IGF CultureWatch

As usual, I'm paying more attention in the Prop. 8 trial right now to the cross-examination than to our case-in-chief, mostly because the decision will depend on whether the other side has reasons for discriminatory marriage laws; as a constitutional matter, at least, equality doesn't have to defend itself, inequality does.

Like so many other people, I am firmly in the camp of San Diego's Republican Mayor, Jerry Sanders. He is one of the few politicians in this country who has actually risked his own political future because he believes we are right about marriage. He did not just change his mind about whether domestic partnership was legally and socially inferior to marriage, he told the world about it -- very publicly -- when he was in the course of a hotly contested reelection campaign. What Democrats (let alone Republicans) have risked their careers in such a direct way? Compare Sanders' action to that of congressional democrats who fret about putting ENDA up for a vote - and ENDA is a whole lot less contentious than marriage. Sanders shows what leadership on a controversial issue really looks like. For the record, San Diego's voters reelected him.

Brian Raum for the Prop. 8 defenders tried to parry Sanders' unambiguous rejection of that last residue of prejudice. He wanted Sanders to say that his newly-enlightened view must mean that people who support only domestic partnership do so out of hatred - and that his adaptation meant he'd turned his back on his own previous bigotry.

Sanders didn't take the bait (and Raum offered him a lot of worms). Instead, he calmly distinguished between hatred and the antiquated mindset about homosexuality that we call, in shorthand, prejudice. This distinction is so important.

It shouldn't be a surprise that people who grew up in a time when homosexuals were commonly described as perverts, deviants and degenerates (when they were described at all which, outside of criminal cases and arrests, and the occasional joke about interior decorators or hairdressers, wasn't often) would find it hard to believe, today, that homosexuals are just ordinary fellow citizens. This is what obviously separates those who most reliably vote against us - seniors - from those who most reliably accept us. People in the 1950s and 60s (and even into the 1970s, as this tape of Richard Nixon illustrates hilariously and potently) took it for granted that homosexuals were not only not normal but not good. Those who grew up from the 1980s onward at least saw that framework for understanding homosexuals challenged, and sometimes fully rejected.

The older view, looked at from today's perspective, is certainly harsh, and can be viewed as hateful. But it can also be seen as something more benign and understandable. Of course homosexuals have to struggle against the misunderstanding, but it doesn't make those who haven't been able to change an attitude they view as so fundamental to morality (however wrongly understood) our enemy, only our opponents.

Sanders captured that when he distinguished prejudice from hatred, and this is a theme we should be relentless in articulating. It's easy to caricature those who are stuck in a time warp on homosexuality - as easy for us to do as it for them to caricature us. We shouldn't get ourselves caught in that trap.

That doesn't mean we should be blasé about the truly vile things some of Prop. 8's supporters have said about homosexuality, both on and off the record. Nor should we be casual in making the case for full equality. But we should recognize, in every possible way, that this is hard for a lot of reasonable people who do not harbor hatred for us, only false or misguided ideas.

It was hard for Jerry Sanders, too. But look what happened to him.

I'm on record supporting the televising of the Prop. 8 trial, so it's natural that I am siding with Dahlia Lithwick over Orin Kerr in their fascinating and articulate debate. (H/T Andrew)

It's not that I think Orin is wrong, but that he focuses too narrowly on how plaintiffs want high-profile trials to serve as public forums for their viewpoints. That is inarguable. But the other side in those trials isn't just an innocent bystander. In the hypothetical high-profile trial Orin offers, where a conservative group wants to publicize a case challenging a public university's affirmative action program, I am probably aligned with Orin. But even if I weren't and were representing the university, I can think of any number of very good ways to use that forum to make my own case, not just to the court, but to the public. I know there are affirmative action supporters who are smart and passionate about their position, and who, like the conservative plaintiffs in that hypothetical case, would relish the opportunity of engaging with a very interested public on an issue of importance.

This is public relations, not law, and it is a necessary, though not entirely salutary byproduct of court proceedings being public in cases with political ramifications.

