Liveblogging Prop 8 Trial Friday Morning (34)

Last Plaintiffs’ Expert witness will testify today:

– Gregory M. Herek, Ph.D. a Professor of Psychology at the University of California at Davis. He will testify about the nature of sexual orientation, how mainstream mental health professionals and behavioral scientists regard homosexuality, benefits conferred by marriage, stereotypes relating to lesbians and gay men, stigma and prejudice directed at lesbians and gay men, the harm to lesbians and gay men and their families as a consequence of being denied the right to marry, and how the institution of domestic partnerships differs from that of marriage and is linked with antigay stigma.

Boutrous asks Walker his preference regarding closing arguments.

Walker: Sometime in the future, after I have an opportunity to review all the evidence. Then I can come back with my questions and hear your closing. Any objections to that?


Boutrous: PX2542 & PX2543 videotapes during Segura’s testimony, please admit?

Walker: So ordered

Boutrous: Wrt redactions of memos, Pugno asked that we add back in a paragraph, document we discussed on Wednesday during Segura’s testimony. That may be all in terms of exhibits.

Walker: I suppose all sides will want to review everything to be sure they have everything submitted

Cooper: we have had a chance to review the Nathanson and Young videotapes, and have our counterdesignations about those.

Walker: Boies?

B: There will be some things we object to as outside the scope, and after lunch we will have our complete response.

Walker: I gather, Mr Cooper, that you will not be calling Nathanson and Young?

Cooper: No, we will not, and we offer these counterdesignations and objections to having Plaintiffs call these witnesses as their own.

Boutrous: Calling Mr Herek, and Mr Detmer will be conducting the examination.

(Clerk swears in in Gregory M Herek)

D: Good morning, please describe your educaitonal background

H: PhD 1984 in social pychology from UCLA. Social psych intersects sociology and psychology.

Dissertation on what?

H: The attitudes of heterosexuals towards G&L

D: Later work?

H: Yes, at Yale, I continued my studies and expanded them to include the stigma associated with HIV AIDS. Then taught at Yale for one year, and then at CUNY. Then I returned to CA and am a research social psychologist at UC. Focused entirely on research. 1999 I became a tenured full professor at UC Davis.

D: Teach what?

H: Societal stigma based on sexual orientation, and methodological techniques in grad and undergrad on surveys, and teach seminars on stigma and prejudice

D: Do you have binders?

H: No, I don’t see any

D: (gets binders for witness, clerk and judge)

D: Turn to PX2326, please. Hr Herek, what is that doc?
H: My CV.
D: Move into evidence, please
D: Prof Herek, eeditorial board of peer review jounrals.
H: Listed in CV, Basic and Applied Social Psychology, Journal of Sex Research, several others.
D: Prof associations?
H: Member and fellow of APA, Society fo rExperimental Psychology
D: Authored things?
H: Published approximately 100 articles and chapters in edited volumes on sexual orientation, stsigma, and prejudice.
D: How much grant money?
H: Excess of five million, most of it from Natl Institutes of Health.

D: Proferred as expert
Walker: Very well, you may proceed

D: What opinions
H: 1. Nature of sexual orientation and how understood in sociology and ppsychology; 2. immutability of sexual orientation 3. stigma andprejudeice against G&L and how that intersects with Prop 8

D: May I approach?
Walker: You may

D: I’ve run these by D-I and they do not object to thislist of documents.
Walker: D-I?
D-I: No problem

D: Are these the documents (except PX 2265 2563 2564 2565 2567) the ones your relied on?
H: Yes, also except 2530.

D: Turning to opinions, what is sexual orientation?
H: An enduring sexual romantic or emotional attraction to men, women, men and women or men or women. Also used to describe identity. And used to describe behavior.

D: How used in different contexts?
H: depends on the nature of the study. In public health, the focus is on sexually transmitted disease, so they might focus on behavior. WEhen studying discrimination, though, we might focus on identity, since that is how people are singled out for prejudice.

D: Do you ask ordinary people about thier own sexual orientation?
H: We tuypically don’t use the term specifically. Instead, we ask if they are heterosexual, gay, straight — and they get this.

Walker: What do you mean by ordinary people — those who don’t study this professionally?
D: Yes, your honor.

H: This is about relationships and attachments.
D: Why are these issues important?
H: the need for attachment and intimacy are part of the core of what’s important to humans.
D: Is homosexuality an illness?
H: No
D: Inability to contribute to society?
H: no relationship to sexual orientation and ability to be a contributing member of society.
D: What about in the past?

