The Prop 8 Decision: A Victory for Science and Education

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Way back in January, I wrote a post about why atheists should care about the Prop 8 Trial, pointing out that science was on trial. I was not alone in pointing out that Perry v. Schwarzenegger is the Scopes Monkey Trial of our day, merely challenging psychology instead of biology. I think it is important to now look at Judge Walker’s decision and see that not only was this a victory for gay rights, but a victory for science (the APA agrees) and the dismantling of religious privilege in our nation.

I don’t think anything in the decision is as powerful as the Findings of Fact I compiled yesterday. Another important aspect was the determination of expertise for the witnesses that were offered as “experts.” As I pointed out back in January, there were some compelling face-value distinctions between the plaintiffs’ witnesses and the proponents’ witnesses. It seems that Judge Walker thought so too.

He takes a fair amount of time in the decision to outline the credentials of the expert witnesses and the criteria used to evaluate them. This was surely necessary given that he did not accept them all. Starting on p. 28, he affirms the testimony of all the plaintiffs’ experts. Scroll over each to see the brief summary of their testimony and then check out the decision to see all the credentials: Nancy Cott, George Chauncey, Lee Badgett, Edmund A Egan, Letitia Anne Peplau, Ilan Meyer, Gregory Herek, Michael Lamb, and Gary Segura.

Those Religious Studies Professors

Then (starting on p. 35), Judge Walker gets to the matter of the proponents’ witnesses. First he describes Katherine Young and Paul Nathanson, “experts” the proponents’ withdrew, but whose taped depositions were still submitted as evidence by the plaintiffs. What is remarkable is how—perhaps because they were withdrawn—their expertise and their testimony have little to do with each other (p. 36-37 citations omitted):

Young has been a professor of religious studies at McGill University since 1978. She received her PhD in history of religions and comparative religions from McGill in 1978. Young testified at her deposition that homosexuality is a normal variant of human sexuality and that same-sex couples possess the same desire for love and commitment as opposite-sex couples. Young also explained that several cultures around the world and across centuries have had variations of marital relationships for same-sex couples.

Nathanson has a PhD in religious studies from McGill University and is a researcher at McGill’s Faculty for Religious Studies. Nathanson CV. Nathanson is also a frequent lecturer on consequences of marriage for same-sex couples and on gender and parenting. Nathanson testified at his deposition that religion lies at the heart of the hostility and violence directed at gays and lesbians and that there is no evidence that children raised by same-sex couples fare worse than children raised by opposite-sex couples.

Proponents made no effort to call Young or Nathanson to explain the deposition testimony that plaintiffs had entered into the record or to call any of the withdrawn witnesses after potential for contemporaneous broadcast of the trial proceedings had been eliminated.

This seemed an incredibly useful tactic by the plaintiffs’ legal team. It demonstrated that even if Young and Nathanson had testified at trial, their expertise on religioun would have been irrelevant to what we actually know about gays and lesbians.

Kenneth P Miller

I’m going to save David Blankenhorn for last, because he makes for a grander finale. Skipping down to p. 49, we see where Judge Walker considers the testimony of Kenneth P Miller, who plaintiffs contended did not have sufficient expertise to testify on the subject of the political power of gays and lesbians.

Miller received a PhD from the University of California (Berkeley) in 2002 in political science and is a professor of government at Claremont McKenna College. Plaintiffs contend that Miller lacks sufficient expertise to offer an opinion on the relative political power of gay men and lesbians. Having considered Miller’s background, experience and testimony, the court concludes that, while Miller has significant experience with politics generally, he is not sufficiently familiar with gay and lesbian politics specifically to offer opinions on gay and lesbian political power.

