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Liveblogging Day 9: Part III


By Rick Jacobs

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.)]

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  • 1. Dan  |  January 22, 2010 at 4:31 am

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

    That's me, right there. I'm somewhere between straight and bi on this whole spectrum.

  • 2. Karin  |  January 22, 2010 at 5:52 am

    Uh-oh. I think Sean Connery and Johnny Depp are sexy. I wouldn't sleep with them, but if simply finding someone beautiful to look at counts, can I no longer call myself a lesbian? What about straight girls who think other girls are pretty? Slick slope, there.

    I've always thought there was a continuum, with totally gay on one end and totally straight on the other, and the rest of us somewhere in the middle. There are plenty of self-ID'd straight folks who experimented in college. Some self-ID'd women date men on the rebound from ss relationships; they are physically attracted to both sexes but emotionally only to women.

    I'm assuming that more than definition, D-Is will try to link this to choice? As in, well you find both sexes attractive, you could choose to be a hetero?

  • 3. fiona64  |  January 22, 2010 at 5:54 am

    See, this is exactly the thing. The reason I came up as a 1.3 on Kinsey, based on how they do their research, is that I openly acknowledge when I think another woman is beautiful. Yet, I've only ever been sexually attracted to and/or intimate with men.

    I think it's absurd to say X number of partners = LGB, or "OMG, you said Catherine Zeta-Jones is pretty so you must be a lesbian."

    I think they're going for exactly what you said here: As in, well you find both sexes attractive, you could choose to be a hetero?

  • 4. christina  |  January 22, 2010 at 6:14 am

    i might be this. i've had sex w a few men, dated only 1 for 3 years, enjoyed some, but i would nevber want to marry a man. my future is with a woman

  • 5. Jane  |  January 22, 2010 at 6:36 am

    Like me saying I'm 80/20… But marriage/committment to one person means I define myself as a lesbian. No biggie.

  • 6. tom  |  January 22, 2010 at 6:29 am

    I've always been attracted to guys, even when married to a woman. However, my denial was "I may want sex with men, but 'm NOT one of those!" Well, guess what as it turns out, I am indeed one of "those."

  • 7. Jay  |  January 22, 2010 at 4:31 am

    This line of questioning bothers me. I wish I knew their endgame.

    At least today is Friday and I don't have to worry about getting up early tomorrow!



  • 8. James Sweet  |  January 22, 2010 at 4:41 am

    My guess, as I've stated elsewhere (but hopefully it will be visible at the top of this thread) is that Nielsen's intentions are twofold:

    1) He wants to show that since LGBT as a class is impossible to define, it cannot be a "discrete and insular" class, and therefore is not eligible for suspect classification. To de-legalese it, the idea is that if you can't even define who is a member of group X and who isn't, then how can you possibly discriminate against group X?

    2) He may be trying to broaden the definition of LGBT to dispute the "powerlessness" angle testified about earlier. For example, if he can get a plaintiff witness to testify that anybody who has had a single homosexual experience is part of LGBT, then he can argue the group is so large that how can you say they do not have political power.

    Not too much to worry, though, I don't think… Strict definition of ethnic minorities is sometimes difficult, but they have been recognized by SCOTUS as a suspect class. I think it is pretty obvious to everyone — including Judge Walker — that the category is at least defined enough for discrimination to occur.

  • 9. DustinB  |  January 22, 2010 at 4:47 am

    But sexual orientation was recently added to hate crimes legislation, correct? Therefore there's already legal precedent that it is defineable enough. Are they trying to get this decision overturned as well?


  • 10. MJFargo  |  January 22, 2010 at 4:51 am

    I'm really looking around for the person that idenfies as "homosexual" but isn't.
    …still looking around….

  • 11. Jay  |  January 22, 2010 at 4:51 am

    That's partly what I was worried about, and also – as I said on a different thread, I think – that if they show that g&l people HAVE had hetero relationships then they should be okay marrying someone of the opposite sex? Which is far fetched, but not outwith the realms of possibility.

    I hope you're right, though! I have to have faith that you are. :/

  • 12. James Sweet  |  January 22, 2010 at 4:52 am

    Interesting point, but there are couple of reasons that doesn't matter. First, remember that was a legislative action, not a judicial action, and therefore can't be viewed as "precedent". Second, a category being named in a piece of legislation is one thing, but getting suspect classification is another thing altogether. It's really apples and oranges.

  • 13. Callie  |  January 22, 2010 at 5:23 am

    If that's the case with your #1 point, then religion should be removed as a "suspect" class unless they're going to run around in garb appropriate to their religion so we all know which one they are. Just because I can pass as straight doesn't mean I can't be discriminated against. All I have to do is fill out any application that asks for marital status and mark nothing on there. Red flags already up. If I mark single and I'm near 40 with no man in sight, then I'm suspicious anyway. So, I can say it or not say it, show it or not show it. I can still be discriminated against.

  • 14. James Sweet  |  January 22, 2010 at 5:27 am

    Religion is not a suspect class — it doesn't need to be, because it is explicitly protected by the First Amendment.

  • 15. Curt Rowlett  |  January 22, 2010 at 5:31 am

    James wrote: "He wants to show that since LGBT as a class is impossible to define, it cannot be a “discrete and insular” class, and therefore is not eligible for suspect classification."

    Good synopsis, thanks. (But to me, the defense is just trying to pick gnat poop out of pepper, as they say in the south).



  • 16. James Sweet  |  January 22, 2010 at 5:38 am

    Curt: Now that I agree with! 🙂

    Putting myself in the mind of a defense lawyer on this case (owowowowowow!), I think this general line of questioning is a pretty good strategy… the game really turns on this suspect classification thing, and the two main vectors of attack on that front are "LGBT are not sufficiently classifiable to satisfy the criteria", and "LGBT are too politically powerful to satisfy the criteria". The defense should indeed miss no opportunity to try and score a point on either of those…

    …BUT, their tendentious way of going about it seems really dumb. All they needed to do was get him to say that the definition depends on who you ask, which the witness already did. Then it is time to move on. As it is, they are scoring no additional points, and only really succeeding in pissing off the judge.

    The only thing I can figure is that they are just trying to get the witnesses to talk about the difficulty of definition for as long as possible, knowing that it does them no good for this trial — but hoping to get a money quote they can bring up with SCOTUS. That's the only thing I can figure…

  • 17. Prup (aka Jim Benton  |  January 23, 2010 at 3:56 am

    It strikes me that the entire thrust of the Defendants' arguments — both sides to some extent, but the Plaintiffs have more things they need to 'legally establish' — is aimed at Justice Kennedy. From all that has been reported, Judge Walker 'gets it.' He knows we (LGBTQ however self-defined) are discriminated against, that the Defendants did use hate and lies to stir up voter to pass H8, etc. He also knows this is about the right to marry who we choose, however we define ourselves. (I define myself as Bi, but chose to marry a woman, and couldn't imagine choosing otherwise, but would 'politically' define myself as 'gay' when the question of anti-gay prejudice comes up, because I would be so defined by a homophobe.)

    In short, I can't imagine him ruling against us, unless Boies and Olson had been total idiots, which they haven't been. I don't see any of the arguments for the Defense having any effect on him because he knows the reality of the situation.

    On SCOTUS, we can — probably — assume the "Fearsome Foursome" will vote against us. Scalia has already — in Bowers — accepted the legitimacy of state laws against masturbation, ferKroo'ssake. (If I have to mention a diety, I prefer Kuttner's meek one from a WWII story). Roberts and Alito vote for the Republican line, whatever it is, and Thomas usually does, though he just might surprise people.

    The four (comparatively) Liberals will be with us. (Sotomayor has stated the only possession she would never give up is her house in the gayest part of the West Village, so she is obviously gay-acceptant, and the others are one record and consistent in their support.)

    So all that every piece of Defendant's testimony and argument seems aimed at is trying to give Kennedy an 'excuse' to rule against us, which is why all of this is important.

    Agreed? Or am I missing something?


  • 18. jayjaylanc  |  January 22, 2010 at 4:36 am

    They're trying, trying, trying to make our reactions in dealing with society's negativation of homosexuality the defining point. They're twisting the facts…lgbt haven't had trouble so-called "making up our minds" because our orientation is "settling" or something. Our orientation seems variable for some indefinite amount of time because we have (or had) almost the whole of society inundating us with negative and disgusting images of what it means to be a homosexual and for varying amounts of time, we're desperate not to become those images. So we dissemble and we lie and we "experiment", and it's all pretty much empty and useless in making us like everyone else so it just depresses us more.

