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SACRAMENTO, Calif. — California’s gay community is a politically powerless minority that was discriminated against by a biased religious majority through the passage of Proposition 8 and, as such, the voter-approved amendment should be overturned on constitutional grounds.
That was among several claims made by social and academic experts called to testify in the federal trial against Proposition 8, California’s constitutional amendment that limits marriage to between one man and one woman. The case, which began Jan. 11, is the first-ever federal challenge of traditional marriage protections already granted by a state.
During the trial’s second week, experts targeted religious beliefs as generating “animus” against gays.
On. Jan. 20 Gary Segura, a Stanford University political science professor who specializes in the political power of minorities, including homosexuals, pointed the finger at religious beliefs, saying weekly church services provide a regular opportunity for believers to be “arrayed against the interests of gays and lesbians.”
He added that religion is “the chief obstacle for gays’ and lesbians’ political progress.”
“It's difficult to think of a more powerful social entity in American society than the church,” Segura testified.
Andy Pugno, general counsel for ProtectMarriage, the sponsors of Proposition 8, called Segura’s testimony an “ugly turn as religion itself was put on trial.”
“In trying to make the case that homosexuals are a vulnerable minority with no ability to achieve and secure success in the political system for their interests, Professor Segura blamed hostility, political opposition and even violence towards gays and lesbians on the teachings of major religious denominations,” Pugno said. “He further testified that there is no more powerful organization in the United States—save the government—than the church.”
In testifying against the church, Pugno said witnesses paid particular scrutiny to the doctrines of the Catholic Church and Southern Baptists, taking aim at their beliefs about marriage, family and sexual relationships.
“Therefore, according to his logic, gays and lesbians must be given special legal protection by the U.S. Constitution against religion itself,” Pugno said of Segura’s testimony.
“If it weren’t such a serious and troubling matter, their line of attack against people of faith would be laughable. To suggest that the people of California cannot consider their own political, moral and religious views when casting their vote on Prop. 8 is preposterous. Every election, many issues are presented to voters that involve moral issues, including stem-cell research, the treatment of animals, assisted suicide, the death penalty, health care reform and so on.”
Essential interests not protected
Segura also testified that gays and lesbians have limited governmental support, even singling out President Barack Obama as not doing enough to protect gays and lesbians.
“In my view, when we consider the U.S. political system, gays and lesbians do not possess a meaningful degree of political power. They are not able to protect their basic interests into law and to secure those,” Segura said, adding, “There is no group in American society who has been in targeted by ballot initiatives more than gays and lesbians.”
In reality, California has extensive laws protecting gays and lesbians, including domestic partnerships, which give gay couples all of the same rights and benefits afforded to heterosexual marriage. In addition, California public schools may not present any material that could paint homosexuals in a negative light.
“In the real world, it is impossible to square the claim that homosexuals do not enjoy significant political power in California when the newly-elected Assembly Speaker is an openly gay man and numerous state and local elected officials are openly homosexual,” Pugno said in response to Segura’s claim, adding that the governor, attorney general, superintendent of Public Instruction and both U.S. Senators all aggressively opposed Proposition 8. In addition, both the governor and attorney general have stepped back in representing voters in this trial, instead letting the bill’s sponsors defend the measure.
“In 2008, our opponents raised $43 million to attempt to defeat Prop. 8 and outspent us by over $3 million,” Pugno said. “Equality California (the state’s most influential homosexual rights lobby) secured the passage of 11 separate pieces of legislation benefiting homosexuals. And homosexual political advocates have the support of Hollywood, labor unions, the technology sector, leaders of corporate California, and nearly every single newspaper editorial board in the state.”
Despite the support, California voters, many of them non-religious, approved Proposition 8 by roughly the same margin they voted for Obama.
Immutable or fluid
In another tactic, the plaintiffs’ witnesses also tried to show that homosexuality was “immutable,” meaning they were vulnerable or a “suspect class” that requires special protections such as those provided for race and gender. During cross-examination, attorneys supporting Proposition 8 asked Gregory Herek, a University of California, Davis psychology professor, asked about inconsistencies in how sexual behavior is classified, especially in cases where a heterosexual becomes gay or vice versa.
“Although we see that the vast majority of people are consistent in their behavior, their identity, and their attractions, it is the case that there are some who are not,” Herek responded.
The professor added that conversion or reparative therapy—the process by which homosexuals leave the lifestyle for heterosexuality—had only worked in limited instances.
But attorneys representing supporters of Proposition 8, challenged Herek’s assertions during more than five hours of cross-examination honing in on various aspects of his testimony, primarily dealing with studies on origins of homosexuality. In one exchange, Herek was asked if he was aware of any study that identified a specific biological origin for homosexuality, such as DNA.
“I have a sense that there might be some,” Herek responded. “But I—this is not something that I prepared for in terms of coming today. But as I said, I would certainly agree with the statement that we don’t know what the origins are of sexual orientation.”
Individual targeted
In an effort to show bias against the gay community, the plaintiffs called to the stand Hak-Shing William Tam, a leader in the Chinese Christian community.
“For the first time (we believe) ever in a court of law, a proponent of a voter initiative was put on the stand to be interrogated under oath about his own political, moral and religious views,” Pugno wrote in his blog. “Not only was the Prop. 8 supporter forced to reveal his political and religious views under penalty of perjury, but he was further forced to defend and substantiate his views so the court can decide whether his views are ‘improper.’”
Presentation of evidence ends
The trial ended January 27 after 2 1/2 weeks. The ProtectMarriage legal team has not yet formally rested its case in defense of the Calif. amendment but it has closed the presentation of its evidence to the district court.
The trial will pause for several weeks while Judge Walker reviews the documents and testimony, after which he will schedule closing arguments.
"... The clashing of legal swords in San Francisco still has another couple of rounds to go,” wrote Austin R. Nimocks, senior counsel for the Alliance Defense Fund in a blog. “I anticipate the closing arguments to be scheduled for sometime in March or April, after which time Judge Walker will take time to author and render his decision.”
Regardless of how Walker rules, the case is expected to be appealed all the way up to the U.S. Supreme Court.
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