Bench Memos

Anti-Prop 8 Myths #10 to #14

See Myths #1 to #5 and Myths #6 to #9

More myths and distortions in plaintiffs’ anti-Prop 8 brief:

Myth/Distortion #10: “[T]he vast majority of gay men and lesbians … are ‘consistent in self-identification, behavior, and attraction throughout their adult lives.’” (Brief at 33 (emphasis in original).) 

Reality: The internal quotation is to one of Judge Walker’s findings, but that finding (#43) says that “the vast majority of people”—not the vast majority of gay men and lesbians—“are consistent in self-identification, behavior and attraction throughout their adult lives.” This distinction is important, for the main study underlying this finding—a study that plaintiffs’ expert Professor Herek recognized as “authoritative” on these matters, Tr. 2141—belies plaintiffs’ representation.  That study found that among individuals who reported some degree of same-sex behavior, desire, or identity, only for 24% of men and 15% of women did all three categories overlap. See PX0943 at 298-99.

Myth/Distortion #11: Proponents argued below “without the benefit of evidence” that “sexual orientation could shift over time for some individuals.” (Brief at 32.)

Reality: Proponents’ arguments were supported by ample evidence, see PFF ##158-60, including evidence from plaintiffs’ own experts. Professor Herek, for example, has written that “some [people] experience considerable fluidity in their sexuality throughout their lives,” PX0918 at 149, and at trial he acknowledged that “sexual orientation … may vary throughout the course of a lifetime,” Tr. 2234-35.  And focusing on women, plaintiffs’ expert Professor Peplau has written that “[f]emale sexual development is a potentially continuous, lifelong process in which multiple changes in sexual orientation are possible,” DIX1010 at 5, such that “the concept of erotic plasticity is the cornerstone of a new paradigm for understanding women’s sexual orientation,” DIX1229 at 12.

Myth/Distortion #12: Homosexuality is “a characteristic with which [plaintiffs and hundreds of thousands of gay men and lesbians in California and across the country] were born.” Brief at 53. 

Reality: Ample trial evidence demonstrates the lack of scientific support for the notion that homosexuality is a biological trait that a person is born with.  See PFF #156. Again, much of this evidence comes from Plaintiffs’ own experts. Professor Herek, for example, acknowledged that “we don’t really understand the origins of sexual orientation in men or in women,” Tr. 2285, and found in one study that nearly 40% of gays, lesbians, and bisexuals reported experiencing at least some amount of choice in their sexual orientation, PX0930 at 27. Also in evidence is the American Psychiatric Association’s 2009 statement that “to date there are no replicated scientific studies supporting any specific biological etiology for homosexuality.” DIX1278 at 2.

Myth/Distortion #13: It is “uncontroverted that an individual’s sexual orientation bears no relation to his or her ability to perform or contribute to society,” and “Proponents admit as much.” (Brief at 31.) 

Reality: In the very document plaintiffs cite for this proposition, Prop 8 proponents expressly denied that “sexual orientation bears no relation to a person’s ability to perform or contribute to society.” PX0707 at 6.  Proponents did admit that “same-sex sexual orientation does not result in any impairment in judgment or general social and vocational capabilities,” id. at 7, but proponents have made clear their view that this general truth does not apply when it comes to matters related to procreation. Before trial, for example, proponents offered to stipulate that “[w]ith the exception of certain matters relating to procreation, an individual’s ability to contribute to society is not affected by whether the individual is a gay or lesbian.” Doc. #159-1 at 1 (emphasis added). 

Myth/Distortion #14: The evidence “leads inexorably to the conclusion that Proposition 8 was enacted solely for the purpose of making gay men and lesbians unequal to everyone else.” (Brief at 16; see also Brief at 51 (Prop 8 “was motivated by a bare desire to make gay men and lesbians unequal to everyone else”).

Reality: I won’t document here the series of errors on which plaintiffs’ culminating absurdity rests. I’ll limit myself instead to pointing out that plaintiffs themselves can’t even maintain this absurdity. In the end, they concede that they “[o]f course [do] not mean that every voter who supported Proposition 8 was motivated by malice or hostility toward gay men and lesbians” (Brief at 52), but they provide no basis at all for quantifying which voters might have been so motivated. That presumably explains why they end up dismissing as irrelevant the actual purposes that voters may have had: “whatever the reason that voters supported Proposition 8, the fact remains that it embodies an irrational and discriminatory classification …” (Brief at 52). In short, they end up running away from their own myth.


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