Day 3: Chapters 1-4 (January 13, 2010)

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Expertise, Interpretation & Exhibits: Day 3

We offer context for each episode from our two experts, David Cruz and Linda Hirshman. First, Cruz gives an overview of what is happening during the day's proceedings - introducing the players and providing an explanation for the legal strategies being employed. Then, Hirshman recounts her first-person experience in the courtroom from San Francisco - describing the dynamics in the room and pointing out the social significance of what you are watching unfold.

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Professor David B. Cruz

After brief discussion about evidence and exhibits, the day starts with a continuation of the cross examination of plaintiffs’ historical expert George Chauncey by Prop 8 proponents’ lawyer David Thompson. Thompson secured Chauncey’s agreement to the fact that societal support for sexual orientation non-discrimination and even for same-sex relationships other than marriage have increased in recent U.S. history, especially among young people, as well as agreement about the twentieth century roots of distinctively anti-gay discrimination (as opposed to anti-sodomy laws restricting everyone’s possible sexual conduct). Chauncey agrees with Thompson that in medicine and in academia and religious organizations there is much less hostility to and instead increasing support for gay and lesbian people; that among newspapers, television, and movies depictions there is a better climate for gay and lesbian people today; that cities and counties and states across the country as well as the federal government in some respects and numerous employers have adopted protections for LGBT people. The points Thompson was trying to make are that lesbigay people are not politically powerless and that the discrimination they face has been significantly reduced over times; these are factors courts sometime treat as relevant to determining how closely to scrutinize various forms of discrimination, like the sexual orientation discrimination involved in stripping same-sex couples of the right to marry. Thompson also tries to secure agreement from Chauncey that not only have some gay and lesbian people not supported the quest for marriage, but that people might have non-invidious, sincere moral and religious reasons for banning same-sex couples from marrying; Chauncey resists and insists that such discrimination is based on a view that same-sex relationships are unequal and inferior and notes that people opposed desegregation and interracial marriage based on deeply held moral values.

On redirect, Therese Stewart, attorney for San Francisco in opposition to Prop 8, secured Chauncey’s agreement that Prop 8 said nothing about children or what parents can teach them or what they’re taught in school. He clarified that there have long been people whose attractions today might lead them to be identified as gay; that there had been African Americans who questioned integration as a goal; that many churches and persons of faith do still oppose same-sex couples’ marrying and even “homosexuality”; that such religious views can be affected by anti-gay stereotypes; that such stereotypes echoing earlier hostilely anti-gay campaigns were deployed in efforts to pass Prop 8; and that the progress made by lesbigay people in quarters such as academia has been only partial.

Plaintiffs’ attorney Christopher Dusseault then begins direct examination of Letitia Anne Peplau, a Harvard educated social psychologist on the psychology faculty at UCLA, an expert on close personal relationships, sexual orientation, and gender. She testifies, based on her research and others’ work, that for those adults who choose to marry, marriage is often associated with a wide range of important benefits, in part because of the valued status of marriage in society; that there are remarkable similarities between same-sex couples and different-sex couples in respects such as relationship satisfaction, commitment, and stability; that same-sex couples will likely enjoy the same benefits from civil marriage that different-sex couples currently enjoy, consistent with self-reports from same-sex couples who married in Massachusetts; and that allowing same-sex couples to marry will not harm heterosexual marriage, neither causing fewer different-sex couples to marry nor causing more of them to divorce, for example. She explains that same-sex couples married when it became legal in Massachusetts at greater rates than they had entered civil unions or partnerships.

