Prop 8 Trial Liveblog Week 2, Day 2 – I (26)

We’re back in the courthouse getting ready for today’s session. The plaintiffs continue their case with testimony from Ryan Kendall, who apparently will talk about trying to be converted by the ex-gay movement. Could be interested.

Judge Walker begins: I have a scheduling item first. We will be able to continue the trial tomorrow, but not everyone was notified. Mr. Boutros didn’t receive the message. But we will be able to continue.

Thompson: Sorry I didn’t distribute the message.

Walker: That’s fine. We have some discovery matters. First is objection to the discovery order. We’ve just filed a written order on that objection. Bottom line is the magistrate’s order is not clearly erroneous, so the discovery order by Judge Spiro will remain undisturbed. Second is another discovery order. Was unable to reach Judge Spiro to hear that – he heard it first. But I don’t want that to delay matters. So if he’s unavailable, I’ll rule on it. Proponents want to add four names to the core group of designation. Criswell, Werthlin (sp?), a John Doe, and Peterson.

Then we have the plaintiff’s motion to reopen the deposition of Mr. Prentice. I wonder whether we need a further deposition. Your documents call into question the deposition. Why can’t you take up that in questioning? Is he on your list?

Boutros: It’s a lot of documents, we want to spare the court a lengthy walk-through of documents. Doesn’t need to be a long deposition, but it would streamline things in court.

Walker: Do opponents have a view?

Ms. Moss: We are opposed to another deposition of Mr. Prentice. Already did 14 hours. They can explore inconsistencies in testimony on the stand. We wouldn’t be able to prepare him for his testimony. If anything, at most an hour.

Boutros: We’ll take two hours, your honor. Opponents withheld these documents, and they were clearly within discovery. Magistrate Spiro found them relevant, and it was outrageous for them to be withheld. We had teams reviewing these documents for the last week. Should have been delivered. This is a modest request.

Walker: I’m inclined to agree with Miss Moss. Tough to run a case and deal with depositions. You can cross-examine Mr. Prentice, and explore discrepancies on the stand. Can be done as effectively in the trial. So let’s proceed.

Walker: Final matter is the proponent’s objection to the next witness…

Cooper: I had some other things. I objected to a couple of documents from the proponents. The plaintiffs have now provided the documents.

Walker: OK, thanks, Mr. Cooper. Then the only remaining matter is the issue of the Ryan Kendall testimony.

Campbell: James Campbell for the D-I. Mr. Kendall is a man from CO whose parents forced him into conversion therapy. We think his testimony should be excluded from his case. First, it’s irrelevant. He can only talk about his involuntary forced conversion therapy. This is proper subject of expert testimony, not lay testimony. Not relevant to give anecdotal testimony. This is expert testimony’s subject. The plaintiff have already identified an expert who opined on the issue of conversion therapy. Finally, plaintiffs have indicated that self-reports of conversion therapy from many years ago is unreliable.

Campbell: Dr. Herrick makes some comments about self-reporting of conversion therapy. He says “Even if respondent tries to give true accounts of their feelings, the reports cannot be assumed to be reliable.” Our position is their own expert recognizes that self-reporting isn’t helpful for serious analysis.

Walker: Haven’t defendants raised this issue in the case?

Campbell: No, I don’t think so.

Walker: You said evidence will show that sexual orientation can shift over time and does so for many people. “The findings show that no aspect of sexual orientation has been shown to be immutable.” (pretty shrewd point by Walker, though I am actually more inclined to agree with Campbell)

Walker: Seems to me you have brought up these issues where this witness will testify.

Campbell: We’ve never brought up forced therapy, though. We think these changes do occur, but forced therapy is not relevant.

Walker: Are you going to bring up evidence that sexual orientation changes?

Campbell: Yes, through various cross-examination.

Walker: Other than that?

Campbell: Maybe our own witness, but mainly through cross… also through studies, your honor. We’ll introduce that.

Walker: Thank you Mr. Campbell. And I think you took a good deposition.

Does seem to be an issue defendants have raised. This does seem to largely depend on expert testimony. But with so many cases, first-hand experience can illustrate helpful points. I think Mr. Kendall can be evaluated by the court, in relation to expert testimony and other evidence. I’m disinclined to exclude testimony. He’s been deposed, Mr. Campbell has had the opportunity to explore. So motion to exclude will be denied.

Walker: Just handed a note, Judge Spiro can hear the other issue right now. Hightail it to Judge Spiro.

Cooper: Mr. Pugno is headed over.

