treated, forced to have hetero sex.

K: There are cultures in which engaging in homo behavior is not seen as being labeled homosexual?

H: I agree with that.

[K keeps cherry picking sentences. H keeps pushing him to see the rest of the text that makes clear that these various definitions in which K is so convinced show that there is no such thing as gay or lesbian refer to scientific studies. So you have to define race or sexual orientation specifically for a specific study. As one of the witnesses said last week, Jamaican adults may not identify as African American, but once their kids grow up here, they are AA. What are they? It depends on the study.]

H: It can be argued that gay and lesbian describe identity. It goes beyond identity. Homosexual is also a descriptive term. And it’s primarily rooted in the mid-twentieth century.

K: Bisexual experience is common with gays and lesbians. Study of Denmark, Holland, US shows that large percentage of self-identified homosexual men had hetero experiences.

H: This is from 1970s. Not a good sample. A sample of convenience rather than representative sample. Growing up with expectations that they boy will marry girl and girl will marry boy, not uncommon for homos to say that at one point in their life they did experience heterosexual intercourse, but not who they are now.

[UPDATE] 2:28

K: Some women are more fluid in their sexuality.

H: More women change than men in the course of their lives.

K: Your studies showed that virtually no men and very few women found changes I their sexual identity?

H: Yes. (Here’s how we obtained sample.) Survey organization that allows for very large group to take internet survey. One of questions, are you lesbian, gay or bisexual? If they had answered yes to one, they were considered eligible for one of my studies. In that study, there was an initial series of screening questions that asked about their orientation. We gave them five categories. For men, which of follow best described: gay only attracted to men; bisexual mainly to men; bisexual to women; straight, mainly women, or straight only to women.

K: You relied on self-reporting?

H: Yes.

K: These studies did not go to question of whether their SO had changed?

H: No.

K: If you are trying to do study that predicts future behavior, hard to do?

H: As I said, if I were betting person, I would bet that self-description indicates long term behavior, but not always (again, this deals with fully formed adults).

K: (Reads out deposition of H) We certainly know that people report that they have changed their SO at some point in their life. We don’t know why, exactly why that happened in every case. People do not always have knowledge of mental process.

H: True. When you look at people’s prejudices and biases, they cannot tell you what’s going on, but they do have those prejudices and biases.

K: So you do agree that people don’t always have possession of their mental processes?

H: I do.

[UPDATE] 2:35

[All from Steer court testimony]

Nielson (defense attorney conducting cross) (N): Are you aware that Ms. Steer was previously married to a man?

Dr. Gregory Herek (H): Yes.

N: “When I married Matthew, I loved him.” Does that surprise you?

H: I had no expectations about it, so it does not surprise me.

N: “When I met Matthew, I was attracted to him.”

H: Same reply.

N: “When I married Matthew in 1987 I wanted to have a meaningful marriage…”

H: Same reply.

N: Have you always had a sexual attraction to women? Does that surprise you?

H: That’s what I’ve been saying all morning. People are raised to think they are supposed to be hetero. You
are defining Ms. Steer’s time period of sexuality for entire life. We refer to durable as for a period of time, not entire life.

[Now moving on from Steer’s testimony.]

N: (Back to H’s deposition). Some portion of gays and lesbians report having been married earlier in life. Is that consistent with Miss Steer’s testimony?

H: Yes, it is consistent with what Miss Steer reports.

H: Now looking at Gates, Badgett, Hope study from UCLA Williams Center.

N: Figure that shows a number of people who were previously married and are now gay. Just like plaintiff Perry. Not unusual?

H: No.

[Judge is at that highlighting again. He bends right over his book and marks the passages when they are pointed out. He’s also getting or has a cold.]

N: Reads extensively from Steer’s testimony that she had to have enough experience so that I could “adopt the sexual orientation for myself.”

H: What she’s describing here is that she experienced these attractions as an enduring pattern. Once she saw that enduring pattern, she gave that enduring pattern a name.

H: A New Look at Sexual Orientation (for women), published in CSW Update by Garnett and (?).

N: “The fluidity of women’s sexuality and sexual orientation.” Scholars from many disciplines have noted that women’s’ sexual behavior is subject to fluidity and change…”

H: There is more evidence that women are more susceptible to environmental influences on their sexuality.

H: Women do develop their sexuality over a lifetime. We believe that people develop over a lifetime, not just sexually.

H: Reads in another study on women’s sexual orientation. Do not know article, but know Peplau, who has a very solid reputation.

N: “Although some may think of sexual orientation as being set early in life and not changing, growing evidence that a woman’s sexuality can change over life….

H: Consistent with what I’ve been saying.

[I admit that I drifted over and read some comments on the blog. This is deeply, deeply repetitive. N wants to get into the record everything he can to show that there is no such thing a homosexuality, that it is a choice, just like changing your dress or shirt (you decide which you want to change). Herek is patient. He just keeps repeating over and over that we’ve discussed all of this. “It is possible and it may vary.”]