    I personally think about 90% of what these Prop8 people dislike about "homosexuality" are traits that homosexuals have developed because society has spent most of our lives telling us we're worthless and so are our relationships. But they're never going to admit that.

  • 19. Marc  |  January 22, 2010 at 5:17 am

    In a word, it's misogyny.

  • 20. Mykelb  |  January 22, 2010 at 5:39 am

    Mostly, I would say it's patriarchal tyranny.

  • 21. fiona64  |  January 22, 2010 at 5:55 am

    Homophobia is rooted in misogyny (I posted a link to the research on the matter in another thread, and since I have to to a meeting in 5 minutes, I won't have a chance to look it up again for a while). It's all about wanting strict gender roles to be observed … with "feminine" roles being perceived as lesser.

  • 22. michael  |  January 22, 2010 at 5:59 am

    I agree. They blame us for the culture they created. Due to the social stigma attached to being gay or lesbian for all these years and the reinforcement of our worthlessness(from society and religion) we created an environment insulating ourselves from the outside world because of our need for self preservation.
    The behavior that we exhibit are really no different from theirs. Mardi Gras vs. Gay Pride or Any straight single person's Friday night vs.Gay single persons Friday Night. (Almost seems like they are upset/jealous that we seem to have more fun even when they work so hard to make us miserable )
    The fact really is that their own misunderstanding and disgust for us allows the stigma of "other" to pollute everything. Our similarities are ignored and our differences are exaggerated.

  • 23. keenan  |  January 22, 2010 at 7:40 am

    So much hate in the frickin world. To afraid to go in the closet let alone come out of it .To afraid to tell the man I fell in love with how I felt ( would he freak out and hurt me, would he tell my family and friends ) so I left and ended up in a relationship with a woman for nine years living a lie. I told everybody the truth during prop 8 now some of my family won't talk to me or let me in there house or see my nieces and nephews, calling me names telling me I'm going to hell. I am so full of grief and sadness I am loosing the will to live, started giving up I really don't see how there can be God above when there is so much pain below.Never been truly happy in my life, fear has gripped my heart and mind for so long don't think I am ever going to be free of it. If there is a God I wish he would just let me die in my sleep.

  • 24. Tigger  |  January 22, 2010 at 8:58 am

    I understand how you feel as it was the same experience for my ex. His family is so mind boggling religious that even when he moved back home to be near them and his siblings and built this amazing back yard pool for his nieces & nephews. When his new bf moved in with him, his nieces & nephews that he adored we not allowed to come over and swim. I'm happy to say that love won out and the family SLOWLY go over it. Its only been a short time…hang on and things will get better for you because eventually LOVE ALWAYS WINS OUT. Take care and this too shall pass. There is so much to live for & don't let them bring you down or god forbit take you out!

  • 25. George  |  January 23, 2010 at 7:20 am

    Whoa, Keenan,
    Don't go there…screw those people that deny you happiness — get angry. You deserve to feel whole – go with it brother… the belief in what you feel you are, hell what you know you are is what will keep you sane.
    God made you the way you are and the people who can't accept that, including relatives, will just have to live with it.
    There is someone out here that needs your arms around him, someone that needs to be held and comforted, someone who needs your love. Don't give up on finding him.
    Together you will stand strong against the bigoted morons that sling hate.
    Fear is what these idiots want you to feel, that and their view of us as non-humans.
    Fight against that feeling, push back, be strong,
    rage against the inhumanity.
    Wake up from your depression, you're number "1", stand up and take back a piece of the world.
    Because if we don't fight for what's rightly ours, it'll always be them screwing us.

  • 26. naf  |  January 22, 2010 at 4:36 am

    there must be something useful to prop8 side hidden in the rest of that book!

  • 27. Kevin_BGFH  |  January 22, 2010 at 4:42 am

    Yeah, makes me think that, too, otherwise why wouldn't they be content submitting the excerpts? I don't have a legal background, but it makes me think there's something else in the book that they want to reference either in closing arguments or on appeal.

  • 28. Pearl  |  January 22, 2010 at 4:42 am

    Oh yeah! Wait until redirect.

  • 29. Chris  |  January 22, 2010 at 4:37 am

    Dr. Herek is a beast at shooting right through Nielson's trying to get him to admit there is no one definition of GLB.

    Rock on, Dr. H.

  • 30. Pearl  |  January 22, 2010 at 4:39 am

    got this analysis from
    "Nielsen is trying to show that sexual orientation is not definable, even by our own admitted experts. and if it's not immutable or stable, then there's no grounds for suspect classification and the resulting heightened constitutional protection."

  • 31. Barb  |  January 22, 2010 at 4:41 am

    if sexual orientation is not definable, then how can they say marriage can only be between one man and one woman?

  • 32. Barb  |  January 22, 2010 at 4:41 am


  • 33. naf  |  January 22, 2010 at 4:43 am



  • 34. Rebecca  |  January 22, 2010 at 4:46 am

    Barb, don't use logic and reasoning. It hurts the heads of the Prop 8 supporters.


  • 35. James Sweet  |  January 22, 2010 at 4:48 am

    In fairness, defining marriage as only between one man and one woman does not require a definition of sexual orientation… it only requires a definition of "man" and a definition of "woman". Heh, which in itself is tricky….

  • 36. James  |  January 22, 2010 at 4:45 am

    If we're not a suspect class then why are there so many initiatives geared against homosexuals? How do you continually deny rights to a "group" of citizens?

    So we're not a suspect class we're a singled out class?


  • 37. Lymis  |  January 22, 2010 at 5:38 am

    No, the point is that there are almost NO initiatives geared against homosexuals in terms of using that as a legal definition.

    Marriage, for example is not limited to heterosexuals, nor are homosexuals prevented from marrying. It limits marriage to one man and one woman regardless of their orientation.

    The fact that homosexuals are uniquely affected by it doesn't change that the law doesn't say anything about homosexuality.

    What they are trying to do is get a legal ruling that in fact, homosexuals do not exist as far as the law is concerned. That there is no gay identity, just behavior. And laws can validly regulate behavior.

    It's all BS, of course. Someone on another thread mentioned that this is similar to defining "Catholic." Does that include all people who call themselves Catholic, or only those that Rome thinks are Catholics in good standing?

    The opposition wants the right to define who we are, and then they want to use that right to declare that we don't actually exist.

  • 38. michael  |  January 22, 2010 at 6:06 am

    "What they are trying to do is get a legal ruling that in fact, homosexuals do not exist as far as the law is concerned. That there is no gay identity, just behavior. And laws can validly regulate behavior."


  • 39. Callie  |  January 22, 2010 at 5:25 am

    If our orientation isn't stable, then neither is theirs. Therefore, they don't deserve the rights that marriage affords. All are null and void.

  • 40. Patrick Regan  |  January 22, 2010 at 4:40 am

    I love our team of witnesses. I love our legal team. I love this trial tracker site. I love you all.


  • 41. Phil L  |  January 22, 2010 at 5:54 am

    I second that!


  • 42. michael  |  January 22, 2010 at 1:07 pm

    Motion Approved!

  • 43. James  |  January 22, 2010 at 4:41 am

    OK, I just don't get it. What does the definition of homosexuality, gay, lesbian, bi, try have to do with marriage equality. This man is wasting the courts time talking about nonsensical stuff avoiding why they are in court.

  • 44. James  |  January 22, 2010 at 4:41 am


  • 45. straightfromsacramet  |  January 22, 2010 at 4:41 am

    I don't really understand the need for a clear definition of gay, straight, or bi. Love is love.


  • 46. Lisa  |  January 22, 2010 at 4:45 am

    all together now:

    All you need is love! dub dum dubndum /repeat


  • 47. Patrick Regan  |  January 22, 2010 at 4:48 am

    Love is all you need


  • 48. Sam  |  January 22, 2010 at 4:56 am

    Greetings from the UK! Haha, you guys crack me up. It's great to see how this is bringing lots of people together. It's late at night here in England and I've been following the case avidly each day.

    I know that technically the horrendous existence of Prop 8 doesn't affect me, but as someone elsewhere on this site recently reminded us: "Injustice anywhere is a threat to justice everywhere."

    So if you guys are willing to put up with me, I'd like to stick around for a bit 😉

    Love, Sam

  • 49. Patrick Regan  |  January 22, 2010 at 5:02 am

    Sam, you are more than welcome here.