Boutros: I’m sending Mr. McGill.

Walker: OK then….

Boutros: We’re going to play some deposition testimony now.

Boies: We’re playing the testimony of Dr. Paul Nathanson and Katherine Young, two witnesses withdrawn by the D-I.

Cooper: I’m recalling my previous objection. We’d like to know what parts of the testimony is so we can prepare other parts, and we’d like to offer the expert report to the court.

Boies: We gave them the designations a week ago. This is clearly admissable.

Walker: Where are these folks located?

Boies: Montreal. I took the deposition so I know where they are.

Walker: That’s more than 100 miles from San Francisco. There are multiple grants that make this admissable. Mr. Cooper can submit counter-designations, but if Mr. Boies gave them to you a week ago, you should have had them by now.

(play tape of Boies and Nathanson)

Boies: What position does the American Anthropological Association take with respect to gay marriage?

Nathanson: They Support it.

B: What position does the American Psychological Association take with respect to gay marriage?

N: They support it.

B: What position does the American Psychoanalytic Association take with respect to gay marriage?

N: They support it.

B: American Acandemy of Pediatrics?

N: They support it.

B: Why?

N: They see no problem for children.

B: As a researcher, do you have an opinion on whether gay people marrying increases their happiness and well-being?

N: I think yes.

B: Do any peer-reviewed studies talk about gay couples raising children?

N: There are sociological and psychological studies.

B: And what do they include?

N: They don’t project problems, and they don’t predict problems.

B: Does the Catholic church have an opinion on gay marriage?

N: They do believe it’s gravely immoral.

B: And they say that?

N: I don’t know what words they use, but clearly they say it’s prohibited.

B: And a sin?

N: Yes.

B: How does the Southern Baptist Convention describe homosexual behavior?

N: Sinful.

B: Evil?

N: Some probably do.

B: Does the Southern Baptist Convention describe homosexual behavior as evil?

N: I haven’t seen words to that effect, but some do.

B: Does the Southern Baptist Convention describe homosexual behavior as a preversion?

N: yes

B: As an abomination?

N: Yes.

B: Deviant behavior?

N: Yes

B: Manifestation of a depraved nature?

N: Yes

B: Here’s a quote you wrote about saying “God hates gay people.” Where does the quote come from?

N: A picture in the newspaper in the newspapers about gay marriage, and they were carrying placards saying “God hates gay people.”

B: How many people who voted for Prop 8 were motivated by religious reasons?

N: About half.

B: Of those people, what proportion voted in favor, in your opinion?

(objection, calls for speculation)

B: Has hostility called for homosexuals to be discriminated against?

N: Yes

B: And placed in physical danger?

N: Yes.

B: Are there any studies about how hostility to homosexuality affects the psychology of homosexuals?

N: I’m aware of studies.

B: Have they reached conclusions.

N: Yes.

B: What are they?

N: That targets of hatred has a bad effect on people.

B: What part of Roman Catholic accepts the church’s teachings that homosexuality is gravely immoral.

N: Not more than half.

B: You use the term hate or hatred in your writings, what do you mean?

N; Culturally propagated hostility.

B: There is culturally propagated hostility toward gay people.

N: There is some, yes.

B: Historically, there’s been a great deal of that hostility?

N: Yes.

B: Are you familiar with gay bashing?

N; Yes.

B: What is that?

N: Physical attacks on gay people.

B: They are directed against people perceived by the attackers to be gay.

N: Yes, as in the case of Matthew Shepard.

B: Who was that?

N: A student in Wisconsin (WY -ed.) who was attacked coming out of a gay bar (wrong -ed.) and killed.

B: How long ago?

N: 7-8 years ago.

B: Is it true that religions supporting Prop 8 were much larger than the ones opposing it?

N: Yes.

B: And the religions supporting Prop 8 contributed more volunteers?

N: Yes.

B: Do you believe the teaching of homosexuality as a sin contributes to gay bashing?

N: Yes.

B: Is the primary cause of hostility religious teaching?

N: That might be a complex answer. In a direct sense, yes. But religious hostility to gay behavior has roots other than religion.

B: With respect to blacks, was religion used to justify that prejudice?

N: Yes.

B: Did the defenders of the prejudice or stereotypes that the discrimination was protective of the family?

N: Yes.

B: Was religion used to justify the prejudice against women?

N: Yes.

B: Did the defenders of the prejudice or stereotypes that the discrimination was protective of the family?

N: Yes.

