Court of Appeals Rules Against Christian Legal Society, Denies Request to Reopen Challenge to University’s Non-Discrimination Policy

November 17, 2010

Today the United States Court of Appeals for the Ninth Circuit denied the Christian Legal Society’s request to present additional evidence in Christian Legal Society v. Wu, a case challenging a California law school’s policy that student groups may not discriminate based on sexual orientation, religion, or other bases. Today’s ruling brings an end to six years of litigation in this case, which began in 2004 when the Christian Legal Society (CLS) sued the University of California Hastings College of the Law because CLS wished to exclude gay and non-Christian students. In June, the Supreme Court of the United States rejected CLS’ challenge and held that public universities are free to require funded student groups to comply with non-discrimination policies. The Supreme Court sent the case back to the Ninth Circuit to determine whether any additional issues remained to be resolved in the case. The Ninth Circuit ruled today that the case is over and that the Supreme Court’s opinion upholding Hastings’ policy stands as the final judgment in the case.

The National Center for Lesbian Rights, along with cooperating counsel Paul Smith of Jenner & Block LLP, represents Hastings Outlaw, the lesbian, gay, bisexual and transgender student organization at Hastings, which intervened in the case to defend the constitutionality of the non-discrimination policy. Hastings College of the Law is represented by Gregory Garre of Latham & Watkins LLP and Ethan Schulman of Crowell & Moring LLP.

Statement by Shannon Minter, Esq., NCLR Legal Director:

“Today’s ruling brings a welcome close to six years of intense litigation, including a decision by the U.S. Supreme Court affirming that colleges and universities may adopt non-discrimination policies that protect lesbian, gay, bisexual, and transgender students. Hastings Law School did not adopt its non-discrimination policy to suppress any group’s freedom of speech, but only to ensure that all campus organizations are open to all students. Now that the Supreme Court’s decision is final, colleges and universities have a green light to ensure that all students have an equal opportunity to participate in student activities, without fear of being threatened with litigation by anti-gay groups.”


Live Chat: Prop 8 Trial Recap and Discussion with NCLR

January 28, 2010
Join NCLR Legal Director Shannon Minter and Senior Staff Attorney Chris Stoll for a recap and analysis of the Prop 8 trial. Join the live chat today at Pam’s House Blend at 5 p.m. Pacific/8 p.m. Shannon and Chris have been in the courthouse everyday, live tweeting, and providing daily summaries and legal analysis of the proceedings.
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NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 12

January 27, 2010

cross-posted from Pam’s House Blend

Today was the final day of testimony in Perry v. Schwarzenegger. Like every day before it, today was remarkable.

The majority of the day was spent on finishing up the cross-examination of David Blankenhorn, an expert witness for the defendants. As he did yesterday, renowned attorney David Boies absolutely nailed the examination. Blankenhorn did nothing to help himself, fighting Boies’s yes-or-no questions at every turn even when Boies was simply laying a basic foundation with uncontroversial points. Blankenhorn’s defensive behavior verged on the histrionic, contrasting sharply with Boies’s calm, matter-of-fact approach. At one point, Judge Walker stepped in and instructed Blankenhorn to keep in mind that a fact-finder, meaning a judge or jury, can consider a witness’s demeanor when deciding how credible that witness is and how seriously to take his or her testimony. Although Judge Walker delivered it with great diplomacy and tact, this was a fairly sharp rebuke.

On cross, Boies established a couple of key points that gravely undermined Blankenhorn’s authority as an expert on marriage. First, Boies elicited testimony that Blankenhorn had not read many leading scholarly articles addressing the question of how society would be affected by allowing same-sex couples to marry. For example, of the dozens of articles cited in policy statements supporting marriage equality for same-sex couples by leading professional organizations, Blankenhorn admitted that he had read scarcely more than a handful.  In contrast, all of the plaintiffs’ expert witnesses were demonstrably well-versed in the entire range of scholarly literature on the topics about which they testified.

Second, Boies elicited extensive testimony from Blankenhorn acknowledging that permitting same-sex couples to marry would “almost certainly” benefit those couples and their children.  Blankenhorn also testified that  the most important dimensions of marriage (as defined by Blankenhorn in one of his publications) are the same for same-sex and opposite-sex couples.  In short, by the end of Blankenhorn’s cross, his own testimony had provided multiple powerful reasons to permit same-sex couples to marry, and his opposition to marriage equality seemed virtually inexplicable.

It has been an amazing two and a half weeks.  This trial has been a truly historic moment for our community.  It is the first time a federal court has heard, first hand, from real live witnesses, about the harm that the denial of marriage equality causes lesbians, gay men and their families every day.  It’s also the first time a federal court has heard the arguments in favor of marriage equality presented live in court by an array of internationally renowned scholars who are truly experts in their respective fields.

What stands out the most after having seen all the witnesses on both sides is how overwhelmingly one-sided the evidence in this case turned out to be.  The plaintiffs, represented by some  of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by the testimony of half a dozen of the most respected historians, psychologists, economists, and political scientists who study marriage, sexual orientation, and child development.  Using the Prop 8 proponents’ own outrageous and inflammatory words, ads, and emails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering, and demonization of lesbians and gay men.  And through the deeply moving testimony of the plaintiffs and other members of our community, they proved beyond question that denying same-sex couples the right to marry causes great harm to LGBT people and their children.

