Day 9 of the Prop 8 Gay Marriage Trial: Who Needs Marriage When You Have Bisexuality, You Slippery Slopes?

Ok! Welcome back! Did you have a good night? Did you have any nightmares about Dr. Tam? It’s ok, I did too. Today there is no more of him, there will mostly just be other people, and I have not been able to obtain any wine or tea for the writing of this recap, SO.

Last time on Judgment Daze: The h8ers tried to prove that America has gotten way more accepting of the whole “gay thing” in past decades. That was about as convincing as their argument that gay people like to beat up little old ladies and Christian folk singers. The aforementioned Mr. Tam was really confused/bigoted/CRAZY and made our hearts hurt with his testimony. He said that as an Old Chinese man, he was unable to forsee ending up in court having to defend his crazyass statements, and answered in the affirmative on topics including homosexuality leading to child prostitution, molestationand old ladies getting beaten up. The sheer ridiculousness of the h8ers case was pretty obvious, at least to us!

Part One:

Let’s Define Sexual Orientation Just For Funsies

There is some confusing talk about how the day should be structured, like who should call the witnesses and who should cross-examine, and we decide to do it the way we’ve been doing it before, which sounds fine to me? Are these defense or plaintiff witnesses? I think maybe they are defense witnesses, but it’s still the plaintiff’s turn? Probably not. Sorry, I’m dumb. This makes no sense to me, but Judge Walker says “that has been done before and can be done again,” so I guess we’re ready to roll. It’s kind of like the whole top/bottom thing. Anyhoo.

The first plantiff witness for today is Dr. Gregory Herek, who got a Ph.D. in 1983 in social psychology and then went to Yale as a post-doctorate. He studies “attitudes of heteros towards lesbians and gay men,” and “attitudes towards HIV,” which was a big deal in 1983 and is still a pretty big deal now. Now he teaches the class “Sexual Orientation and Prejudice” at, I think, UC Davis. He intends “to offer an opinion on the nature of sexual orientation and how it is viewed by psychology and psychiatry today, the effect of intervention therapy and how stigma relates to Prop. 8.” Well ok then!

The first thing they do is talk about the “definition” of sexual orientation, which has been a legit obsession for the Prop 8 side this entire trial. Herek says he defines it as “intense sexual attraction to men by men and to women by women and pattern of identification and behavior… In public health research, the focus is on STDs, so it’s defined in operational terms according to sexual behavior. In other contexts, would focus on identity because we look at discrimination.” He confirms that the American Psychiatric Association, the American Psychological Association, and other major health organizations have all gone on the record saying that homosexuality is normal, i.e. not pathological, and that there is “no inherent relationship between [sexual orientation] and ability to contribute to society and lead a happy and fulfilled life.” He says that in the 1952 DSM homosexuality was a “mental disorder,” but in 1975 there was a (successful) push to change the classification.

Judge: What led to the change?
Herek: That’s a long story.
Judge: Well, we’re here for a while.

No joke. I love Judge Walker. Basically, Herek answers that the 1952-era classification was in an time when all knowledge about homos was based on “hearsay,” and then what do you know, when someone manned up and actually did some research, they realized they were wrong. Turns out looking at the first hit you get on Yahoo is not empirical data! Sorry, still not over Tam’s testimony from yesterday!

Now we’re getting down to the big questions:

Us: Do people choose their [sexual orientation]?
Herek: I did research that shows that vast majority of gay men and lesbians, and bisexuals as well, say that they experienced very little choice.
Us: Have [“reparative” or conversion] therapies been proven effective?
Herek: First, define “effective.” Does it consistently produce change and does so without producing harm to the person involved? With those definitions, no, reparative therapy has not been found effective… [an APA task force] did thorough review of literature. First, there were not many high quality studies that showed effectiveness. When they did look at those, there was very little effectiveness and potentially harm. The participants in this body of research continued to experience same sex attraction [following treatment, and did not report] significant change to their-sex attractions that could be empirically validated, though some showed lessened physiological arousal to all sexual stimuli. Compelling evidence of decreased same-sex sexual behavior and of engagement in sexual behavior with the other sex was rare.”

He also notes that he “found many anecdotal reports that showed harm.” Somewhere in this courtroom, Ryan Kendall is murmuring “TRUTH” to everyone sitting around him.

And in case none of that was clear enough, here’s the final conclusion from a study the APA did in 2009:

Be it further resolved that the AM Psych Assoc reaffirms its position that homosexuality per se is not a mental disorder and opposes portrayal of sexual minority youths and adults of mentally ill due to their sexual orientation;
Further resolved that the APA concludes that there is insufficient evidence to support the use of psychological intervention to change [sexual orientation].
We also talk about where we stand with marriage now — queers can in fact get married in CA, but only to strais. Herek notes that this may actually happen with people who have not yet realized they’re gaymos, or that they might know but get married anyways because of “social pressure.” Rick Jacobs notes that this shit can make you suicidal: “Don’t try this at home.” And now while Herek says that domestic partnerships have “significantly the same rights as marriage,” that the difference between the two institutions is not just a word. According to him, if it were really only a matter of semantics as we’re so often told, we wouldn’t be having this trial to begin with.

Also, it’s not the same AT ALL YOU GUYS. It’s not the same at all!

The fact that this is an issue at all, the fact that so many straight people are willing to grant tax exemptions and joint custody of golden retrievers and shared Costco memberships and anything except the word “marriage” is in fact proof of how important it is, proof that the difference between those two things mattered.