Nicole Moss, an attorney for the Prop 8 proponents, then cross-examines Dr. Peplau. Moss gets Peplau to acknowledge that there are almost no empirical studies showing that same-sex couples benefit from marriage or benefit more from marriage than domestic partnerships and later that we don’t have enough years of experience with marriage in Massachusetts to know empirically whether same-sex couples’ marrying has had an effect on heterosexual marriage. Peplau suggests in response that researchers know enough about stigma and discrimination and how they affect relationships to predict confidently that same-sex couples would benefit from being allowed to marry. In response to questioning about monogamy, Peplau notes that a lower proportion of gay men report valuing it than the proportions among lesbians and different-sex married couples, although she stresses that some studies were snapshots of gay men in particular places and past times. Moss walks Peplau through elaborate numerical hypotheticals about marriages of same-sex couples in Belgium and the Netherlands, though Peplau insists on her lack of foreign jurisdiction expertise and notes that rates of marriage of same-sex couples in Massachusetts are much higher than Moss’s hypothetical Belgium numbers. Echoing arguments from New York and Washington cases rejecting same-sex couples’ right to marry, Moss secures Peplau’s agreement that same-sex couples don’t accidentally get pregnant/ have children. Peplau suggests that the influence of individualism on some decline of marriage has nothing to do with gay and lesbian people.

On redirect examination by Dusseault, Peplau observes that she knows nothing suggesting gay and lesbian people are more individualistic than heterosexually identified people or less concerned about the welfare of their children. The day then closes with a little discussion of the broadcast or non-broadcast of the trial.

~David B. Cruz, J.D., University of Southern California, Gould School of Law

± Click here to read more about David Cruz.

An expert on constitutional law and sex, gender, and sexual orientation law, Professor Cruz has been interviewed by a wide range of print, radio, and television media, including CNN Headline News, The News Hour, The Wall Street Journal, This American Life, and NPR's Morning Edition. Before joining the law faculty at the USC in 1996, he was a Bristow Fellow in the Office of the Solicitor General in Washington, D.C. and clerked for The Honorable Edward R. Becker, Circuit Judge of the United States Court of Appeals for the Third Circuit. Cruz is admitted to the bars of the State of New York and the United States Supreme Court.

Professor Cruz graduated with a B.S. in Mathematics, summa cum laude, and a B.A. in Drama, summa cum laude, from the University of California, Irvine and earned his master's degree in Mathematics from Stanford University. He was first in his J.D. class at graduation from New York University School of Law, where he was Managing Editor of the New York University Law Review.

Professor Cruz's academic publications include Heterosexual Reproductive Imperatives, 56 EMORY LAW JOURNAL 1157 (2007); "Naim v. Naim," "Bowers v. Hardwick," and "Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston" (Encyclopedia of American Civil Liberties, 2006); Disestablishing Sex and Gender, 90 CALIFORNIA LAW REVIEW 997 (2002); and "Just Don't Call It Marriage": The First Amendment and Marriage as an Expressive Resource, 74 SOUTHERN CALIFORNIA LAW REVIEW 925 (1999).

Dr. Linda Hirshman

A lot of the twelve days of trial, including today, were taken up with cross-examination. Not everyone watching this reenactment is a lawyer, so I will explain a bit.

In direct examination, the lawyers are trying to get the witnesses to make statements that can be used to persuade the fact-finder, in this case the judge, to believe a story. The plaintiffs’ story is that the prohibitions on same sex marriage are unconstitutionally discriminatory, because they treat a long-abused minority differently from the majority and for no good reason; indeed, for a bad reason, hatred. The defendants’ story is that gays and lesbians are just another group contending for political power in the American system, not disempowered enough to claim the special protection of the equal protection clause and that the discrimination is necessary to preserve a fundamental social institution.

On Day Two, plaintiffs’ witness, Professor George Chauncey, made statements to help plaintiffs build their story that gay people are an abused minority. After the cross of Chauncey, today we will hear Professor Letitia Peplau, a social psychologist from UCLA, add to the plaintiffs’ story by testifying that Prop 8 hurts gay people who would benefit from marriage. She will also testify that Prop 8 does not harm opposite-sex marriage, which strips the defendants of their good reason for passing Prop 8.

Cross-examining Chauncey and, later, Peplau, defendants’ lawyers will try to get them to modify, contradict or abandon the testimony that builds their side’s story. The best way to do that is to present them with their own past inconsistent statements. With academics as prolific as Chauncey and Peplau, it is easy to find seemingly inconsistent statements. (Defendants also cross-examine Peplau on the reliability of the empirical studies she relies on for her testimony.)