Stacked up against this mountain of facts, scholarship, and science, the Prop 8 proponents – though represented by fine attorneys – were not able to come forward with a case of their own.  Before trial, they dropped nearly every witness they had planned to present and relied entirely on two poorly qualified, ill-prepared expert witnesses, neither of whom was able to establish that banning same-sex couples from getting married has any rational or legitimate purpose relating to procreation, child rearing, tradition, or any of the other justifications that have been offered in the past in support of anti-gay discrimination.  In fact, nearly all of the defendants’ experts agreed with the plaintiffs that marriage equality would benefit same-sex couples and their families in many real, tangible ways.

It should not have come as a surprise that the defense’s case turned out to be so weak.  As our executive director Kate Kendell is fond of saying, the arguments against marriage equality have always been “all hat and no cattle.”  This trial showed more powerfully than ever that there truly is no substance to the arguments of those who would deny equality to our families.  It has been extremely gratifying to see those arguments aired out in public, before a smart, independent-minded judge, in a way that’s never been done before.  It is a shame that the public was unable to see the trial in video, but the transcripts, available at http://www.equalrightsfoundation.org/our-work/hearing-transcripts/, are fascinating reading for anyone interested in learning more about this important chapter in our civil rights struggle.

Judge Walker will now take some time to review all the evidence that has been presented.  The lawyers for both sides will return to court in a few weeks (on a date still to be determined) to present their closing arguments


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 11

January 26, 2010

cross-posted from Pam’s House Blend

Today was one of the most dramatic days of the trial, with startling admissions by the proponents’ two expert witnesses: Professor Kenneth Miller, testifying about the political power of gay people, and David Blankenhorn, testifying about the purposes of marriage.

The morning began with the conclusion of David Boies’s cross-examination of Professor Miller. Boies confronted Prof. Miller with several of Prof. Miller’s own earlier writings, which were highly critical of the ballot initiative process and particularly highlighted the risk that majorities will use the initiative process to target minority groups. Prof. Miller admitted that ballot measures can, and have, drawn upon anti-minority sentiment. Indeed, one of Prof. Miller’s own articles cited Proposition 22, the California initiative prohibiting marriage for same-sex couples that passed in 2000, as an example of such an anti-minority initiative.

Following the conclusion of Prof. Miller’s testimony, the afternoon was taken up by questioning of the proponents’ final witness, David Blankenhorn, the president of a private think tank called the Institute for American Values. Blankenhorn is best known as the author of a book called Fatherless America, in which he argued that fatherlessness is “the most harmful demographic trend of this generation” and the leading cause of “our most urgent social problems, from crime to adolescent pregnancy to child sexual abuse to domestic violence against women.” Blankenhorn is also one of the most visible and culturally influential opponents of marriage for same-sex couples.

The Prop 8 proponents asked Judge Walker to accept Blankenhorn as an expert in marriage, fatherhood, and family structures. But as plaintiffs’ attorney David Boies quickly made clear in his initial questioning, Blankenhorn lacked the usual qualifications for an expert witness in those areas. He has a bachelor’s degree in social science from Harvard and a master’s in the unrelated field of labor history from the University of Warwick in Coventry, England. He has no academic affiliation and has never taught at a college or university, and he has authored only two peer-reviewed publications, neither of which addressed marriage for same-sex couples. Judge Walker permitted Blankenhorn to testify, but noted that he might have ruled differently if this were a jury trial.

Charles Cooper (the lead attorney for the proponents) led Blankenhorn through what seemed to be a highly scripted presentation. Blankenhorn argued that the concept of marriage as “a socially approved sexual union between a man and a woman” is a “universal” definition that exists in every culture. He said the primary purpose of marriage is to make it as likely as possible that children will be raised by their biological parents.

Blankenhorn testified that he is opposed to allowing same-sex couples to marry because, in his view, that would promote the idea that the purpose of marriage is to serve the needs of adults rather than children. He also claimed that permitting same-sex couples to marry will lead to reduced rates of marriage by heterosexual people, higher rates of divorce, and more children born out of wedlock.

Blankenhorn did not claim to have any scientific data supporting that belief. Instead, he argued that letting same-sex couples marry might contribute to the “deinstitutionalization” of marriage, which he defined (rather vaguely) as any change that weakens “the rules” of marriage. He testified that marriage is a social institution, like baseball, and that when the rules are changed, fewer people will want to play. Blankenhorn stressed that he could not be sure that letting same-sex couples marry would have that effect, but he feared that it would.

Blankenhorn also noted that he supports domestic partnerships for same-sex couples as “a humane compromise.” In the past, he explained, he had not given the issue of domestic partnership much thought. But after being challenged by Jonathan Rausch (a conservative gay author) in 2007, he concluded that even if providing domestic partnership for same-sex couples might also contribute to the deinstitutionalization of marriage, considerations of fairness made it worth the risk.