    I'm straight, and in Ohio, so the law doesn't directly affect me either. But in a way it affects all of us, as you said.



  • 50. David  |  January 22, 2010 at 5:05 am

    Yes, Sam – we welcome you and any comments you may have regarding these proceedings – it is interesting to get an 'outsiders' view of these proceeds.

    So, Welcome!

  • 51. Marc  |  January 22, 2010 at 5:19 am

    I was made for lovin' you baby, you were made for lovin' me!

  • 52. Mykelb  |  January 22, 2010 at 5:44 am

    Hey Sam, How is old Ms. Robinson doing? Did she completely lose her shit? Is she comatose now?

  • 53. michael  |  January 22, 2010 at 6:08 am

    Love is all you need!!!


  • 54. Sam  |  January 22, 2010 at 6:14 am

    Thanks guys!

    Hey Mykelb, yeah pretty much… she's in a mental institution now, and facing a police investigation. Aaah, schadenfreude.



  • 55. Lymis  |  January 22, 2010 at 5:41 am

    The law needs the definition. Either we exist as an identifiable group, which can then be declared subject to discrimination, or we don't, in which case we can't be discriminated against.

    Most of this trial really has nothing to do with marriage. It has to do with determining whether gay and lesbian people are an identifiable group that deserves the same kind of equal protection that race, religion, and gender gets.

  • 56. Santa Barbara Mom  |  January 22, 2010 at 4:50 am

    They have to be creative………it's all they've got to go on. I'm confident that Judge Walker knows that and is just giving them their time in court.


  • 57. Kristen  |  January 22, 2010 at 5:41 am

    SB Mom,

    Don't know if you've read our replies, but several of us responded to your questions back in Part II.

    Take care.

  • 58. Julie  |  January 22, 2010 at 4:51 am

    What's interesting is that after hearing Dr. H talk about definitions and choice I realized that I had never really thought about the obvious. I rejected the essentialist notion that we are born LGB – personally I'm pretty far on the lesbian side of the Kinsey scale, but my wife is not. I felt that as our right to "life, liberty and the pursuit of happiness" that it didn't matter if we choose – shouldn't we have the freedom to choose and not be discriminated against? And that the LGBT movement has made the mistake of emphasizing essentialism. But now I see that even thinking you have a choice – say, by being bisexual – you still don't. I mean, can we really choose who we fall in love with? Who we are attracted to? That just happens. This blog has been amazing to follow – many many thanks CC!

  • 59. P-dee-tee  |  January 22, 2010 at 4:51 am

    Barb, where do you get your source, the internet?

  • 60. Barb  |  January 22, 2010 at 4:56 am

    Source for what? I haven't cited anything.

  • 61. Patrick Regan  |  January 22, 2010 at 5:02 am

    source? where did she make a statement. I see a question. a challenge, but no statement.


  • 62. Barb  |  January 22, 2010 at 5:04 am

    My Statement. I, Barb, am a LESBIAN. And darn proud of it!

    Nope, didn't find it on the internet either.

  • 63. Alan E.  |  January 22, 2010 at 5:09 am

    I found your statement on the internet though, so it must be true!

  • 64. P-dee-tee  |  January 22, 2010 at 6:43 am

    Directions to find truth:

    "Insert statement here"

    Google statement

    Wow- 100,000 hits

    Must be true. Oh- now I get your logic. (From yesterday's testimony from Dr. Tam).

  • 65. Rebecca  |  January 22, 2010 at 4:53 am

    "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?"

    That's a question? Sounds more like a Maxim article, "What are women thinking."

  • 66. Patrick Regan  |  January 22, 2010 at 4:57 am

    haha. I thought the same thing, only with substitute "woman ," "her," and "Maxim" with "man," "him," and "Cosmo."


  • 67. sugarbritches  |  January 22, 2010 at 4:53 am

    If this dude keeps bringing up the point, over and over again, that heterosexuals periodically engage in homosexual behavior, he's gonna risk having marriage taken away from all of them before the incest and polygamy and bestiality and pedofilia take over the whole frigging world! Might wanna rethink that….


  • 68. Pearl  |  January 22, 2010 at 5:06 am

    I love it!

  • 69. Callie  |  January 22, 2010 at 5:28 am

    ROFL…I thought the same thing!

  • 70. naf  |  January 22, 2010 at 4:55 am

    Nielson is trying to create a pattern in science that there is no basis for a stable definition of homosexuality.

    Yes, and isn't this more circular logic? When we live in a society that stigmatizes LGB, how can we have a stable definition?

    Love you all!

  • 71. Mykelb  |  January 22, 2010 at 5:49 am

    The far right folks are unable to think in three dimensions and so are very confused as to identity, behavior and attraction. Too many variables for their narrow minds to process.

  • 72. Nikki  |  January 22, 2010 at 4:55 am

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

    OMG. They are trying to say that, while one might IDENTIFY as GLB, one's BEHAVIOR is mutually exclusive and thus can be reduced to a matter of CHOICE.


  • 73. fiona64  |  January 22, 2010 at 5:31 am

    It's NARTH logic: if you aren't engaging in sex with someone of the same gender, you're now straight. Doesn't matter what's going on inside you.

    In other words, it's nonsense.

  • 74. James  |  January 22, 2010 at 4:56 am

    Sidebar –

    Yes on Prop. 8 supporter Meg Whitman just wrote a $20 million check to her campaign to become the next Governor of California and has said she will spend more than $100 million of her own money to buy herself the job. You read that right — $100 million!

    I'm sure you all just got the same e-mail….

  • 75. James  |  January 22, 2010 at 4:57 am


    I keep forgetting the LOVE!



  • 76. Patrick Regan  |  January 22, 2010 at 4:59 am

    Hey, don't worry about it. I didn't mean for the idea to become a stressor.

    we still love you.


  • 77. Ann S.  |  January 22, 2010 at 5:03 am

    Yes, I find the idea of Meg Whitman as our governator to be pretty frightening.


  • 78. naf  |  January 22, 2010 at 5:04 am

    this is really scary


  • 79. Nikki  |  January 22, 2010 at 5:07 am

    Even more concerning is the latest poll showing Whitman polling way ahead of Poizner (no surprise there) among the GOP hopefuls, and also gaining 11% points on the leading Dem hopeful, Jerry Brown.

    "Meanwhile, the survey found Brown's lead over Whitman has shrunk to 10 percentage points, down from a 21-point lead he held in a Field Poll survey last October. He holds a 17-point lead over Poizner, down from 25 points in October. "

    If Jerry Brown doesn't get off his a$$ and start campaigning ASAP, he's going to make the same fatal mistake as Coakley did in MA.

  • 80. Alan E.  |  January 22, 2010 at 5:11 am

    Jerry Brown just re-released on Facebook a picture of him talking with Cesar Chavez back in the 70's. Latino vote…

  • 81. Stephen Sallis  |  January 22, 2010 at 5:38 am

    The liberal voters in this state better get out and vote or this crazy bitch is gonna be governor.

  • 82. Mykelb  |  January 22, 2010 at 5:50 am

    James, where did you get that bit of info?

  • 83. Jim Keller  |  January 22, 2010 at 4:57 am

    For pity's sake, will someone in the courtroom PLEASE point out that religious is more mutable and more difficult to define than sexual orientation, and yet is a perfectly valid criterion upon which to base suspect classification?

  • 84. Jim Keller  |  January 22, 2010 at 4:57 am

    Religion even.

  • 85. James Sweet  |  January 22, 2010 at 5:00 am

    As has been pointed out before — Religion doesn't need to be named a "suspect class" because it is already protected by the First Amendment.

    If there were an amendment to the constitution stating, "Congress shall make no law respecting the establishment of sexual preference…"

  • 86. Mykelb  |  January 22, 2010 at 5:51 am

    or respecting the establishment of marriage. Then they would have to treat everyone the same. Single, married, bi, gay,straight.

  • 87. Jay  |  January 22, 2010 at 4:57 am

    By the way, I just want to say that even though this case is harrowing and heartbreaking and utterly upsetting, I would find it so much more so if it wasn't for everyone else on here. I was finding it much more so until I started reading the comments and commenting myself.

    It's so much easier to keep the faith when there are others around.



  • 88. James  |  January 22, 2010 at 4:59 am

    Well Jay, we're all in this together!

    And luckily, it appears we have the better legal team!



