Sign Up to Receive Email Action Alerts From Issa Exposed

Archives – Author

Liveblogging Day 3: Part VII – More Letitia Peplau

By Paul Hogarth

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

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

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

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

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

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

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

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

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

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

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

32 Comments January 13, 2010

Liveblogging Day 3: Part VI – Letitia Peplau

By Paul Hogarth

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

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

Peplak says she is an expert on four issues: (a) marriage brings important benefits, (b) relationships between same-sex and heterosexual couples are similar, (c) gay couples who can marry have the same benefits, (d) gay marriage will not harm heterosexual marriage.

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

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

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

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

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

40 Comments January 13, 2010

Liveblogging Day 3: Thoughts on My Lunch Break

By Paul Hogarth

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

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

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

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

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

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

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

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

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

56 Comments January 13, 2010

Liveblogging Day 3 Part IV: Therese Stewart Rocks …

By Paul Hogarth

More of SF Deputy City Attorney Therese Stewart’s redirect examination of Professor Chauncey.

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

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

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

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

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

S: Please read the Vatican statement re: allowing children (more…)

178 Comments January 13, 2010

Liveblogging Day 3 Part III: Even More on Professor Chauncey …

By Paul Hogarth

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

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

Chauncey: This was a time when marriage was seen as far too distant a prospect — given the opposition to it.  So in this context, they would be grateful to have supported

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

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

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

48 Comments January 13, 2010

Liveblogging Day 3: Part II, More on Professor Chauncey

By Paul Hogarth

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

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

Chauncey: Yes

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

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

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

82 Comments January 13, 2010

Next page Previous page