H: In 1952, APA created the DSM. Homosexuality was included. Over time, that inclusion was disputed and there were many challenges to it. In 1973, the APA removed homosexuality from the DSM, supported by the (other) APA.

D: PX885, please. What is this?
H: Copy of that first DSM published in 1952
D: turn to pages 38-39, under heading sexual deviation
D: YEs, under psychological disorders
H: Now look at PX764, describe

H: This is the policy statement by the American Psychological Assoc after the APA changed the DSM; affirmed that homosexuality limits no capabilities. APA urges all mental health professionals to take the lead to remove stigma from homosexuality. APA has reaffirmed that position.

Walker: What led to that change?
H: that’s along story
Walker: Well we have some time

H: It’s important to look at how homosexuality got into the DSM in the first place. It was based onassumptions in the 1940s and 1950s, not empirical research. Later, actual research showed that homosexuals were not suffering from a disorder. Also, other institutions (include psych and psychia) wer understanding homosexuality was not a disorder. This was based on actual research.

Walker: So at first it wasn’t based on research (1952) and then in 1973 it was based on empirical data.

H: Yes, but also the culture had changed. Empirical studies failed to support homosexuality as a mental association. But also, the culture had come to see it as a non-disorder.

Walker: Thank you

D: Do people choose their sexual orientation?
H: my research shows that people when asked say they have experienced no choice or very little choice

D: Are you familiar with reparative therapy or sexual change therapy?
H: Yes, they are types of therapies that try to change people’s sexual orientation
D: Are those therapies effective
H: Let me define effective first: that it achieves it goals and does not harm the person undergouing therapy. And by that definiation, NO it does not show effectiveness.

D: Does the APA have a position?
H: Yes they’ve been around a long time, APA has studied them a lot. Task force was asked to evaluate the current status of these therapires, their effectiveness and safety. Produced a report in 2009: very thorough review of the studies available (there weren’t many worth reviewing) but those that do exist showed that these therapeis are of very limited effectiveness and can do some harm.

D: PX888, what is?
H: Report of the task force, on appropriate therapeutic responses to sexual orientation.

D: Turn to page in Exhibit888?
H: APA concludes that there is insufficient evidence that these therapies are effective

D: Are there specific concerns about these therapies when used around adolescents?
H: Adolescents are just developing their sexuality, and vulnerable in that they are not in complete control of their lives. And, the APA was concerned that the adolescents might not be able to provide true and informed consent; that they were coerced. Also, there is an underlying sense that these therapies view homosexuality as something that is wrong, that needs fixing, and this is espexially harmful to adolescnets

D: Turn to PX2338. What is that?
H: Pamphlet: "Just the facts about homosexuality for youth" for principals, teachers, counselors.
D: Lists the orgs that endorse that pamphlet, teachers, counselors, health, interfaith alliance, school psych, social workers, national education associations.
H: Yes, they are all listed
D: Turn to page 5 please. Lists the conclusions, please read.
H: "Despite general consensus that homo and hetero are ordinary andnormal, there are political and religfious organizations that try to change, teach children that it is bad, and this is very dangerous.

D: Can gay men and lesbians marry in California?
H: Well they can marry a person of the opposite sex
D: Is that realistic?
H: No, because of what sexual orientation means in terms of intimacy and attraction
D: Have g*L People married others of the other sex
H: Yes
D: Why?
H: They might not have known yet, they might have known and wanted a cure, but this doesn’t work
D: Is this a problem?
H: Not every one of them dissolves, but they experience considerable problems. Espexially if the spouse did not know going into the marriage, create conflict for the couple and their children and other members of their extended family and thier friends.

D: Same sex couples in CA can be domestic partners?
H: Yes
D: with almost all the rights andprivileges of marriage?
H: Yes
D: So it’s just a word difference?
H: Well no it’s a lot more than a word. People in the US are willing to give G&L people all the beneifts and rights and responsibilities of marriage under the word domestic partners. But they won’d give marriage to G&L. So clearly they see something is different about getting married. Just the fact that we are here today shows there is agreat deal of society conflict over whether G&L should be ale to marry.

D: Does marriage contribute to long term stability of relationships?
H: Yes, for many reasons, some positive also barriers to leave. Not an easy thing to dissolve a marriage: economic, social, expectations, community standards. Weknow that relationships are more likely to be enduring and stable if they are based on REWARDS. But the barriers might also keep people in a rough patch together, and maintain the marriage over a difficult time.