  • 89. Jay  |  January 22, 2010 at 5:25 am

    We do, don't we? Thank goodness! I've been so very impressed with them since the trial started.

    If they win this for us, I hope they get their own chapters in the history books.



  • 90. Ozymandias  |  January 22, 2010 at 6:01 am

    Jay, we're not alone – that's been such an amazing reassurance here on this blog!

    Much love,


  • 91. e  |  January 22, 2010 at 4:59 am

    I'm SO unimpressed right now. If Ted Olson were on the other side, I'm betting he could construct a much more persuasive argument. I don't know how the trial will end, but it's really highlighted the amateurishness of the defence team.

  • 92. Nikki  |  January 22, 2010 at 4:59 am

    oh gawd. The DI is presenting Venn diagrams now (from FDL)

  • 93. Alan E.  |  January 22, 2010 at 5:00 am

    They are bringing up Venn diagrams next. I, and xkcd, love Venn diagrams:

  • 94. Alan E.  |  January 22, 2010 at 5:02 am


  • 95. Todd  |  January 22, 2010 at 1:59 pm

    LOL, I love that much better than the defense’s Venn diagram. And I also love xkcd.



  • 96. naf  |  January 22, 2010 at 5:01 am

    "her current erotic thoughts and behaviors"


    This reminds me of when I was harassed at work during prop 8 campaign, I complained to my boss, and during our discussion he asked me "why would you want everyone at work knowing your sexual preferences?"
    Ahem — sexual preferences? Just because I know he's married to a woman doesn't mean I know what sexual positions he likes. Seriously.
    I am so sick of the "sex on the brain" that heteros bring to MY LIFE.
    As if I stop being gay when I am single. HA!

    This was at a public school, btw. Total idiot.


  • 97. chanak  |  January 22, 2010 at 5:03 am

    well, the way I figure it, the best way for them to PROVE that we're not a suspect class is to….dadadaDA….let us get married. If no one's stopping us from getting married or having equal rights, then we're obviously not suspect. And if they continue to prosecute…well, then, we are suspect. They are the ones suspecting us. So it's kinda like they're chewing on their own feet.
    The other problematic thing about this line of questioning, to me, is that in part it's really saying, there is no such group of people. However, if that were really the case, this case wouldn't have come to court. I mean, I know the whole suspect group thing is what they're getting at, but let's say what they say is true. Let's say sexuality changes over time. The same way, you might say, tastes in ice cream change over time. If you say to the ice cream people, at some point in people's lives they do not want icy pops shaped like Bert and Ernie (often true), would the businesses then say, oh dear, if that's the case, we should never sell them?? no. They'd say, well, clearly enough people do want such pops that we'll keep them in stock, and as children get older they can choose not to eat Bert and Ernie ices. It's not obviously the same but-EVEN IF (which I think is not the case) at some mysteriously unidentifiable time some people stop wanting to be with same sex partners, is that a reason not to allow them to do so? Clearly there is a demand for same sex marriage. And so the government should give people that right, and if individuals really, at some point, decide they want to "go straight,"then that's their business. It shouldn't be the basis for not offering the option, even if true, which I think our side is doing a good job of proving it's not.

  • 98. Rebecca  |  January 22, 2010 at 5:06 am

    Question, who is questioning Professor Herek?

    Here it says Nielson and at FireDogLake it says Detmer.

    I'm so confused.

  • 99. Michael Herman  |  January 22, 2010 at 5:08 am

    If you have a sexual attraction to the same sex, you're gay. If you have a sexual attraction to the opposite sex, you're straight. If you have a sexual attraction to both sexes, you're bi. Degrees of bisexuality will vary depending on level of attraction.
    Example: If you are a man and only find men with a certain feature attractive, but you are attracted to women in general, you are mostly straight.

    How hard is that to define?

  • 100. paul  |  January 22, 2010 at 5:12 am

    Sexual orientation is not fixed … that means for either heterosexuals or homosexuals.
    What exactly is this heterosexual ideal that is held up then beyond some false romantic ideal if some people shift in and out of heterosexuality as they do homosexuality, seems to me that means that heterosexuality is not a fixed trait and neither is homosexuality, where is this leading us?

  • 101. Devon  |  January 22, 2010 at 5:12 am

    Someone sent me this as a joke that proves animal relationship's are as emotional as a humans. And it's proven the in animal kingdom homosexuality is VERY common! Just picture if it was two girl cats!

    *This is just to make people laugh who are like me and keep STARING at the computer waiting!*

  • 102. pearlheartgtr  |  January 22, 2010 at 5:20 am


    Homosexuality is common in the AK. I breed and keep reptiles and about 15 years ago, I had been given a new book about Leopard Geckos by a T-Rex salesman at a trade show. There was a chapter on homosexuality in Leopard Geckos. It was great! I need to dig that book up because people don't believe me that it was in there. The book was originally published in the UK and the chapter was removed in the US publication.

  • 103. prettyisa  |  January 22, 2010 at 5:14 am

    So, I don't know if anyone has explained this on previous days (I've been reading most, but not all of the comments), but what happens after this trial? If it's going to be re-done twice, do they re-examine the witnesses, or just read over the trial records? Does the defense get a chance to sharpen up their shoddy litigation skills, or are they stuck with what's happening in this trial? I find myself woefully uninformed about this part of the appeals process, although I have to say that over the last nine days I've gotten a MUCH better understanding of how our judicial system works.



  • 104. sugarbritches  |  January 22, 2010 at 5:22 am

    The appellate court reviews the record of the trial court, as well as briefs and oral arguments of the parties, to determine whether there were procedural errors or errors of law. There is no re-examination of witnesses, etc.


  • 105. Rebecca  |  January 22, 2010 at 5:15 am

    "D: P.290. “To quantify or count something requires unambigious definition of the phenomenon in question. We lack that for homosexuality.” Agree?"

    I like that question by the Defense because the same would then, by definition, apply to heterosexuality as well. Therefore, if it applies to heterosexuals and homosexuals then clearly marriage should be denied to everyone.

    That appears to be the Defense's argument.

  • 106. paul  |  January 22, 2010 at 5:18 am

    You got it Rebecca!

  • 107. James Sweet  |  January 22, 2010 at 5:26 am

    Sorry, I hate to burst your bubble, but all that would mean was that heterosexuals could not be considered a "suspect class", and that therefore laws that discriminated against heterosexuals would not have to pass strict scrutiny.

    I am a little annoyed at Rick right now that in some of his commentary on the last post, he misled people about the defense's motivations in this line of questioning. It has nothing to do with the feasibility of allowing same sex marriage, and has very little to do with changeability — it is rather about a fairly esoteric legal point.

  • 108. Patrick Regan  |  January 22, 2010 at 5:28 am

    Good point.


  • 109. Mary  |  January 22, 2010 at 5:38 am

    You don't think that they are trying to undemine homosexuality as an immutable trait?

  • 110. Patrick Regan  |  January 22, 2010 at 5:28 am

    Yay no marriage for anyone!


  • 111. Callie  |  January 22, 2010 at 5:17 am

    My goodness, these people are completely ignorant of how research and science works. You HAVE to define your groups to make your research clear to others. The scholar in me is getting REALLY pissed off!

    And what is this about a woman's "erotic thoughts and behaviors"?

    Why is this so sex focused?! This isn't about who you have sex with but who you want to spend your life with.

  • 112. Jay  |  January 22, 2010 at 5:21 am

    Because if they keep the focus on sex, then it (a) appeals to moral outrage and (b) makes gay/lesbian relationships seem less valid.

    Which of course is untrue, but it (unfortunately) works for them. 🙁



  • 113. Mark 'RikerBear  |  January 22, 2010 at 5:25 am

    Anyone else getting a headache?????

  • 114. Devon  |  January 22, 2010 at 5:31 am

    I certainly am! The defense just goes in circles and I bet if I was in the courtroom I would be confused as to what the hell was going on. They are just trying to confuse people AGAIN with statistic's and numbers etc…

    Wonder why the plantiff's always speak so clearly? MAYBE they know what they're talking about.

  • 115. Callie  |  January 22, 2010 at 5:35 am

    Oh, I've had one since Nielsen got up there. How in the world do the pro-prop 8 people even manage to have functional lives with their brains so twisted in pretzels?! GAH!!! I have migraine meds at home…thank GOD!

  • 116. Lance W  |  January 22, 2010 at 5:29 am

    My best friend tells me he considers himself straight, however he's also told me that he's willing to have sex with me. but not a romantic relationship … just sex.

