Day 4: Chapters 1-5 (January 14, 2010)

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Expertise, Interpretation & Exhibits: Day 4

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

Day 4 begins with plaintiffs’ attorney Christine Van Aken examining their expert witness Dr. Edmund Egan, Chief Economist in the Controller’s Office in San Francisco, which is one of the parties challenging Prop 8. Dr. Egan has extensive experience estimating the economic impact of legislation on San Francisco. He testifies in some detail about the wide range of costs to San Francisco – including lower sales tax, property tax and wedding-related revenues – if same-sex couples remain prevented from marrying. Prop 8 proponents’ attorney Peter Patterson cross-examines Egan, securing his agreement to various ways in which the costs to the city from Prop 8 might be smaller than he estimated: rates of same-sex couples’ marrying might be lower than the pre-Prop 8 rate, couples might spend money on ceremonies and celebrations even if they can’t civilly marry, long-term costs might be less dramatic than short-term costs, revenues from weddings might be smaller than estimated, etc. As with previous witnesses, Patterson questions Egan about whether same-sex couples would reap the same benefits from marriage that different-sex couples do. On redirect, Van Aken elicits further responses from Egan defending his assumptions and methodology. Presumably Egan’s testimony is relevant insofar as it shows that Prop 8 causes harms even if same-sex couples have access to domestic partnerships.

After lunch, plaintiffs’ attorney Christopher Dusseault examines plaintiffs’ witness Dr. Ilan Meyer, Professor of Sociomedical Sciences at Columbia University, an expert in the study of the relationship between social factors, including antigay prejudice, and mental health, primarily as regards lesbian, gay, and bisexual people. He testifies, based based on decades of his own and others’ research, that institutionalized cultural stereotypes stigmatize gay and lesbian people as incapable of having successful intimate relationships; that Prop 8 structurally stigmatizes gay and lesbian people by denying them access to marriage and its social meaning, disrespecting their relationships and status as equal fellow citizens; that as a result of the constant possibility of interactions emphasizing their perceived difference gay and lesbian people are subject to great stress; that Proposition 8 sends the harmful message that it is okay to reject gay and lesbian people; and that gay and lesbian people would be healthier in the absence of Prop 8. Dusseault uses testimony from the plaintiff couples to allow Meyer to establish some of these points.

Howard Nielson, attorney for the Prop 8 proponents, then cross-examines Dr. Meyer. Nielson contrasts Meyer’s views that today gay men and lesbians have higher rates of some mental disorders. He secures Meyer’s agreement that, among other things Mayer is a self- professed “gay affirmative advocate” who contributed to No on 8. Nielson gets Meyer to acknowledge the facts that his theory of minority stress does not purport to account for all the things that might cause poor mental health outcomes and does not bear out in poorer mental health outcomes for lesbigay African-Americans or Latinas/os compared to lesbigay white people. In response to questioning Meyer explains that older studies with different results don’t undermine his conclusions due to methodological limitations to those older studies. Nielson’s questions about some studies continue a defense theme of the difficulty of identifying and measuring sexual orientation, though Meyer explains why it is not a big problem for his conclusions. Meyer indicates that he does not know whether any other state’s laws, marriage aside, are as gay-friendly as California’s.

On redirect questioning by Dusseault, Meyer agrees that lesbigay people are not generally raised in lesbigay communities the way African-Americans are often raised in and supported by African-American communities. Meyer also suggests that a regime of marriage for different-sex couples and domestic partnership for same-sex couples may be an even clearer statement of stigmatization than one without domestic partnerships.

~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

Plaintiff’s first witness on Day Four, Edmund Egan, PhD Berkeley, has a cool job. He is the Chief Economist for the City of San Francisco. So he spends his time going over stuff the supervisors dream up and telling the administration how much they will cost or benefit the city. He also gets to be a hotshot academic, teaching graduate students at Berkeley. In my next life, I want to be Edmund Egan.

Egan testifies that gay marriage would be a big financial boon to San Francisco: married people have more money, so they buy more stuff and bid up the value of local real estate. The city gets more sales taxes and real estate taxes. He also opines that if gay marriage were legal people would throw a lot of money around on flowers and limos and stuff in the City by the Bay. Finally, he retails a lot of harder to quantify benefits like married people are healthier, which saves the city public health money, and they get health benefits from their employers, which saves the city more public health money, kids stay in school because they aren’t harassed by anti-gay classmates, which saves the society long term social well-being money. Coming back to earth, he notes that if everyone had to treat their gay employees well, there would be no need for San Francisco to have its special no discrimination requirement for the contractors it hires and more contractors would bid for the work, driving the price down (economists love this kind of thing).

