The Perry v. Schwarzenegger defense rested yesterday.  The parties now have until February 26 to digest the trial evidence and to tell Chief Judge Vaughn Walker what they think it shows.

Prop 8 on Trial will continue to post blog entries in the coming weeks, as we have a chance to reflect on the trial’s testimony and legal issues.   We will also closely follow closing arguments, likely to take place in March or April.  And Prop 8 on Trial will be there when Judge Walker announces his findings in the case – such as what marriage is, whether gays and lesbians experience prejudice, and whether Proposition 8 is constitutional.

Please continue to check the blog, and we look forward to seeing you here.

Amanda Beck & Sarah Ruby

State laws discriminate when they limit marriage to straight couples, said Kenneth Miller, an associate professor at Claremont McKenna College, who testified in defense of Prop 8 on Monday.

“If we’re looking at the institution of marriage, then the state does treat heterosexual couples differently than same-sex couples,” he said during cross-examination.

Miller also conceded that restrictions on gays’ and lesbians’ ability to serve in the military “could be described as discrimination against gays and lesbians.” Another example “would be the [federal Defense of Marriage Act] policy,” he said.

At this, plaintiffs’ attorney Boies did not suppress his enthusiasm. “There you go!” he exclaimed.
Miller’s admission is more of a sound bite than a legal conclusion. All laws discriminate. Tax laws treat childless people differently than parents raising children. Environmental laws mandate that some businesspeople handle chemicals as hazardous waste while others pour theirs down the drain. The constitution has no problem with government discrimination as long as it is based on constitutionally permissible criteria. Race distinctions are almost never okay. Courts rarely allow gender classifications. Miller fell short of admitting that sexual orientation is an invidious, or impermissible, basis of discrimination.

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The Perry v. Schwarzenegger defense opened its case Monday with testimony from Claremont McKenna College Associate Professor Kenneth Miller, who contended that gay and lesbian Californians hold significant political power that belies their single-digit percentage of the population.

Miller is an attorney educated at Harvard Law School and now a specialist in the history of California and U.S. politics.  He focuses on the power of political groups, especially in direct elections, and summoned a number of rubrics to demonstrate the sway that California’s gay lobby holds.

First, he pointed to the fact that gay marriage proponents raised $43 million for the “No on 8” campaign, an amount that Miller said was “exceptionally rare” given that the election involved a social issue without corporate interests or backing.   Gay marriage opponents raised $40 million for the election.

Second, Miller pointed to a laundry list of political allies sympathetic to gay rights causes.  Miller said this list could include something as broad as the Democratic Party and reminded the court that nearly 61 percent of California’s voters supported Democratic presidential candidate Barack Obama in 2008.  This strong showing created the largest California margin in any presidential election since the days of Franklin Delano Roosevelt.  “This is a blue state.  That’s the way I would put it,” Miller said.

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The Perry v. Schwarzenegger plaintiffs closed their case Monday by playing clips from two video conference rallies funded by Proposition 8 supporters and broadcast over the Internet before the November 2008 election.

The conferences featured attorneys, ministers, and other Proposition 8 supporters discussing same-sex marriage and the import of the pending election.  One speaker said that permitting same-sex marriage would open the door to incest, bestiality, and the ability of pedophiles to marry children.

Another compared the potency of the Proposition 8 election to the terrorist attacks of September 11, 2001 and said that even people who did not know a married gay couple would be affected by expanding the definition of marriage – just as Americans who did not know one of the terrorists’ victims were still affected by the attacks.

These rallies “were conducted as part of a grass-roots campaign,” plaintiff attorney Christopher Dusseault said.  He produced ProtectMarriage.com emails that showed campaign managers Jeff Flint and Frank Schubert had alerted supporters about the conferences.

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Plaintiffs’ attorney David Boies examined Hak-Shing William Tam on Thursday afternoon. The exchange was exhilarating to watch—a reward for enduring defendants’ five-hour cross-examinations, which slice big, important points into hundreds of tiny questions. For example, a defense attorney might run through all the definitions of homosexuality an expert has ever used to point out a lack of consensus as to what sexual orientation is. Or we might follow painstaking questions about American population statistics and Dutch marriage rates to arrive at the claim that straight folks will stop getting married if gays and lesbians start. In the end these points get made, sometimes very well. And long cross-examinations likely cannot be avoided where, as here, the defense calls two witnesses of its own. But in the gallery it can feel like we’re talking about protons and neutrons in preparation for a lesson on giraffes in Africa.

Thursday afternoon was different. Boies lived up to his reputation as a fearsome examiner. He started off gently, peering over glasses at the end of his nose. He never yelled, but his voice rose when he did not believe something Tam told him. It was effective. The timbre of his voice let the audience know when to pay attention—the next question would explain why his voice had changed.

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In anticipation of the Perry v. Schwarzenegger defense slated to begin on Monday, Prop 8 on Trial thought we might review the testimony of Michael Lamb, who has offered the plaintiffs’ most direct challenge to the defense case thus far.