I’ve never heard it argued this way before, but it seems so obvious now. It’s like when your mom put the cookie jar on the highest shelf and tells you you can’t have it because after all it’s only full of cough drops anyways — don’t play with me, woman! If there wasn’t something worth having there, you wouldn’t be so greedy about it. This is supported by the huge spike in the dissolution of DPs just before marriage became legal – because those weren’t what we wanted, what we wanted was for our grandmas to see us in our wedding dresses and cry because they’ve been hitting up the open bar at our WEDDING because we got MARRIED.

And in related news, we’re just going to do a quick refresher on stigma:

Herek: Gay men and lesbians are stigmatized based on great amount research. Great amount survey data that shows that Americans feel disgusted by gay men. FBI and state of CA track hate crimes against LGB. National survey found that 1/5 of homos had experienced violence in lifetime. Slightly lower had experienced some form of discrimination in employment. Children in schools feel negative pressure if perceived as l or g. Two men walking down the street holding hands feel pressure… By definition, Prop. 8 is part of structural stigma.

Okay! I think we’re done here!

Part Two:

Just Go With the Flow…

Now it’s time for the cross. The h8er starts out by coming back to this thing about how you define sexual orientation or same-sex attraction. I’m sorry, but I just don’t “get” this. Is this just, like, a thing for straight people? Can you imagine a queer cornering you and getting all up in your face about “Well, what does it mean that you’re a lesbian?” IT’S NOT THAT COMPLICATED.

Anyways, Herek and his h8er more or less agree that gayness is “patterns of behavior and identity as well as enduring patterns of affections,” and “not fleeting, something that constitutes a significant period of a person’s life.” We go on for a while about the difference between perceived identity and personal identity, about whether an individual person may or may not identify with the Big Happy LBGTQQIASXW Family, and whether or not it is okay to use the word “gay” to describe gay people.  Blah blah blah Kinsey scale, it can be “a useful way to think about sexuality,” yes the three labels of gay, lesbian and bi can be “oversimplifications.” I feel like this isn’t even about the case, I feel like this Nielson dude is just VERY CURIOUS.

Ok ok ok, now we are talking about people who don’t identify as LGBT. Herek confirms that there are people who have same-sex attractions but don’t act on them, like men who have sex with men but don’t identify as gay. I feel like the groups they are talking about are just “truckers,” “inmates” and “unhappy people,” but I’m sure this is an important point for them or something, so.

Herek does not seem super into answering questions the way the h8er clearly wants him to, and so the lawyer just kind of starts talking on his own: “Indeed, two leading researchers in this area estimated that only half of those who have same sex sexually identify as lesbian, gay or bi.”

Um, indeed! Was one of those “researchers” a blog that Mr. Tam found on Ask Jeeves in 2002? We may never know. Luckily Herek (I keep wanting to nickname him, like Herkman, or the Herkmeister, or the H-Train) is on it:

Among youth we see embracing of the word queer, and they use that as a label of description and yet that was an epithet. Youth self identify as queer, so gay, lesbian and bi may not be fully applicable.

He really dislikes the Prop 8 lawyers. But maybe that is just because they are dumb:

N: I have a copy of the book here. Do I have to show it?
Judge: Let’s let the witness make that decision.
H: I would like to see the book.
Judge: Do you have a copy?
N: No.

Um what? What is this, poker? Clue? Liquor in the rear?

Also the lawyer has not asked an actual question in like ten minutes now, he is just going on about that f*cking book. Judge is getting a little impatient. “Why don’t we try a question?” Yes, why don’t we. Blah blah blah, he talks about how “consistent” someone has to be before they are defined as hetero or homo. “Do you agree that if a person had as many same-sex as hetero partners since 18, they are lgb?” I mean, why? What is your deal, dude? I guess they are trying to prove that “sexuality is fluid” because they think that is code for “you can change your sexual orientation if you want to.”

So I guess that’s the solution you guys. When you’re ready to get married, just flow your ass on over to the straight side.

I am getting progressively less and less worried about the Prop 8 side and more and more embarrassed for them.  Does this guy have a bisexual girlfriend and he’s really afraid that she’s going to leave him for some vadge? We’ll never know. Regardless this isn’t therapy so let’s get going.

Rick Jacobs thinks that “he wants to make clear that if there is same-sex marriage, we’ll not have a good definition of homos.” I’m not arguing with him, but is that real? Is that a thing? Do they have a file cabinet on us somewhere in a basement, and their world will fall apart if they have to change the index cards? Maybe I’m just not getting this, but is there a reason why this matters?

Also, man, whatever else you might want to say about the h8ers, they are defo terrible scientists.

N: Reads from Badgett: Do you agree that someone who has had as many same sex as opposite sex partners is not strictly hetero?

H: Probably depends upon the number of partners in each group. If a person reports having had one of each in their whole life, it could be difficult to determine because we don’t know when they had those relationships. Could have had one or other a long time ago, and we don’t know length of time of each. Can’t know without looking at the data set.

N: Leaving aside the data set, do you agree that as many same sex as hetero partners mean they are not hetero?

H: You can’t leave aside the data set.

Even I know that! And I’m an English major! Look, honestly, all of this is ridiculous, even the judge has been asking “When might be a good time to take a break?” for ten minutes now. I’m not going to recap this, pretend it’s a commercial break or something. I will mention, though, that aside from the fact that the last half hour has been a huge waste of time arguing about whether each individual person is L or G or B or ALL THE COLORS OF THE WIND, Rick Jacobs makes one really important point: Nielson doesn’t even realize this, but he’s proving our case. He’s spent what feels like my entire night talking about “the definition of homosexuality” and presumably how it will affect “the definition” of marriage, but you know what?