As the day opens, then, Defendant’s lawyer David Thompson confronts Chauncey with evidence, including his own words that things have not changed for the better for gays and lesbians in the United States. Chauncey tries to limit the effect of his prior statements by insisting that the improvements are incomplete. He also asserts that the process of integrating gays into American society slowed or stopped in 2004, when a bunch of states passed prop 8 like initiatives to prohibit gay marriage explicitly in their state constitutions and arguably helped re-elect a conservative President and Republican Congress. Thompson makes the mistake of not confining Chauncey to simply saying yes or no. We will see this process surface powerfully when, on Days 11 and 12, Plaintiff’s lawyer David Boies tries to rein in Defendant’s expert, David Blankenhorn, in some of the most contentious moments of the trial.

Being smart and not kept on a tight rein Chauncey scored a very important political point against the Defendants, disputing their claim that news of gay marriage is bad for children. As we saw on Day One, the prop 8 campaign included a television ad telling how a Massachusetts grade school now includes fairy tales that end with the prince marrying the prince. Cross-examining gay plaintiff Paul Katami on Day One, defense lawyer Raum got him to waffle on whether or not parents could legitimately object to that, cleverly conflating the meaning of “morality,” assuming that any mention of homosexual marriage is tantamount to sex education. Today, Thompson makes the mistake of trying the same line with Chauncey. Describing the Massachusetts fairy tale ad:

“Is it reasonable for parents who morally disapprove of homosexuality to want to wait until the fifth or sixth grade for those sorts of issues to be taught in public school?”

Instead of being derailed by the sex talk, Chauncey immediately sees through the question:

“Well, would you say that people who morally disapprove of racial equality or racial marriage should be able to insist that no books showing black and white people as equal or black and white people in relationships should be kept out of the schools?”

And then Chauncey drives the point home:

“And in this case the child is simply being exposed to the existence of gay people. And I take note that the parents don't express concern just about marriage, but about homosexuality at all.”

On redirect Chauncey reiterates that such campaigns essentially reduce gay people to the sex act, stripping them of the rest of their humanity:

"It focuses entirely -- it suggests the focus on homosexuality entirely as a matter of sexuality, not love, not relationships. This is actually a book about two princes falling in love and it's a fairy tale. It doesn't talk about sex. It's another fairy tale that seems appropriate to that age."

This is a crucial moment. Collapsing gay men and lesbians into pure sex and then invoking the sexual innocence of children has been a very effective strategy for the opponents of gay marriage. Chauncey reveals what is really going on. Would Thompson say that people who disapprove of interracial marriage should be allowed to pull their children out of school when they study the civil rights movement?

~Dr. Linda Hirshman, Author and retired Professor of Political Philosophy

± Click here to read more about Linda Hirshman.

Dr. Hirshman specializes in social movements. She has written extensively about the feminist movement, including two controversial books, Hard Bargains: The Politics of Sex (Oxford 1994) and Get to Work: A Manifesto for Women of the World (Viking/Penguin 2006), as well as commentary in The New York Times and The Washington Post. She is at work now on a book about the gay revolution, Victory! to be published by Harper/Collins in 2011. She earned a J.D. from the University of Chicago Law School and a Ph.D. in Philosophy from University of Illinois at Chicago. She covers marriage equality at and The Daily Beast.

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In its January 13, 2010 ruling, the U.S. Supreme Court blocked the public broadcast of Perry v. Schwarzenegger, a U.S. District Court case challenging the constitutional validity of California's Proposition 8.

Working from court transcripts and first-hand accounts from bloggers who are present at the trial, we are re-enacting the trial and posting it here for public viewing.

John Ireland and John Ainsworth are co-producing this project under JIP, LLC a production company based in Hollywood.

For more information: email us, follow us on Twitter or subscribe to our YouTube channel.

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Vaughn Walker (left), Chief Judge, U.S. District Court is portrayed by Ted Heyck (right)

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