D: Do DPs create those same barriers?
H: we lack a lot of data, but I would say that DPs don’t have the same barriers to dissolution thast marriages do. In 2004, the CA legislature increased the benefits and responsiblities of DP. In 2004, the SecState mailed a letter to all registered DPs: do you want to go forward or dissolve your DP based on these changes? I find it difficult to imagine that if the marriage tax laws changed, the governemnt would write to all married couples to advise them they might want to consider divorce. It just would not happen.

D:here is the letter, were DPs dissolved
H: Yes, researchers at UCLA tracked dissolutions, and there was an increase in 2004, with a huge spike in dissolutions in December, perhaps in response to the letter.
D: empirical data?
H: Yes, UCLA used actual data to track that

D: PX909, is this that study?
H: Yes
D: Figure 9, shows huge spike in 12.04 dissolutions of DPs. Right before the new law went into effect.

D: Are you awaare of any studies of the effect of getting married on same sex couples?
H: MAss Public Health Dept asked a number of questions of Mass married couples (samesex). They concluded that most couples (>70%) said their commitment to their relationship had improved.

D: Familiar with term ‘stigma?’
H: Very familiar, it’s about groups viewed negatively, such that members of those groups are devlaued, looked down on, leading to the group members having less access to the levers of power: econ, social, commiunity

D: What is ‘structural stigma’
H: Well, stigma can be expressed by individualsm thru violence or prejudeice, but society can express stigma as well. Through the law.

D: Are G&L stigmatized today
H: Yes, a great deal of research shows G&Ls face stsigma. Lots of people say they have negative feelings, or even feel disgusted \by G&L. FBI tracks hate crimes for sexual orientation. National study I conducted, found 1 in 5 G&L had experienced violence. Lower percentage had experienced discrimination in employment. WE see prejudice in schools against children thought to be G&L. Think about it: many places two men cannot walk down the street holding hands.

D: How does structural stigma support that?
H: Structural stigma gives permission for individuals to express their prejudice.
D: Does this extend to relationships as well as individuals?
H: Oh yes, researchers use photographs to convey the idea of homosexuality. They get stronger negative reaction to same sex couples photos that opposite.


Now this study you did, please describe
H: We asked members of a community sample (2200 people) to the extent they felt they had a choice about being G&L&bisexual. Frequency of responses these were referred to as essentialist beliefs." 87% of gay said they no choice or very little choice; lesbians 75% had no or little choice about their sexual orientation

D: PX930, is this your more recent study on this topic?
H: Yes, been accepted for publication but not yet published, on page 278 of the MS, you see the percentages for a similar question. 88% of gay men saying they had no choice; 7% had small amount of choice. FOr lesbians, 68% said no choice; 15% had little choice.

D: Is this studied for heterosexual people?
H: No, but most hetero men and women would probably say they did not make a choice to be heterosexual. No data, but it is my strong hypothesis.

D: Please take alook at the testimony of Helen Zia: A ‘brief feeling of what equality is, tasted the water that was sweeter from the fountain that was formerly for heterosexuals only.’ Is this about stigma?
H: Yes, this shows how a person who felt stigmatized, and then briefly in 2004 she felt that difference had been removed.


Walker: Very well, Mr Neilsen?
Neilsen: More binders for you!

(Missed the beginning of this, long time to save this post)

Neilsen is asking questions about attraction vs identity, does everyone identify as G&L who acts on those feelings

N: Can gay be used to refer to both sexes?
H: Some women prefer not to be called gay, but in studies and research we call both G&L gay.

N: Sometimes an idividnuals social identity is very much tied to being gay?
H: Some individuals have a strong sense, and others do not.
N: Usually it is a continuum, from exclusively homosexual to exclusively heterosexual.
H: That goes back to Kinsey, it is generally assumed that continuum exists, but now we refer to Homo, Bi, and Heterosexual
N: But you believe ther is a continuum>
H: That can be a useful way to look at sexual attraction, yes

N: YOUr report, please. You list the three categories: Homo, Bi, Hetero. You offered that as your expert opinion, yes?
H: Yes, I did
N: Sexual orientation is relational, yes?
H: Yes
N" Not readily apparent by looking at a person?
H: Yes, unless wearing anitem of apparel or anidentifying button

N: PX2018, what is?
H: YEs, I wrote this.

