Professor David B. Cruz

Day 5 begins with initial procedural wrangling about documents and witnesses due to the Prop 8 proponents’ efforts to keep secret their discussions about their messaging in their campaign to pass Prop 8. Trial then recommences in earnest when plaintiffs’ attorney Matthew McGill calls Dr. Michael Lamb, head of the Department of Social and Developmental Psychology at the University of Cambridge in England and former long-time head of the section on social and emotional development at the National Institute of Child/ Health and Human Development in Washington. For nearly 40 years he has been researching the factors that affect children's development and adjustment, during which time he has published hundreds of peer reviewed articles and amassed numerous other distinctions and honors.

Dr. Lamb is offered, without objection by the defendants, as an expert in the field of developmental psychology of children, including the developmental psychology of children raised by gay and lesbian parents. Based on the research in the field, his testimony supports his expert opinions that a substantial body of evidence documents that children raised by gay and lesbian parents are just as likely to be well adjusted as children raised by heterosexual parents; this testimony presumably will ultimately be used by the plaintiffs to rebut the Prop 8 proponents’ arguments that excluding same-sex couples from marriage is justified because a family headed by a married different-sex couple is supposedly the “optimal” setting for raising children.

The second main point of Lamb’s testimony is that, for a significant number of the children raised by gay and lesbian parents, their adjustment would be promoted were their parents able to get married. This thread in his testimony will presumably be used by the plaintiffs to help show both that denying the right to marry to same-sex couples harms not only gay and lesbian people but also the children they are raising. While that is not required for success on the arguments that Prop 8 violates same-sex couples’ equal protection rights and right to marry, it would go to underscore what the plaintiffs contend is the outright irrationality of the marriage exclusion.

Lamb testifies that children’s development is most affected by the quality of the relationships that they have with their parents or caregivers; the relationships between the people who are their caregivers; and factors dealing with the circumstances in which the children are raised, such as adequacy of economic resources and social and emotional supports. He testifies that the research shows that presence or absence of a father or of a mother in itself is not what’s important to children’s well-being, and he describes the evolution of his views and the science on this question.

Lamb testifies in some detail about the various kinds of studies of parenting by gay men and lesbians that have been conducted. Lamb also explains how the scientific evidence refutes numerous claims in an article by Ron Prentice, “21 Reasons Why Gender Matters,” one of the defense exhibits, which had been circulated for use in sermons. There is in short, he concludes, no reasonable basis for believing that keeping same-sex couples from marrying would improve the outcomes of any child.

Prop 8 proponents’ attorney David Thompson then cross-examines Dr. Lamb. Taking a by now familiar approach, Mr. Thompson questions the witness about the broad range of liberal organizations and causes he supports and Lamb’s personal support of marriage rights for same-sex couples. Thompson fails in an effort to get Lamb to agree that recent disputes about the scientific evidence for climate change show peer review to be an unreliable safeguard of scientific objectivity. Thompson makes the point, with Lamb’s agreement, that science has been wrong in the past, even as to broadly shared views, such as the previously believed pathology of “homosexuality.”

Lamb agrees that there are few studies about parenting by transgender or bisexual persons, allowing Thompson to suggest that professional organization positions condemning discrimination in parenting rights against lesbian, gay, bisexual and transgender persons have been shaped by non-scientific considerations. Thompson secures Lamb’s agreement as to numerous differences between men and women, presumably to suggest, for example, that limiting marriage to different-sex couples might be rational because, the longer lives of women might mean that minor children of gay male couples will on average be more likely to suffer the loss of a parent more often than would the minor children of different-sex couples.

Of course, any such argument would have to account then for the greater likelihood of parental loss for children of different-sex couples compared to children of lesbian couples – though presumably the defendants would then switch ground and point to something such as women’s lower earning power, another point Thompson raises with Lamb.

Lamb agrees with Thompson that men and in particular stepfathers molest children more often than women and in particular mothers. This might be offered by the defendants as evidence of a greater likelihood of harms from gay male parenting than different-sex parenting, though the plaintiffs would likely respond not only by arguing that gay men are no likelier to abuse children than straight men (as Lamb testifies in response to a question from the judge), but also that the very argument trades on the same sort of stereotypes about gay men that plaintiffs’ witnesses testified were played upon by the Yes on 8 campaign.

