NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 9

cross-posted from Pam’s House Blend

After two weeks of powerful and often emotional evidence, the plaintiffs presented their last live witness today. On Monday, after playing some videos of deposition testimony, the plaintiffs will rest their case, and then the defendants will have their turn. Typically, at the end of all witness testimony, the attorneys present closing arguments. This morning Judge Walker announced that there will be a two week break before closing arguments to give the parties a chance to review the evidence.

Today, we heard expert testimony from Dr. Gregory Herek, a professor at U.C. Davis, who is an authority on sexual orientation and stigma.

On direct examination by the plaintiffs’ attorney Ethan Dettmer, Dr. Herek explained that a person’s “sexual orientation” can be defined based on an enduring pattern of attraction to men, women, or both, and can also include a person’s own self-identification, as well as their pattern of sexual behavior. Dr. Herek testified that since the 1970s it has been the consensus in the field of psychology that homosexuality is not a mental disorder and that sexual orientation has no inherent connection to a person’s ability to contribute to society, be happy, and lead a normal life.

Strongly supporting one of the plaintiffs’ core arguments, Dr. Herek testified that there is no evidence “conversion therapy” is effective in changing a person’s sexuality. In fact, he testified, the American Psychological Association has expressed concern about LGBT adolescents participating in “conversion therapy,” which sends a harmful and false message to young people that homosexuality is a disorder.

Dr. Herek testified that “structural stigma” in the form of laws that discriminate against LGBT people (like Prop 8 ) directly encourages social stigma, harassment, and violence.

Dr. Herek’s cross examination by the proponents’ attorney Howard Nielson lasted for more than five hours, and was characterized by monotonous and repetitive questions largely focused on the definition of “sexual orientation.” Nielson attempted to get Dr. Herek to admit that definitions of sexual orientation vary widely. (The proponents have argued that LGBT people don’t deserve constitutional protections because, they claim, it is impossible to define “sexual orientation.”) Showing admirable patience, Dr. Herek simply reasserted that sexual orientation is a combination of attraction, identity, and behavior, and that the complexities researchers face in defining sexual orientation are no different than those they face in defining other characteristics such as race.

Nielson asked a series of questions aimed at establishing that sexual orientation is not constant, that peoples’ preferences change over time, and that a gay identity does not guarantee exclusively same-sex experiences. Dr. Herek agreed that over the course of a lifetime sexuality can evolve, particularly because most young people face significant social pressure to be heterosexual and to engage in different-sex relationships even if they ultimately come to realize that they are lesbian, gay, or bisexual. Dr. Herek repeatedly testified that defining sexual orientation is not nearly as complicated as Nielson was suggesting, because for nearly all people, self-identity (as gay, straight, or bisexual) correlates closely with both behavior and desires.

A quick note about yesterday’s testimony from Dr. Bill Tam. Some readers have asked for more information about why Judge Walker required Dr. Tam to testify, but may still allow him to withdraw from the case as a party. The key here is the difference between being a party and just being a witness. Once a person has entered into a case as a party — either by suing, by being sued, or by intervening, as the Prop 8 proponents (including Dr. Tam) did in order to defend Prop 8 — that person does not have a right simply to withdraw from the suit. For example, if you hit someone with your car and the person sues you, you can’t just tell the judge that you would rather not be involved. You must continue to participate until the lawsuit is over. Here, Dr. Tam and the other proponents specifically asked Judge Walker to allow them to join the case. But then, having made himself a defendant, Dr. Tam asked to withdraw from the case. He is not entitled to do so, although Judge Walker has the power to allow him to.

Separately from being a party, Dr. Tam is also a witness. As an official proponent of Prop 8 and a leader in the campaign, he was able to testify yesterday about the messages the Yes on 8 campaign used, his own reasons for fighting to pass Prop 8, and other evidence that relates to the plaintiff’s claim that Prop 8 was the product of anti-gay bias. The plaintiffs had the right to call him to testify for that reason. Even if Judge Walker decides to allow Dr. Tam to withdraw as a party, his testimony will still be part of the record in the case.

This has been an unbelievable week, with testimony that ranged from highly technical and informative to deeply personal, emotional, and moving. The plaintiffs put on an impressive array of witnesses whose testimony, taken as a whole, overwhelmingly supports their case and underscores the profound harm Prop 8 has caused to LGBT people. Next week, the proponents’ witnesses will take the stand.

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