Plaintiffs’ Witnesses and Defendant-Intervenors' Own Witnesses Testify to Harm, Unreasonableness of Prop. 8
“I just want to get married…it's as simple as that. I love someone. I want to get married. My state is supposed to protect me. It's not supposed to discriminate against me.” – Plaintiff Paul Katami
Judge: “I'm asking you to tell me how it would harm opposite-sex marriages.”
Pro-Prop. 8 Atty Cooper: “All right.”
Judge: “All right. Let's play on the same playing field for once.”
Cooper: “Your Honor, my answer is: I don't know. I don't know.” – 10/14/09 pretrial hearing rejecting defendant intervenors' request for summary judgment
JANUARY 29, 2010 – Lawyers representing two couples who want to marry but cannot because of Proposition 8 demonstrated the unconstitutionality of the initiative through the presentation of 17 witnesses and revealing cross-examination of the defendant-intervenors’ witnesses.
Since trial began over the unconstitutionality of Prop. 8 on January 11, it was demonstrated in the courtroom of Chief Judge Vaughn R. Walker of the U.S. District Court, Northern District of California, that:
• Prop. 8 does irreparable harm to Americans
• Marriage has shed discriminatory restrictions over time
• Gay men and lesbians are entitled to the full protection of the 14th Amendment
• There is no good reason for Prop. 8's denial of fundamental civil rights
Theodore Olson and David Boies, who notably faced off in 2000's Bush v. Gore, were brought together to lead the legal team against Prop. 8 by the American Foundation for Equal Rights. They are representing Kris Perry & Sandy Stier and Paul Katami & Jeff Zarrillo, two couples who want to be married but cannot because of Prop. 8.
Their powerful testimony, along with that of author Helen Zia; the Republican Mayor of San Diego, Jerry Sanders; and Ryan Kendall, who was forced to undergo “conversion therapy” intended to change him from gay to straight, presented compelling, first-hand testimony as to the harm of Prop. 8 and its role in the long and continuing history of discrimination against gay men and lesbians.
Nine eminent experts also testified, including professors from Yale, Harvard, Stanford, Columbia, Cambridge, and UCLA who are recognized internationally as leading scholars in history, economics, psychology, sociomedical science, political science, and more. The testimonies, research, and findings of each stood up to several hours of cross-examination from the defendant-intervenors. (Brief bios of all witnesses)
Olson and Boies also called to the stand William Tam, an Official Proponent of Prop. 8, whose testimony revealed the discriminatory motivations of the initiative and how the Prop. 8 campaign used him and others to deliver messages about disease, incest, polygamy, and pedophilia in support of their overall “protect children” message. He was masterfully questioned by Boies.
For Tam quotes and campaign communications, go to here and here.
Documents and videos presented by the Olson and Boies team also revealed that the Prop. 8 campaign paid for broadcasts that sought to link marriage equality to incest, polygamy, bestiality, and pedophilia to justify the restriction of people’s civil rights. This clearly points to the discriminatory motivations and unconstitutionality of the initiative.
Olson and Boies also presented to the court the depositions of the four expert witnesses that the defendant-intervenors dropped from their witness list. The defendant-intervenors cut their witness list from six to two after those experts made several statements damaging to Prop. 8 and in support of the plaintiffs' case during their depositions. Go here.
The defendant-intervenors' own experts stated under oath in their depositions that:
• Equal marriage would increase family stability and improve the lives of children
• Sexual orientation is not something that can be readily changed
• Gay men and lesbians have faced a long history of discrimination including violence – discrimination that continues today and that includes Prop. 8
• There is broad scientific and professional consensus in favor of equal marriage
Under questioning from Boies, the credibility of the defendant-intervenors’ two witnesses was thoroughly undermined on the stand. It was revealed that political science professor Kenneth Miller, called by the defendant-intervenors to assert that gay men and lesbians are not politically vulnerable, has written only one peer-reviewed publication regarding gays and lesbian politics – and that the article (published in France) dealt with Prop. 8, which, of course, was a strong blow to their rights.
Furthermore, Miller admitted his testimony was in part based on materials provided to him by the attorneys defending Prop. 8. Later it was revealed that Miller could not remember whether attorneys had provided at least 65 percent of the materials he based his testimony on, totaling well over 200 documents, articles, etc.