I think Orin might be distracted in the Prop. 8 case because the people defending Prop. 8 seem to lack that fire in the belly -- at least now that the election is over. Four of their six witnesses this week now refuse to testify, claiming that they are afraid of the effect publicity might have on them, even though, as Lithwick notes, this is "not a case about outing gang members." Nor, as we now know, will their testimony be televised. It will be recorded, as I'm sure their lawyers advised them early on the law demands. Their deposition testimony was also transcribed, and their prior public statements urging voters to support Prop. 8, or more generally to oppose marriage equality are hardly news any more.

Given that, I'd have to agree with Theodore Boutros from the Olson/Boies team, who says that the witness's main fear is not about their already on-the-record positions and statements, but an entirely rational fear of being subject to cross-examination by David Boies. Of course, all of the plaintiffs' witnesses were subject to pretty intense and sometimes withering cross-examination by the Prop. 8 defenders - cross-examination, even very tough cross-examination is not unknown in courtrooms.

The sudden reticence of the Prop. 8 witnesses really does look embarrassing for their side, despite their efforts to blame it on out of control gay vigilantes. This is the first full federal trial of an initiative they won, for God's sake. What better forum could they have to make their case broadly than this courtroom right now? Where is the parade of star witnesses, the academics, and the ordinary people who found Prop. 8 so compelling that they actually voted to amend their constitution - not just a law, but the document setting out the very guiding principles of governance - so that, contrary to one of the most fundamental constitutional protections ever devised, it would protect the majority from a minority -- a minority that comprises between 2-5% of the electorate?

I, of course, see this as one more sign that there is no defensible legal case against gay equality, only a still potent political one which comes, not from any actual engagement with reason, but from impulse, inertia, a residue of historic antipathy and a misperception of homosexuality's very nature that has been cultivated for centuries, and is only now being seriously questioned not just by those of us who are gay, but by heterosexuals across this nation and the world. In contrast to those heterosexuals who are engaged in the discussion and really want to explore why it is they believe what they believe, the Prop. 8 defenders seem only to have a whole lot of people who want to be left alone.

At their best, courts provide a truth-seeking function that need only be tangential in political debate. Courts ask people to testify under oath, unlike the sound bites and half-truths that color electoral politics. And specifically with a subject as weighty as a constitutional amendment (despite California's trivilalizing of that document), a trial can test the legitimacy of each side's arguments, rather than their rhetoric. Now is the time for Prop. 8's supporters to make their case. I, for one, keep waiting.

This will not be helpful.

Actors reading the (hastily transcribed by amazing people who, for all their amazingness are not court reporters) reports of testimony of witnesses in the Prop. 8 case is Exhibit A in why trials that many members of the public will be interested in should be available directly.

The first problem is the one that court transcripts have always had, the enormous difference between the cold words that a witness has pronounced on the stand and how he or she has said them: intonation, body language, inflection, etc. Judges and jury members do not just hear the words witnesses utter, they watch the witnesses. Credibility is, in no insignificant part, found in the way words are said, or the manner of the witness. Those are things that no transcript can portray, which is something I have learned directly after many years of having done appeals based on only the record of the trial.

The second problem is that we don't, here, have even an assuredly accurate transcript of the words yet. Court reporters will provide those eventually, which will be astronishingly accurate, given the fact that reporters are needlessly, manually performing a function that a simple iPhone Voice Memo app could perform perfectly and with no human effort (or expense) whatsoever. Here, though, the incredible livebloggers at Firedoglake and the Courage Campaign (who you should give some money to, in my opinion, for stepping into the void that the Supreme Court has created), doing the best they can, are providing general descriptions of some very academic testimony, getting only as many of the actual words spoken by the witnesses as they humanly can. They are also, naturally, guided by their own feelings about which side should win, which colors what they choose to transcribe and how. So the actors will be reading, not the actual words spoken, but only some of them, as well as some other kinds of summary which may have been influenced by human emotion rather than neutral transcription.