[UPDATE] 3:15

H: We do have these retrospective accounts. As I said in my deposition, some people remain celibate for various reasons, so they may not act on their self-identification.

H: In this study (over ten years of women), she recruited women who called themselves bisexual, lesbian or hetero. She says that the patterns of sexual attraction by women remains fairly static. Most of movement was between groups who moved from bisexual to unlabeled. Very few if any who adopted label changed from lesbian to hetero. This is about labeling, not about attraction. In other words, the change took place from labeling not, attraction.

K: Puts up another friggin’ study. [By now, he must know more about homosexuality than any other straight man (is he?) than anyone in the Prop. 8 camp. Too bad Dr. Tam did not review this before he concluded that this all leads to incest and pedophilia.] “The instability was most pronounced by women…” but not exclusively.

H: I’m not familiar with this study, but earlier study. I was concerned about study because only nine males and eleven (?) females who ided as gay, lesbian or bisexual. I would not be surprised to see changes in how people view their sexuality in adolescence through early 20s.”

[UPDATE] 3:25

[Okay, kids. We have new evidence. We’re relying on a letter from Sigmund Freud from 1935. This guy is determined to prove that someone sometime has “converted” from being gay to straight. Of course, no one studies whether straight people can convert to being gay. And if there have been gay people forever—and history says there has been—why do they think it’s abnormal?]

H: This study includes people who were recruited because they were young and had sex with both men and women. Appears that few changed their id.

N: No one in this trial is saying that g and l should be forced to change, but is it your opinion that if someone wants to change they can?

H: It is my opinion that current interventions that have been designed for the purpose changing SO have not shown to be effective. Certainly, due to societal stigma, some have said they want to change,but we have not seen it work and it is not safe.

N: Is attempt to change always harmful? Is it impossible to change?

H: I’d be reluctant to say that anything is impossible. Limited data to show that it is always harmful, but the limited data we have shows that harm is done, i.e., depression. The data that are available do not work and are not safe.

H: Article by Robert Spitzer Published in 2003. Can some gay men and lesbians change their orientation? 200 participants report having changed their orientation from gay to straight.

He’s a very prominent psychologist known to be involved in diagnosis. He was involved in removal of homosexuality from DSM (changing it from being a disease). I believe he chaired that.

N: This study indicates that many gay men and lesbians report making a change from predominantly homo to hetero.

H: I would not take issue with that statement. Those people “report” this self-perceived changed. These individuals might have changed on their own without intervention because they are highly motivated to do so due to religion. People reported to Dr. Spitzer that they had changed.

H: The problem is that we know that people are not always aware of their mental processes. This is why when we test an experimental drug, we assign them to groups and see what happened. We are also familiar with the placebo effect. This is just an illustration of how people are not necessarily able to tell you why things have happened to them.

N: You have taken individuals at their word in your self-reporting studies?

H: I have tried not to. I try to use an experimental design for that purpose. I take them at their word that they experience little or no choice. It’s not that I asked them how they became lesbian gay or bisexual, but they say they did not experience conscious choice.

H: Appears to me a copy of letter Sigmund Freud wrote to a woman who wrote to him from America about her son being homosexual. It was written a long time ago and is known as “Letter to an American Mother.”

N: Fortunately, we have a typewritten version. “You ask me if I can abolish homosexuality … in a certain number of cases we can succeed in lighting the germs of heterosexuality present in every homosexual.” Do you believe that he is wrong?

H: Letter was written in 1935. “What analysis can do for your son is to bring him harmony and peace of mind whether or not he remains homosexual.” I believe Freud was very pessimistic about changing people form homo to hetero. His view was that everyone is bi and their outcome depends and development.

N: Do you believe he was accurate in saying that there is limited success in conversion by Freud?

H: The problem with using a psychoanalyst to self-report is that there is no check on what he is doing. He is both trying to make the change and reporting it. The patient may want to please the psychiatrist. I’m not sure this would all pass muster with modern science.

N: we can take a break now if you want.

Judge: Let’s just plow on, unless witness wants to take a break.

H: How much plowing on do we have?

Judge: Good question.

N: 30-45 minutes, depending upon length of answers. (Snarl!)

H: I can stay pat.

Judge: Why don’t we stand up?

(A minute later) Let’ take a five minute break.

[UPDATE] 4:04

We’re back.

Nielson (defense lawyer) (N): No consensus on what causes SO?

Dr. Gregory Herek (H): What I said in my expert testimony is there is no consensus of what causes people to have one or another SO.

N: The factors that cause a person to be homo or hetero not clear.

H: Yes.

N: Widely differing sources for adult sexual orientation, but no single theory enjoys broad support.

H: Yes.

H: My hypothesis, based on data currently available, is that we will find people went through multiple paths to sexual orientation.

N: Reading from Porcini Encyclopedia (not a mushroom here, but it may change if it is converted.)

