Several experts in social sciences have testified as witnesses in the current Proposition 8 trial, including UC Davis social psychology professor Gregory Herek.
The trial, Perry v. Schwarzenegger, concluded with testimony on Wednesday. Judge Vaughn Walker is reviewing the evidence in the trial. The trial will take several weeks before closing arguments are heard and a verdict is reached.
Herek, professor and researcher on sexual orientation and prejudice, testified as a witness for the plaintiffs on Jan. 22. Other experts, including UCLA psychology professor Anne Peplau, testified on various aspects of homosexuality and same-sex relationships.
Herek was not able to fully disclose details of the trial due to the possibility of affecting the outcome, but he did offer some information on his role.
“I was addressing the issue of what is sexual orientation, as well as the changing views of homosexuality as a psychiatric illness, and the fact that attempts to change sexual orientation through therapies have not been effective and have perhaps been harmful,” Herek said.
Prop8trialtracker.com, an ongoing live blog of the trial, provides a transcript of Herek’s cross-examination by the attorney defending Howard Neilson.
According to the transcript, Neilson questioned Dr. Herek about homosexuality as a genetic predisposition or a personal choice.
“People arrive at their adult sexual orientation through different pathways,” Herek said at the trial. “There may be a variety of different experiences and maybe even biological effects that bring someone to their sexual orientation. There are different pathways to sexual orientation.”
Another main argument of the trial was whether lesbians and gays are a minority that had a fundamental right taken away. The defense said the gay rights movement has a great deal of power in the political sphere, citing the number of gay politicians currently in office and the influence of lobbying groups like Equality California.
“There is the question of whether there is a stigma attached to homosexuality, and whether Prop. 8 is a form of stigma,” Herek said.
In a draft of a column for findlaw.com that will run Friday, UC Davis law professor Vikram Amar offered a representation of his perspective on the trial. He identifies four main questions the plaintiffs have been trying to address:
(1) What are the history and justifications for the institution of modern civil marriage, and do they argue in favor of defining the individual liberty right to marry a person of one’s choice broadly enough to include same-sex marriages?
(2) Are gays and lesbians relatively politically powerless victims of unfair societal and governmental hostility such that they, like racial minorities, ought to benefit from a special judicial solicitude?
(3) Were the voters who adopted Prop. 8 motivated by reflexive bias and bigotry rather than legitimate public policy concerns?
(4) What is the governmental objective that is arguably or likely served by defining marriage to include opposite-sex couples but not same-sex couples?
Both supporters and opponents of gay marriage generally consider Perry v. Schwarzenegger as a critical point in the debate, but Amar disagrees.
“[Judge Walker’s] ruling will garner tons of local and national press,” Amar said in his column. “Yet his ruling won’t matter very much at all.”
This is because no matter what the verdict is, the case will ultimately be appealed to the Ninth Circuit of the Supreme Court.
“The record Walker compiles will provide ammunition for plaintiffs’ viewpoint, but not so much ammunition that Ninth Circuit judges disinclined to embrace the plaintiffs’ arguments will be meaningfully constrained,” Amar said in his column.
SARAH HANSEL can be reached at firstname.lastname@example.org.