  • 117. Bill  |  January 22, 2010 at 5:54 am

    You PROMISED you wouldn't tell anyone!!!!


  • 118. Marc  |  January 22, 2010 at 5:29 am

    This sounds like Harvey Milks assertion that we cannot sit on the sidelines or in the shadows if we are to be taken seriously.

  • 119. Marc  |  January 22, 2010 at 5:31 am

    N: Do you agree that homosexuality has multidimensional phenomenon?

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

    Where's my baseball bat?

  • 120. Sin Gularity  |  January 22, 2010 at 5:33 am

    Perhaps I am missing something, which is entirely possible, but what does "there are people who have gay/lesbian relationships, but don't identify as gay/lesbian" and "there are people who freely have both gay/lesbian and straight relationships" have ANYTHING to do with "there are self-identified gay/lesbian men and women who have a right to get married to the person they love, and they're being denied that right"??

  • 121. Devon  |  January 22, 2010 at 5:39 am

    You aren't missing anything, they are attempting to prove there is no clear definition of homosexuality therefore it same-sex marriage shouldn't exist!

    But he's messed himself up. This just comes off as saying all humans are sexual beings and there are HETEROSEXUALS as well who engage in homosexual activities while claiming to be "Straight" while there are homosexuals who engage in hetero activities.

    He's sticking himself in a hole, by his logic straight people aren't straight either! So marriage shouldn't exist.

  • 122. B  |  January 22, 2010 at 6:36 am

    Except, unfortunately (as James put far more eloquently in an earlier post), it doesn't matter if straight people are straight. The definition of the law is that marriage is between a man and woman. It has nothing to do with the sexuality of that man or woman (theoretically speaking).

    The plaintiffs are trying to prove that homosexuals should be a suspect class. One of the elements necessary to be a suspect class is that the trait has to be immutable, or unchangeable, and the group has to be distinct. The defendants are trying to show that sexuality is a mutable trait, and that homosexuals are an undefineable group, so as to prevent the "suspect class" classification by the court. If gays are found to not be a suspect class, we have a much steeper hill to climb as far as proving the unconstitutionality of Prop 8.

  • 123. Lymis  |  January 22, 2010 at 5:47 am

    There are people who have parents of two different races, and therefore do not fit neatly into specific racial pigeonholes, and yet their existence doesn't invalidate the idea of racial discrimination.

    So what if some people don't fit neatly into specific orientation pigeonholes? Doesn't mean the rest of us don't exist!

  • 124. Ty  |  January 22, 2010 at 5:37 am

    It's absolutely true that if being gay wasn't frowned upon, this world would be so much more loving–and happier. 🙁

  • 125. naf  |  January 22, 2010 at 5:38 am

    THANK YOU, Rick, for your dogged reporting!

    We love you!

  • 126. Mr. HCI  |  January 22, 2010 at 5:39 am

    If the stigma were completely removed, I think we'd find the old estimate of 10% of the population to be actually low.

  • 127. naf  |  January 22, 2010 at 5:39 am

    yup I agree


  • 128. Aconite  |  January 22, 2010 at 7:24 am

    If people weren't brainwashed from infancy, we'd see a classic bell curve.

  • 129. Michael Herman  |  January 22, 2010 at 5:42 am

    I send NOM a couple emails with my blog showing how Prop 8 is Unconstitutional, and a copy of my speech. Now, I'm on their email list. O_o

    In the email, it says this trial is not going well for gays. Damn, they truly are blind, or delusional.

  • 130. Barb  |  January 22, 2010 at 5:44 am

    Did they just admit that there ARE gays in the world?

  • 131. Michael Herman  |  January 22, 2010 at 6:08 am

    Here's the copy of the email:

    Dear Michael,

    Senator Scott Brown!

    Any time you wonder whether miracles can happen, just mutter that phrase under your breath: Senator Scott Brown!

    A political earthquake just happened in Massachusetts. Yes, it's about the economy. Yes, it's about voter dissatisfaction with the current health-care bill. And yes, it’s a victory for marriage, electing a senator who voted for a state marriage amendment and who pledged to uphold DOMA over a candidate who has led the charge to get the Supreme Court to gut DOMA–the one federal law that protects marriage as the union of husband and wife. (You can see from the articles in “NOM in the News” that our efforts to get marriage voters to the polls in Massachusetts did not go unnoticed!) Pres. Obama is also going to have a much harder time delivering on his promise to overturn DOMA after this 41st vote!

    But it goes even deeper than that. Scott Brown's victory is a massive repudiation by voters of politicians who ignore their voices and their values–and let me tell you it bodes well for our job here at NOM in the 2010 elections in New Hampshire, Iowa and elsewhere. We have a great opportunity to fire incumbents who refuse to trust the people to vote on marriage, and replace them with elected representatives who represent our interests and values.

    I am very optimistic about what this mean for marriage in the very near future–and so should you be!

    And remember this is your victory! By helping NOM with your prayers, your sacrifices, your emails, your phone calls and yes, your time and treasure, you helped make this happen!

    One of the things we want to do at NOM is remain lean, flexible and smart–with the capacity to act fast to make a difference when opportunities arrive. Sen. Scott Brown is, we hope, merely the first of many examples of where you can make a difference. Thank you. I never forget that you are what make our work possible.

    The big Prop 8 trial continues to unfold. Maggie Gallagher is commenting about it daily at the NOM blog, and you can sign up for our Twitter feed if you want to keep up.

    But here's the bottom line: So far, it's not going that well for gay-marriage advocates. Legal scholars who favor gay marriage are expressing increasing concern. After the Supreme Court intervened to block the shenanigans aimed at televising the trial, Prof. Dale Carpenter called it "a potentially ominous development for the pro-[same-sex marriage] litigants." After all, "As an advocate you'd rather not have the ultimate reviewing court call into question your judge's objectivity on the third day of trial. The Court also takes seriously the claims of irreparable harm to anti-SSM witnesses. …" "As an advocate," he points out, "you'd rather not have the ultimate reviewing court see the opposition as David needing protection from your Goliath."

    All in all, he concludes, "it's a bad start for the judicial challenge to Prop 8."

    Ted Olson's and David Boies's basic legal strategy is to put Christianity on trial. Southern Baptist and Catholic statements about sex and marriage are being read into the record as evidence of animus and bigotry and fancy professors are testifying that "religion is the chief obstacle for gays' and lesbians' political progress."

    As Maggie writes, "Ted and David want the Supreme Court to rule that Catholicism and Southern Baptism and related Christian denominations are bigotry."

    You and I know better. You and I know that millions of decent, loving, law-abiding Americans are being characterized as bigots and haters because we know that marriage is the union of husband and wife.

    One example: Cindy McCain.

    You may have seen the news stories that Sen. McCain's wife announced her support of gay marriage. That's no big deal. It's a free country and everyone should be able to speak their minds, even when we disagree. But Mrs. McCain chose to express her mind by appearing in an ad campaign whose slogan is "NOH8." Get it? No to Prop 8, No Hate.

    That’s a slogan that collapses the distinction between hatred and disagreement, which insults and stereotypes 7 million Californians who voted for Prop 8–not to mention Mrs. McCain's husband, who campaigned for Arizona's marriage amendment.

    I have a message for Ted and David: It's not going to work. It's not true, it's not civil or decent, and it's not going to work!

    Pray for our opponents. We need grace, and courage, and kindness of heart to stand up to the onslaught unfolding before our eyes.

    And we need, above all, to stand together for the truth about marriage.

    With God's grace, truth will prevail.

    God bless you!


    Brian S. Brown
    Executive Director
    National Organization for Marriage
    20 Nassau Street, Suite 242
    Princeton, NJ 08542
    [email protected]

  • 132. Mike  |  January 22, 2010 at 5:42 am

    This whole discussion will end – if one where to ask the analogous question : "How much melanin pigment is required for a person to be defined as Black ?"

    Is Colin Powell less black than Michael Jordan ?

    If I had sex with 3 women during my 20s, does that means that I am no longer consider a "card-carrying homosexual" ?

    And the flip side – if homosexuality definiton is in question because various sexual experiences – then 42 % of heterosexual marriages are also at question …given that those "heteros" had homosexual sex in the past !!!

    Who the F+#* cares how people define themselves.

    Marriage should be between two adults (irregardless of sexual orientation or its definition) who love each other.