N: No single theory is likely to explain homo or hetero.

H: That is my thesis.

N: Researchers are looking at homosexualities and heterosexuality’s?

H: That’s right, based on differences in cultures as we have discussed. In not coming up with single explanation, pointing to increasingly pluralistic view of sexuality.

N: People arrive at gay identity without having engaged in sex and others only after multiple homosexual experiences?

H: Yes.

H: It was at the time I wrote this (in 1970s) that some women considered themselves as “political lesbians” but were not attracted to women.

Judge: Why not common now?

H: Not sure, but think political climate has changed.

H: Reasons that we can speculate that homos may have higher ed rate than heteros. We can speculate that hetero women leave college to have kids and be with husband. Same with gay men. Might be that gay men don’t have children so can get more education.

It may very well be a real difference (ed level). In my studies, found higher ed level in homos than heteros, so it may very well be a real difference, but I do not know.

N: Turns to testimony of Prof. Nancy Cott on 12 January. P. 328 line 6 of trial transcript. “Is behavior infinitely malleable by social circumstances and by culture” with the “exception of self preservation.”

H: I have not thought about it and would have to think about it.

N: Is it a reasonable statement?

H: I ‘m sure Prof. Cott had a reason for saying it, but I’d have to think about it.

N: Back to big binder.

Judge: I thought we were done with the big one!

N: Badgett theory is choice of sexuality based on factors such as income level. A family’s economic status might allow for more homo. A family’s economic status may be more open to homosexuality than not. Do you agree with that?

H: I don’t understand what she is saying here. One possibility is that having higher income allows people to have more exposure to more same sex partners. Could also be that homos go school longer and have more exposure.

N: As you sit here today, is there any reason you would say this could not be possible?

H: As I sit here today, I cannot say. I would have to have read the entire article. This looks like an economist’s argument and I am not an economist so it would be very difficult for me to make a judgment.

[UPDATE] 4:12

N: There is no single developmental pathway that leads to a homo, hetero or bi orientation.

H: As I said previously, my hypothesis is that there are multiple pathways to sexuality.

N: Women’s sexuality is not tightly scripted due to genetic or hormonal influences?

H: I’m guessing that Prof. Peplau is offering that contrast with men’s. Women’s sexuality does seem to be more responsive to situational and environmental factors than does men’s sexuality. This notion of erotic plasticity is more applicable to women than to men.

N: She speaks specifically about erotic plasticity as broad way to understand women’s sexuality?

H: Broad, yes.

N: One implication of this research is that the very concept of sexuality may be misguided. Is that possible?

H: I’m very reluctant to comment because I have not read this paper. It may very well be that the focus on sexuality may be easier in context of men than women, vs. sexual orientation more appropriate for women.

N: (Again, Prof. Peplau in big book): “Available evidence indicates that biological factors are do not explain sexuality of women…

H: What she’s suggesting is the available evidence is that there is not a strong biological explanation for sexual orientation in women. We do not understand development of sexual orientation in men or women.

N: There is no inevitable association of masculinity and femininity have effect on sexuality. Evidence that biological factors do it are weak. Women’s erotic and romantic bonds are influenced by environment.

H: I agree with these.

N: (1990 article) “Evidence suggested that increase in demographics and diversity in same sex relationships.” The visibility and presence of gays in urban population attracts folks…

H: I believe they may be saying that people who were attracted to same sex did not know that there was idea of being gay. For those individuals, the existence of visible gay communities would allow them to realize others like them to find others like them and develop community.

Judge: How are we doing, Mr. Nielson?

N: We’re getting there, Your Honor.

Judge: Good.

H: Lesbians and gay men are likely to have had more years of education than lesbians and homosexuals.

N: There is mounting research evidence that pattern of women’s sexuality varies across time and place.

H: Again, this is something we have already discussed. Talking about different cultures, different socio-economic groups. I would agree with it in that sense.

N: (This is all from Peplau) Living in same sex institutions also increases chance or erotic and same sex attraction between women.

H: She refers to a 1929 study of women in same sex college in which women had tense relationship with another woman. And same in same sex prison. May be that same sex institutions foster greater sexual bonds for women.

[UPDATE] 5:19

H: I would certainly agree with the statement that we don’t know all of the causes for sexual orientation.

N: Study found that young females were more likely (than the older cohort) of having a ss sexual partner in adulthood? Need to look at age cohort effect as to why homosexuality became okay.

H: I would offer hypothesis that people who grew up before 1950s, when there was no discussion at all of homosexuality due to stigma. Older people might be extremely reluctant to express their sexuality.

N: I assume they’ll test their hypothesis. I have not read the paper. Sometimes the author will posit a hypothesis and then disprove.

N: Can you name any tangible benefits that are available to married couples that not available to DPs? Tangible?
Our side objects.