For the last hour of the day, plaintiffs’ attorney David Boies began what is sure to be a dramatic and grueling cross-examination. Repeatedly, Blankenhorn bridled at Boies’s questions and often refused to answer them, leading to several interventions by Judge Walker instructing Blankenhorn to respond. The bulk of the cross-examination is still to come tomorrow, but thus far, Blankenhorn has acknowledged that letting same-sex couples marry would be beneficial to the couples and their children. He also admitted that there are no studies showing that children of same-sex couples are worse off than children raised by heterosexual parents.

Tomorrow will be the last day on which evidence will be presented. Judge Walker has announced that he will then take a few weeks to review the evidence before scheduling closing arguments in the case.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 10

January 25, 2010

cross-posted from Pam’s House Blend

Today was another exciting day as the Prop 8 trial heads into the home stretch. The plaintiffs finished their case today, and defendants got started with their first witness, Professor Kenneth Miller.

The plaintiffs’ attorneys closed their case by playing excerpts from two simulcasts that were broadcast to gatherings of evangelical voters during the Prop 8 campaign. These simulcasts were sponsored and paid for by ProtectMarriage.com, the official Yes on 8 campaign organization. In the portions shown, one speaker said, “The polygamists are waiting in the wings, because if a man can marry a man and a woman can marry a woman, the polygamists are going to use that exact same argument and they probably are going to win.” Another speaker referred to a man marrying a horse, and a third speaker compared the impact of permitting same-sex couples to marry to the 9/11 attacks.

The videos of these outrageous statements, made in a forum sponsored and paid for by the official Yes on 8 campaign, provided a fitting end to the plaintiffs’ case. It brought the focus back to the long history of demonization the LGBT community has faced in the public sphere– from the grim historical events described in Professor George Chauncey’s testimony two weeks ago to the themes of the Yes on 8 campaign, as shown in today’s videos and the highly inflammatory testimony of Prop 8 proponent Dr. Bill Tam. The plaintiffs have done an admirable job of laying out the case that Prop 8 was a product of the same kind of prejudice that has driven many other anti-gay laws throughout our nation’s history.

After the plaintiffs rested their case, the Prop 8 proponents called their first witness, Prof. Kenneth Miller, who is a professor in the Department of Government at Claremont McKenna College. He was offered as an expert on the political power of gay men and lesbians in California and nationally. Prof. Miller defined political power as the ability to get the attention of lawmakers. In support of his conclusion that gay men and lesbians have significant power, he cited the support for LGBT causes in California among allies such as the Democratic Party and organized labor, the number of LGBT elected officials in California, and the number of LGBT-friendly laws that have been passed by the California legislature in recent years.

This simplistic analysis contrasted sharply with the nuanced approach adopted by the plaintiffs’ expert, Professor Gary Segura, in his testimony last week. Prof. Segura emphasized that to understand a group’s political power, one has to consider not only the number of legislative victories or the number of elected officials, but also the broader context-including factors such as the incidence of anti-gay hate violence, the number of initiatives attacking the civil rights of gay people and our persistent inability to defend ourselves against them, and the long history of government-sponsored discrimination against gay people in employment, which continues to the present day in the military’s ban on openly gay servicemembers. This rigorous attention to detail was notably lacking from Prof. Miller’s testimony.

In fact, under Prof. Miller’s definition of power as the ability to attract any favorable legislative attention, it’s hard to think of any group that would not qualify as politically powerful. Certainly, neither race nor gender would be a suspect classification under the Constitution, since many federal and state laws prohibited discrimination on those bases before the United States Supreme Court held that women and racial minorities were sufficiently politically powerless to merit constitutional protection. In contrast, we still do not have a single federal law that prohibits sexual orientation discrimination, and, most states still permit employers to fire workers because of their sexual orientation. If Prof. Miller’s analysis were correct, no type of discrimination would be subject to heightened constitutional scrutiny.

In addition to offering a surprisingly superficial account of political power, Prof. Miller made several admissions that undermined his credibility as an expert. Under a withering cross-examination by David Boies, Prof. Miller admitted that, at the time of his deposition, he did not know how many states prohibited sexual orientation discrimination. He did not recognize many of the leading scholars on gay politics and history, and acknowledged that he had not read their work. He could not offer an opinion on whether gay people have more political power than African-Americans, even though much more of his scholarship has dealt with the African-American community than the LGBT community. He also declined to comment on the level of prejudice and negative stereotyping LGBT people face compared to other groups such as African-Americans or women. Prof. Miller did concede that lesbians must face more prejudice than other women, however, because they experience discrimination on the basis of both gender and sexual orientation.

Boies also questioned Prof. Miller at length about articles Prof. Miller has authored or coauthored that are critical of the initiative process. In fact, at times, it almost seemed that Prof. Miller might have been offered as an expert by the plaintiffs on the dangers of the initiative process. For example, Prof. Miller has written that initiatives violate the democratic norms of openness, fairness, and accountability and tend to preclude compromise and informed deliberation. When asked if he still agreed with those statements, Prof. Miller agreed that he did. He also acknowledged that initiatives are particularly troubling when they target disfavored minorities.