Have you ever heard anyone talk about the definition of heterosexuality? No. Because it doesn’t matter. I mean, what is the point? Honestly, what is he trying to say? That if we don’t know who’s straight and who’s gay that people will just go marrying whoever they want, willy-nilly, doing whatever their feelings and heart tell them to do? I’m sorry, but I just can’t get upset about that. I don’t understand who would. And defining sexuality by how many same-sex or opposite-sex partners you’ve had? Hello but the proverbial Lonely Lez in the midwest who might have only one willing lady partner in a 50 mile radius of her home could be as gay as blazes and still end up boning more dudes than chicks because it’s boring in the cornfields, right?

I mean really if we’re all bisexual, then shouldn’t all of us bisexuals get to choose who we want to marry from our total pool of prospectives instead of from just one gender OH MY GOD NEVER MIND IT DOESN’T MATTER. THIS IS SO IRRELEVANT.

We have a quick break in which the judge asks our lawyer “So if the defendants finish their cross 90 minutes before 4 P.M., you’ll finish your case today?” Based on his answer, it’s not clear if this will actually happen, but it does mean we are apparently super close to this being over, like there is maybe only one more day of this trial. And I have to be honest, as far as I can tell, the h8ers have not done a single impressive (or even just not embarrassing thing) yet. I can’t say for sure that we won’t end up losing again and that I won’t end up crying and drinking on a Wednesday at 3 pm again, but I am cautiously optimistic!

Anyways, back to the dumb-as-a-pile-of-rocks cross-examination that has been going on. The h8er has asked a million times if there is a “real” definition of homosexuality, and Herek has answered “Yes, but it’s a little complicated” one million different ways, and we are all bored. Apparently the Encylopedia is on trial.

Then, this happens: “Given measurement problems, one could seriously doubt that sexual orientation is a serious concept at all. Do you think that is unreasonable?” ALL IN FAVOR SAY AYE.

First of all, this is stupid because they’ve done a terrible job proving that “measurement problems” exist. Second of all, are they impaired somehow in their thinking? Like, is this making sense to anyone? That’s like taking the fact that racial differences have no genetic basis (which is true) and then deciding that because of this, racism doesn’t exist. Am I wrong? If sexual orientation weren’t a “serious concept,” y’all crazy motherf*ckers would not be freaking out about your daughter marrying a f*cking princess. Why should you even care? Doesn’t that mean she gets to be a princess too? That would be awesome. I wasn’t sure what their point was for a long time, but now I see that was because their point was f*cking stupid. Really? You’re trying to prove that the entire IDEA of sexual orientation is made up? I don’t even know what to say.

They should replace that show Are You Smarter Than A Fifth Grader with Are You Smarter Than A Proposition 8 Attorney, Yes You Are.

Basically, what they’re going on here is that the functional definition of homosexuality that’s used for research relies upon more than one factor, which does not make it a fuzzy definition by any means, just an accurate and multidimensional one. I hate people who are afraid of complicated things.

And also that there are some people who have been observed to “engage in same-sex sex” (does anyone else feel like this makes us sound like fruit flies or something in a lab?) without identifying as gay. Okay. So what?

You would think that after listening to Dr. Meyer bring some righteous gay knowledge into that courtroom, they would understand that the enormous, monolithic, glacier-like immobile social forces of homophobia and stigma mean that a lot of people are hesitant to identify as anything. If there’s no reliable definition of homosexuality, it is your fault! Maybe I’m just tired, is it me or does this really not make sense at all in any way shape or form?

Or is it just that I’m trying really hard to figure out what any of this has to do with sexuality and I’m totally failing?

Part Three:

Apparently it’s Tangent Day

Now we’re talking about “Miss Steer’s testimony,” I’m sorry, who the f*ck is Miss Steer? Did we talk about her, and I missed it? Oh wait maybe she is one of the plaintiffs, it is embarrassing that I do not know that. She is a lesbo but WAS MARRIED TO A MAN ONCE OMG, and apparently has been quoted as saying both that she loved him when she married him, and that she wanted to have a meaningful marriage to him. The h8er clearly thinks this is a SMACKDOWN, that he just proved that all it takes is a little elbow grease to learn to love dick. He’s wrong, though, because I totally had a crush on Tobias in the Animorphs series when I was 13 and he’s not even real but anyway he’s a hawk now, it happens to the best of us, you can like anybody by accident. Herek agrees:

“That’s what I’ve been saying all morning. People are raised to think they are supposed to be hetero.”

Thankyouverymuch. The h8er also reads from Steer’s testimony that she had to have a certain amount of same-sex experience before she identified as gay. I think the problem here is that this guy is fundamentally dumb or just wildly misinformed. Like, I think that what he thinks that means is “she had to practice a lot before she was able to be a real lesbian.” Which, if he believes that is true, I understand why he would be confused. Why can’t you just log a few dozen hours and turn straight again?

This would be relevant in a trial over the ethics of gay conversion camp. Unfortunately this is not that trial, so what the fuck are we doing here.

Herek corrects him: “What she’s describing here is that she experienced these attractions as an enduring pattern. Once she saw that enduring pattern, she gave that enduring pattern a name.” I really wish the attorney actually listened to that and thought about it, but I think that’s too much to ask. More cold hard truth from H-Money:

“In this study (over ten years of women), she recruited women who called themselves bisexual, lesbian or hetero. She says that the patterns of sexual attraction by women remains fairly static. Most of movement was between groups who moved from bisexual to unlabeled [girl, don’t I know it]. Very few if any who adopted a label changed from lesbian to heterosexual. This is about labeling, not about attraction. In other words, the change took place from labeling, not attraction.”

Can we please be done now? OMG what if this never endsssssss. There has been one study ever where a large number of people said their sexuality changed, and they were obvs very religious. I don’t know where those people are now, but I bet they are unhappy.

We’ll pray for them.