H: I’m not a legal scholar, so I don’t know about the law. In terms of tangible benefits meaning money, inheritance rights, etc. you see the more intangible benefits such as more stable relationship that might become tangible.

N: Are hate crimes illegal in California?

H: I believe crime is illegal in California.

[EVERYONE, including judge, gets a good laugh.]

N: Are gay hate crimes illegal in California?

H: Yes, and they still happen here.
(one or two more idiot questions)

N: I believe I am finished, but I have to check.
Judge: I hope we get good news!

N: Yes, no further questions.

D (back up for plaintiffs): Good evening, Prof. Herek!

D: Puts up text of Meyer on screen. “So what is the correct definition of the LGB population? … It is the researcher’s intellectual responsibility to answer this questions with reasoned justification.”

H: I agree with this.

D: Are there are other areas in which there is differentiation in studying?

H: SO is not the only area in which things get pretty messy. Race and ethnicity also.

D: Would same labeling issues as for SO come up for racial or ethnic groups?

H: Why certainly, if you look at the different labels we have used for racial and ethnic minority identities over past 100 years. SO research has borrowed from research into ethnic and racial minorities.

H: For the vast majority of people we see that for the vast majority of people sexual attraction and behavior solid. Look at Lowen study. 90% of heteros never change and 2% or so homo, les, bi stay that way. The rest is where it gets messy.

H: I have interviewed thousands of people. Some people do not understand heterosexual but if you ask if they are straight, they understand.

D: There were a lot of questions today about causes of sexuality. Does that change your belief that some people are gay and some are straight?

H: Yes. They are unrelated really. People tend to be consistent in their sexual orientation. Somewhere in the neighborhood of 92% of people in Lowman study are consistent. L, G are consistent with attraction and ID even if did not have sex with ss partners due to societal issues.

H: Continuum is important because some people change. Among gay men, only about 5% had any degree of choice and 20% of lesbians say they had some degree of choice. Somewhat more for bi. (These are in my research.)

D: Do the three different aspects of sexual orientation—ID, sex and attraction—overlap?

H: Prof. Diamond made very clear that you cannot use her data on plasticity, particularly among women, to generalize to population. Interesting to see how it develops. Does not change my opinion that most people do not choose.

D: Peplau says that there is very little actual change in women’s behavior due to plasticity.

D: Are you familiar with Prof. Robinson? He was hired by defendant interveners.

N: Object. He withdrew as witness.

D: He lives more than 100 miles from courthouse so we can use his depo for any purpose.

Judge: You may proceed.

D: Robinson Depo: “Do you agree that sexual orientation is very unlikely to change? No.”

“And you have not found that change from therapy is common?”

“No. It’s not common at all.”

“Okay. So when you make a statement, homosexuality is no more immutable that those identifies one takes on I various walks and works of life … that don limit to 93% church going and 78% very religious…” [Which is cohort that Spitzer used. Very religious group of those who said they had “converted.”]

If my statement bout the mutability of homosexuality were tied exclusively to Spitzer’s research or anything like it, then indeed it would be an implausible inference.

H: Agree. Spitzer used very small religious slice.

N: Recommendation from APA (I think) that not use sexual preference because it means that someone can choose. Better to use orientation.

H: I agree.

D: Puts up Kris Perry trial testimony that says “well for me what it means I have always felt strong attraction and interest in women and formed really close relationships with women…”

H: Consistent with definition of homosexuality.

D: Puts up Perry testimony in which she says it’s easier to have relationship with boys or men, but it did not work.

H: Consistent with what I said before, that there is social pressure.

D: If two women want to marry each other, is it a reasonable assumption that they are lesbians?

H: Yes.

D: Is it a reasonable assumption that if two men want to marry they are gay?

H: Yes.

D: I have no further questions.

Judge: You may step down, Prof. Herek. You win the long distance award.

Judge: Mr. Boutrous, you have about 90 minutes of document presentation?

B: Yes.

Judge: You can do that on Monday morning?

B: Yes, your honor.

Judge: And then you will rest?

B: Yes, your honor.

Judge: Mr. Cooper, will you be ready to call your witnesses on Monday?

C: Yes.

Judge: Can you tell the defense so they are ready?

C: We’re not sure who will be first, either Dr. Ken Miller or Mr. David Blankenhorn.

Judge: Are they both going to testify on Monday?

C: We’ll identify 48 hours in advance who it will be. We just have not decided.

Judge: (not amused) Very well. The defense needs to be ready for both witnesses on Monday.

Judge: Those are your only two witnesses?

C: We may call one other witness just to identify documents?

Judge: One of your people?

C: No. One of theirs.

Judge: Very well. Monday at 8:30.

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  • 1. Ann S.  |  January 22, 2010 at 12:50 pm

    Many thanks to you, Julia, and everyone at Courage Campaign!


  • 2. couragecampaign  |  January 22, 2010 at 4:40 pm

    Many thanks to you, Ann, and everyone posting in the comments.