Tomorrow, Boies will continue his cross-examination of Prof. Miller in the morning, and the proponents then intend to call their final expert, David Blankenhorn, who is expected to testify about parenting by gay men and lesbians.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 8

January 21, 2010

cross-posted from Pam’s House Blend

Today was another blockbuster day in the Perry trial, with more razor sharp testimony from Professor Gary Segura, followed by disturbing testimony by one of the official proponents of Prop 8, Dr. Hak-Shing William (“Bill”) Tam.

Yesterday closed with expert testimony from Professor Segura, an authority on political representation. The plaintiffs called Professor Segura to provide evidence that LGBT people lack sufficient political power to effectively protect their own interests through the political process. This will help to establish that laws discriminating based on sexual orientation, like Prop 8, should receive heightened constitutional scrutiny.

Professor Segura returned to the stand this morning for a long, drawn-out cross-examination by the proponents’ attorney David Thompson.  Thompson’s strategy seemed to be to ask questions addressing the ways in which LGBT people have made some political progress, as if any evidence of progress indicates that LGBT people do not face discrimination.

Despite repeated promptings from Judge Walker to move things along, Thompson presented Professor Segura with repetitive examples of celebrities, prominent politicians, religious organizations, and businesses that have expressed support for LGBT people.  On redirect (brilliantly conducted by Ted Boutrous of Gibson Dunn), Professor Segura demolished Thompson’s attempt to paint a false picture of LGBT people as politically powerful.  In a few short strokes, Professor Segura explained that it is meaningless to compare only the number of groups on each side, without looking at their size, influence, and ability to mobilize voters.  For example, while hundreds of churches opposed Prop 8, literally thousands supported it.  By any reasonable measure, Professor Segura explained, the Prop 8 proponents were able to garner a magnitude of support that dwarfed that given to the other side.

Thompson also asked Professor Segura a series of questions about stories of alleged violence against Prop 8 supporters, including a particularly sensational interview of one alleged victim by Bill O’Reilly.  This is part of the defense’s (absurd) effort to show that voters enacted Prop 8 for reasons other than bias against LGBT people.  On redirect, Professor Segura testified that it was “doubtful in the extreme” that any significant portion of the Yes on 8 vote was based on alleged violence against Prop 8 supporters.  He also testified that there were significantly increased rates of anti-LGBT hate violence in California in 2008, and that any meaningful analysis would consider the incidence of violence on both sides.

Thompson’s cross-examination displayed a surprising lack of knowledge regarding the current state of laws affecting LGBT people. Continuing his attempt to show that LGBT people have political power, for example, Thompson asserted that LGBT have had “great political success” securing adoption rights. Professor Segura corrected him, noting that LGBT people have in fact suffered recent setbacks in several states that have enacted discriminatory adoption laws.

In a powerful final statement, Professor Segura testified that to conclude that gay people have political power after considering all the relevant evidence – from the incidence of anti-gay hate violence to the national juggernaut of anti-gay initiatives would be the equivalent of “political science malpractice.”

After lunch, the plaintiffs called Dr.  Tam, an official proponent of Prop 8.  Dr. Tam, a leader in the Chinese evangelical Christian community, was actively involved in the signature gathering effort and the Yes on 8 campaign.

Dr. Tam originally intervened in this case as a party to defend Prop 8, but recently sought to withdraw from the case, claiming that he fears harassment from having his name publicly  associated with the trial. Judge Walker decided to defer any ruling on whether Dr. Tam will be allowed to withdraw until after his testimony, noting that “there have to be some consequences to joining a case, making the other party litigate against you, and then dropping out.”

David Boies examined Dr. Tam as an adverse witness, meaning that leading questions were allowed as in a cross-examination.  It was a privilege to see him in action.  At a speedy pace, Boies led Dr. Tam through a series of documents showing that Dr. Tam was a leader in the Yes on 8 campaign and that he coordinated his activities closely with ProtectMarriage.com, the official campaign organization.  Boies’s skilled examination, with its laser-like precision, kept everyone in the courtroom on the edge of their seats for much of the afternoon.

Boies’s examination focused on several highly offensive and inflammatory statements that Dr. Tam and organizations in which he is involved have made about homosexuality and the so-called “gay agenda.”  By the end of the day, Boies had offered powerful evidence that the official Yes on 8 campaign organization and its campaign manager, Schubert Flint Public Affairs, were well aware of Dr. Tam’s outrageous statements before the election.

Dr. Tam testified that he is the Secretary of an organization, 1man1woman.net, whose website states that “studies show that homosexuality is linked to pedophilia,” and that “homosexuals are 12 times more likely to abuse children.” Dr. Tam testified that, to this day, he believes those statements are true.  Dr. Tam acknowledged that another document he authored in support of Prop. 8 claimed that after winning marriage equality, LGBT people intended to “legalize having sex with children.” Dr. Tam also acknowledged saying, as reported in the San Jose Mercury News, “We hope to convince Asian-Americans that gay marriage will cause more children to experiment with the gay lifestyle, and that lifestyle comes with all kinds of disease.”

Boies wrapped up Dr. Tam’s testimony by establishing that the Yes on 8 campaign had a tightly coordinated public messaging policy, that the campaign coalition was well aware of Dr. Tam’s 1man1woman.net website, and that the campaign never asked him to take down any of the material on his website linking homosexuality with pedophilia.