The defendant-intervenors’ star witness, David Blankenhorn, admitted on the stand that he has written only two peer-reviewed publications in his life, none of which are relevant to this case; does not hold a doctorate and that his master’s thesis centered on Victorian cabinetmakers; has never conducted any scientific research on same-sex marriage; and has not read the U.S. Supreme Court rulings that deal with marriage as a fundamental right.
Miller made multiple admissions that bolster the plaintiffs’ case, including that Prop. 8 at least in part passed because of “anti-gay stereotypes” and “prejudice,” and that initiatives like Prop. 8 “can be and have been used to disadvantage minorities.”
Blankenhorn admitted that “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” and would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” He also testified that it would result in fewer children growing up in state institutions and instead being raised by loving parents and would in fact reduce the divorce rate; reduce promiscuity; improve the stability of couples’ relationships; increase wealth for families and reduce government costs; and a decline in “anti-gay prejudice” and “anti-gay hate crimes.”
See Blankenhorn's admissions.
Outline of Case
Olson, who has won two Supreme Court decisions since this case was filed, and who has argued more cases to the Supreme Court than any other active attorney, delivered the plaintiffs' opening statement.
***He noted that the U.S. Supreme Court has recognized the fundamental civil right of marriage for all Americans, including in its Loving v. Virginia decision, which in 1967 eliminated interracial marriage bans.***
“This case is about marriage and equality. Plaintiffs are being denied both the right to marry, and the right to equality under the law. The Supreme Court of the United States has repeatedly described the right to marriage as 'one of the vital personal rights essential to the orderly pursuit of happiness by free men;' a 'basic civil right;' a component of the constitutional rights to liberty, privacy, association, and intimate choice; an expression of emotional support and public commitment; the exercise of spiritual unity; and a fulfillment of one’s self,” he said. “In short, in the words of the highest court in the land, marriage is 'the most important relation in life,' and 'of fundamental importance for all individuals.'”
See full text here.
PROP. 8 DOES IRREPARABLE HARM TO AMERICANS
***Stigma and Discrimination***
GREGORY HEREK, Ph.D., a Professor of Psychology at the University of California at Davis testified that "social stigma" gives "a level of permission to attack" gay men and lesbians.
"If two men were to walk down the street holding hands in many places, that would elicit a great deal of negative reaction," he testified.
MAYOR SANDERS testified, “If government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing.”
ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified that Prop. 8 treats gay men and lesbians as if they are “not seen as equal… not respected by my state or by my country, by my fellow citizens.”
“As I described stigma earlier, I would say that law, and certainly a constitutional part of the law, would be a very strong part of, as I described, the social structures that define stigma, that define access. In a very simple way, you can think of it as a block or gate toward a particular institution, toward attaining a particular goal. So, in that sense, it is very much fitting in the definition of structural stigma,” Meyer testified. “[Prop. 8 imposes stigma] by the fact that it denies them access to the institution of marriage. As I said, people in our society have goals that are cherished by all people. Again, that's part of social convention, that we all grow up raised to think that there are certain things that we want to achieve in life. And, in this case, this Proposition 8, in fact, says that if you are gay or lesbian, you cannot achieve this particular goal.”
ZARRILLO: “The word 'marriage' has a special meaning. ...If it wasn't so important, we wouldn't be here today,” he testified. “I want to be able to share the joy and the happiness that my parents felt, my brother felt, my friends, my co-workers, my neighbors, of having the opportunity to be married. It's the logical next step for us.”
“When someone is married, and whether it's an introduction with a stranger, whether it's someone noticing my ring, or something of that nature, it says to them these individuals are serious; these individuals are committed to one another; they have taken that step to be involved in a relationship that one hopes lasts the rest of their life.”
KATAMI: “When you find someone who is not only your best friend but your best advocate and supporter in life, it's a natural next step for me to want to be married to that person,” he testified. “I can safely say that if I were married to Jeff, I know that the struggle that we have validating ourselves to other people would be diminished and potentially eradicated.”
PERRY: “I want to marry Sandy. I want to have a stable and secure relationship with her that then we can include our children in,” she testified. “And I want the discrimination we are feeling with Proposition 8 to end and for a more positive, joyful part of our lives to begin.”
STIER testified: “I'm just trying to get the rights that the Constitution already says I have.”
M.V. LEE BADGETT, Ph.D., a Professor of Economics at the University of Massachusetts, Amherst, testified, "Prop. 8 has inflicted substantial economic harm on same-sex couples and their children who live here in California.”
