Dr. Linda Hirshman

Plaintiffs’ first witness is Professor Gregory Herek, a professor at UC Davis and a social psychologist with a specialty in sexual orientation, stigma and prejudice. He tells the story of how the American Psychiatric Association stopped calling gay people crazy in 1973. He makes the interesting point about how it never had much empirical grounding just assumed to be a pathology.

Herek testifies that vast majority of gay and lesbian people say they couldn’t change and produces report of American Psychological Association that there isn’t sufficient evidence to engage in it. This is all disputable and will be contested by the defendants in their usual thoroughgoing cross-examination. Then Herek makes a point that really transcends the dispute: why do it if there’s nothing wrong with homosexuality? After all, psychiatrists don’t go around trying to repair people out of their broken heterosexuality.

It is clear that Herek’s main reason for being there is to testify to the results of a big study of gay people reflecting that gay men and lesbians overwhelmingly feel no choice or little choice about their sexual orientation.

On cross, Howard Nielson is trying to unravel the group identity of the class plaintiffs represent. He spends close to six hours cross-examining Dr. Herek entirely for this purpose, using Herek’s prior statements and extensive writings from other scholars, including many of the plaintiffs’ other witnesses like Letitia Peplau and Ilan Meyer. He tries three basic approaches: that same-sex orientation is malleable, that it is subject to choice and change and that it is more a social identity than one the individual takes for himself. It seems that he is trying to make membership in the homosexual community voluntary: defining yourself as gay gives you entry into the community. If there is no stable gay community, but rather an identity that people choose to put on or take off at will like “navy blue is the new black,” who is claiming the protections of the Equal Protection clause??

Herek is pretty clear that the categories of gay or lesbian involve three factors: attraction, behavior and identity. Not everyone shares all three . Nielson tries to show that indeed very few people share all three, while Herek keeps coming back to a core group for whom the identity, attraction and behavior are “consistent.” But he admits no one knows the cause and no one has been able to link it to biology.

Nielson presents Herek with many studies showing that people change from opposite to same-sex orientation over their lifetimes. Herek resists: “I would say that, in theory, it would seem that you could have a very large number of permutations and combinations. But, in reality, that's probably not very common. That most people do, in fact, maintain or do report some consistency in these different dimensions of their sexual orientation.” Nielson draws blood when he brings out that Herek’s big study consisted of all self-identified -- individuals who self-identified as lesbian,gay, or bisexual, based on self reporting and not examined for prior sexual mutations. Nielson spends a little time trying to establish that women, at least, change sexual identities more often, with special emphasis on the testimony of plaintiff Sandra Stier, who had been married before she met Plaintiff Perry.

An interesting moment comes up when Nielson invokes the recent work of psychiatrist Robert Spitzer, who was instrumental in getting the APA to declassify homosexuality as a mental illness. In later life, Spitzer met some men who represented that they had successfully changed their orientation from gay to heterosexual, and he published a very controversial paper to that effect. After a firestorm of criticism, Spitzer backed down and admitted that his sample was all of extremely religious and religiously committed people who self-reported their cures. Herek reiterates that the psychological profession simply says it doesn’t know enough to undertake such treatment.

The core of Herek’s testimony really surfaces on redirect, when he says “as I believe I have said, I think if you are a betting person, the best bet is to -- is that a person, if you don't know anything else about them, to assume that they probably will be consistent in the future provided that, for example, they are going to actually engage in having sex; that that -- having sex would be consistent with their current identity. For some people that's not how it works, obviously, but I would say that the pattern is that people tend to be consistent.”

His lawyer zings it home:

DETTMER: And if two men want to marry each other, is it a reasonable assumption that they are gay?

HEREK: Yes.

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

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