It was clear by the end of Boies’s questioning that no matter how hard the official Prop 8 campaign might try to distance itself from Dr. Tam’s shocking anti-gay rhetoric and lies, Dr. Tam spoke as an official proponent who was also a day-to-day leader with real influence in the campaign.  Today’s testimony revealed the true face of the anti-marriage-equality movement, despite its current attempts to portray itself in a more moderate, media-friendly light. Those who actively campaign to deny equality to same-sex couples deliberately exploit the most vicious and false anti-gay stereotypes and create a climate of fear and hostility in which LGBT people are seen as less than fully human.

Tomorrow we will hear from Dr. Gregory Herek, an expert on sexual orientation, who will be the last witness for the plaintiffs.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 7

January 20, 2010

cross-posted from Pam’s House Blend

It was a phenomenal day in the courtroom, in particular testimony from Ryan Kendall about forced conversion therapy that moved many to tears. We also heard surprising revelations from experts who were supposed to support Prop 8 but whose opinions instead clearly shored up our side. After today, I wish more than ever that the public could be watching the video of this trial – I have truly never seen anything like it. Fortunately, daily transcripts of the trial are now being released with a one day delay and are available on AFER’s website.

The morning began with an argument over whether the court should allow excerpts to be played from the depositions of two of the defense’s expert witnesses, Dr. Paul Nathanson and Dr. Katherine Young.  Before trial, each side submitted a list of the witnesses they expected to call, and the Prop 8 proponents said they would call Dr. Nathanson and Dr. Young as experts. Both experts were deposed prior to trial, and their deposition testimony was recorded. Recently, however, the proponents withdrew both witnesses from testifying, suggesting that the experts had requested not to be called due to fears stemming from the proposed broadcasting of the trial. This morning, the plaintiffs asked to play some of those witnesses’ testimony, and the Prop 8 proponents objected. Judge Walker allowed the evidence in.

It was immediately clear why the Prop 8 proponents had really withdrawn these two expert witnesses — their testimony strongly supported the plaintiffs’ claims, not the defense. Indeed, many in the courtroom appeared to be shocked by how much the defense’s experts sounded like they should have been testifying for the plaintiffs. In particular, Dr. Young testified that: (1) homosexuality is a normal variant of human behavior; (2) there have been sub-traditions of allowing marriage between same-sex couples in a number of cultures; (3) allowing same-sex couples to marry enhances their security and well-being and is good for their children; and (4) studies show that there is no harm to children from being raised by gay parents and there is “no reason to predict harm.”  Dr. Nathanson testified that, in the past, religion has been used to justify discrimination against people based on race and gender in the name of “protecting the family.” This testimony from the Prop 8 proponents’ own witnesses powerfully refutes the defendants’ claims.

The plaintiff’s next witness was Ryan Kendall, a gay man from Colorado who testified about his ordeal with family rejection and forced conversion therapy as a teenager. Kendall’s story expresses everything that this case is about. No human being should be treated by his own family in the way that Kendall was, but it happens to far too many LGBT people — and the arguments made by the proponents of Prop 8, both in the campaign and in this trial, create the conditions that ensure it will happen again and again.

Under skillful direct examination by Ryan Flynn of the San Francisco City Attorney’s Office, Kendall testified that he grew up in a close, loving family in which religious faith played a defining role. But his relationship with his family fell apart at age 13, when his parents found a personal journal in which he had confided that he was gay.  Kendall testified that he was devastated by his parents’ rejecting response – and especially by their telling him he was going to hell.  Kendall described how his mother told him that he was repulsive and disgusting, and that she said that she wished that she had had an abortion or that he had been born with Down’s Syndrome. His parents forced him to enter Christian conversion therapy, first with a local therapist, and then with Joseph Niccolosi, the President of the California-based National Association for Research & Therapy on Homosexuality (NARTH).

Kendall testified that conversion therapy did not work for him — “I knew I was gay, just like I knew that I was short and half-Hispanic.” He also testified that as far as he knew, it did not work for others.  In fact, Kendall recounted an incident that took place when he was in “therapy” with Niccolosi, who introduced him to a young man who allegedly had changed his sexual orientation from gay to straight.  Kendall noted that when Niccolosi left the room, the man told him that he was going to a gay bar that night and that he was just pretending to be straight to please his parents.

At age 16, Kendall testified, he realized that he had to either leave his family or commit suicide, and he turned himself in to the Department of Social Services.  Today, he has accomplished the heroic feat of turning his life around and living proudly as an openly gay man in Colorado, where he works for the police department.

The rest of the day was spent on the testimony of Professor Gary Segura, a professor of political science at Stanford.  Professor Segura explained that the persistence of widespread, deeply rooted anti-gay animosity prevents LGBT people from being able to operate on equal terms in the political arena.  Professor Segura noted the low number of openly LGBT elected officials, and cited data showing that, by a wide margin, the public is more hostile to gay people than to any other minority group.  He also testified that anti-gay violence accounts for 71 percent of all hate-motivated murders and 55 percent of all hate-motivated rapes.

