On Friday the plaintiffs called to the stand a witness to testify as an expert in social psychology and sexual orientation. Dr. Gregory Herek, a University of California, Davis researcher, appears to be the last in a long line-up of the plaintiffs’ expert witnesses. Initially, Herek gave his professional opinion that sexual orientation is an unchangeable trait for gays and lesbians. This is a critical issue in the plaintiffs’ case. A key legal element of their constitutional claim requires them to prove that sexual orientation is “immutable” (cannot be changed) in order to have the same high level of constitutional protection as for race and gender.
If the court sides with the plaintiffs on this and establishes a new legal precedent declaring homosexuality to be “immutable” like race and gender, it becomes far more difficult for any state to continue the traditional definition of marriage.
However, under hours of piercing cross examination by Prop 8 defense attorney Howard Neilson, Jr., Herek admitted that the evidence that homosexuality is genetically wired is “weak,” that “we don’t understand or know the origin of sexual orientation in men or women,” and that “no one knows what causes homosexuality.” In fact, he said there are at least 3 different ways of defining sexual orientation, and conceded that there is actually no scientifically unambiguous definition of homosexuality. He also explained that the number of categories of sexual orientation (straight, gay, lesbian, bi-sexual, etc.) has expanded and continues to grow as certain groups find new ways to describe their sexual orientation.
This proves up our point: If the meaning of sexual orientation is fluid and constantly changing, how can it possibly be likened to race, gender or any other “immutable” trait that invokes the highest level of legal protection?
On a practical level, a major problem for the plaintiffs’ case is the fact that one of the plaintiffs testified that she has, in fact, changed her sexual orientation from heterosexual to homosexual. Though now in a same-sex relationship, she testified last week that she was formerly married to a man whom she loved and with whom she had children. But now she is a lesbian. That sounds like a change.
So as Week Two comes to a close in this trial, and as plaintiffs appear to be wrapping up their case, there is no question that the thrust of the plaintiffs’ case has been a series of emotional appeals, rather than a legal case for changing the meaning of marriage. Testimony about witnesses’ personal feelings and changes of heart—no matter how moving and emotional they may be—are simply not legal evidence that the United States Constitution gives gays and lesbians the right to redefine marriage for the rest of society.
In fact, when the video cameras stop rolling and the sensationalism of this trial fades away, it will become clear that plaintiffs have essentially presented a political argument—not a legal claim. Such a case belongs in the public debate, not a courtroom.