Lamb is a British psychologist who has studied developmental psychology for nearly 40 years and won recognition from the Association for Psychological Sciences for his lifetime contribution to the field.  In testimony last week, he attempted to undercut the central defense contention that marriage between homosexual partners would threaten the well-being of children.

Indeed, if most of Perry’s witnesses have offered the raw material upon which plaintiff attorneys hope to build legal arguments, Lamb might qualify as the lone plaintiff expert called to launch a preemptive strike against the defense.

“I’m going to offer two broad opinions,” he told the court on January 16.

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Hak-Shing William Tam, who intervened in Perry to defend Prop 8, believes that gay people are twelve times more likely to molest children. He said so Thursday on the stand, endorsing a statistic posted on the internet by a group of Chinese pastors. He is the group’s secretary.

Plaintiffs’ attorney David Boies questioned Tam on this and other public expressions of his views. The point seemed to be that Tam is prejudiced, and that he wielded this prejudice on behalf of the Prop 8 campaign. The legal question is whether this amounts to impermissible moral disapproval or animus, a constitutionally forbidden form of ill will.

Boies asked Tam about a San Jose Mercury News article quoting him as saying that “the gay lifestyle … comes with all kinds of disease.” Boies focused on a letter Tam wrote during the Prop 8 campaign warning that San Francisco is already “under the rule of homosexuals,” and that the “gay agenda” involves legalizing prostitution and having sex with children. Tam said he referred to prostitution because of Proposition K, a failed San Francisco ballot measure seeking to decriminalize sex work. By “having sex with children,” Tam meant lowering the age of consent to thirteen or fourteen. He fears the “liberal trend” in Canada and some European countries, where he believes same-sex marriage has given way to incest and polygamy.

“Where did you hear that? Who told you that?” Boies asked, raising his voice, incredulous.

“It’s on the internet,” Tam said. He sounded reasonable, matter of fact. Like an expert relying on a peer-reviewed study.

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The defense’s proposed findings of fact include the idea that sexual orientation is a “conscious choice” for many people, that it is not immutable, and that women’s sexuality is “particularly fluid, malleable, shaped by life experiences, and capable of change over time.” Judge Walker pointed this out yesterday in a discussion of whether to allow the testimony of Ryan Kendall, a gay man whose parents forced him to attend conversion therapy. Judge Walker allowed Kendall’s testimony as relevant to the nature of homosexuality, and asked the defense how it will show that sexuality is a choice. An attorney for the defense said that Prop 8 proponents may call their own witnesses, and will introduce studies on cross-examination. Expect more on this today from UC Davis psychology professor Gregory Herek, who says sexual orientation is highly resistant to change and that most people do not experience it as a choice.

For more on why the nature of sexuality is relevant under the constitution, and for some discussion of the evidence we have already heard on this point, click here. The Ninth Circuit has said that sexual orientation is “immutable,” which is constitution-speak for the idea that a person should not have to change it. The Supreme Court has only hinted at its view.

My colleague’s original elephant-in-the-room post, reconstructed here, suggested that the defense might not be arguing that “homosexuality begets homosexuality” to avoid “the unpopular.” But the defense hints at it plenty, and I doubt they are pulling punches to please the crowd in San Francisco.

Another explanation? The argument has no credible evidence to back it up. Plaintiffs’ expert, Cambridge psychologist Michael Lamb, testified that children raised by gay parents are no more likely to be gay or lesbian than children raised by straight parents. The defense is welcome to put up its own expert on this point, but we should not assume that political correctness keeps it from doing so. In fact, defense expert David Blankenhorn, who is scheduled to testify in the coming days, wrote in his bookThe Future of Marriage that homosexuality is “closer to being a given than a choice.” This likely explains why the defense would hint at the choice argument rather than try to prove it.

And one more point on immutability. The immutability argument—that people’s sexuality is part of who they are and they should not be punished for it—is not necessarily undermined by the possibility that sexuality is a matter of nurture rather than nature, or even, as some people believe, that it might be a choice. Various aspects of a person’s life are considered so fundamental to a person’s identity that he or she should not have to change them. Religion is one. Sexual orientation is another. As the Ninth Circuit wrote in Hernandez Montiel v. I.N.S., “[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them.”

There is an elephant in the Perry v. Schwarzenegger courtroom, and I have decided to name it.  Unfortunately, this elephant is a basic and unsatisfying question that gay rights advocates had hoped to lay down long ago.  Nevertheless, it persists, particularly in the language of the defense, and its answer may have a significant impact on the outcome of this trial.  So, without further ado, I say the elephant is this:  How do people become gay?

Yes.  Put aside your views on whether homosexuality is good, bad, or irrelevant.  And whether it should be embraced, tolerated, or discouraged.  Regardless of how you feel, much of Perry’s conflict can be traced to this anxious question beating in the heart of many average Americans:  Is homosexuality a natural variation that will always occur at roughly the same rate in the human race?  Or can the existence of homosexuality be increased, perhaps by exposing children more frankly and openly to its existence?

Your answer might influence your view on same-sex marriage rights.  What’s more, your answer might influence the findings in Perry, where the question looms large and yet relatively unacknowledged behind testimony and argument.  There are at least two prime examples of this.
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