Egan’s testimony fits in the narrative the plaintiffs are trying to create because it makes Prop 8 look dumb and harmful (economists think people who make themselves poorer are acting irrationally; it comes with the PhD). This then opens the door to the answer that the Prop 8 advocates were acting from irrational hatred, which they are not allowed to do, when legislating.

Cross examining, Defendant’s lawyer Peter Patterson starts the usual pattern of using Egan’s past statements to undercut his testimony. For instance, maybe Egan overstated the value to the city of gay marriages because he relied on the wave of gay marriages that took place after same-sex marriage was legalized by the California Supreme Court and before Prop 8 and he himself said that such “pent-up” demand may not represent a long term trend. And Egan is forced to admit that, and, similarly, if same sex marriage were legal nationwide, people would have no reason to come to California to get married, same sex couples might not marry at the same rate opposite sex couples do, and that California law already requires employers to provide health insurance to domestic partners equal to what they give married couples. This is all pretty standard stuff.

A couple of things stand out for their political implications. One is that although so far defendants have been unable to show in any convincing way that same sex marriage will motivate opposite sex couples not to marry, they keep bringing it up:

PATTERSON: And it's true, is it not, that if opposite-sex couples got married at lower rates than they did before, that it could offset the benefits you see from same-sex marriage, is that correct?”

This is one of those beliefs that seem to be relatively fact-proof. It will be interesting to see how such assertions fare in a system, the federal courts, that is not supposed to be based on faith. The other political point goes to the defendants, who were quick and smart enough to pick it up. The San Francisco antidiscrimination ordinance, which Egan spoke of approvingly, costs the city money. But they do it anyway because they think the social values it achieves are worth the money. Point, Defendants.

The Plaintiffs’ second witness of the day is the charismatic Dr. Ilan Meyer, a PhD with one of those Exodus (the movie) Israeli accents, who is in the enviable position of chairing the department at Columbia where he was once a lowly PhD student, Sociomedical Sciences, the study of social sciences and public health problems or public health issues. When asked about his prizes in the process of qualifying him to be an expert witness, he modestly just mentioned “the most recent one.” He testified on the effect of stigma (defined as a characteristic the society treats as negative) o n gay and lesbian populations, based on his model of minority stress, and how the stress affects mental health. Meyer’s main point was the a law like Prop 8, which denies same sex couples access to a social good like marriage, functions as a structural stigma, stigmatizing them as people unworthy of important social goods. Meyer very effectively uses the plaintiffs’ testimony to make his points. For example, he recalls one plaintiff testifying about stressing out over filling out a form that asks for marital status or trying to check into a hotel with their partner and explains how these minor events trigger a whole set of memories of past mistreatment. He explains another’s failure to come out until age 25 as involving the stress of concealment, constant watchfulness. Most effectively, he frames the testimony of plaintiff Kristin Perry about marriage:

OLSON: Why do you want that?

PERRY: Well, I have never really let myself want it until now. Growing up as a lesbian, you don't let yourself want it, because everyone tells you you are never going to have it

Stigma, Meyer testifies, deprived Perry not only of the goods of real life, but the imagined goods of an unlimited “possible self.”

On cross, the defendant’s lawyer Howard Nielson was able to draw some real blood, because similar studies of Latino and African-American populations do not turn up the same degree of mental health problems that Meyer attributes to minority stress among gays and lesbians. Nielson also pursues Meyer to admit that it’s hard to define the lgbt population, but it’s the racial minority comparison that hurts. On redirect, therefore, the plaintiffs give Meyer a chance to explain that distinctions like being raised in a community of similars, rather than in an often hostile heterosexual family may explain the difference. Meyer also gets a chance to remind the Court that since 1964 there are no new state laws that actually assert racist categories, so the environment is quite different. Still, for a case that rests to some extent on comparisons to the race-based constitutional claims, the distinction is not helpful to the plaintiffs.

~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 Salon.com 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.

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

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