Oh Lord, not only are we not done, we are getting even worse. He’s putting up a letter from Freud in 1935 as evidence. Firstly, I’m sure I could find a lot of things from 1935 that would go against most everything that is accepted in modern society besides like the best techniques for making jam. Secondly um, didn’t Freud think the reason women were sad was that they had a bad attitude about getting raped? Is this really where we want to be getting our information on anything? Even after a quick little exchange in which Herek confirms, again, “that current interventions that have been designed for the purpose of changing [sexual orientation] have not shown to be effective. Certainly, due to societal stigma, some have said they want to change, but we have not seen it work and it is not safe,” Nielson still wants to look at this f*cking letter. Apparently Freud says “in a certain number of cases we can succeed in lighting the germs of heterosexuality present in every homosexual.”

The dude thought heterosexuality was a germ. I would not call this the frontier of scientific discovery on this matter. Is this the best they can do? Also, oh my GOD you people, even FREUD didn’t believe in conversion therapy. Later in the letter it says “What analysis can do for your son is to bring him harmony and peace of mind whether or not he remains homosexual.” Freud was a crazy motherf*cker with a cocaine addiction and serious mommy issues, and even he managed to figure this out. What is your deal?

Also Freud had an agenda. A Dude Who Wants to Get Laid Agenda.

This cross-examination may literally never end. It’s like Groundhog Day or something, except it’s Ask The Witness What The Basis For Sexual Orientation Is Day, and it will happen over and over again until I die. Now they’re talking about the education rate and income rate of gays, and Nielson is pushing really hard and being really disagreeable about, like, whether a family’s economic status might make them more statistically likely to be accepting of homosexuality. (Or, as it’s phrased literally in the transcript, “A family’s economic status might allow for more homo.”) What would it even mean if that were true? That our sexual orientations came from Sotheby’s, us rich people were able to buy them at auction? Is there some kind of plan to their line of questioning, or are they just zigzagging trying to confuse and exhaust their prey so they can kill it and then store it in a tree to eat later? And if people only feel safe coming out when they have the financial stability to not need community support systems ISN’T THAT AN ISSUE?

Now he’s asking about a study done that apparently implies that women’s sexuality is more affected by environmental factors than men — “erotic plasticity,” we’re calling it. This is annoying because now if we lose I’ll feel like it’s our fault for being plastic erotic or something.

Also, while I guess it’s possible that that’s true, I feel like it ignores a lot of things about what life is actually like for women? Women have historically had many, many fewer choices in a lot of arenas, and sexuality is definitely one of them. When you say our sexuality is “affected by environmental factors,” do you just mean that a lot of decisions about our sexuality are made for us, depending on the environment we’re in? Like, depending on the part of the world you live in, you might very well be “straight” because you have to get married, and you have to marry a man.

Or you might be “bisexual” instead of a lesbian because it’s hip for girls like Ke$ha and Marisa on the OC to date girls sometimes but actual dykes aren’t acceptable. Or you might be a lesbian instead of bisexual because in the area where you live, men are so threatened by the idea that you ever ate pussy that they refuse to date you. Is this making sense? I guess it just rings a little false to hear someone say “Those women! They just have sooooo many options when it comes to their sexuality, and they just try everything out!”

Thank sweet Lord Jesus, that cross-examination finally ended. We get to redirect now! Obvs there is some good stuff here, our lawyer confirms that a lot of the same labeling/identity/definition issues come up in studies on race and ethnicity, and no one argues that those social categories don’t exist (except I guess Glenn Beck, but he also spells Glen wrong, so), and that while there is like one study ever that makes it look like some people have changed their sexual orientation, it’s not super legit, and it’s better just to rely on the APA information, which says conversion therapy is wacko like tobacco. All that is good, but really, you only need to know this.

D: If two women want to marry each other, is it a reasonable assumption that they are lesbians?

Herek: Yes.

D: Is it a reasonable assumption that if two men want to marry they are gay?

Herek: Yes.

D: I have no further questions.

Ok! And we’re done! Which is good, because I haven’t seen the most recent episode of 30 Rock, and I would like to do that now. Our side is going to do 90 more minutes of presentation on Monday, and then the other side is going to start calling witnesses, like that Blankenhorn guy. I think these are their only two witnesses? Lord, I hope so. I think they are both just dudes who believe in conversion therapy, which is obvs not real like the jackalope, so maybe we can finish this up soon. Yes! Have a good weekend! Make safe choices! Watch out for h8ers!

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Originally from Boston, MA, Rachel now lives in the Midwest. Topics dear to her heart include bisexuality, The X-Files and tacos. Her favorite Ciara video is probably "Ride," but if you're only going to watch one, she recommends "Like A Boy." You can follow her on twitter and instagram.

Rachel has written 1142 articles for us.


  1. FIRST! I have an advantage I guess ’cause I just published this so I could be first. Okay ahyyY!

    I just wanna say that even if you do marry a lady and you are a lady or if you marry a man and you are a man, you can still be bisexual. I mean, I don’t want to like ever disagree with our side, but I wish that he’d ended on a different note, like “does this whole thing have anything to do with anything? no? okay, thank you and good night!’

    1. H: You can’t leave aside the data set.
    Even I know that! And I’m an English major!
    2. Was one of those “researchers” a blog that Mr. Tam found on Ask Jeeves in 2002?
    3. He’s wrong, though, because I totally had a crush on Tobias in the Animorphs series when I was 13 and he’s not even real but anyway he’s a hawk now, it happens to the best of us, you can like anybody by accident.