    It has been a high point for everyone at Courage to provide this public service to the marriage equality movement.

    Eden w/ Courage

  • 3. micelle  |  January 22, 2010 at 1:11 pm

    thanks for the liveblogging! it is greatly appreciated.

  • 4. fuzzygruf  |  January 22, 2010 at 1:33 pm

    They touched on this, but they didn't further explore heteros "converting" to homos. I think this would show the ridiculousness of the defense arguments even more.

  • 5. Woody  |  January 23, 2010 at 12:19 am

    It'd be hard to "prove." I'm sure the DI's would say, "Here's so-and-so, been married 32 years. Got divorced, became gay." They'd oversimplify and deny that so-and-so had same-sex attraction while married, and was in fact gay while married, but repressed. Probably best no one went there, as it would have not really done anything either way in court.

  • 6. Linda  |  January 23, 2010 at 6:41 am

    In a way, aren't we all 'heteros converted to homos'…? I think we all started life with the assumption that we were heterosexual; it was through a (often painful) process of self-discovery that we realized differently and 'converted' to homosexuality.

  • 7. Angel  |  January 22, 2010 at 1:53 pm

    I am a bisexual mother of 2. My oldest (15) who does not know about me, came out to me about being bisexual herself a couple months ago. My youngest (4), for the past fre months has been acting more and more feminine, and now for the past week, insists he is a girl. I should add that he has Asperger Syndrome and Tourette's Syndrome, and that my daughter suffers from Schizophrenia and Bi-Polar disorder. While I am knowledgeable about GLB people, I am confused as to what I should do, if anything about my son. I know there is nothing wrong with him in terms of his claims to be a girl, but emotionally, what can I do? Also, while searching the internet for ideas, I came across this very ugly article:
    I felt it somewhat applied, especially with NARTH being brought up in the trial recently. Sorry this is so long, I just didn't know where else to turn.

  • 8. Lesbian - not trappe  |  January 22, 2010 at 2:06 pm

    Hi Angel there are so many people that are here, that know what you, and more importantly, what your child is going through. it's normal. all of our experiences may seem OUT there but they are normal. I just posted my story, buried in another thread and fear hit me when I posted it. I will post it again here, with the thought that it's okay to tell our stories because we all meet somewhere in the middle and as we share, we discover.

    Lesbian – not trapped any longer

  • 9. Ann S.  |  January 22, 2010 at 2:10 pm

    Angel, run far, far away from anything put out by NARTH. I wish I were more knowledgeable and could offer you positive advice. Hugs to you and your family, and my thoughts are with you.


  • 10. Sheryl  |  January 22, 2010 at 4:42 pm

    Angel, this has nothing to do with sexual orientation, but rather with the health issues you mentioned. If you will e-mail me at [email protected], I'd love to share some information with you.


  • 11. michael  |  January 22, 2010 at 5:51 pm

    Please don't apply anything about NARTH to your son. Reading your last sentence filled me literally with Dread.
    There are several other options available that will not do damage to him that would happen if they were involved.

  • 12. J. Stone  |  January 22, 2010 at 6:29 pm

    Don't rely on the NARTH.

  • 13. Woody  |  January 23, 2010 at 12:12 am

    Angel, it sounds like your children have already seen professionals, so maybe you could talk to those doctors to refer you to appropriate ongoing counseling for both you and your children. I say this not that there is something wrong with you or your children, but because it sounds like a sympathetic counselor may be able to help you and your children understand and be comfortable with who you are.

    I'm not a counselor, but do work in the field supporting other counselors. I highly recommend you find a licensed counselor, rather than unlicensed, faith-based counseling. I say this not out of any problem with faith, but because it has been my experience that many faith-based counselors are unlicensed and severely lack adequate training to deal with the multitude of issues you've brought up.

    All the best to you and your family.

  • 14. Linda  |  January 23, 2010 at 4:17 am

    Angel, I am an elementary school teacher. It has been my observation that young boys often go through that 'I'm a girl/I want to be a girl' phase. I've found that it usually resolves itself with no ill effects. It isn't an 'issue' unless someone makes it one. 🙂

  • 15. Lesbian - not trappe  |  January 22, 2010 at 2:07 pm

    I was a narcoleptic – diagnosed at age 4, and through therapy learned so much about why I slipped into blankets of slumber. I knew at age 9 something I was feeling…was a difference from what others felt. It was certainly not tomboyish feelings (not the natural lesbian things girls go through before learning they are lesbians) as I liked dolls, flamboyant outfits, drama and theater…I just always felt/knew I was really different (not special though). I knew what ‘it’ was called when i was 11, I had three older brothers who were extreme chatter boxes. Knowing this horrible thing about myself (hey why have others judge myself, I was defendant, prosecutor, jury and judge) and I didn’t like it one bit. No way, I could not be gay. My family asked, my best friend asked…all said, “it’s okay if you are homosexual”…but THAT was NOT okay with me. Not because of what other would say, but because what I thought it meant, what it said about ME, what I already knew what people were saying about the pervert homos. I did NOT want to be gay. I wanted to be straight. I tried hard, harder than I ever thought others tried (I know there are worse stories than mine) but I couldn’t shake the that term…gay.