Thompson tries to attribute various beliefs about gender and parenting, particularly what Thompson calls “father absence,” to Lamb, but Lamb points out, for example, that in some cases he had only been describing another author’s position and in other cases early findings (sometimes written when Lamb was a student) were not borne out by later research. (Thompson takes the opportunity to reiterate his point about science being wrong, This plays into the Prop 8 proponents’ post-trial brief’s argument that the court should defer to Prop 8 in part because the science about parenting should be viewed as uncertain.)

Over the plaintiffs’ attorney’s objections, Judge Walker allows Mr. Thompson to enter a long series of articles about marriage and heterosexual parenting into evidence; Dr. Lamb repeatedly stresses the limits of those studies, which didn’t look at same-sex parenting and which showed correlations but not causation. There’s some back and forth where Thompson did not appear to appreciate the nature and superiority of a total population study, such as one based on the Census, compared to a sample-based survey.

Later Thompson confuses a literature review, a type of summary, with a meta-analysis, which actually combines the result of various studies. He continues to emphasize the ostensible newness of some of the research, consistent with the defense theme that Prop 8 should be accepted because the jury’s still out on parenting by same-sex couples. He also obtains Lamb’s agreement as to some limitations of various studies on parenting by gay men. At least one of the articles Thompson mentions that argues that we don’t know enough about same-sex parenting was published in a pay-to-publish journal, not usually considered scientific, Lamb notes

Thompson throughout the cross sometimes seems to abandon lines of cross-examination that aren’t producing answers that would help the defense. He goes quickly through a very long string of articles about same-sex parenting, establishing that in these articles they were compared to different-sex parents but not necessarily only to married biological parents. Finally, he closes cross-examination of Lamb by eliciting the conclusion that in the aggregate, children raised by same-sex couples look on certain dimensions like children raised by different-sex parents even though the same-sex couples were not married; this presumably will be used to argue that the lack of access to marriage for same-sex couples does not harm children.

On redirect, Mr. McGill gets Dr. Lamb to emphasize that almost all the studies on “fatherless families” are not studying children raised by lesbian couples; to clarify misrepresentations and other problems McGill perceived in a book by defendants’ expert David Blankenhorn; to articulate the problems with certain studies touted by the Prop 8 proponents; and to state explicitly that his opinions in his testimony were not influenced by any group of which he’s a member or indeed anything other than the social science research in Lamb’s field.

Over defense counsel’s objection, plaintiffs’ attorney Danny Chou from the San Francisco City Attorney's Office then examines Helen Zia, a writer, editor, Californian, Asian American, organizer and activist, and lesbian. After recounting anti-lesbian pressure she experienced from friends and colleagues of color, discrimination and ostracization in professional and personal contexts, and the frequent need she feels to be on guard against potential violence, Ms. Zia describes some of the malevolence she faced while campaigning against Prop 8 and her reactions to pro-Prop 8 messaging about bestiality, child molestation, and the destruction of the human race.

Judge Walker defers an objection by the defense to admitting one document, a page from a web site, which Walker subsequently does admit despite the objection.) Zia then testifies about her relationship with and feelings about her wife, with whom she had previously entered into a domestic partnership in California; about her marriage in 2004, the wedding celebration she and her wife held after it, and how devastated they were when that marriage was invalidated; and their second marriage in June of 2008, as soon as it became lawful. She also testifies about how being married has changed their relationships with their families and how they relate to people generally, making their relationship more comprehensible and accepted.

On cross-examination, defendants’ attorney Brian Raum secures Ms. Zia’s acknowledgment of her membership in and support of various LGBT rights organizations; one political motivation she had for marrying her wife; and statements Zia had made about the transformative effect of her 2004 wedding party even though her civil marriage had been invalidated prior to it. On redirect Mr. Chou invites Ms. Zia to finish the explanation Mr. Raum cut off – that it was the experience of being civilly married for months before the 2004 marriages were invalidated that was transformative for her, her wife, and their families.

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

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