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January 26, 2010
Prop 8 Trial Week 2: It's Not A Choice, It's A Child
By Eric Malone
As the historic trial to overturn California's Proposition 8 concluded its second week, the court heard testimony concluding that homosexuality is an ingrained human characteristic...not a choice. Oh, and the Trial of the Decade will be on YouTube after all!
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Week 2 of the Prop 8 Trial ended on Friday in San Francisco with some stirring testimony that homosexuality is not a mental disorder, nor is it even a choice.But several other startling revelations took place outside the courtroom that also affected the ultimate fate of the despised and hated Proposition 8, the California initiative approved in 2008 by 52.3% that took away the right to marry for gay people, a right that had already been affirmed by the state Supreme Court earlier that year. Let's take a quick look at what's going on in the real world, and then back to the Trial of the Decade:
OK, back to the exciting adventure in jurisprudence that is the Prop 8 Trial itself:
MONDAY
Monday was a national holiday and the court took a recess while civil rights advocates around the country reflected on the struggle of the Reverend Dr. Martin Luther King Jr. and the fact that black people have more rights than homosexuals--they can marry legally.
TUESDAY
San Diego Mayor Jerry Sanders spun an emotional tale of
turnaround, telling the court how he was about to come out publicly against gay
marriage but changed his mind when he realized that he would be discriminating
against his own daughter back in 2007.
"I think the decisions I made were grounded in prejudice," he
testified. Sanders' daughter Lisa came
out in 2003 and got married in Vermont
just last year.
Prop 8 defense attorney Brian Raum tried to twist Sanders' testimony against Prop 8 by getting him to admit that Prop 8 supporters did not necessarily hate gay people. Sanders replied that support for Prop 8 did not automatically make someone a bigot, but that "I believe they were saying an entire class of people doesn't deserve the same treatment in their relationships." Furthermore, said the Republican mayor, "if government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do the same thing." Sanders said he once supported civil unions as being the same thing as marriage, but had changed his mind.
University of Massachusetts professor Lee Badgett then testified
that the loss of gay marriage in California
has cost the state several hundreds of millions of dollars in lost revenue over
a 3-4 year period. She also stated that
allowing same-sex marriage did not impugn nor harm heterosexual marriage, and
that marriage is superior to domestic partnership.
A young gay man, Ryan Kendall, told the court about being forced into "conversion therapy" to convert him from being gay as a teenager. Kendall's parents treated him harshly when they found out he was gay at the age of 13 in a conservative Christian home in Colorado Springs and they sent him to a Christian therapist and then the National Association of Research and Therapy of Homosexuality in Encino, California from ages 14-16. He left it because he became suicidal after 2 years of preachers trying to convert him to heterosexuality. When he came out, he said, "I was just as gay as when I started."
Stanford political science professor Gary Segura made the point that gays and lesbians have little political power and cannot count on friends in high places due to a stigma attached to politicians who support gay rights. This is an important point, because if a group is treated differently by law, the court must decide if that law violates the constitution.
Prop 8 defender David Thompson cited recent victories for gay rights, including the election of a lesbian mayor in Houston (Annise Parker) and the election of an openly gay legislator, John Perez, as Speaker of the California Assembly. He made the point that President Obama has been a vocal supporter of gay rights. Professor Segura countered that Obama has done nothing to overturn the Defense of Marriage Act (DOMA) and has not repealed the Don't Ask Don't Tell policy affecting gays in the military. "This is not a reliable ally," he said. "We have to look at the disconnect between rhetoric and action."
Thompson shot back that Prop 8 opponents spent $43-million to defeat the measure while supporters only spent $40-million dollars, pointing out that gays had enough clout to raise that kind of money. Segura noted that there has been progress in the law, but that some protections are subject to the whim of voters"like Proposition 8! Hey! He said that 200 initiatives restricting gay rights have been on state and local ballots nationwide since 1999 and that more than 70-percent of those actually made it into law. Hate crimes have increased from 14% in 2005 to 17.7% in 2008, according to the FBI. "Polls show that the American public is not very fond of gays and lesbians" and is more hostile to them than racial or religious minorities. "Religion is the chief obstacle to gay and lesbian progress," Segura concluded.
THURSDAY
Prop 8 supporter William Tam, director of the Traditional Family Coalition, was called as a witness by plaintiff attorney David Boies, despite the fact that Tam's lawyer tried to prevent his testimony. Tam told the court that he supports domestic partner rights but "had not come to a conclusion about gays being allowed to adopt children." On his website, Tam asserted that homosexuality is linked to pedophilia. Boies asked Tam if he considers himself "hostile to gays and lesbians." "No, I don't," Tam answered.
Boies got tough in the afternoon, pointedly interrogating Tam about Prop 8 position papers that stated during the 2008 campaign that "legalizing gay marriage would lead to legalizing prostitution and sex with children." Tam was not able to cite his source for that assertion. Boies also produced emails in which Tam stated that "California would fall into the hands of Satan" if gay marriage were allowed. Tam told Boies that gay marriage "would lead to polygamy and incest" and "moral decay."
The Prop 8 attorneys then tried to distance themselves from the horribly bigoted comments of Reverend Tam, pointing out that Tam did not follow official guidelines for campaign messages on Prop 8 during the 2008 campaign. Their point: Tam was a supporter, but he was a renegade. So they welcomed his support when he gathered 20-thousand signatures to get Prop 8 on the ballot and raised money, but wanted to separate themselves from his obvious prejudices and hatred against gays. (Protect Marriage has withdrawn all but 2 of its scheduled witnesses in the trial, by the way")
Boies wrapped up the day by producing further email evidence that Tam was an important part of the Prop 8 campaign, making the point that prejudice was part and parcel of the entire struggle to get Proposition 8 passed into law.
FRIDAY
UC Davis social psychologist Gregory Herek testified that gays and lesbians do not choose to be homosexual and they are subject to social stigma. Prop 8 lawyer Howard Nielson quickly tried to rebut that argument by trying to get Herek to admit that homosexuality is a "choice." Again, this is an important point in the trial: If the court finds that homosexuality is a natural ingrained human characteristic, not a choice, then it is a candidate for legal protection under due process in the 14th Amendment for equal rights.
Nielson tried to suggest that Kristin Perry and Sandy Stier, two of the plaintiffs against Prop 8 who testified last week, acknowledged having "made a choice to become lesbian." Professor Herek calmly noted that many homosexuals do not come to grips with their sexual identity while they are young, largely due to extreme social pressure to be heterosexual.
And that wraps up the case against Prop 8 for now. The case so far:
The plaintiffs will introduce some final paperwork on Monday, and then we will be treated to the case for the defense which is expected to take 2-3 days, so it may be over by Wednesday.
I can hardly wait.