Finally, and most significantly, the actors, not having had the benefit of seeing the witnesses, will inevitably be giving their own spins to the imperfect text they will have -- and we will have absolutely no way of knowing how close or far their impressions are from the real thing that happened in that courtroom. It's impossible to even begin imagining how much mischief, creative license, and/or sheer whimsy will be involved in that. And, lacking any actual video record available to the public, we won't have anything to compare to their performances.

I'm not sure what to call the product of this inadvertent collaboration among real witnesses, nonprofessional transcribers, enthusiastic actors and possibly even a director or two. But "reenactment" is only the most charitable name for it.

If you have any doubt about the cultural understanding of marriage, and what, exactly we are being excluded from when we are denied fully equal status as spouses, check out the Golden Globes (though any awards show will do). Does any married winner not thank their husband or wife of X years, who is (patient)(understanding)(supportive)(loving)(amazing), not to mention (my inspiration)(the love of my life)(completes me)?

These are only a few of the encomiums that were mentioned just this evening, all of which got approval and/or applause for the spouse at issue. What the audience is acknowledging is not the couple's procreative abilities or even potential, but their relationship to one another. That is what people think of first when they think of a marriage. We think of it, too.

In my last post, I didn't mention that one witness followed Dr. Michael Lamb, and she is worth mentioning for a subsidiary, but very important reason.

Helen Zia wasn't called as an expert witness to any subject except her own life. She has lived in California for 18 years, and is currently legally married to her wife, after a couple of false starts.

Like all lesbians and gay men up until the last few years, Zia came to maturity in a world where there was no question about the fact she could not possibly marry the person she loved, so she accepted that she'd have to make do. But when she met her soul mate, she found her belief that marriage was the patriarchal construction of a hostile world eroded a bit in the face of that love. She and her wife have been together since meeting in 1982.

The other side objected to her testimony being offered. While Danny Chu for the City of San Francisco argued that Zia's experience as a lawfully married lesbian was relevant to the issues in the case, the Prop. 8 defenders insisted that anyone who isn't a scientific expert shouldn't be testifying.

The judge allowed Zia to testify, but clarified that he could decide, as the trier of fact, how much weight to give any evidence she would provide.

That is a central, and -- by lay observers -- easily overlooked part of legal proceedings. Judges want to have as much relevant evidence before them (or a jury) as possible; but how far does relevance extend? Depending on the lawyers involved, it could be infinite. Judges have a duty to limit what can be admitted into consideration. Remember the O.J. trials?

But what does "weight" mean? Simply put, is it credible? Is it probative of the issue for which it's being offered? How credible? How probative? Those are judgments that rest with the decider. In this case, one woman's testimony about her experience with discrimination, and with the changed expectations of her family after she was married are certainly important to her, and illustrative of what others likely could testify to. But it's just this one woman.

Read the summary of her testimony here or here, and judge for yourself how important you think it is to the issues in this trial.

This is important, not just for the weight Judge Walker will give the testimony, or any other evidence. He will not be the last word on this case. Some people have wondered why on earth David H. Thompson was making such nakedly political and anti-scientific points in his cross-examination of Michael Lamb. And many were simply absurd, if not ignorant.
But we have had absurd and ignorant arguments used against us before. The most recent example came just last week, when a majority of the U.S. Supreme Court accepted the assertion that we are threatening and dangerous aggressors against those who seek to (and have the votes to) deny us legal recognition for our relationships. They are likened to the civil rights workers of the 1960s, and we are aligned with the southern police who called out the dogs and cranked up the firehoses.

The judges who accepted that onionskin thin argument are the audience Thompson was playing to. As long as there is something - anything - in the evidence presented in this courtroom that a judge down the line can believe or pretend to believe, they can put that into black-and-white and retain the legally discriminatory status quo. Under the rational basis test (which will surely be our fate), any evidence at all to support discriminatory treatment will do, as long as five Supreme Court justices can find it in the record before them.