N: You wrote: Homosexuality encompasses a variety of phenomeno. Although mainly focused on behavior, also refers to relationship, bonding, and ocmmnity. Yes?
H: That’s what I wrote.
N: Did you consider these definittions of homosexuality in your opinons?
H: YEs
N: You write here that homosexuality has at least five different components: desire, behavior,identities, relationship and families, and then commnunities? Were these your definition of homosexuality in this case?
H: Yes I did

N: bisexuality = homo + hetero, yes?
H: usually reserved for people who exhibit both strongly
N: But these three labels are an oversimplication?
H: Sometimes they can be
N: (reads) Homosexuality is usually understodd as a counterpoint to heterosexuality, with bi incudling both. BUt this is an oversimplication." You wrote this?
H: Yes, but then I went on to show how poeple aren’t always consistent in their overlap of differentiation of homosexuality.

N: Please go to Corsini Encyclopedia of Science of Sexuality, PX??? You wrote this?
H: Yes
N: You wrote that homosexuality is about behavior, community, and toerh things.
N: Not all people with homo attractions identify at gay?
Many men regularly have sex with other men but don’t ID themselves as gay, correct?
H: This has been observed, yes
N: PX926, entry for a paper you coauthored. "Sexual ORientation and MEntal Health" IF not in evidnce, offered. Page 355, under the heasding Historical Background, "Historically, identification of homosexuality is a modern construct, although behaviors have been around forever. "
H: Emerged in the medical discourse in the 19th century.

N: In most empirical research, more ID has been by behavior, Identification, or attraction? People might be IDed in one study as homosexual might not be in another, right?
H: The vast majority of people are consistent, but there is a small groupo of people for whom this might not be true.

N: You write that only half of those who don’t ID as gay sometimes act of gay impulse.
H: Somepeople regard their sexuality in personal terms and do not outwardly or socially identify as G&L.

N: so half in this study Id as heterosexual, half ID as homosexual, even though they all were included based on their behavior, did you use these statistics in your report?
H: Yes I have been aware of them.

N: Now the world where sexual minority youth become aware is vastly different than it was in previosu generations?
H: I would say everything about the world is vastly different than previous generations.

N: So peoples’ identification has changed?
H: (discusses the reclaiming of the word QUEER by younger LGBT, they may not use the words Gay or Lesbian or even homosexual.

N: Now let’s look at your chapter "Why Tell if You’re Not Asked" about military self-identification. Page 201, heading about sexual orientation: "Although homo and hetero behaviors alike have been common throughout human history, ways in which cultures have made sense of them have varied widely." Is that true?

H: Yes, like race, religion other identifiers.
N: So in the US is it true that homosexuality has changed its idenfication?

N: This classification focuses on the individual rather than the behavior?
H: Yes

N: Instead of (continues reading really fast from Herek’s chapter).
H: There has been an expansion of recognition of bisexuality in recent decades.

N: Does the trichotomy create three ideal types?
H: I am using the phrase "type" and "ideal type" in the sense of category.

N: Depending on the individual it might not align with behavior?
H: What I mean by "ideal" isn’t preferred, it’s "distinct"

N: Identification provides entry into alternative community nowadays?
H: YEs

N: I have this book I want you to look at.
H: Yes I want to see the book

N: Permission to approach (copies? Walker asks)
N: No I don’t have extra copies, the discussion we’re having is about the part reproduced in the binders

N: Can you id this document?
H: Never seen it
N: Edited by Lee Badgett?
H: That’s what it says, but I’ve never seen this book

N: GO to this chapter about discrimination about literature and economics. Are you familiar with Prof badgett?
H: I am familiar with her but have never seen this.

N: Offered into evidence?
WALKER: Why don’t you ask a question?
N: I have identified the books and included the chapters.

Walker: Fair enought, but let’s try a question to the witness, please?

N: Page 21, Badgett writes: The first complication in defining sexual orietnation, sexuality encompasses several different dimensions of attraction, identity and behavior. You agree with Badgett?
H: Yes, that’s what I have said
N: That there are several different distinct dimensions
H: Well yes I have used those

N: Reads more Badgett: ID LGBT people based on the frequency of same sex partners; same number of same sex contacts as opposite sex contacts.
H: Here Badgett is trying to extrapolate form survey that people didn;t identify themselves. There were some individuals who were not consistent, she is trying to explain that in the absence of beetter measure unavailable to her, she chose to use behavior as her marker.
N: Do you agree?
H: I haven’t read it.

