Prop 8 Trial Review, Days 3-5

This post continues the summaries of the Prop 8 trial. Summaries of Days 1 and 3 can be found here.

Day 3

At the start of Day 3, the Prop 8 side attempted to demonstrate that gays and lesbians do not face discrimination and are not politically powerless. The purpose of this argumentation is an attempt to show that gays are not a "suspect class." So, the Prop 8 attorney tried to get Dr. Chauncey to admit that shows like Will and Grace, Brokeback Mountain, and Philadelphia are popular and that Nancy Pelosi is a "powerful ally" of the LGBT community. And therefore, we are now living in a homofantastic utopia.

The Prop 8 side then continued a line of questioning probably intended to get Chauncey to admit that people could have benign motives for voting for Prop 8, and that they could have been voting on their "sincere moral values" as opposed to anti-gay animus. Chauncey responded by noting that many people opposed to desegregation and interracial marriage based upon their "sincere moral values." And, on this particular issue, I would agree that people may very well be acting for what they believe to be benign motives; however, I do think that their "benign motives" are grounded in stereotypes about gender and sexual orientation and that their "benign motives" have a harmful effect on LGBT people, nonetheless. I like to think of it as the soft bigotry of the Christian conscience.

On re-direct, the marriage equality side aptly countered all of these arguments by noting that LGBT people are still discriminated against and that people who voted for Prop 8 might have based their beliefs in "sincere moral values" that were also rooted in stereotypes about gay people. It's not that difficult to demonstrate that discrimination against gay people isn't over yet and that hate crimes against gays still happen.

Dr. Letishia Peplak then took the stand as an expert on marriage and relationships. She testified that marriage brings important benefits to those within it, gay relationships are similar to heterosexual ones, gay couples who can marry benefit from it, and same-sex marriage will not harm heterosexual marriage. Thus, this testimony is part of the "there is no good reason for the state to deny equal marriage rights" argument.

To "counter" her testimony, the Prop 8 side cited a decades-old study that cites higher rates of non-monogamy among gay men, perhaps to try to demonstrate that gay male (and lesbian?) relationships differ from heterosexual ones. I'm not sure that old study will prove to be all that convincing. Also, if I were there, I'd be citing statistics on the high rates of married heterosexuals who report cheating on their spouses even within the bounds of a "monogamous" relationship, as this demonstrates that perhaps heterosexual married couples don't value monogamy as much as is assumed.


Day Four

At the beginning of Day Four, Chief Economist of the City and County of San Francisco, Edwin A. Egan testified. He said that after doing an economic impact report, a ban on same-sex marriage would have a negative economic impact on San Francisco. This helps demonstrate that, not only does the state not have a good reason for discriminating against gays and lesbians, it actually harms the state.

The Prop 8 side tried to counter this report by trying to get Egan to say that all gay couples who wanted to get married actually got married in the short window of time when same-sex marriage was legal in California. They also questioned some of the methodology and assumptions, but it's difficult to analyze the specifics since we can't see the slides they are referring to.

Later in the day, Dr. Ilan Meyer testified as an expert on LGBT public health issues. Meyer stated that the stigma gays and lesbians face in society results in them being devalued as human beings. Prop 8, he continued, is an example of structural stigma that blocks gays and lesbians from attaining the goal of marriage, which is highly valued in our society. This line of testimony helps demonstrate that the denial of equal marriage rights is a harm to same-sex couples, even if they are given the rights of marriage via separate-but-equal domestic partnerships. It also demonstrates that gays and lesbians continue to be discriminated against, in spite of shows like Will and Grace. Meyer than testified regarding all of the large and small instances of discrimination and stigma that come with being gay in a heteronormative society and how those cause "minority stress" and can lead to mental illness.

On cross-examination, the Prop 8 side tried to tarnish the Meyer as being biased by asking if he gave to the campaign against Prop 8 (he did) and tried to get Meyer to concede that higher rates of LGBT mental illness can come from causes other than discrimination (he does). On re-direct, Meyer also acknowledged that the effects of minority stress can be more pronounced for LGBT people because, unlike African-Americans and other racial minorities, LGBT people don't grow up in a family that teaches them how to deal with being that particular type of minority.

Day Five

The first to testify on Day Five was Dr. Michael Lamb who is an expert on child development. What the research shows, he testified, is that children do best when with loving parents, that kids do best when their parents are happy with each other, and children do best when there's adequate economic resources. He also addressed the line about how children "who grow up without a father" display a variety of negative outcomes. He notes that these studies aren't comparing fatherless homes with two-parent same-sex families and also that it isn't the absence of the father that causes these negative outcomes, it's parental conflict and economic deprivation.

This line of reasoning is probably intended to demonstrate that the state does not have a "rational justification," or a good enough reason, for discriminating against gays and lesbians with respect to marriage.

On cross, the Prop 8 side predictably tried to discredit this expert's testimony by getting him to admit that he gave money to the ACLU and other liberal groups. Because they cannot counter the substance of the research regarding parenting and child outcomes, the Prop 8 side then tried to get Lamb to admit that these studies are tainted by ideology and that they were funded by leftwing donors. Lamb noted that funding is mostly provided by the government and that all of the studies have been peer reviewed.

The Prop 8 side then continued by trying to get Lamb to admit that men and women are different and, therefore, that children need both a male and female parent. Lamb went as far as saying that mothers and fathers may play different parenting roles in heterosexual couples, but that these differences do not affect children's adjustment. The Prop 8 side then cited studies from the 1950's and 1960's that suggest that the father plays an important role in development and then tried to apply the findings of studies about heterosexual parents to same-sex parents.

Lamb also discredited the Prop 8 side's principal witness, David Blankenhorn, whose anti-marriage equality book I reviewed here, for confusing issues of correlation and causality and misrepresenting studies and data.

After Lamb, writer Helen Zia took the stand and testified about her experiences as a lesbian Asian-American in the civil rights movement. She talked about her experiences coming out and how Prop 8 sends the message that she is an abomination and that her relationship is wrong. She discussed how the Prop 8 campaign sent the message that legalizing same-sex marriage would lead to bestiality, would end the human race, that linked pedophilia to homosexuality and how this was hurtful.

On cross-examination, the Prop 8 side attempted to suggest that Zia is a flaming leftwing ideologue. As an aside, since this isn't a jury trial, I question the efficacy of this continuing McCarthyist tactic. By focusing on the supposed tainted ideology of all of the expert witnesses, it seems to send a message that the Prop 8 side is unable to deal with substantive issues. It will be interesting to see how effective (or not) this tactic proves to be.