In some of the most dramatic evidence presented to date, Professor Segura commented upon a number of documents that provided a shocking glimpse of just how deeply the Catholic and Mormon churches were involved in supporting Prop 8 and intertwined with the official pro-Prop 8 campaign.   One document sent by the executive director of the Catholic Conference to bishops in California thanked the Catholic Conference for its “unusual” efforts in supporting Prop 8 and applauded the Mormon church for its “financial, organizational, and managerial contributions” to the campaign.  Other documents detailed the Mormon Church’s extensive collaboration with the campaign, including mobilizing more than 20,000 volunteers and coordinating messaging and fundraising.  Professor Segura testified that this level of coordination among powerful religious groups to target a particular group was unprecedented.

David Thompson, an attorney for the proponents, tried hard to undermine Professor Segura’s testimony by confronting Segura with counter-examples – such as a recent speech by President Obama in which he pledged to overturn Don’t Ask Don’t Tell, enact federal employment protections, and support recognition of same-sex relationships.  At every turn, Professor Segura took advantage of the opportunity to deepen and strengthen his analysis.  He described President Obama as “perhaps the best illustration of an ally who cannot be counted on, whose rhetoric far exceeds his actions.”

Thompson will complete his cross of Professor Segura tomorrow, and the plaintiffs will be calling Dr. Gregory Herek, an expert on sexual orientation, and William Tam, one of the official sponsors of Prop 8, as their final witnesses.

Special thanks to my colleagues Christopher Stoll and Melanie Rowen for their input and analysis.  For up to the minute reports on the trial tomorrow, follow NCLR’s live tweeting from the court room at  @NCLRights and @Chris_Stoll.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 6

January 19, 2010

cross-posted from Pam’s House Blend

This morning we heard first from Jerry Sanders, the Republican Mayor of San Diego. I remember Mayor Sanders well from the 2008 election — he made a heartfelt and courageous statement about his lesbian daughter and why he opposed Proposition 8 that, to me, was one of the most profound moments of the campaign. Mayor Sanders’ testimony today was similarly powerful.  Adding to the star power of the day, San Francisco City Attorney Dennis Herrera conducted Mayor Sander’s examination.

Mayor Sanders, the former Police Chief of San Diego, testified about the evolution of his own support for marriage equality.  Many years ago, he came to believe that harassment against gay people was wrong after seeing a good police officer hounded out of the department for being gay. Mayor Sanders also testified that he had shared a close relationship with his daughter, Lisa, who is a lesbian, and worried about her because of the persistence of hate crimes and discrimination against LGBT people. But as recently as 2007, he continued to believe and to take the public position that civil unions were equal to marriage.

In 2007, Mayor Sanders had publicly committed to veto a San Diego City Council resolution authorizing the filing of a supportive brief in the California marriage case.  He testified that the night before he was to veto the resolution, he spoke with same-sex couples, and was overwhelmed by the “depth of hurt” these couples experienced from being treated unequally. Despite his political commitments, Mayor Sanders testified, “I could not bring myself to tell an entire group of people that they were unequal . . . I couldn’t look them in the face and tell them their relationships were any less meaningful than the relationship I shared with my wife.”

Unable to go forward with the veto, Mayor Sanders testified that he “decided to lead with my heart and take a stand on social justice,” publically announcing his change of position. His courageous statement was widely covered in the media and can be viewed here. Mayor Sanders testified that the Republican Party was  unhappy with his support of marriage equality and almost pulled its support for his candidacy.

Mayor Sanders also testified about his deep love and admiration for his daughter Lisa and her spouse Megan, whom he described as “a third daughter.”  He described their relationship as “an example of persevering, of going to great lengths to show their commitment to one another.” Because they were unable to marry in California, Lisa and Megan married in Vermont.   Mayor Sanders testified that he felt that Lisa and Megan shouldn’t have had to travel to another state to get married and that “my daughter deserves to have the same right to have a wedding in front of family and friends as anyone else.”

On cross-examination, attorney Brian Raum of the anti-LGBT Alliance Defense Fund tried to turn Mayor Sanders’ own support for equality into an argument that same-sex couples no longer face discrimination. Raum also asked questions about whether there are gay people in the San Diego police force or on the City Council, as though this would prove that gay people face no unfairness at all. Mayor Sanders reiterated that Proposition 8 treats same-sex couples as second-class citizens, period.  Mayor Sanders also reiterated that his prior support for domestic partnership rather than marriage for same-sex couples was “grounded in prejudice.”

Raum also pressed Mayor Sanders for an admission that Proposition 8 passed not because of prejudice against gay people, but because of “violence” by people on the No on 8 side. Mayor Sanders refused to go along with the notion that Proposition 8 was the product of anything other than unfairness, and also testified that his only experience with violence in the campaign was when his own “No on 8″ sign was vandalized by Prop 8 supporters.

Professor M.V. Lee Badgett, an economics professor at University of Massachusetts Amherst, was today’s second witness.  Professor Badgett is the leading national expert on the economic impact of marriage bans and, most recently, the author of When Gay People Get Married.   Professor Badgett offered four expert opinions: (1) marriage bans cause serious financial harm to same-sex couples; (2) letting same-sex couples would cause no harm to the institution of marriage; (3) same-sex couples are similarly situated to heterosexual couples demographically and economically; and (4) marriage bans cause significant financial harm to the state.   Professor Badgett did a masterful job of presenting the existing empirical research on these issues, much of which she has conducted herself.