    • You know I didn’t even think about it when I was reading this, but you bring up an excellent point. It always bothers me that some people think that just because a bisexual woman falls in love with a man then she has gone back to being straight or if she ends up with a woman that she has transitioned over to being gay. It’s the whole Both v Either argument. I think so many people think that the only way you can be bisexual is to like men and women equally and want them both, but its a matter of being fully satisfied by either, not both. Its just like myself, as a lesbian, if I am in a committed relationship with a woman, I don’t stop being attracted to other women just because I am committed to one person; therefore, as bisexual, you can be with a man and still be attracted to women or both, but you choose to be faithful to one person regardless of their gender. If I like everything on the menu at Olive Garden, but I can only choose one item for my dinner… the fact that I commit to eating fettucini alfredo doesn’t mean I like chicken parmesan any less. you know? ok, that was a rabbit trail. whatever, you get it.

      • “If I like everything on the menu at Olive Garden, but I can only choose one item for my dinner… the fact that I commit to eating fettucini alfredo doesn’t mean I like chicken parmesan any less. you know?”


    • Yeah, I was about to say.

      The fact that I’m planning to marry my girlfriend in a year doesn’t mean that I’m still not attracted to/don’t fantasize about men/other people who don’t identify as women.

      Although I think the sticking point here might be “reasonable assumption.” In our society, I guess it is reasonable to assume that two women marrying each other are lesbians or whatever because most people in that situation ARE. But yeah, I found that annoying too. >:(

    • In fourth grade I had a monster crush on Hannah Cohen because we both liked Rachel from the Animorphs. Turns out, she was just a big fan of strong female protagonists. Turns out, I was a big ol’ gaymo. :)

    • You guys, I had a long discussion with my mother today about this trial. And I was like BAM here’s a fact BAM here’s another fact BAM look at how knowledgeable I am, TRY AND ARGUE WITH ME YOU CAN’T. She wasn’t trying to argue, but still, I would’ve won. So thank you, Rachel!

      Also, I am going to follow Riese’s lead and point out all of the parts that I loved:
      1) It’s like when your mom put the cookie jar on the highest shelf and tells you you can’t have it because after all it’s only full of cough drops anyways — don’t play with me, woman!
      2) The animated .gif of Amy Poehler. <3
      3) They should replace that show Are You Smarter Than A Fifth Grader with Are You Smarter Than A Proposition 8 Attorney, Yes You Are.

  2. Unlike the brilliant mind above, i just felt like saying “Funsies” is about the greatest world ever. Sorry guys, i let you down….no epic insight here….

  3. Okay. I’ve got it. I finally understand what’s going on. The h8er lawyers aren’t h8ers at all. They’re actually on our side and they’re doing this crazy-ass stupid job in order to lose on purpose.

    Yay for the defense lawyers!

    • I feel like I was reading something in the Blawgosphere (that is, the world of lawyers who blog) that argued essentially this. That the lawyers, recognizing that they have a losing case, are going so far as to try to lose so that they can later argue that the activist courts usurped the will of the people and raise more money.

      Which would seem crazy, but for the fact that even their expert witnesses seem to be on our side, at times. And traditionally in an adversarial role, you want to not be arguing for your opponents.

      • yeah, NOM has already said they expect to the pro-8 side to lose because of activist courts and such and I had about a 3 second glance at the pro-8 blog and it was all about how our side is trying to Destroy Religion and Persecute Christians.

  4. The whole point of this stupid rhythm-less tap dance is to make homosexuality seem like a choice. And if they can provide enough reasonable doubt about homosexuality being inherent or not, then they can make it appear that we are in fact NOT a minority because it is something we can choose to get out of. And if we aren’t a minority, then clearly prop 8 is not the majority voting to take away rights of the minority if we aren’t a minority.

    Also, your recaps are definitely the best part of my day.

  5. I just read the first bit of this day on the prop8tracker blog and am hoping maybe Jessica can clear this up for me.

    They are talking about entering depositions and counter depositions. So does this mean they are submitting written responses from witnesses to the judge that were not necessarily questions brought up in court? How does this work exactly? Will these files be made public?

    • Before a case gets to trial, there’s generally a lengthy discovery process. During this time, the plaintiffs seek to figure out everything the defense will present at trial and vice versa. (Despite what television courtroom dramas may indicate, there are few actual surprises at trial. Good lawyers don’t ask questions in trial unless they know the answers).

      Depositions are one of the ways that each side figures out what the other side intends to present at trial. It’s basically like putting someone on the witness stand before trial. The witness is under oath (meaning they have to tell the truth or they can be subject to perjury charges), and there’s a court reporter present to record everything. Just like at trial, both sides get to ask questions.

      These are generally for discovery purposes, but there are two ways that a deposition can come into a trial. First, if a witness changes his or her story once they get on the stand, a deposition can be introduced to impeach the witness’ testimony/demonstrate that the witness isn’t credible. Second, if the witness isn’t available or isn’t called at trial, it may be introduced. (I don’t have my Federal Rules of Civil Procedure here and may be missing details, but those are the basic rules).

      So, basically, they want to introduce the depositions into the trial record. And it seems the our attorneys are objecting to some of the introductions, on the grounds that the witnesses deposed are addressing matters they aren’t qualified to address. Anything admitted becomes part of the trial record; with rare exception, this means that they will become public documents.

      (That was probably far more detail than you were looking for. Sorry)

      • Not at all! Thanks so much! You just saved me a lot of googling about for reliable sources on my own. :)

  6. I kind of hate how we’re having to prove that homosexuality/whatever is not a choice because I think that’s extremely simplistic… I kind of hate the essentialist argument because I feel like it doesn’t take everyone’s experience into account – there are certainly GLBT people out there who DO feel like they made a choice. And in a way, so did I – when I started seeing my partner, I had plenty of male suitors. But I chose to be with Des. What does that say?

    I dunno. I wish we could just run this as a gender discrimination trial, but my much-smarter-at-law-stuff-and-most-everything-else brother says it wouldn’t work anyway. :(

    • Yea, it really should not matter whether it is a choice because even if it is established as a choice, then inversely heterosexuality would also be a choice. And if heterosexuality is a choice, and straight people are allowed to marry whom they choose, then we homos should also be allowed to marry regardless of the origin of our orientation.