EDMUND EGAN, Ph.D., Chief Economist for the City and County of San Francisco, testified that Proposition 8 is a drain on government budgets, and that legalizing same-sex marriage would generate significant revenues and increase personal wealth, and would also reduce the burden on government services from people without health insurance and other benefits.
“It’s clear to me that Proposition 8 has a negative material impact,” he testified.
***No Substitute for Marriage***
NANCY COTT, Ph.D., the Jonathan Trumbull Professor of American History at Harvard University, testified that “the fact that the state is involved in granting these kinds of benefits and legitimacy to the marital family tends to lend a prestige, a status to that institution that no informal marriage has ever approximated.”
STIER: “Certainly nothing about domestic partnership as an institution -- not even an institution, but as a legal agreement -- indicates the love and commitment that are inherent in marriage, and it doesn't have anything to do for us with the nature of our relationship and the type of enduring relationship we want it to be. It's just a legal document,” she testified.
LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles, testified that she has “great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are -- that you are in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”
HELEN ZIA, an Asian-American author and a lesbian, testified about her experiences with discrimination, the effects of being denied the right to marry and the importance of being able to be married in 2008.
"My mother is an immigrant from China. She really doesn’t get what partner is," she testified. "Marriage made it very clear that I was family, that we are family, and where we stand."
DR. MEYER testified that domestic partnership is not an adequate substitute for marriage, and said he doubted that society places any value on domestic partnership. “I don’t know if it has any social meaning,” he testified. “It is, I think, quite clear that young children do not aspire to become domestic partners. But, certainly, the word ‘marriage’ is something that many people aspire to.”
MARRIAGE HAS SHED DISCRIMINATORY RESTRICTIONS
DR. COTT discussed the history of marriage and that it has shed discriminatory restrictions.
“As many as 41 states and territories had for significant periods of their history on marriage between a white person and a person of color.... And long ago marriage had an important political governance purpose. It set up men as heads of households who would be responsible economically for their spouses and for any of their dependents, whether those were biological children, adopted children, stepchildren, slaves, apprentices, et cetera,” she testified.
“Now, that political governance purpose of marriage today is -- has shifted rather dramatically, because we no longer assume that a single head of household governs everyone below it. We have a much more individualized distribution of political power in our population, particularly since 1920, when women got the right to vote. …The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors, children, as the proponents tend to emphasize the child's side.”
DR. COTT also testified about the meaning of marriage in the context of slavery. “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means. They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other. In fact, one quote that historians have drawn out from the record ... it was said by an ex-slave who had also been a Union soldier, and he declared, 'The marriage covenant is the foundation of all our rights.'”
“And then in corollary with that,” Dr. Cott continued, “there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose. ... It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim. And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman -- in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites -- was a stigma that marked him as less than a full citizen.... he remarked on it because of the extent to which this limitation on Dred's ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he
could not be a full citizen.”
GAY MEN AND LESBIANS ARE ENTITLED TO THE FULL PROTECTION OF THE 14th AMENDMENT
DR. HEREK testified that “There's no inherent relationship between a person's sexual orientation and their ability to be productive and contributing members of society.”
***The evidence clearly discounted the backers of Prop. 8's assertions that sexual orientation is a choice and that so-called “change therapies” can be effective. It also discounted the notion that marriage to someone of the opposite sex is a viable alternative.***
ZARRILLO testified that he could not marry a person of the opposite sex: “I have no attraction, desire, to be with a member of the opposite sex.”
STIER testified as to her sexual orientation: “Well, I'm convinced, because at 47 years old I have fallen in love one time and it's with Kris.”
KATAMI testified the he has been gay, “As long as I can remember.”
PERRY testified: “I have always felt strong attraction and interest in women and formed really close relationships with women, and I have only ever fallen in love with women.” Asked whether she may change her sexual orientation she testified: “I'm 45 years old. I don't think so.”
DR. HEREK testified as to his agreement with research stating: "We suggested the term sexual preference is misleading, as it assumes conscious or deliberate choice and may trivialize the depth of the psychological processes involved. We recommend the term sexual orientation because most of research findings indicate that homosexual feelings are a basic part of an individual's psyche and are established much earlier than conscious choice would indicate."