It seems that the proponents found a witness who was willing to say what they wanted him to say, but really had nothing to back it up. There are several pages where Judge Walker showed how Miller could not explain how his conclusions contradicted studies and reports submitted by the plaintiffs. My favorite was this one (p. 52):

Plaintiffs questioned Miller on data showing 84 percent of those who attend church weekly voted yes on Proposition 8, 54 percent of those who attend church occasionally voted no on Proposition 8 and 83 percent of those who never attend church voted no on Proposition 8. Plaintiffs also asked about polling data showing 56 percent of those with a union member in the household voted yes on Proposition 8. Miller stated he had no reason to doubt the accuracy of the polling data. Miller did not explain how the data in PX2853 are consistent with his conclusion that many religious groups and labor unions are allies of gays and lesbians.

It was also revealed that Miller was fed most of the documents he cited by the defense. I’ll let Judge Walker take us home on Miller’s testimony (p. 53-54):

The credibility of Miller’s opinions relating to gay and lesbian political power is undermined by his admissions that he: (1) has not focused on lesbian and gay issues in his research or study; (2) has not read many of the sources that would be relevant to forming an opinion regarding the political power of gays and lesbians; (3) has no basis to compare the political power of gays and lesbians to the power of other groups, including African-Americans and women; and (4) could not confirm that he personally identified the vast majority of the sources that he cited in his expert report. Furthermore, Miller undermined the credibility of his opinions by conceding that gays and lesbians currently face discrimination and that current discrimination is relevant to a group’s political power.

Miller’s credibility was further undermined because the opinions he offered at trial were inconsistent with the opinions he expressed before he was retained as an expert. Specifically, Miller previously wrote that gays and lesbians, like other minorities, are vulnerable and powerless in the initiative process, contradicting his trial testimony that gays and lesbians are not politically vulnerable with respect to the initiative process. Miller admitted that at least some voters supported Proposition 8 based on anti-gay sentiment.

For the foregoing reasons, the court finds that Miller’s opinions on gay and lesbian political power are entitled to little weight and only to the extent they are amply supported by reliable evidence.

I think Judge Walker ought be applauded for his critical observations here.

Determining Expertise

Now, you might read all that and wonder, “So what exactly qualifies an expert?” Judge Walker will happily walk you through it.

First, we have Federal Rule of Evidence 702 (p. 39-40):

Federal Rule of Evidence 702 provides that a witness may be qualified as an expert “by knowledge, skill, experience, training, or education.” The testimony may only be admitted if it “is based upon sufficient facts or data” and “is the product of reliable principles and methods.” Expert testimony must be both relevant and reliable, with a “basis in the knowledge and experience of [the relevant] discipline.”

This is key language. The information provided has to, essentially, be scientifically valid and reliable. Scientific literacy is so vital to our society and we are fortunate that Judge Walker understands that. He goes on to say that formal training and peer-reviewed publications are not necessary, but speak to the intellectual rigor expected of an “expert.” However, the court is not required to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. So peer review is an effective way for the court to ensure that an expert’s methodology is sound.

Several factors are relevant to an expert’s reliability:

(1) “whether [a method] can be (and has been) tested”;

(2) “whether the [method] has been subjected to peer review and publication”;

(3) “the known or potential rate of error”;

(4) “the existence and maintenance of standards controlling the [method’s] operation”;

(5) “a * * * degree of acceptance” of the method within “a relevant * * * community”;

(6) whether the expert is “proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation”;

(7) whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion;

(8) whether the expert has adequately accounted for obvious alternative explanations;

(9) whether the expert “employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field”; and

(10) whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.

I know that kind of reads like gobbledygook, but each of those is a significant point in which the court upholds scientific thinking.

Essentially, the court holds (or should hold and has precedent to hold) experts accountable to their testimony. If their research isn’t accepted by their field or their conclusions don’t match their claims, they are violating the expertise they claim to have. This is so important, and I think we have to appreciate the way Judge Walker carefully meted out and considered all the facts in this case.

And why did he have to write this all out in the decision? Because of David Blankenhorn.