N: But is this a reasonable approach, IDin people as LGB if they’ve had as many Same sex sex partners since 18 as oppositie sex partners.
H: Well, what we try to do when we do social science is try to explain what we do, she was having to count as LGB people who had at least as much sex contact with same sex as opposite. That might not be an ideal approach, there have been other operational definitions, lbut since we know how she used her data we can understand her work better.

H: You know Prof Badgett
N: I don’t know how she is regarded among economists, I am not one, but she is well regarded where our fields overlap.

N: Admit whole book
OBJECTION: FOundation for whole book?
WALKER: We will admit the excerpt in Tab 10, with respect to the whole chapter or the whole book.

N: Modify my request to just the chapter
Walker: No objection to admitting just the chapter.
N: Opposing counsel wants to look at book?
Plaintiffs: Well we want the excerpt not the whole chapter
Walker: That’s what I heard, we’ll admit the excerpt and reserve on the whole chapter subject to counsel’s review of the whole chapter.

N: Turn to Tab 9, book DIX950, I have a physical copy of this book. Have you read it?
H: Parts of it.
N This is byProf Badgett
H: My binder doesn’t have the full….
N: It’s black, I can see the title and that’s all.
N: YUou honorl, may I approach? (shows book)
H: Reads title "Money, Myths, and Change: the economic life of G&L"

N: Turn to the first page of acknowledgements: Over the years I’ve received ideas and suggestions, including…. Greg Herek. Is that you?
H: I believe so.
N: "Defining the books boundary around G&L doesn’t address what G&L means? fantasize? Identify as G&L? Act on G&L attraction?"
H: She is describing the three same attributes I mentioned earlier.

N: Turn to page seven. "All of these historical analyses suggest that being G&L is shaped by broad social contexts that includes economic development" Agree?
H: Applies to EVERYONE in America.

N Page 29: "sexual orientation definiation issue has produced a huge heated theoretical debate with much discussion about who is G&L"
H: Not sure what shemeans by heated debate. There’s been lots of research and discussion. I would really have to reasd her book and I can’t comment on that sentence out of context.

N: I just received confirmation that we have an email from opposing counsel that they got both these Badgett books.

N: So is Prof Badgett mistaken?
H: No I said I would have to read it
N: Would it be reasonable?
H: I would have to read it
N: Would it be unreasonable?
H: Prof Badgett is a reasonable scholar. I would have to understand the context.

N: BUt would you agree that there;s been a heated theoretical debate?
H: I don’t know the debate she is referring to; there’s a lot of heated theoretical debates in the social sciences. If you’d tell me exactly whats theoretical debate she’s referring to, I might be able to answer your question. BUt not out of context.

N: Alright, let’s go on. (reads section about frequency and recentness of same sex partners) Is it reasonable to say that ANYONE who’s had a same sex partner is homosexual?
H: I don’t know the context, but she seems to be talking about the stegths and weaknesses of operationalizing a variable.
N: Would that be a reasonable approach?
H: Well, for her study, it probably is.

N: (reads section on identity regarding same number of same sex and opposite sex partners) Do you agree with this definition of homosexuality>
H: well it would depend on the number of partners, I think. If only one of each, without knowign their current partner, or whether the other partner was in their distant past — but hers is a defnsible strategy in trying to ID LGB in the data set.
N: But leaving asied the dataset, is it true generally?
H: But she is talking methodology about this particular datsaet. If you could talk to each individual, you’d want to know more. This would be ideal, but likely not a capability Badgett had with this large dataset.


N: (Reads how people didn’t line up perfectly between their behavior and thier self-identification)
H: I am familiar with this study, this way of breaking out the data is her own.
N: Does her breakout of the data about your defnition of sexual orientation?
H: These data align very consistently with what we know: 90/10 split with some few people who weren’tidentifying themselves as we might if we IDd them based on behavior.

N: "Sexual orientation is not like sex and race in being able to identified" Agree?
H: well, typically just looking at a person you can’t tell their Sexual orientation, as you usually can with race and sex. Although you can’t always tell a person’s race or ethnicity by looking at them right away either.

Walker wants a break, Neilsen says he has many more questions since this theory of sexual orientation definition is crucial to their case.

Walker: Well you are welcome to ask questions, but I think we might like to take a break. Fifteen minutes.

Will pick up the liveblogging at the FDL News Desk here (35).

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