      • I agree that it shouldn’t matter if it is a choice, but I can see the legal need to establish that it isn’t. Religion is the only suspect class that is clearly changeable, but given how religious this country is that’s hardly surprising.

        • yet we don’t tell anyone of any religion that they can’t get married because they should just convert to something else if they want to get married since it’s changeable.

    • You make a choice to be with a person or to accept your sexuality, I get that. But the way I look at it when I say sexual orientation isn’t a choice is to ask: did you decide to be attracted to women? Or did you choose to acknowledge/act on an attraction that was already there?

      I’m not posing these questions to say that you couldn’t feel you’ve made a choice, but rather because I’ve just never spoken with anyone who has felt they had and want to understand better where you are coming from.

      I’m not sure this is making any sense, I should probably not post things until I’ve had my first cup of tea. So I’ll go start a brew.

      • And considering the amount of discrimination the lgbt community undergoes, i don’t think anyone would actively choose to be part of a persecuted class. If we really can change and choose, why do they think we would choose to be part of a struggling-for-rights minority. Most people, in my opinion, in the beginning would choose to be straight if they could, but the fact is that you just can’t help who you love. YOU JUST CAN’T HELP WHO YOU LOVE, AMERICA! Stop trying to define it and put it in a test tube. I wish we could put this a-hole lawyer on the stand and ask him about his sexuality. I would nail the son of a bitch with all the semantic bullshit he has thrown at us.

      • Well, I’m not saying I agree with them 100%, but look at the link on my name up there. There is certainly a minority who does feel that way

        • There have been bisexual women since the beginning of time, but in recent years there’s been a remarkable uptick (I actually conducted a survey myself of over 500 women for a book I was doing on bisexuality in 2006-7, and i’m gonna um do something with all that data someday!) in the amount of bisexual girls who choose girlfriends.

          I know choose is a dicey word, but 10-20 years ago, anyone who felt equally attracted to men or women might not even consider pursuing a female partner, considering how high the deck was stacked against us economically and politically. But as lesbian visibility improves and our political power gets slightly better, many bisexual women truly do feel the freedom to fall for the person, not the gender (“the heart, not the anatomy”). In a way, that is a choice. Because I mean theory aside, a bisexual can choose to avoid gay people if she wants and marry a man and be happy. I did that myself for about six years.

          So no, I don’t think that being gay is a choice, I do believe in the “gay gene” which can also be a “bisexual gene” too. But i think it’s also incorrect to say that anyone who had the “choice” would choose to live a heterosexual life.

  7. “Can you imagine a queer cornering you and getting all up in your face about “Well, what does it mean that you’re a lesbian?” IT’S NOT THAT COMPLICATED.”

    Change “lesbian” to “bisexual”/”pansexual”/”i don’t care about gender or sex” and it pretty much describes a few of my encounters. Straight people don’t care as much.

    That said: +1 to the discussion above about bisexuality, and +1 to the comments just above me about choosing. Does it really matter if it’s a choice, not a choice, current trend? You don’t get straight couples being interrogated over whether they chose their partner or if it was a hormonal thing or what. If it’s not abusive, if there’s consent on both sides – WHY NOT LET THEM MARRY?


  8. The writer of this articale is mistaken about Herek. Herek isn’t a defense witness. He is witness for the plaintiffs

    • THANK YOU!

      i read liveblogs of the trial during the day, and reading this recap written with that fundamental error was making my brain hurt :-)

        • ok it should be fixed now, let me know if anyone sees any other errors.

          sigh, she made so many good jokes about how weird it would be if he was a defense witness.

          • It was really confusing on the Courage Campaign blog because they said “Cooper: We’ll respond by plaintiff’s calling our experts as his or her own witnesses.”

            So it sounds like the bad guys had Herek submit a deposition as an expert and then the good guys called him a a witness? Anyway, thanks for fixing it!

          • yeah, i was super confused, sorry about that guys! the only things i know about trials come from the seventh grade when we did a mock trial about the Aboriginals vs. the Australian Government and I was the Environmental Expert. so basically i’m terrible at this, sorry again.

          • Rachel, your work on this trial journal is beyond superb, you really make me feel like I am right there. Thanks!!

  9. This is hilarious! You have some serious recap stamina. Also the vampire king in Being Human (BBC show) was called Herrick, which is pretty much the same as Herek so I had him in my mind all through reading this which made it all the more awesome.
    You really can’t leave aside the dataset, you guys. It makes scientists sad. (I mean real scientists not weirdo h8er ones who like to use something they saw in their crazy mind as evidence or have a PhD based on a google search they did one time.)

  10. These recaps generally make me feel saner
    play nice with the Midwest! There are lonely lesbians and bigotry everywhere, not just between the coasts.

  11. W/o reading everything, I got super excited that Dr. Herek was included in the trial. Why? I’m a sociology minor and in a class on Deviance and Social Control, I did a research project on attitudes of college students on gays and lesbians and used much of his research to guide me! I also used him for a study on violence against gay and lesbian youths! He’s done so much research in this field and if anyone’s interested, you should really read some of his work. It’s enlightening.

    To me, sexual orientation is not the choice. You’re attracted to who you’re attracted to–you can’t help that. But you choose to accept it and you choose to be with that person. I’m a lesbian and knew that at least ten years ago, but dated men up until college and decided to be real with myself (for once). Dating men did not stop me from being a lesbian, it just put me in the closet (behind my sensible khakis lo;) ) until I was ready to face the facts.

    • Yeah, I was practically engaged to a guy, and it didn’t make me any less of a lesbian, it just meant that I was chillin’ with Mr. Tumnus, knitting wrist cuffs in secret.