(end tape)

(I’m told that Dr. Nathanson, from the above testimony, is gay, and supports gay marriage. Reminder: he was the defense’s witness.)

(New tape from Katherine Young)

Boies: Have you formed an opinion on whether gay people have been subject to prejudice and discrimination.

Young: Yes.

B: Have some cultures been tolerant?

Y: Yes, as a subculture.

B: Which cultures?

Y: In the past, the Indian culture was relatively tolerant. The Hidras were a tradition.

B: What was that.

Y: They operated like a caste. They had male-to-male relationships. Wasn’t the norm for society as a whole, but a sub-tradition.

B: Are the Hidra located in any part of India?

Y: No, throughout India.

B: How long have the Hidra existed?

Y: I’m not sure. It is a community today.

B: At least for centuries?

Y: I would suspect at least a few centuries.

B: How long do you think?

Y: Let’s say a couple centuries.

B: Are there other exceptions?

Y: Some tribes in North America.

B: Spell that tribe?

Y: A general category of people, called Berdache. There would be same-sex relations and in some context same-sex marriage.

B: Where?

Y: In the US, the Lakota tribe. The Shonnan (sp?) traditions were often Berdache. I believe it was a N. American phenomenon under that name.

B: Other traditions under different names.

Y: There are others as a sub-tradition, not a norm.

B: Explain that.

Y: I define marriage as a prevailing norm.

B: Then there are sub-traditions.

Y: Yes.

B: You’re referring to norm as what most people do, and sub-traditions are exceptions to the norm?

Y: Yes.

B: Other sub-traditions?

Y: In W. Africa, there are lesbian marriages. In China, there is another example of lesbian marriages.

B: More exceptions to what you say is the norm of marriage?

Y: Yes, in Roman culture, among some of the Roman emperors there were same-sex marriaages. Many other examples of same-sex relationships. And also some kind of formal recognition in the context of what we can call marriages.

B: Is gay bashing a term which you’re familiar?

Y: Yes

B: What does it mean?

Y: It can mean anything from taunting to physical assault

B: Is your opinion that hostility to gays based on religious beliefs?

Y: There was a religious component to it.

B: Do some religions teach that homosexuality is a sin?

N: Yes

B: Does the Roman Catholic church has a view as to homosexuality activity outside of priesthood?

Y: Yes. In general there is a continuing view that homosexuality is wrong.

B: Does Roman Catholic religion assert that homosexuality among lay people is sinful?

Y: I think that is the general position.

B: Are children advantaged by increasing the durability of the relationship of their parents?

Y: Yes.

B: Is durability strengthened by allowing a gay couple to marry?

Y: Yes. I’ll say yes.

B: Is that beneficial to the children they’re raising?

Y: On that one factor, yes.

B: Has the number of children being raised been decreasing since before gay marraige in the US?

Y: Yes.

B: Is love and commitment the reason for people marrying?

Y: In this day and age, yes.

B: Do you believe love and commitment are the reasons gays and heterosexuals have for wanting to marry?

Y: Yes.

B: Are arranged marriages declining in proportion to non-arranged marriages?

Y: They have declined, depending on the country. But they certainly have not been overtaken by love marriages.

B: But they have declined.

Y: Yes.

B: Where they have declined, is there an increase in divorce rates?

Y: Yes.

B: Are divorce rates correlated with female literacy?

Y: I cannot refer to specific studies, but I may have read something to that effect.

B: Are you aware of a correlation between declining birth rates and increased female literacy.

Y: Yes.

B: This is a statement of the Amer. Psychoanalytic Assn. Their position statement from 2008, Marriage Resolution. It says homosexuality is a normal situation.

Y: I have no problem with that statement.

B: Gay people have the same desire for loving relationships as heterosexual couples. Agree?

Y: Yes.

B: Gay couples have same desire for children.

Y: Yes.

B: Doesn’t make any difference whether single parent is gay or straight?

Y: Yes.

B: Just because something is a norm now, should it be a norm in the future?

Y: Not necessarily. Just because something is a norm, doesn’t mean it’s an appropriate norm.

B: Have women been subject to prejudice and discrimination?

Y: Yes?

B: And this was often justified by religious beliefs.

Y: Sometimes it was.

B: Often it was, correct?

Y: Often it was.

B: And it was also justified by the argument that it promoted or protected the traditional family, yes?

Y: Yes

B: And blacks have been subject to discrimination.

Y: Yes.

B: And it was justified by religion?

Y: Yes.

B: And are laws today justified by religion?

Y: No, because you have the separation of church and state.

(end tape)

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