    Later in life (around 19) I suddenly started to have major panic attacks. So much so I had been hospitalized. No one knew what was wrong. but, I literally couldn’t go anywhere in public without thinking i was going to pass out, die, suffocate. My throat has swallowed 100 times more than the average person.

    The days when I was coming to terms — that this is who I am was horrific. I called ‘myself ‘ so many things, I am surprised I survived my own hatred of myself. I remember crying at the thought of talking to someone about it (a catch thought here, I was 31 years old when I came out – when I finally told someone – no same sex experience had ever occurred, it wasn’t about sex, it was about me). I wanted to tell one of the therapist I was seeing, but oh, that judgment I had about myself poured through my skull.

    I knew one girl who was gay (bisexual, but I didn’t understand bisexuality, honestly, still don’t but I also don’t get heterosexuals either)…I could talk to her, I thought at least she would understand…NO! She argued with me for three hours, until she realized I hadn’t stopped crying since two hours BEFORE i told her.

    BTW, if anyone who is going through the same thing. I eventually did stop crying and finally accepted gay is okay. Although I would rather not be homosexual, I accept it. I have my own terms -even- to still deal with.

    I am still an agoraphobic. Can’t travel too far from home (can – if I have alcohol, and that’s not a good thing.)

    Most of my friends would point out I am a lesbian trapped in a drag queen’s body.

    My story may not be good one for someone coming out. But remember, I am now 46 years old, almost 47. I came out when I was 31, pretty much knew when I was 11. 20 years is too long to find oneself, even though – i am still learning to love myself, well, heck I do love myself!

    Times have changed. Acceptance has changed. If you are hurting, seek out someone to talk to (pretty much all psychiatrists, therapists KNOW we are who we are and don’t judge) Thankfully!

    I should shut up. Well, actually one more bright point. The second person I told was my best friend, Kent. We went to dinner and i told him. While we were walking out of the restroom he said, “well, girlfirend, we need to find you a girlfriend.” It made me smile. There is always someone who GETs it.

    Wondering at this point, will I hit the submit button or quit my browser…I guess you will know.

  • 16. couragecampaign  |  January 22, 2010 at 4:36 pm

    Thanks for sharing your story and hitting submit. Very moving and much appeciated.

    Take care,
    Eden w/ Courage

  • 17. elliott  |  January 23, 2010 at 1:16 am

    Dear Lesbian who is no longer trapped,

    I have tears in my eyes… OK really crying now. I am so glad you submitted because I know someone will read this and he/she will be greatly helped. I have been out for 12 years and sometimes think the process is over. It is testimonies like yours that show me that I can still get further away from that closet door. Thank you for sharing.


  • 18. Paul - England, UK  |  January 23, 2010 at 3:49 am

    I think I know exactly what you mean. I think part of me inside is still struggling to accept it, to throw off all the negative stereotypes.

    My experiences with the "LGB community" have been unluckily not so positive, although granted that in bigger cities like Manchester the experience is always positive.

    I'm coming to America next year and hoping the American LGBT community will be more of a community and less cut off into little cliquey groups, such as seems to be the case here in Europe.

    I've been through that whole rick and role of panic attacks, agoraphobia and iced that with a suicide attempt, and found that most LGB (and Str8) people don't understand. Depression and anxiety are indeed tricky beasts!

    And, like you, I like it when people say "We need to find you a boyfriend" it reminds me that I am a human like anyone else.

  • 19. Linda  |  January 23, 2010 at 4:18 am

    Paul, I think that one of the biggest positives of this trial is the connection we have all made with each other. We are no longer isolated.

  • 20. Lesbian - not trappe  |  January 22, 2010 at 2:09 pm

    oey, restaurant, not restroom. I sent kent a link to here and he will have a field day with that.

  • 21. Casey  |  January 22, 2010 at 2:12 pm

    Angel, I work in children's mental health. I think the best option for you is to make sure your children get the services they need for their mental health problems – NARTH cannot help your kids, as evidenced by numerous articles, including the one you cite. Asperger's, Tourette's, bipolar disorder, and schizophrenia are not insurmountable, but can certainly have an impact on quality of life. Many mental health problems, such as some of these, have a biological basis. At four, it's hard to say what may be happening with your son. Listen to them, validate their feelings, and don't judge. If a mental health professional feels wrong or judgmental to you, find another one. Don't let anyone tell you that your children are "bad kids". There is no such thing! As far as their sexual identities, no one can define that but them, over time. They don't need a label now to be happy kids who grow into healthy adults. Good luck!