In that sense, Zia's testimony is not that big an issue. The sometimes bizarre questions Prop. 8's defenders are asking on cross-examination are the real meat and potatoes. It is there they have to discover whatever meager justifications they can cobble together to explain why heterosexuals must retain their marital privileges. Judges don't have an obligation to accept the best evidence, just the best evidence they can cite with a straight face.

I admit I was really shaken when the Supreme Court majority accepted the argument about us being the victimizers of our innocent opponents. But that is how this case will - or can be - decided: on the thinnest of excuses, and with one eye firmly planted on politics, not constitutional law. That's happened to us before in the Supreme Court, and it's exactly what lesbian and gay legal groups worried most about with this case. At least as things stand right now, anything weighs more than we do on the Supreme Court's scales of justice.

The week ended for the Prop. 8 trial with Michael Lamb testifying about how studies of children raised by same-sex couples show that the kids are alright: No better and no worse than the kids raised by heterosexual couples.

David H. Thompson had the job of cross-examining Lamb, and I'll leave it to others to discuss some obvious problems. But one thing Thompson kept harping on was the contradictions of older studies -- some relying on data about parenting from the 1950s and 60s -- with newer ones. Lamb began his work in this field in the 1970s with some views that changed by the 1990s, and Thompson refused to believe that the data had changed, suggesting it was Lamb who had.

Any time the 1970s is mentioned, it should ring a bell in any discussion of gay equality. That was a landmark decade, when 20 states repealed their sodomy laws, joining lonely Illinois, which was ahead of the pack back in 1961.

It is too easy to forget or underestimate this context; but it is essential to understanding what is happening today in the courtroom. Sodomy laws were the primary tool government had to actually enforce the silence of the closet. They enshrined in law the cultural misperceptions about homosexuality that pervaded the culture at large. Growing up in this country in the 1960s, and well into the 1970s, people who publicly identified themselves as homosexual were subject to prosecution, fines and actual imprisonment. There is simply no equivalent that heterosexuals had to endure.

And criminal conviction is not the half of it. While the sodomy laws, themselves, were seldom actually enforced, they provided the foundation for police harassment and social ostracism. Again, George Chauncey's testimony does an exemplary job of exploring this. In the face of the existence of such laws, and an almost universal social stigma, the act of coming out was dangerous at worst, but foolhardy in even the best cases. Yes, people knew of homosexuals then - as sexual deviants and perverts and queers. The bravest and most far-thinking lesbians and gay men came out in the 1950s and 60s, but they were literally risking their lives, and certainly their freedom. However they were viewed, it was not as mainstream.

So what kind of data about same-sex parenting would have been available for the years when, in many states, sodomy was still a crime? Obviously, pretty much nothing of value, at least if your goal is to compare how the children of same-sex couples compare to the children of opposite-sex couples. If a gay person wanted or needed to stay in the closet (as the vast majority of lesbians and gay men did), you certainly didn't set up housekeeping with a same-sex partner and your children. The social obliviousness of the time only went so far. Some people who came out had been heterosexually married, and began fighting in the courts for custody of their children, but that was an emotionally wracking experience, particularly for the children. And it was not common.

The 1986 Supreme Court decision in Bowers v. Hardwick affirmed the right of states to criminalize homosexuals, and inflamed the problem. Americans with a predisposition to believing the existing set of prejudices were reinforced: It was entirely acceptable to view homosexuals as criminals - the Supreme Court said so.

But the cultural shift was already in place, and it was the reaction to Bowers by homosexuals that was so important. I know that it got me interested in politics and governance. More important, it finally opened up the conversation about homosexual equality which had been kept captive in the same closet with the rest of us.

So I think it's fair to say that lesbians and gay men who began coming out to themselves and their families in the 1970s and 80s, and forming public relationships that in earlier times would have only confirmed their criminal and/or deviate status, was itself a revolution enough.

But as heterosexual couples were becoming comfortable with their constitutional right to use birth control, and even not to have children at all, homosexual couples began to see the possibility of becoming parents, not just of children from a prior heterosexual marriage one of them might have had, but of their own - whether adopted or by use of the technologies that had been developed for their similarly situated heterosexual counterparts.

