The longer this trial progresses, the easier it is to see why Protect Marriage doesn’t want you to actually see the details of the proceedings. In fact, it might even be fair to assume that the reason yesterday’s cross-examination lasted five hours is just to make navigating Dr. Herek’s testimony unwieldy. It’s actually pretty easy when you skip over all the out-of-context excerpts from studies 15-50 years old and the defense’s repeating questioning of “is this reasonable?” For more on these issues, check my previous posts from yesterday: here and here. But for now, let’s see how Andy Pugno is spinning things today.
On Friday the plaintiffs called to the stand a witness to testify as an expert in social psychology and sexual orientation. Dr. Gregory Herek, a University of California, Davis researcher, appears to be the last in a long line-up of the plaintiffs’ expert witnesses. Initially, Herek gave his professional opinion that sexual orientation is an unchangeable trait for gays and lesbians. This is a critical issue in the plaintiffs’ case. A key legal element of their constitutional claim requires them to prove that sexual orientation is “immutable” (cannot be changed) in order to have the same high level of constitutional protection as for race and gender.
If the court sides with the plaintiffs on this and establishes a new legal precedent declaring homosexuality to be “immutable” like race and gender, it becomes far more difficult for any state to continue the traditional definition of marriage.
This is all true! But that “initially” doesn’t bode well for what’s coming.
However, under hours of piercing cross examination by Prop 8 defense attorney Howard Neilson, Jr., Herek admitted that the evidence that homosexuality is genetically wired is “weak,” that “we don’t understand or know the origin of sexual orientation in men or women,” and that “no one knows what causes homosexuality.” In fact, he said there are at least 3 different ways of defining sexual orientation, and conceded that there is actually no scientifically unambiguous definition of homosexuality. He also explained that the number of categories of sexual orientation (straight, gay, lesbian, bi-sexual, etc.) has expanded and continues to grow as certain groups find new ways to describe their sexual orientation.
“Piercing”? I think “denting” would be too generous. There is a lot to unwind in this paragraph…
First, what is understood about sexual orientation is that a lot of complex factors affect it. We know that it’s not entirely genetic (hence the “weak”), but we do know that certain genetic factors affect it. Twins studies have shown to be quite conclusive in this regard.
It would be true to say that no one knows exactly what causes any sexual orientation. Homosexuality is not unique; how it presents is not any different than heterosexuality or bisexuality. (By Pugno’s logic, there’s no way to defend “traditional marriage” because we don’t know the cause of heterosexuality, and heterosexuality could change! I bet he doesn’t see it that way.)
Further, Herek did not say there are three “different” ways of defining sexual orientation. He said (MANY TIMES) that defining sexual orientation requires considering at least three components together: behavior, attraction, AND self-identification. There is no ambiguity in how sexual orientation is defined, and Dr. Herek reiterated this many times. The challenge for researchers is that sometimes it’s not feasible to consider all three components. Dr. Herek gave the example of someone studying STIs would probably focus solely on behavior. People also aren’t always aware of their mental processes and can convince themselves of many things (*coughreligioncough*).
Heterosexuals are also known as “straight” and “breeders,” so does that mean heterosexuality is being redefined? No. A lot of new identities, like the youth-popular “queer” that was discussed, echo people’s struggle to avoid exactly what the defense was trying to do: boxing people in. I can call my sexual orientation whatever I want. I know how I feel, I know how I act, and I know how I want people to understand and recognize me. If I called my sexual orientation “jackie,” I would be no less gay.
This proves up our point: If the meaning of sexual orientation is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?
Yeah, and like religion! Because nobody’s beliefs are ever fluid or changing. (“Proves up?” Does this guy even know how to talk?)
And let’s make an important distinction here. Just because sexual orientation can change doesn’t mean it can BE changed. It’s easy for Pugno to spin this, but it doesn’t represent what Herek testified.
On a practical level, a major problem for the plaintiffs’ case is the fact that one of the plaintiffs testified that she has, in fact, changed her sexual orientation from heterosexual to homosexual. Though now in a same-sex relationship, she testified last week that she was formerly married to a man whom she loved and with whom she had children. But now she is a lesbian. That sounds like a change.
HEY! I’m straight! Look, I’m straight now. I like girls now. My friend Laurel? I totally love her. I could live happily with her for many years! I’m a heterosexual! I’m changed!
What a pathetic argument. Way to ignore Dr. Herek’s whole point about sexual orientation not having to be consistent for a whole life, but just for an “enduring period of time.”
By the way, I’m gay. I changed back just then. But I do totally love Laurel.
So as Week Two comes to a close in this trial, and as plaintiffs appear to be wrapping up their case, there is no question that the thrust of the plaintiffs’ case has been a series of emotional appeals, rather than a legal case for changing the meaning of marriage. Testimony about witnesses’ personal feelings and changes of heart—no matter how moving and emotional they may be—are simply not legal evidence that the United States Constitution gives gays and lesbians the right to redefine marriage for the rest of society.
That’s not what’s at stake. Apparently Pugno forgot that his responsibility is fulfilling a burden of proof that there is a compelling reason to continue discriminating against gays and lesbians. Most of those arguments (assuming they ever had any merit, which they didn’t) have been thoroughly debunked. I kind of hope Pugno’s false confidence makes next week’s proceedings just hilarious.
In fact, when the video cameras stop rolling and the sensationalism of this trial fades away, it will become clear that plaintiffs have essentially presented a political argument—not a legal claim. Such a case belongs in the public debate, not a courtroom.
Yawn. You mean the sensational video cameras you’ve worked so incredibly hard to hide? I’m pretty sure that’s the only reason it’s not as public a debate as it could be. Thanks for that, Andy.
What a load of bull.