David Blankenhorn

You might think I’ve already beaten up on David Blankenhorn a bit too much. It’s not without irony that I was chastising his pity party yesterday just hours before the decision came down. But you ain’t seen nothing until you’ve seen the way Judge Walker eviscerated Blankenhorn’s testimony (p. 39):

Plaintiffs challenge Blankenhorn’s qualifications as an expert because none of his relevant publications has been subject to a traditional peer-review process, he has no degree in sociology, psychology or anthropology despite the importance of those fields to the subjects of marriage, fatherhood and family structure, and his study of the effects of same-sex marriage involved “read[ing] articles and ha[ving] conversations with people, and tr[ying] to be an informed person about it.” Plaintiffs argue that Blankenhorn’s conclusions are not based on “objective data or discernible methodology,” and that Blankenhorn’s conclusions are instead based on his interpretation of selected quotations from articles and reports.

The court permitted Blankenhorn to testify but reserved the question of the appropriate weight to give to Blankenhorn’s opinions. The court now determines that Blankenhorn’s testimony constitutes inadmissible opinion testimony that should be given essentially no weight.

Ouch. That’s gotta hurt. And Walker says it a few more times, too. You see, Walker didn’t just dismiss Blankenhorn’s testimony; he took the time to dismantle it. (And there is a lot more detail in the decision than what I’ve excerpted here!)

In regards to Blankenhorn’s opinions on the definition of marriage (p. 43-44):

Blankenhorn’s interest and study on the subjects of marriage, fatherhood and family structure are evident from the record, but nothing in the record other than the “bald assurance” of Blankenhorn suggests that Blankenhorn’s investigation into marriage has  been conducted to the “same level of intellectual rigor” characterizing the practice of anthropologists, sociologists or psychologists. Blankenhorn gave no explanation of the methodology that led him to his definition of marriage other than his review of others’ work.  The court concludes that Blankenhorn’s proposed definition of marriage is “connected to existing data only by the ipse dixit” of Blankenhorn and accordingly rejects it.

Strike One!

In regards to Blankenhorn’s opinions on the ideal family structure and children (p. 44-45):

Blankenhorn’s conclusion that married biological parents provide a better family form than married non-biological parents is not supported by the evidence on which he relied because the evidence does not, and does not claim to, compare biological to non-biological parents. Blankenhorn did not in his testimony consider any study comparing children raised by their married biological parents to children raised by their married adoptive parents. Blankenhorn did not testify about a study comparing children raised by their married biological parents to children raised by their married parents who conceived using an egg or sperm donor. The studies Blankenhorn relied on compare various family structures and do not emphasize biology. The studies may well support a conclusion that parents’ marital status may affect child outcomes. The studies do not, however, support a conclusion that the biological connection between a parent and his or her child is a significant variable for child outcomes. The court concludes that “there is simply too great an analytical gap between the data and the opinion proffered.” Blankenhorn’s reliance on biology is unsupported by evidence, and the court therefore rejects his conclusion that a biological link between parents and children influences children’s outcomes.

Strike Two!

In regards to Blankenhorn’s opinions that same-sex marriage will lead to the “deinstitutionalization of marriage” (p. 48-49):

Blankenhorn stated he opposes marriage for same-sex couples because it will weaken the institution of marriage, despite his recognition that at least thirteen positive consequences would flow from state recognition of marriage for same-sex couples, including: (1) by increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage
might well lead to fewer children growing up in state institutions and more children growing up in loving adoptive and foster families; and (2) same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships.

Blankenhorn’s opinions are not supported by reliable evidence or methodology and Blankenhorn failed to consider evidence contrary to his view in presenting his testimony. The court therefore finds the opinions of Blankenhorn to be unreliable and entitled to essentially no weight.

Strike Three! You’re Out!

The problem with Blankenhorn isn’t just that he speaks out against the rights of gays and lesbians. It’s that he’s wrong. Like so many believers, he puts the cart before the horse, and thus looks for studies that support his opinion instead of drawing opinions from studies.

I hope he sees this decision as an important check on his credibility as well as the authenticity of the work coming out of his so-called Institute for American Values.

Ultimately, science won this case. There is no getting around the solid facts about sexual orientation that make it quite clear that Proposition 8 was discriminatory and wrong. Anyone who disagrees needs a lesson in science.

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