It is amazing to me that data about the children of those couples in the 1980s and 1990s is as favorable as it is, given that those children were really the first generation of any size to have grown up with parents of the same sex. I suppose that can be attributed to the dedication of those couples to negotiate both the bureaucratic maze that all parents must go through to adopt or conceive a child with technological assistance, and also the residue of prejudice against them, simply for being homosexual and not ashamed of it. If you want a child that badly, it's a safe bet the child will not lack for parental attention.

It was not until 2003 that the U.S. Supreme Court finally ruled that sodomy laws are unconstitutional, and removed the primary legal stigma against homosexuality once and for all. Nevertheless, the social stigmas still remain, as we see again and again.

But now, the legal barriers to coming out are gone. People may remain in the closet for their own reasons, but they don't need to fear prosecution by the government.
And that will, itself, bring out even more same-sex couples, and produce more children of same-sex couples. Those children shouldn't need to bear the social stigma some people have against their parents, but that is what some people insist on. That is their right, but it is not to their credit.

Is it at all likely that the children of same-sex couples who are growing up now will do worse than the generation that preceded them? I think that's unlikely, but I'll leave that to the academics who study such things.

But for legal purposes - for the purposes of the case now in court - it is safe to assume that the data available to the court about the effects of same-sex parenting on children will be the worst-case scenario. Those parents were pioneers. From now on, they'll just be parents.

***CORRECTION*** The original post identified the witness as "Brian" Lamb, when in fact it was Dr. Michael Lamb. I've corrected that in the post. I have no idea what Brian Lamb thinks of studies about same-sex parenting skills, if anything.

Newsweek has a nice cover story, The Conscience of a Conservative, about Ted Olson, labeled "the unlikeliest champion of gay marriage." That's because "he is one of the more prominent Republicans in Washington, and among the most formidable conservative lawyers in the country." He was, in fact, head of the Office of Legal Counsel under Ronald Reagan, and Solicitor General under George W. Bush. That overview is followed by Olson's essay, The Conservative Case for Gay Marriage, on "Why Same-Sex Marriage is an American value."

Yes, I anticipate the barrage of comments about why we should only support Democrats because Democrats are better. But what's interesting about Olson and his legal efforts on behalf of marriage equality is that it's happening despite the fact that the LGBT political establishment is pretty much run by Democrats as a fundraising operation for their party. Imagine what the political scene might look like with a little bit of outreach across the aisle.

More. Conservative commentator and Fox News contributor Margaret Hoover, on Why I'm Joining the Fight for Marriage Equality.

Today's news from the Prop. 8 trial is that discrimination against lesbians and gay men can have ill effects on their lives.

That should hardly need proving, but this is a court of law, and to opponents who are disinclined to believe much of anything we say, proof is necessary.

The witness assigned to this matter was Dr. Ilan Meyer, Associate Professor of Clinical Sociomedical Sciences at Columbia University. He has worked in this field for two decades, and has done numerous studies of the effects of stigma on gay people and same-sex couples.

After reading the liveblogs of his testimony at both Firedoglake and the Courage Campaign, I have to say that the impression I came away with is that the Clinical Sociomedical Sciences make bigger claims than they can live up to. Dr. Meyer was articulate, thoughtful and dedicated, but on cross-examination, it became clear to me that he's attempting to quantify something that is unquantifiable. In the (imperfect but amazingly timely) transcripts of his answers he constantly seemed, to me, to be tripped up by pretty obvious things.

For example, his research purports to measure how much the stress from social stigmas affects minorities, specifically lesbians and gay men. But when asked whether he could factor out stress from being a racial minority or a woman from stress due to homosexuality he was unable to do so. That would seem to be a central point for someone who's an expert on how much of a problem the stigma resulting from homosexuality is.