        • This made me think of “Hangin’ with Mr. Cooper”. Wasn’t that a show? Or maybe one of the many childhood narratives my imaginary friend and I invented. No, i’m pretty sure it’s real because all my manufactured tall tales were fairly lesbionic for the 5-10 age range.

          • It totally was – it was on TGIF! Remember TGIF!?! Hangin’ with Mr. Cooper was a family favourite because it had characters named Geneva and Tyler, and Tyler is my brother’s name and that made the whole thing super cool.

    • Hey, I’m taking Deviance and Social Control now!

      Did you get furious too when Nielson asked Dr. Herek to throw out the data set? I want to punch Nielson in the nose in the name of SCIENCE.

  12. You know, it seems a little strange that H8ers spent almost the whole day saying that the GLBT population shouldn’t be able to get married because we’re *so* difficult to find…I mean, once we’re allowed to marry who we want, won’t that problem take care of itself? We’re asking the state to marry us, not set up a dating service.

    Also, we might be easier to find if we didn’t have to be afraid of people beating the crap out of us…just saying.

    I was glad that Dr. Herek brought up labeling vs. attraction.
    I have always been attracted to women, but it took a horrifically unsatisfying sexual encounter with a man for me to face reality and label myself. Because, as Herek said, we are brought up to assume that we are hetero.

  13. Wow. From a legal standpoint I think Team Totally Right’s attorneys are doing a great job! The defense is not doing so well in cross – they are asking questions they don’t know the answer to! Textbook mistake as evidenced by your recaps. Those experts will just go on and on about the research and make you look stupid. Anyway, actually can’t wait to see the defense case because they must have something up their sleeves, right?

    P.S. It’s not the defense attorney’s fault he looks stupid. He has to work with what evidence they have! It’s his job to find the best argument they can. Hopefully through this case and many more to come, we will show there is no reasonable defense to sexual orientation discrimination. The defense atty has to stick to his guns even if he learns new things about gaymos through this process. They have themes and a strategy and they can’t vear -he’s just doing his job. I don’t know whether or not if he’s stupid or a bigot (I don’t know anything about the attorneys) outside of court. so I’m juss sayin’ the atty is probably not a big thick headed dummy even though his clients and witnesses are.

  14. “He’s wrong, though, because I totally had a crush on Tobias in the Animorphs series when I was 13 and he’s not even real but anyway he’s a hawk now, it happens to the best of us, you can like anybody by accident. Herek agrees:
    “That’s what I’ve been saying all morning. People are raised to think they are supposed to be hetero.”
    Thankyouverymuch. The h8er also reads from Steer’s testimony that she had to have a certain amount of same-sex experience before she identified as gay. I think the problem here is that this guy is fundamentally dumb or just wildly misinformed. Like, I think that what he thinks that means is “she had to practice a lot before she was able to be a real lesbian.” Which, if he believes that is true, I understand why he would be confused. Why can’t you just log a few dozen hours and turn straight again?”

    Love this. I am 21 years old and literally just came out about a month ago. I have dated four men throughout my life in the past and even without having a sexual experience with a woman (yet) I am 100% sure that I am a lesbian.

    This my first time commenting but I have been following all of your coverage on the Prop 8 trail and it is so fantastic. I love how it is brought to a level where I can understand it. I just want to take a small moment to thank Autostraddle and the community here. It made my coming out process feel a little less lonely. That line does not even come close to capturing the impact you ladies have had on my life but it is the least I can do! <3

    • Congrats on coming out!

      The “logging hours” comment somehow made me think of like a coffee shop fidelity card. You buy 12 lattes, get a regular sized coffee for free. You shag x number of women, you get your lesbian ID card.

      Soooo not necessary to know! At least the Good Guys get to have their say and school the idiots who believe this.

      • Hahaha, exactly!

        And thank you. Is that a appropriate response? Thanks? Haha, I don’t know. All I know is it feels like I am meeting myself for the first time in 21 years and it is wonderful. That sounded weird and maybe a little insane. Oh well.

        • Not at all- I think most of us know EXACTLY the feeling you’re talking about. :)

          I spent a lot of time (at 21 as well) wondering how I didn’t know sooner, but also feeling like I’d just stepped into my own shoes and couldn’t wait to start moving forward.

    • Yay on coming out! I hope you come back to Autostraddle; reading everything here certainly makes me feel less lonely sometimes.

      • Oh gosh, I am here everyday. Ha! It is such an incredible feeling to finally feel like you fit in somewhere.

    • aw Megan! Yay for you! I know what you mean, for reals. I live in the south and there are not a lot of out gay ladies here so even though I have known I was gay since… well forevvvvver, it was a while before I had an actual sexual experience with a woman. It really chaps my behind that people think you have to have a sexual experience with a woman before you are sure you are gay or bisexual. Nobody would dispute the fact that a horny 13-year-old straight boy was straight even if he had not yet been sexually active. Why? Because he KNOWS! Just like I knew. It’s much like the bisexual discussion we were having above. It is not about who you end up with or who you are intimate with. Sexual orientation is about who we are attracted and drawn to, and that can happen whether you actually engage in sexually behavior or not. It also really bothers me that some people in the community shy away from recently out ladies. It’s like they are afraid that until you have had sex, there is a risk that you might be unsure and go back to the other side or something. Gah, I hate that! Fear is a powerful motivator. Well congrats on coming out, and don’t let anyone tell you who you are or who to love!

      • Ah! Yes.. to everything you said. I definitely know what you mean when you say that [some] women in the community who have been out longer tend to shy away. But like you, I have known for a very long time. My first real awareness of it was when I was about 12 or 13, when puberty hit haha. It took me so much longer than I would like to admit to come out but I am finally here.