  • 133. Chris  |  January 22, 2010 at 5:43 am

    If there aren't gay people, and everyone is on a continuum, then the question becomes one of simple gender discrimination, as was, I believe, the basis of the finding in the Goodridge case in MA.

  • 134. Brandy  |  January 22, 2010 at 5:47 am

    My wife and I are one of the few survivors of this whole prop 8 debacle, our same-sex marriage remains intact.

    And you know what my wife says…
    "I'm not gay… I'm not straight.. I just love you."

    She's got the sweetest wisest soul.

  • 135. IT  |  January 22, 2010 at 5:52 am

    THat's how my wife and I feel too….

  • 136. James Sweet  |  January 22, 2010 at 5:49 am

    his 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.

    No Rick, stop saying this!! This is not what the defense is trying to argue! As other websites have surmised, it's because of suspect classification — you can't have suspect classification if you can't define the class.

  • 137. Barb  |  January 22, 2010 at 5:57 am

    So, the problem is not because of G, L, B, T being multidimensional, but because of CG, CL, CB, CTs (C = closeted) additional multidimensional?

  • 138. Patrick Regan  |  January 22, 2010 at 6:02 am

    The problem is that if we can't classify LGBT easily, then our side can't argue from the idea that they are a suspect class. Suspect classification allows for extra protections.


  • 139. James Sweet  |  January 22, 2010 at 6:07 am

    Right, the argument roughly goes: Here's a guy who has had sex with another man once or twice when he was younger, but he identifies as straight, and has not had same-sex sex in quite some time. Is he gay or straight? And if you can't answer the question, then how is someone who is attempting to discriminate against gay people supposed to know whether or not to discriminate against this guy? Therefore, it is difficult to discriminate against LGBT, therefore, discrimination is not likely, therefore, a law concerning LGBT only has to pass the rational basis test, not the strict scrutiny test.

    I'm not buying it either, but that's the argument.

  • 140. Barb  |  January 22, 2010 at 6:10 am

    Okay. according to that, they think we should all be classified as heterosexuals – that at this moment like the same sex…but one day we 'might' change our minds?

    Isn't that like them trying to pray away the gay?

    I can testify I exist.

  • 141. Ray Harwick  |  January 22, 2010 at 6:22 am

    James, that makes a lot of sense and I agree that Rick is not interpreting the line of questioning accurately.

    RICK. READ THIS!!!!!


  • 142. Patrick Regan  |  January 22, 2010 at 12:58 pm

    That’s what I though too. The suspect classification.


  • 143. Alex O'Cady  |  January 22, 2010 at 5:50 am

    Others may have mentioned this, but really, at the core of it, we aren't really asking for same-sex marriage, are we? That puts a definition on the "type" of marriage. We're simply trying to open marriage up to being between two consenting adults, rather than the asinine restriction they put into the constitution. Right? So why all this back and forth about defining homosexuality, and whether you can put labels on it, and whatever?


    Alex & Jessi

  • 144. IT  |  January 22, 2010 at 5:54 am

    YES! That's it…. it's only if you insist on making a separate classification that definitions matter.

    But it's kinda circular. Their side made a definition and has to make us a class to keep us out. But as James rightly points out, if they can show that we aren't a class, then they can still keep us out….

    The biggest issue is indeed suspect classification for immutable characteristics. On the other hand, religion is clearly a choice and that is also protected.

  • 145. Alex O'Cady  |  January 22, 2010 at 12:59 pm

    “But it’s kinda circular. Their side made a definition and has to make us a class to keep us out. But as James rightly points out, if they can show that we aren’t a class, then they can still keep us out….”

    Ugh. That’s dumb. Not you, just the whole thing is dumb.


    Alex & Jessi

  • 146. Jeff  |  January 22, 2010 at 5:52 am

    I think the judge should throw Nielsen out for putting people to sleep. Anyone with an IQ that shows on a scale knows that sexuality is many times a fluid thing. There are married hetero men that may have had a SS experience, it doesn't make them bi, and it's not like they're going to announce openly, so my thought is, heterosexuals can't be defined in "certain" terms of their sexuality, should hetero marriages then be dismissed?

  • 147. Kristen  |  January 22, 2010 at 5:52 am

    Link re: "pastor" miles mcpherson………located at Recording of time he compared us to cockroaches.

  • 148. Choinski  |  January 22, 2010 at 5:54 am

    Let's assume Prop 8 succeeds in its claim that homosexulaity is sufficiently cloudy enough to defy definition. Wouldn't that just serve to undermine a strictly defined heterosexulaity? Would an ambigously gay duo be classified as hetero?

  • 149. Bill  |  January 22, 2010 at 5:57 am

    yes. unless they attend a Lisa Minelli concert.

  • 150. Alan E.  |  January 22, 2010 at 6:16 am

    It's Liza with a Z. Not Lisa with an S. 'Cause Lisa with an S goes SSS not ZZZ.

  • 151. Lisa  |  January 22, 2010 at 6:20 am

    depends on where you live. I go with a zzzz.


  • 152. Carl E.  |  January 22, 2010 at 6:31 am


    I sang along with you!

    Love to All,


  • 153. Happy  |  January 22, 2010 at 6:00 am

    Wouldn't matter. Strictly defined hetero or not, heteros already have the right to marry the opposite sex – as do we, so say the idiots on the defense team.

  • 154. Alex O'Cady  |  January 22, 2010 at 6:01 am

    Oh my goodness…I just had a flashback to Saturday Night Live, years ago….The Ambiguously Gay Duo and their very special car/plane thing. Hilarious.

    Irrelevant, but I thought I'd share.


    Alex & Jessi

  • 155. bbock  |  January 22, 2010 at 5:57 am

    Seems like the definition of homosexuality should be irrelevant. At issue is whether a man can marry a man and a woman marry a woman, not whether a man identifies as gay, bi, or hetero or whether he has sex with men, women, or both. There is currently no litmus test in marriage law that says who an individual may have sex with, how they or must identify themselves. A man who self identifies as straight but also has sex with men can marry a woman. Shouldn't the issue be that you should be able to CHOOSE who you marry?

  • 156. Joe  |  January 22, 2010 at 5:59 am

    Definitions are irrelevant. No one takes an oath that they're heterosexual before getting into a heterosexual marriage. The man just says I want to marry this woman and that's that.

    Likewise I don't need to define myself, I as a man just want to say, I want to marry this man.

  • 157. Rebecca  |  January 22, 2010 at 6:00 am

    Awesome Queer Rising video

  • 158. Callie  |  January 22, 2010 at 6:03 am

    I do find it kind of amusing how much it's being stated that heterosexually-identified people have, by quite significant numbers, engaged in homosexual sex acts.

    THIS tickles me.

  • 159. naf  |  January 22, 2010 at 6:14 am



  • 160. DustinB  |  January 22, 2010 at 6:06 am

    Trying to say you can't define it is ridiculous. They KNOW there are a group of people out there that openly identify as gay, even if everybody doesn't fit 100% into the "definition." They are blatantly denying rights to a group of people just because they do not agree with the groups beliefs. Will some gay people get married for tax benefits? Yes. Do straight people do it? Hell yes. I personally know a couple that are "married" strictly for tax purposes. They got married just because they could get more money for going to school that way. There are always going to be people who abuse the system but more importantly is the majority of people they're intentionally causing pain to, people who just want their relationship validated by society.

    IF for some insane reason we lose this trial (which I do not believe will happen) I think it would deal a serious blow to my respect and faith in my fellow man. But the most important thing is to never give up. and never surrender.

  • 161. Choinski  |  January 22, 2010 at 6:10 am

    An intersting point was made – is the issue that two self-identified homosexuals can't marry or two members of the same sex cannot marry? Wasn't there a German marriage of two heterosexuals a few years back?

    Any examples of a gay and straight man marrying?

  • 162. Brandy  |  January 22, 2010 at 6:14 am

    Oh, you crack me up!

  • 163. Lisa  |  January 22, 2010 at 6:27 am

    I think there have been a couple of heterosexual marriages in Germany ;-), but not between two men AFAIK.

  • 164. Angel  |  January 22, 2010 at 6:11 am

    My jaw hurts from clenching my teeth so much. They seem so obsessed on what we do between the sheets, and feel the need to save our souls. This is what I've personally experienced. Not only is what I do in my bed none of their business, I am also do not share their biblical views. Why is it so hard for them to accept that we are just human beings who want to be treated the way everyone else is?