But I can't really blame him. No one could accurately measure, or even approximate, such a thing. But that wasn't the worst obvious knot he couldn't extricate himself from: While his conclusion is that homosexuals suffer more psychological stress than heterosexuals, his side is also presenting evidence that same-sex couples are as well-adjusted as opposite-sex couples, particularly when it comes to raising children. What rational cross-examiner would miss that glaring contradiction? We've happily left behind the days when homosexuality was considered a mental illness, and marched, banners flying, into an age where we deploy academics to calibrate the damage from stigma.

The pity is that we're caught here in a pseudo-science of our own making. At the beginning of his testimony, Dr. Meyer offered an example of the problem we face that is as compelling as it is incapable of mathematical appraisal. In the 1969 blockbuster book, Everything You Always Wanted to Know About Sex* (*But Were Afraid to Ask), this question-and-answer was included on the subject of homosexual couples:

Q: What about the happy homosexual couples who've lived together for a long time?

A: Happy homosexuals are might rare birds among the homosexual flock. Morever, the 'happy' part remains to be seen. The bitterest argument between a husband and wife is a passionate love sonnet by comparison with a dialogue between a butch and his queen. Live together? Yes. Happily? Hardly.

In 1969, this was not only not maddeningly offensive, it was the reason of its day. No homosexual now can read such words without feeling a sickening sensation. And I hope no responsible heterosexual would feel differently. Of course Dr. Meyer and others would want to answer such a charge (and so many others), which pervaded even academic thinking in those years and many more afterward. In light of the notion's wide acceptance, of course he would want to answer the accusation (and it is an accusation) in objective, scientifically verifiable ways so that there would be no doubt about its wrongness.

But that's not the way it works. You can't measure pain, or prejudice or stigma. And you can't respond to something that isn't science with something that purports to be.
I am one of those people who grew up when this book was all the rage, and I, too, in all my ignorance, eagerly looked for the parts dealing with homosexuality, mostly because there was nothing else at the time that I knew of which dealt with the subject.

Was I harmed? You bet. Did the stigma affect me? Absolutely. But I think people are wasting their time trying to assign a percentage to it, or a weight or an amplitude.

Science is the left's military, and the left misapplies it, just as the right does with our armed forces, in situations where it has no business being. Science is one of the glories of mankind, and particularly of the last two centuries. But today was not its finest moment.

One commenter on my previous post shares Dale Carpenter's cautious pessimism about our chances of winning the Prop. 8 case in the Supreme Court. The commenter is resigned to us having to live through our own Plessy v. Ferguson.

Actually, we've already done that. Losing this case wouldn't be our Plessy, it would be our second Bowers v. Hardwick. Like this case, we were represented in Bowers by some of the finest legal minds of the time, including Harvard's Lawrence Tribe. It was viewed as a perfect test case of the constitutional right to privacy. Police actually entered the bedroom of a same-sex couple and, following a universal policy by law enforcement to simply ignore prosecutions for private, consensual acts of sodomy between adults, didn't file charges. What use, then, was the law? How many criminal laws are virtually never enforced when the police actually observe the offense being committed? The case had everything going for it.

And we lost.

The Bowers opinion, in Justice Kennedy's words overturning it seventeen years later, "was not correct when it was decided, and it is not correct today."

That is the thing about thinking based on imperfect assumptions about small groups of people: Even a Supreme Court opinion doesn't need to be correct in its reasoning, it just needs to be convincing enough to pass muster at the time. The constitutional promise of equality is just that: a promise. Nothing more. Like everything else in a political world, it is subject to a psychological logic that has nothing to do with logic itself.

This has always been the concern of same-sex marriage supporters -- not that we are wrong, but that the court doesn't need to get it right the first time. The illogic of prejudice is always just enough to scrape by on; after all, the only people being harmed are a political minority. It is the majority that counts, even if the majority happens to be wrong.

My faith in American democracy is in the ability to get it right in the long term. It took time, but we saw the mistake of Plessy, and of Bowers, and ultimately aligned our law with the reason that was always, if elusively there. If we lose Perry, we'll eventually be able to correct that, too. It may not be in our generation, but the fact that we tried, and gave a court of law the ability to do the right thing will be our gift to the future.