Charles Cooper cross-examined Professor Badgett for nearly three hours, by far the longest examination of the day.  In a pattern that has now become familiar in this trial, Cooper spent most of his time trying to poke holes in various minor details of Professor Badgett’s analysis, without challenging her larger conclusions. Cooper’s examination fell especially flat when he put charts in front of Badgett that he claimed showed marriage equality in the Netherlands had led to lower rates of marriage, larger numbers of unmarried couples raising children, and larger numbers of single parents raising children.  Professor Badgett did not agree with his characterizations, saying that these changes seemed to reflect long-term trends that were not affected in any way by permitting same-sex couples to marry, and stating that a longer range of dates needed to be studied before drawing any conclusions.  On redirect, plaintiffs’ attorney David Boies skillfully exploited the weakness of Cooper’s charts, putting up much longer-term data that made clear that there has been no significant change at all in long-term trends in rates of marriage and unmarried parenting in the Netherlands since same-sex couples have been permitted to marry.  Moreover, in Massachusetts, the data showed that marriage rates have actually increased since the arrival of marriage equality in 2004, and divorce rates there have decreased more than in the United States as a whole.

Tomorrow we’ll hear from more of plaintiffs’ witnesses, most likely including video deposition testimony from some of the official sponsors of Prop 8.  Plaintiffs are expected to finish their case tomorrow or Friday, and then it will be the defense’s turn.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 5

January 15, 2010

cross-posted from Pam’s House Blend

Today, in the final day of the first week of trial, we got to see more riveting, detailed testimony from the plaintiffs’ expert witnesses, who have truly proven to be “experts” in the fullest sense of the word. We also heard the moving personal story of a woman who has seen firsthand the incredible transformative power that the simple act of marrying can have.

A tremendous body of social science has been laid out in this trial so far, and it has shown the irrationality of discrimination against LGBT people and our families in a truly unprecedented way. This morning’s first witness was Dr. Michael Lamb of Cambridge University. He is an expert in child and developmental psychology and has authored or edited more than 40 books and 500 articles on the subject. Dr. Lamb testified that there is substantial evidence showing that the children of same-sex couples would be better adjusted if their parents could marry, because children in general do better when their parents have adequate social support.

Dr. Lamb also testified unequivocally, based on the vast body of social science research in the field, that children of LGBT parents are just as well off psychologically as other children. Dr. Lamb did testify that there is one difference between children of LGBT parents and other children – on average, they grow up with less sex-stereotyped attitudes.

Dr. Lamb strongly refuted the Prop 8 proponents’ claim that it is necessary for children to have a male biological parent and a female biological parent in the home, undercutting one of their primary arguments. He testified that there is an “overwhelming consensus” among developmental psychologists today that gender is irrelevant to parenting. Dr. Lamb confirmed that the most significant factors for children’s psychological well-being are the love and support they get from their parents, and the stability of their relationships with both parents. Those factors do not favor different-sex parents over same-sex parents – rather, they suggest the importance of providing all families with the social and legal support needed to ensure that they can provide a stable, loving environment for their children, such as through marriage.

During the aggressive and lengthy cross-examination by attorney David Thompson, which lasted well into the afternoon, Dr. Lamb held firmly to those conclusions. Thompson relied on offensive stereotypes about men, attempting to press Dr. Lamb into agreeing that gender does matter in parenting and that children of LGBT parents are at a disadvantage. But Dr. Lamb calmly, politely, and consistently testified that when it comes to the traits that a good parent needs, gender makes no difference. He refuted every one of the sources that Thompson cited purporting to show that children raised by same-sex parents have more difficulties. For instance, when Thompson mentioned studies allegedly showing that children who grow up without a father in the home have more difficulties, Dr. Lamb patiently explained that those studies actually demonstrate the detriment that the trauma of divorce or the loss of a parental figure have on children’s emotional well-being. It was clear by the end of Dr. Lamb’s testimony that there is simply no credible evidence to suggest that the gender or sexual orientation of a child’s parents makes a bit of difference to mental health outcomes.

Asian-American author and activist Helen Zia was the final witness of the week. Under direct examination by Danny Chou, deputy city attorney with the City and County of San Francisco, she testified about a number of encounters with hurtful homophobic prejudice that kept her closeted for years. Zia described some of the shocking abuse she experienced from strangers during the Prop 8 campaign, including being called a “f—ing dyke” and being told she would “rot in hell.”

Zia also shared the love story of her courtship and marriage with her wife, Lia. Zia described how they registered as domestic partners with the City of San Francisco years ago at a window in City Hall that “also gave out dog licenses.” When they registered as domestic partners with the state of California a few years later, she said, they didn’t even get to go to a “dog-license window” – they simply filled out a form and mailed it in. But it was when the couple finally legally married in 2004 – though that marriage was invalidated by the California Supreme Court five months later – that they finally experienced, for the first time, a taste of true equality. (Zia and her wife subsequently re-married in 2008, during the period before Prop 8 passed.)