  • 22. Michael Herman  |  January 22, 2010 at 2:41 pm

    My new image that shows what Propostition 8 does to America:

  • 23. draNgNon  |  January 22, 2010 at 3:27 pm

    Hello people who run this site, any chance we can get updated a little? The defense talked about a second witness that's not on that page…

  • 24. fuzzygruf  |  January 22, 2010 at 3:30 pm

    If someone could take that key-namesplayers list and make a page with available photos of the people, that would be nifty.

  • 25. Cy Guy  |  January 22, 2010 at 4:02 pm

    I'm not clear of the goal of Nielsen's argument. Even if the Defense succeeded in 'proving' that SO was fluid, why should that make any difference in the determination/designation of LGBT as a protected class?

    Members of religious groups are a protected class, yet clearly that is a fluid 'choice' made by the individual to believe in that religion and how public they want to be about it.

    It seems to me the Defense just wasted a day on this argument, which they were unable to prove to begin with. In fact, the argument that I guess they are trying to make – that LGBT's can choose to be straight and should therefore be 'happy' with the same 'choice' of straights to marry an opposite partner or not marry at all – just goes to show that the Defense is basing their argument on their view of morality that opposite sex marriage is the only valid choice.

    Perhaps the proponents should ask some of the Defense witnesses if they would be happy if their only choice of marriage was to be married in a Buddhist or Islamic ceremony, would they still consider themselves married – since they have the choice of converting to Buddhism or Islam?

  • 26. Ann S.  |  January 23, 2010 at 2:28 am

    Cy Guy, one of the goals of the plaintiffs is to try to show that sexual orientation should be a "suspect classification", which means that legislation that treats people with different sexual orientation differently is subject to "strict scrutiny". If we can gain strict scrutiny as the standard of review for Prop. 8, it will help our case enormously.

    One of the usual defining characteristics of a "suspect class" is immutability of the characteristic, that is, you can't just change it. Religion is different because it receives special protection under the First Amendment.

    Hope that helps.

  • 27. Cy Guy  |  January 23, 2010 at 9:37 am

    thanks, I didn't think about the 1st Amendment implications – but why not pursue the right to SS marriage as the individual's right to practice their religion? (or the church's right to provide the sacrament to its flock)

    As a UU, I feel my rights are abridged by not letting lgbt UU's get married in my church when my church fully supports their right to do so. I certainly feel that Catholics and Mormons need to butt out of the issue. If they don't want to perform SS marriages I'm fine with that, but they have no right to tell my Church whose relationships it can or cannot sanctify.

  • 28. Ann S.  |  January 24, 2010 at 5:43 am

    Cy Guy, I agree with your reasoning but I'm not a constitutional lawyer, and I don't know why the plaintiffs' team decided not to pursue that line of argument.

  • 29. Lance Lanier  |  January 22, 2010 at 4:14 pm

    “I firmly believe in the sacred definition of marriage as Indiana has always known it, as it is written in statute,” said state Sen. Carlin Yoder, a Republican, who wrote the bill told the Tribune.”This is not in any way an attack on the gay and lesbian community. By doing this, we are not taking away any rights from the gay and lesbian community in Indiana.”

    Ok… I know I posted this from another site, but the fact that it's not an attack because they're not taking away any rights just blows my mind. OF COURSE NOTHING IS BEING TAKEN AWAY, BECAUSE WE NEVER HAD IT.

    That's WHY we're in Federal court now over CA's Prop8, much less Indiana. I just don't understand DOMA and why the U.S. Congress can't DO THE RIGHT THING. JEEZ!!!!~

  • 30. Buffy  |  January 22, 2010 at 8:15 pm

    Gay people can't be "converted", they can only be repressed. But why should it make a difference if we could be "converted", or if sexuality is as fluid as water? People change religions every day of the week but religion is afforded more protections than anything in this nation.

  • 31. chris  |  January 22, 2010 at 11:12 pm

    because we have to show that we are a suspect class. Religion does not, because it is already written into the constitution in the 1st amendment.

  • 32. Jack  |  January 23, 2010 at 1:47 am

    You know, as I read back the testimony from yesterday, I am struck by the argument they are trying to make, i.e., "that gay people do not exist."

    Wasn't it Iranian President Ahmadinejad who said, "we don't have that problem, homosexuals don't exist in Iran. . .?"

    That is also the man the denies the holocaust ever occurred. I'm refraining from calling the defendants the names that I truly want to use, but I think the arguments stand for themselves.

  • 33. Linda  |  January 23, 2010 at 6:45 am

    I informed my children that they are doomed because
    1. Their parents are divorced.
    2. They have little/no contact with their father
    3. They have been raised by a single parent
    4. Their mother has 'turned' lesbian
    5. Their mother and her partner will be living together outside of marriage (like any other option is available)

    I explained to my children (ages 15, 17, 19) that there is no hope for them. They should drop out of school, start doing drugs, start smoking, drinking and going to sex parties.

    They just laughed, helped me fix dinner, and then went to their rooms to study.