  • 165. Cammie  |  January 22, 2010 at 6:15 am

    Our witness has the patience of a SAINT.

    It's standard in academic papers to define your terms, and no matter how self-explanatory they may seem I very rarely see *anything* described as absolute or clear cut. Even the color BLUE would be qualified as 'having various definitions' depending on the context, as some languages don't distinguish between blue and green. (

    To be questioned for hours by someone that either doesn't understand or refuses to acknowledge that concept, and tries to twist it to make it seem like the witness or the scientific community is uncertain about what constitutes homosexuality would make me want to bang my head into a desk. Any published work will acknowledge the inherent uncertainty of classifying something non-numerical into discrete terms, it's just how these things *work*.

  • 166. Betsey  |  January 22, 2010 at 6:22 am

    in the long run, despite the inadequacy of the D's positions and their mediocre (being charitable in the evaluation) legal team this all going to hinge upon how well written and supported by evidence Judge Walker's opinion is. P's briefs should make that an easy task. Clarence and Nino will then turn over every rock possible to remand as it currently appears very, very unlikely to find clearly reversible error. So D's creating a voluminous record may well be good strategy as Nino at least will have bright clerks and Alito and Roberts will probably allow many amicus briefs (likely funded by KofC and LDS). Meanwhile, Pugno and Gallagher are financially set for life. In ten years natural aging process will put this all to rest absent coup by GB and the tea-baggers.

  • 167. Lizzy  |  January 22, 2010 at 6:22 am

    Race and all those labels are a social construct, too. I'm biracial. I look more one race, but I feel the other race's culture is more dominant in my home. I mean, seriously, define black. They used to use the one drop rule and that's still culturally dominant but we also tend to recognize that it's a lot more complicated than that.

    Race is still a protected category even though it's ambiguous and people's identities don't necessarily match their "blood", or whatever. Racial identity certainly changes. All identity does. The point is to respect whatever it is.

  • 168. Anne  |  January 22, 2010 at 6:23 am

    you know, if they say there isn't a fixed definition of homosexuality – well, that ALSO means there isn't a fixed definition of heterosexuality. So are they going to throw all marraiges out? Seems to me they're not really doing themselves any good with this line of argument. Maybe they can use it to say gays/lesbians shouldn't be a protected class… but they're well on their way to eliminating all marriages, not just same sex ones…



  • 169. christina  |  January 22, 2010 at 6:31 am

    Seriously, by saying there's no fixed definition of homosexuality, all that's saying is that there's little difference between homosexual and heterosexuals. And if there's no difference, why shouldn't they have the same legal rights? I either don't see where they're going with this, or just don't see the point of it.

  • 170. Sam  |  January 22, 2010 at 6:32 am

    Perhaps their justification for that would be "Well we only said marriage was limited to one man and one woman, irrespective of their sexuality".

  • 171. Devon  |  January 22, 2010 at 6:28 am

    "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix."

    See! Old Christian logic to why interracial marriage should be illegal.

    My parents still hold this belief, as did 70% of American's when Loving vs Virginia passed. The majority should NEVER have rights.

  • 172. Devon  |  January 22, 2010 at 6:31 am

    "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State."

    It's what they said then. Fucking stick with it!

  • 173. Barb  |  January 22, 2010 at 6:29 am

    This last week or so I have learned so much, and never felt more like I know so little.

    I keep having that 'churn-in-the-stomach' feeling there is going to be a pop quiz any moment now.

    I am not sure I will survive when the defense brings their witness(s)…do they have more than one?

  • 174. christina  |  January 22, 2010 at 6:29 am

    I commend everyone in that court room able to refrain from PUNCHING these people.

    God, though. This pedantic fixation on the definition of homosexuality is frustrating! People are people, and all people should have the same rights. That's what this boils down to. I hope the judge can see that, before this is over.

  • 175. Patrick Regan  |  January 22, 2010 at 6:31 am

    Walker back on the bench now. According to twitter. Should see a post soon.


  • 176. Becky  |  January 22, 2010 at 6:31 am

    Thanks to all of you who have kindly and patiently helped those of us who can be a bit confused by all the legaleze(?).
    Just stopped over to Advocate site where name calling and shaming seems to be the norm. I'm staying here where all the love is
    Love, Beck

  • 177. Steven  |  January 22, 2010 at 6:40 am

    what Becky said about the Advocate site…


    Well said.

  • 178. lesbianmother  |  January 22, 2010 at 6:43 am

    Two things that keep going through my head regarding todays trial… 1) The defense is trying to prove there is no solid definition for LGB, and that SO changes over a life time. What about in the hetro relationships. There is no definition for who you will fall in love with and marry. What I mean by that, and in now way is this ment in any racial or derogatory manner: when a AA boy is in high school he may think AA girls are the hottest thing around, because that is what he was taught is "normal". As he gets older this boy turns into a man and now has eyes for Hispanic women. We live in America should have the right to choose AA, Hispanic, Caucasian, male or female.
    2) The point of how SS sex is repulsing: isn't there a billion dollar porn industry because hetro-men are immensely turned on by "girl on girl" porn?? In other words SS woman sex.

  • 179. Pyoung  |  January 22, 2010 at 6:45 am

    The whole issue of definition brings up the question that keeps coming to mind everyday of this trial. What about the simple fact that restricting marriage to persons of opposite sex is simply sexual descrimination? If Person A is a woman, I am not "right for the contract" of marriage to her because I am a woman. If I were a man, I would "get the job." It has been explained througout the notes why the plaintiff side has to prove suspect class, etc, but why does it matter how I id myself, if I am an adult and want to sign a contract with another adult? Even though they are alluding to the elusiveness of defining "homosexuality/homosexuals" it is the anti-gay groups/people who usually latch on to defining so they can better target their hate.

  • 180. Pyoung  |  January 22, 2010 at 6:49 am

    The formal complaint filed does include this sexual descrimination argument on page 9, but I feel like it's not being talked about yet, in the trial or in comments, or in general. Thoughts?

  • 181. Rose  |  January 22, 2010 at 6:46 am

    What does it really matter if a person's sexual orientation is fixed or changes in their lifetime?

    This is not questioned for heterosexuals to marry…….why for us?

    I have know since I was 10 years old that I was attracted to girls. My wife since she was 8 years old.

    I tried to be straight, but just never found men sexually interested. My wife function heterosexually because she did not want to lose the love of her mother…….but she always knew she was a Lesbian.

    If we just allowed 2 people to marry without needing to pry into the sexual make-up of the couple…….then none of this would even be an issue.

    I mean look at the money being poured into this issue…….we could almost end the National debt or at least rebuild Haiti for all the money being spent on this.

    Eventually Marriage Equality will be as normal as any other marriage and people will wonder why this ever was an issue.


  • 182. Sandy  |  January 22, 2010 at 6:47 am

    Wow, they are just trying to say WE KNOW WHAT'S BEST since you can't make up your minds.

    You're confusing our children.

    You can marry a person of the opposite sex.

    WE DON''T SEE any problems.

    You can hide and nobody will pick on you.

    You can have this crumb and you should be happy we gave it to you.

    Your inequality is not relevant and we could see in the past that racial bias was actually "illegal", so we had to overturn interracial marriage ban.

    We cannot SEE you are "suspect classification", so you are not worthy of equal protection of the law.

    (Uh can you SEE ethnicity or religion, or atheism?)

    Is that the argument?

  • 183. erasure25  |  January 22, 2010 at 6:51 am

    People don't seem to have any problems defining LGBT as evidenced by their ability to target, beat, and kill them. I was walking on the street with a friend and a car drove by and the people yelled "fag!!" to us. Nope, no problem ID me…

    Hopefully redirect will bring up all these points and the points that other people have brought up about defining "heterosexuality," defining race when you are half asian, half english… and half latino, etc. and squash N's cross exam.

  • 184. P-dee-tee  |  January 22, 2010 at 7:03 am

    So when did you choose to be straight?

  • 185. Reagan  |  January 22, 2010 at 7:09 am

    I understand the attempt at trying to label us as a suspect or quasi-suspect class, for higher scrutiny. But if people were honest withthemselves this law shouldn't survive a rational basis test. The government has no rational reason for defining marriage. The argument about protecting marriage sanctity and kids is bunk.

