Dr. Linda Hirshman

Day 6 was a four handkerchief day; brace yourself for Ryan Kendall, whose religious family in Colorado pushed him into conversion therapy to “cure” him of his homosexuality. Since the defendants contend that an individual’s sexual orientation is often the product of a conscious choice, Kendall’s testimony about the failure of his conversion therapy bears on whether people “choose” to be gay.

Most constitutionally protected classes under the equal protection clause – race, gender – are things you’re born with. If homosexuality were a chosen behavior like the choice to rob a bank, say, defendants argue that the discrimination is not unfair. People should just choose not to do the disfavored acts. This argument is heavily contested, but the “just say no” argument has potent political resonance.

The day opens with the video record of plaintiffs’ examination of some of defendants’ experts during the pretrial discovery phase. The defendants withdrew all their academic experts from testifying, except for two. As on cross, the plaintiffs got the experts to admit things, so, in their absence, plaintiffs present the video.

Then Ryan Kendall tells a story sadly familiar to those who have studied the history of homosexuality. Since gay people overwhelmingly come from reproductiv e, heterosexual families, they have no natural, supportive community growing up. When Kendall was 13, his mother learned of his same sex orientation. He’d burn in hell, she told him and she wished she’d aborted him. His parents put him in the conversion therapy program run by Focus on the Family, NARTH, for a year and a half, but, at the end, he testifies, “I was just as gay as when I started.” He did leave his family, turning himself in to the Colorado Department of Human Services, because he was afraid he’d commit suicide. On cross, James Campbell just seeks to establish that Kendall doesn’t know anything beyond his personal experience. Campbell also brings out that Kendall was pressed to go into conversion therapy, implying that’s why it failed.

Plaintiff’s second witness is Gary Segura, a political science professor at Stanford, with the usual gilt-edged resume, to testify how groups in society get their representatives to respond to their wants and needs. His direct testimony is that gays and lesbians are not powerful enough to exercise meaningful political power. In part, this relative disadvantage stems from the unbroken historical record of a majority who consider heterosexuality to be the only normal sexuality.

Segura’s testimony includes very interesting deconstruction of recent examples of alleged victories, showing how they are really just bringing people to a level anyone in civilized society would expect – like being protected against being beaten or killed for their sexual orientation. “In fact,” he concludes, “between 1990 and the middle part of the 2000s, there's been probably like 150 -- not even counting the same-sex marriage votes . . . votes -- usually, on gay and lesbian antidiscrimination protections. And they lose about 70 percent of the time.” No one is the target of hostile initiatives as much as gays and lesbians, no one is disliked as much as gays and lesbians in his center’s very professional public opinion polling, no one is the target of so much religiously-driven moral condemnation, no one is as much the subject of hate crimes, up in California, largely around the time of Prop 8. Segura puts a frame around the same-sex fairy tale ad that has come up repeatedly in the trial. In his words, it means that gays and lesbians cannot even be portrayed neutrally.

On the Prop 8 campaign, Segura emphasizes the unprecedented political power of the alliance of the Mormon and Roman Catholic Churches, which is presente d to the court through correspondence the defendants tried rigorously to protect as privileged. Segura’s testimony is the first time in the trial where the parallel and largely unreported battle over getting and using the records of the ProtectMarriage.com strategists and church partners surfaces. Judge Walker lets much of the disputed material in, revealing a pattern whereby the churches, particularly the Mormon church, worked for Prop 8 while attempting to maintain, as Segura puts it, “plausible deniability.”

Segura compares the relative lack of gay and lesbian political power with that of women, a demographic majority, and African-Americans, the explicit beneficiaries of the Civil War constitutional amendments as well as many statutory and executive initiatives even before the Court’s decision in Brown.

On cross, David Thompson presses Segura to admit the impressive extent of gay and lesbian political power. Starting with California, the new Speaker o f the state House of Representatives is openly gay, California passed the domestic partnership legislation and anti-discrimination laws. He then walks Segura through the five or six states that have gay marriage. Segura resists the implication that these victories equal gay political power, because they do not apply across state lines or bring with them ordinary federal benefits.

Thompson confronts Segura with the self-congratulatory literature of gay advocacy groups like the Human Rights Campaign, until, finally, Segura bursts out “Not surprisingly, as you can imagine yourself, advocates for organizations want to present the power of their organization in the most positive light, because their job is to raise money . . . . People historically don't give money to the, ‘Donate to us, we are very unlikely to make a difference.’" Thompson then brings out that peoples’ feelings about their gay and lesbian fellow citizens have gotten warmer since, say, 1980, and Segura is forced to agree. Segura is interestingly resistant to Thompson’s suggestion that any of the obvious liberal Democrats are allies – he calls them “soft” or “unreliable,” with particularly harsh words for President Obama.

The rest of the cross flows along these same lines. Defendants made one interesting point – the role of appeals to justice and fairness, and how tha t avenue to political power fueled the racial civil rights movement and is a heavy weapon even in the hands of a despised and demographically reduced minority like their opponents.

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

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