    Linda and Leslie

  • 34. Ann S.  |  January 23, 2010 at 1:04 pm

    Linda and Leslie, I think I love you and your kids.

    Unfortunately, I'm already married, and to a man at that.


  • 35. jamie d  |  January 23, 2010 at 8:12 am

    I have a feeling that, along with defining g&l out of existence and making their status as a suspect class less determinate, they want to lay the foundation for showing that, if gay marriage is allowed, it could actually lead to an increase of people becoming gay. They want to create a rationalization for the idea that "gays are gonna corrupt our kids" by saying that if we show tolerance and acceptance to equal marriage, there will be more people who "become gay" than would otherwise happen. If orientation is fluid, not only can they successfully "pray away the gay", but they justify their fears that gay marriage is going to break down the whole of heteronormative culture. If it's a two way street, they can more easily claim that marriage needs to be frozen in its present state to maintain the stability of our entire society. They want to simultaneously legitimize the hateful memes of the homophobes and claim that they are the ones who are persecuted and threatened. After all, their entire world view is built on the notion that they are righteous and all others are wrong. Anyone who defies that, even by simply living as an openly out and proud member of society with head unbowed, threatens their dominance of society. If anyone can marry, they become superfluous; and, if their fears are to be believed, they might just end up turning gay themselves.

  • 36. James L. Greenlee  |  January 23, 2010 at 4:23 pm

    They're trying to say that sexuality is fluid and a choice, I get that. But there's an area that could have explored that explains WHY they get these contradictory answers, at least from men.

    I've known a couple of guys who tried to live as straight for many years. Each of them dated and then married women. Each of them had a long stretch of time where they slowly came out. At first, they'd stick a toe out of the closet, hook up with a guy or two, and then go back. When they finally DID come out, they'd still maintain that they used to be straight and that they changed to gay. They both clung hard to the genuineness of their initial heterosexuality. I think they didn't want to devalue their marriages out of genuine love for their wives and/or embarrassment for having married at all.

    But eventually, they came out all the way. Today if you asked them if they had a choice, they'd say no. They'd tell you they had always been gay, but fought it for years. But if a surveyor or researcher had asked them in their teens, their 20s, their 30s and then their 40s, they'd have given a different answer each time. IF they deigned to answer truthfully in the first place.

    Their sexuality wasn't fluid. Their self perceptions were. I can't speak to lesbians, other than to say that there does seem to be fluidity there. But the scenario I laid out above may be similar for them too, I don't know.

  • 37. christian heppinstal  |  January 23, 2010 at 5:41 pm

    greetings from alaska. yes, i'm following and have been following the Prop 8 debacle–ex San Franciscan here. listen, all this coverage can get us down and i say why not celebrate and lift our spirits with satire and humor in regards to gay marriage and prop 8. take a look at the midnight soapscum live satire on prop 8 and gay marriage we did last summer in Anchorage when we lost Prop 64. cheers and stay strong, all, Christian Heppinstall

  • 38. P Cabrera-Nguyen  |  January 23, 2010 at 5:58 pm

    I cannot believe they tried to use Dr. Lisa Diamond's work to support their argument. She is a VOCAL critic of reparative therapy and the notion that sexual orientation–notice i did not say sexual identity–is fluid. You can watch her angrily denounce pseudoscientific right wing hate groups (i.e., NARTH and "Dr." J. Nicolosi) for cherry-picking and distorting her research–much like is happening in this case–RIGHT HERE.

  • 39. GeneNaden aka Rainbo  |  January 24, 2010 at 5:36 am

    I am for the plaitiffs but I disagree with the blogger regarding the defense strategy. The defense is trying to show there is no defintion of homosexuality in order to deny that homosexuals are a "suspect group" If plaintiff can show they that homos are a "suspect group" then it becomes the court's responsibility to protect them from discrimination. That is, the burden of proof is easier. I am not a lawyer but I have been following this case and read about other cases and this is what I read. I would welcome an attorney's comment on this.

  • 40. Prop 8 Trial Coverage&hellip  |  January 24, 2010 at 6:11 pm

    […] 6 – Day 7 – Day 8 – Day 9 – Week 2 […]

  • 41. G. Rod  |  January 25, 2010 at 1:47 am

    In reading this excellent blog and then the transcript of the exchange between Neilson and Herek, I am not sure I agree with Julie Rosen's comment that the professor hung tuff. Too much knowledge did not serve this witness well in crisply describing and distinguishing the 'vast majority' – the forest from the exceptional tree. Furthermore the field of social psychology did not emerge from Neilson/Herek's exchange as a social science to be relied upon by the Judge in seeking insight into the attributes of sexual orientation. If creating doubt was Neilson's purpose through Prof Herek's at times inarticulate replies, he may well have achieved his purpose. In contrast, Dr. Herek was articulate under Dittner's examination. But Julie being there has the sense of context.

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