He testified that “the American Psychiatric Association, the American Psychological Association.... the major professional mental health associations have all gone on record affirming that homosexuality is a normal expression of sexuality, that it is not in any way a form of pathology.”
He testified that he agrees with the position of the American Psychological Association that “the results of scientifically valid research indicate that it is unlikely that individuals will be able to reduce same-sex attractions or increase other-sex sexual attractions through SOCE [sexual-orientation-change efforts]."
He also agreed with the following from the APA: “...the American Psychological Association concludes that there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and testified that no other major mental health organizations have endorsed therapies to change sexual orientation, and that aside from being ineffective, they can cause harm.
“It's important to realize that the underlying assumption of these therapies tends to be that there's something wrong; that homosexuality is a mental illness; that it's something that needs to be cured or something that needs to be fixed or repaired. And that, of course, is completely inconsistent with the stance of the American Psychological Association, the American Psychiatric Association, and other professional organizations in this area,” he testified.
Ryan Kendall, who was forced to undergo “change therapy,” testified that at its conclusion: "I was just as gay as when I started. I knew I was gay, just like I knew I was short and half Hispanic. I never thought those facts would change.”
***History of Discrimination is Ongoing and Includes Prop. 8***
It was also demonstrated that gay men and lesbians continue to suffer from discrimination. In addition to the testimony of Drs. Herek and Meyer, Yale History Professor GEORGE CHAUNCEY, Ph.D., testified: “Lesbians and gay men have experienced widespread and acute discrimination from both public and private authorities over the course of the 20th century. And that has continuing legacies and effects. This has been manifested in the criminalization of sexual intimacy and association; the discrimination in public accommodations, in employment; censorship of images about gay people and speech by gay activists; stereotyping and demonization of lesbians and gay men. And that all this has been drawn on and reinforced sustained patterns of prejudice and hostility.”
Specifically regarding Prop. 8, Dr. Chauncey testified that “the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”
After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey testified that the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.
“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey testified. “The underlying message here is something about the – the undesirability of homosexuality, that we don’t want our children to become this way.
***Gay Men and Lesbians Remain Politically Vulnerable***
GARY M. SEGURA, Ph.D., Professor of American Politics in the Department of Political Science at Stanford University, testified that “gays and lesbians do not possess a meaningful degree of political power. They are not able to protect their basic interests and effectuate their interests into law and to secure those.”
“Relative to some other groups that currently enjoy judicial protection, gays and lesbians are actually, in the statutory and constitutional sense, worse off than some of those groups were when they were granted judicial protection,” Segura testified.
“There is no group in American society who has been targeted by ballot initiatives more than gays and lesbians. They have essentially lost a hundred percent of the contests over same-sex marriage,” Segura testified. “The initiative process has been really the Waterloo of gay and lesbian politics.”
Segura noted that 33 of 34 ballot initiatives against equal marriage were passed over the last decade. (In Arizona it failed because of a clause that would impact health care. It was put back on the ballot the following year and passed.)
THERE IS NO GOOD REASON FOR PROP. 8's DENIAL OF FUNDAMENTAL CIVIL RIGHTS
***Procreation Not Defining Purpose of Marriage***
DR. COTT challenged statements made by defendant-intervenors' attorney Charles Cooper during his opening statement that procreation is the "central and ... defining purpose of marriage." She testified that the ability or willingness to procreate has never been a litmus test for marriage.
“There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it's a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile,” she testified.
***Equal Rights Will Not Harm Others***
DR. PEPLAU testified that there is no evidence to suggest that marriage equality would harm others.
"It is very hard for me to imagine you would have a happily married couple who would say, 'Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,’" Dr. Peplau testified.
DR. BADGETT testified, “I have the opinion that letting same-sex couples marry would not have any adverse effect on the institution of marriage or on different sex couples.”
MICHAEL LAMB, Ph.D., a Professor and Head of the Department of Social and Developmental Psychology at Cambridge University told the court, “We have a substantial body of evidence documenting that a child being raised by same-sex parents are just as likely to be well-adjusted as children raised by heterosexual parents.”
Dr. Lamb also testified (referring to children of gay and lesbian parents) that: “For a significant number of these children, their adjustment would be promoted were their parents able to get married.
Press conference with plaintiff's attorneys following both sides resting their case.
Find all court transcripts here.
UTF Note: For all of UTF's coverage of the Prop 8 trial, go here.