  • 186. Audrey  |  January 22, 2010 at 7:20 am

    I just published a piece on the Huffington Post about why straight people ought to be following this trial closely. I argue that the Yes on 8 people's views on "traditional" marriage are scary for all progressives. I mention this site and quote "Ryn's" wonderful introduction, in which she talks about the evangelical Christians' view of women who work outside the home.

    Here's the link:

  • 187. Steve J  |  January 22, 2010 at 7:44 am

    Once again Rick Jacobs is my hero

    Love, Steve J

  • 188. truthspew  |  January 22, 2010 at 7:47 am

    The Prop8 side is really trying on this one and failing miserably.

  • 189. s saxon  |  January 22, 2010 at 11:22 am

    OK. Whether gayness is choice or predetermined really should not matter!! I should be able to choose to be with a woman or a man and enter into the legal and social contract of marraige. Period! Really–Why does it matter? Is there going to be some sort of test to determine if I was "born that way" or made a choice and I will only qualilfy for marriage if I did not CHOOSE to be with someone of my own sex!??

  • 190. Artemis  |  January 22, 2010 at 12:52 pm

    I think it’s very easy to prove we have a class of people who identify as purely 100% homosexual. Add up all the same-sex marriage licenses. We have 18K from California alone. Add them up, that will give us the amount of people in this class. Regardless of sexual orientation identity within those couples, the mere fact that it is considered a separate marriage category makes us a class. My wife and I are one of those 18K couples.

    Bi-racial people identify as one or the other. The census doesn’t have a bi-racial box does it? It has other and people can write it in if they choose, but most identify with their minority roots.

  • 191. IT  |  January 22, 2010 at 5:56 am

    But MY wife is a problem to them, because like many women, she came out to herself only in middle age and divorced her husband and married me. So they would count her as "changing" which technically she did. Only if marraige is marriage is marriage, what's the diff between divorcing your husband to marry another man, and divorcing your husband to marry a woman?

    This whole thing is making me sick.

  • 192. Artemis  |  January 22, 2010 at 5:52 pm

    I’m sorry, it makes me sick too. Hang in there. The best thing is that your wife loves you and you are happy. That’s what I tell myself 🙂

  • 193. Teddy T  |  January 22, 2010 at 12:58 pm

    These studies regarding the relationship between identity, behavior, and attraction are irrelevant. The self-identity of individuals within a class has no legal bearing on whether or not that class is suspect. These legal protections are based on a common societal understanding of what makes the class a class. If Barack Obama exclusively self-identified as white, it would make him no less entitled to protection as a suspect class because he fits the common understanding of a racial minority: a person of significant non-Caucasian ancestry.

    While the common definition of homosexual might not be quite as ingrained (some still simply understand it as a behavior), it’s safe to say that most today define a homosexual as one who feels significant physical attraction to the same sex.

    From there we have the reasonable assertion that one cannot consciously control their physical attractions.

    And from there we have expert testimony that concludes that acting on homosexual attractions has no inherent negative societal impact.

    So we’ve basically established that discrimination against homosexuals as defined above is persecuting a class of persons for possessing inherent and benign characteristics that are beyond their conscious control.

    Isn’t this a fairly obvious case in which strict scrutiny should be applied? Shouldn’t the plaintiffs be establishing this in those terms?

  • 194. Cat  |  January 22, 2010 at 12:58 pm

    Doesn’t this whole discussion about G/L/B just as much blur the lines of what ‘heterosexual’ means? If a person isn’t 100% sure they’re ‘H’, or even has kissed somebody of the same sex in kindergarden, is he/she still alowed to enter an opposite sex marriage? That’s probably not what the Prop8 side is after…

  • 195. Mouse  |  January 22, 2010 at 1:03 pm

    This whole line of questioning is extremely offensive. Let’s draw a parallel:

    What’s the definition for being a Jew?

    Could be either a member of religion – actually several variations of a religion, or could be an ethnic heritage.

    So is it an unreasonable statement to say there is no one definition?

    Sure, we can go with that. It’s complicated, there’s no one perfect all-inclusive definition.

    Conclusion, your honor, since we can’t define what it is to be a Jew, obviously we can’t discriminate against Jews! So there’s no such thing as anti-semitism.

    Maybe I’m misinterpreting the buckets of crazy, but this is the false logic it seems to me that they are trying do show with this line of questioning. All it shows to me is more evidence of animus.

    If people whose ancestors were brought from Africa to America on slave ships, when faced with overwhelming popular discrimination against blacks, chose not to self-identify as black or African-American, does this make the entire class undefinable? That logic was processed in a factory that produces nuts.


  • 196. cubeslave  |  January 22, 2010 at 6:14 am

    Good analogy.
    Does anyone else find this line of questioning to be dispiriting, regardless of the intellectual holes we can poke in it?
    It is depressing me to read it. It's a combination of feeling like they are trying to erase my existence and a pesky fear that this thinly-sliced balogna could be enough for the SCOTUS to hang their decision on. 🙁

    Angela (& Meg)

  • 197. naf  |  January 22, 2010 at 6:16 am

    All it shows to me is more evidence of animus.

    Me too — great post.
    I wonder if our side gets to redirect after lunch?


  • 198. Dwane Porter  |  January 22, 2010 at 1:05 pm

    So if they say there is no definition of homosexuality – then in turn there can be no definition of heterosexuality.

    They want to define marriage as between a man and a woman. If that is the case what is the definition of a man? And what is the definition of a woman?

    Penis, Vagina, XX or XY chomozones? Looks like a man or looks like a woman?

    And if that is teh case are we then saying hermophodites cannot marry since they are both sexes?

    And what about those with addition all chomozomes like XXY or XXYY – shoul dthey not be able to get married?

  • 199. Eric Thut  |  January 22, 2010 at 6:44 am

    Exactly – why do we even have a legal definition of Man and woman – why in law should it matter – there should be zero difference right?

    The only reason that man/woman is in the law initially was to discriminate against woman – and then laws were needed to correct that discrimination.

  • 200. Jeff  |  January 22, 2010 at 1:08 pm

    Mike brings up a good point, the light-skinned blacks, ones that prior to civil rights “passed” as white. Just as a “butch” man in the ’50’s could find a good job and effeminate one was overlooked. It’s not always an obvious characteristic. People are scared by things that are different, that’s why they have to label things. Like President Obama, they say the first black president, ugh no, he’s the first bi-racial president, remember is was solely raised by his white mother.

  • 201. Tammy  |  January 22, 2010 at 2:20 pm

    “[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.]”

    This is such an important comment. This trial is the first time that we have had an exhaustive public discourse about the issue where either side is not allowed to be inflammatory or rely on emotions to get them through. The defense is trying very hard to pull those emotion/judgment strings in court. They clearly do so in their public analysis (and hence why they are not liveblogging the transcripts, they need the freedom of analysis to be able to pull the judgment and emotion into the context in order to prove their point).

    This makes it even more exciting that there is already work being done to create the entire reinactment. This conversation where emotions and judgment are not allowed in needs to happen over and over again. Over time, it will continue to water down the judgmental and fear-laden analysis of the value of SSM, gay relationships, and being gay in general.

    This makes me so much more optimistic about this trial and the two that will probably follow it. No matter who “wins” this time around, the fact that this is even happening is changing the long arc of social norms. My hope is that it will happen quicker than expected, because of the nature of the internet and the way young people today communicate. If the internet didn’t exist, and we only relied on TV and other traditional media to inform us, I don’t know if the social shift would ever happen.

  • 202. Mario  |  January 22, 2010 at 2:30 pm

    I am not really sure what the defense is trying to get at in this portion of the trial. Are they trying to get at the fact that homosexuality is not specifically defined or that it does not always fit one definition? To me, that just gives less credibility to the defense’s case. It seems that therefore because sexuality in general can’t be defined in specific terms then marriage itself cannot be designated to one specific group. I don’t know, I am confused, my brain might be too small to comprehend all of this. Any help?

  • 203. s.a.g.  |  January 24, 2010 at 1:58 pm

    Maybe I'm just a simple minded kid, but why does it matter how homosexuality is or isn't defined? Why does it matter if you were once attracted to the opposite sex and then fall in love with someone of the same sex? You should, in theory, fall in love with, and then presumably marry the person (no matter the sex) that you love. How you ID, who you're attracted to, what turns you on, could in theory change as you age, but the decision to marry someone whether opposite sex or same sex should be a serious lifetime commitment. The problem here is the stigmatizing of the lgbt community. If we were to attempt to define heterosexual marriages, or the people in them. What happens? We'd be completely lost.

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