Zia testified that once they married, both of their families finally recognized them as part of the family, rather than, for example, referring to Lia as “Helen’s friend.” She described the moving scene just a few months ago when the couple visited Lia’s father, who has since passed away, in hospice. The hospice staff asked, “Are these your daughters?” and he replied proudly, “No, this is my daughter, and this is my favorite daughter-in-law.”

Stories like Helen Zia’s make it impossible to ignore the pain that anti-LGBT bigotry, exacerbated by legal inequality, causes every member of our community. It’s difficult to listen to these stories and be reminded of the hurt and shame that we often try to suppress. But Zia’s story also carries in it the seeds of hope – the genuine joy that wells up when LGBT people experience true acceptance. Every person deserves that feeling of acceptance and support. That is what this case is fighting for.


NCLR’s Legal Director Shannon Minter on Perry v Schwarzenegger Proceedings, Day 4

January 14, 2010

cross-posted from Pam’s House Blend

The morning opened with Judge Walker’s announcement that he is withdrawing the Perry case from the pilot broadcasting program.  Judge Walker’s decision followed the Supreme Court’s order preventing any broadcast of the Perry trial even to other federal courtrooms, which has been roundly and rightly criticized as an unwarranted intrusion on lower courts.  Video will continue to be streamed to an overflow courtroom so that members of the public can watch the proceedings live, as is already done in many civil trials.

In light of the court’s decision, Judge Walker did the right thing by taking the issue off the table -ensuring that what is now an entirely moot point will not distract from the constitutional issues in the case.  But Judge Walker’s gracious approach apparently did not satisfy the defenders of Prop 8.  Just before the morning break, Charles Cooper, the lead lawyer defending Prop 8, requested again that the judge to stop all video recording and destroy all tapes of the first few days of the proceedings. He had requested this earlier in writing. Judge Walker said that recording would continue, so that he can review the video in chambers while writing his decision.

It is heartbreaking that a video record of this groundbreaking trial will not be broadcast to the public.  Watching this trial has been tremendously educational, even for those of us who have spent our careers studying and litigating these issues.  The public has lost a unique and invaluable opportunity to see the leading experts in their fields talk about the real-world impact of denying marriage equality, and to learn about how our courts really work in the context of a civil rights case that millions of people deeply care about.

Today’s first witness was Edmund Egan, the chief economist in the Office of the Controller for the City of San Francisco.  Dr. Egan analyzed how Prop 8 has affected the San Francisco economy and the City budget.

A quick bit of backstory: Shortly after this case was filed by the couples, Kris Perry, Sandy Stier, Paul Katami and Jeff Zarrillo, Judge Walker allowed the City of San Francisco to intervene in the case on their side. Judge Walker did so because the City argued that Prop 8 has harmed the City in a way that is different from the harms suffered by the other plaintiffs.

Today’s testimony by Egan detailed those harms. For example, fewer weddings means less economic activity.  The City’s budget suffers because married couples tend to be both healthier and wealthier than unmarried people.  Denying same-sex couples the right to marry also reduces the City’s tax revenues, and the City’s public health costs are higher because many LGBT people do not have health insurance through a spouse and are forced to depend on the City as health care provider of last resort.  It is a challenge to assign a precise dollar value to these effects, but to the extent that it can be done, Dr. Egan showed that it is clear that the City loses millions of dollars annually because of Prop 8.

Peter Patterson, one of the attorneys defending Prop 8, cross-examined Egan for what seemed like an eternity, quizzing him on the minutiae of his analysis in an attempt to show that the economic impact of Prop 8 is less than Egan concluded.  But the relentless nitpicking did nothing to overcome Egan’s larger point:  Prop 8 damages the economy and costs the City money in numerous real, tangible ways.  Unless the defenders of Prop 8 are prepared to present a more persuasive alternative analysis that shows Prop 8 has no negative economic impact, it’s hard to see the relevance of this morning’s cross-examination.
Today’s only other witness was Ilan Meyer, an expert in the health consequences of anti-LGBT discrimination and stigma.  Dr. Meyer had the courtroom riveted throughout his testimony. He detailed the harms LGBT people suffer from the relentless daily stress of living in a society that stigmatizes not just our lives, but our very being.

I bet I’m not the only LGBT person in the courtroom who listened to Dr. Meyer’s testimony with pained recognition of how deeply so many of us have internalized the limitations placed on our dreams and aspirations by homophobia. As plaintiff Kris Perry said in her moving testimony on Monday, she never dreamed she would be able to marry, and it is painful and humiliating to want something you know you can never have.  Listening to today’s testimony rekindled my anger at the damage we all have suffered – and that LGBT youth continue to suffer-by being deprived of the same basic human opportunities others have to belong, and to love.   I am so grateful to the couples who are opening up their lives in this suit on our behalf, and to the brilliant team of attorneys from Gibson Dunn and the City and County of San Francisco who are standing up for all of us in this case.

Join Shannon Minter in a liveblog on Pam’s House Blend on Friday, January 15 at 5 p.m. Pacific/8 p.m. Eastern for a recap of this week’s proceedings.


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