        I also run into this problem: a lot of straight people that I know have this drawn up image in their head of what a lesbian is suppose to “look like” and when you don’t fit into that image, it seems impossible for them to wrap their heads around. Who came up with this?! This baffles me. It is hurtful to not be taken seriously sometimes.

        • Good for you, Megan. I’m going to follow up on what Sapphicsass said. I live in the South too, and it’s seriously a gay desert down here. So Autostraddle has been my little gay oasis. And I love it here.
          Eeek! I’m so happy for you.

    • Yo I’m 21 too, and know exactly how you feel! Totally second what you said about fitting in here, thank heavens for autostraddle. And yay for coming out, well done!

    • This is AWESOME. Coming out and living out exactly as you are is the single most important political and social act you can do for yourself AND all of us. So thank YOU. And congrats.

  15. Tobias the HAWK! I was young when I read the animorph books religiously (btw. DUDE! the covers were sickkk! dununuh some dude turning into a polar bear right in front of your eyes!) and always said “Tobias” as “Toby-us.” It’s kind of like how right now I pronounce “Prop 8 lawyers” as “F*CKING DOUCHEBAGS.”

    • haha omg i just remembered that i also said it “toby-us” and was shocked and disgusted when i learned the true pronunciation.

      • HA! I totes did that, too! I used to mispronounce a ton of words as a kid because I read them before I ever heard them. Awry =/= aw-ree, fyi.

        • Me too! When I was wee I read the the Sword in the Stone pronouncing sword in my head the way it looks, not as its said. Still do sometimes, as its obv better.

          • HOW ABOUT people that say clitORis?! It’s like, dude, its CLIToris. Whenever I hear cliTORis I was think “cliTORaSAURus rex.”

            …This is so off topic. I’m sorry, Rachel. But thank you for telling us about Prop 8/reminding us how great Animorphs was!

  16. I was lucky enough to grab a seat in the courtroom yesterday (props to C. Dawson) for this broken record cross-examination and I have SO MANY FEELINGS about it that I may have to start a blog to get them out. First of all, the whole line of questioning was pretty frightening. The cross-examiner, Mr. Nielson, was surprisingly skillful, using repetition and general nap-inducing-ness to try and get Dr. Herek to slip up and call gays a “social construct,” but Herek is an O.G. and is wayyy too smart for that. I also suspect the cross-ex was desperately trying to prove that the Shane Property of Sexuality means homosexuality isn’t an immutable characteristic and we aren’t a suspect class deserving of equal rights, which could be dangerous if the Supreme Court takes this up.

    Here were a few interesting moments:

    1. Cross-Ex reads, “Lesbians do not constitute a homogeneous, identifiable population.” No shit, Einstein. Do you really need a study to show that homosexuality transcends all social/ethnic/racial/socio-economic boundaries? Just cuz your gaydar is bad…

    2. Herek’s response (paraphrased) to cross-ex’s question “whether sexual orientation is a valid concept”: “[Sexual orientation] is real, something people experience and believe in, and identify with”

    3. Herek continually/beautifully asserts the homosexuality is a grab bag of desire, identity, and behavior. You don’t need all three at once but self-identifying as a homosexual typically implies the other two are true as well. There was a cool Venn diagram graphic that the cross-ex tried to hilariously misrepresent.

    4. Herek busted out some queer and feminist theory, telling the cross-ex that we “are raised to be heterosexual” and women especially are more likely to engage in hetero behavior and later come out as homo because of societal pressure on women.

    • “using repetition and general nap-inducing-ness to try and get Dr. Herek to slip up and call gays a “social construct,” but Herek is an O.G. and is wayyy too smart for that.” LOVE.

      Also, I remember the Venn diagram! Except I couldn’t see it, and in the transcript it just kind of said “Nielson shows Herek a Venn Diagram, asks if lesbians are real.” It was hilarious.

      • on a lighter note, am i the only one who found that trial extremely arousing? like a state of low perma-arousal during all that talk about gay sex? any takers?

    • Plus even if it is a social construct, I mean, so’s race. Yet no one’s gonna argue (except for white boys who need to tell you How Hard They Have It) that race doesn’t have some seriously deep impacts.

  17. I have 3 kids, all boys. One is left handed. I don’t love him any less because he is left handed. If one of my kids is gay I don’t think I will love him any less either.

    I am thinking, like a light bulb went on, with all the testimony about choice and ability to change, it’s just like left-handed, right-handed and ambidextrous people. Nobody turns left-handed on purpose, should we say left-handed people can’t marry? Eh!

    I love reading your reports, Rachel, thanks!

    • I am glad you enjoy reading them! My high school actually put on a play called Removing The Glove that had this exact premise, it was like this huge allegory where a high school boy is really ashamed of his left-handedness and hopes his girlfriend doesn’t break up with him, it is a super cute play! Anyways, great point, thanks for commenting!

  18. Oh, hellllllllllo, Alexandra Cabot! You can cross examine me any time, and you have permission to treat the witness as hostile ;)

  19. Personally, I think we should make the serious argument that we want to be equal in the sense that no one can get married. Then we can just sit back and watch the other side give us all the pros of marriage and say “ah hah, that’s why we want it.” Let them make the argument for us.

  20. Pingback: Day 9 of the Prop 8 Gay Marriage Trial: Who Needs Marriage When … | MyGaySpot

    • Oh, woops. Looks like you’ve seen the whole letter. Take that last to be a reference for your readers. :)

  21. “Or you might be a lesbian instead of bisexual because in the area where you live, men are so threatened by the idea that you ever ate pussy that they refuse to date you.”

    Tell me about it. Being bi, men don’t wanna date you sometimes because they have to so-called “watch out” more because not only might you cheat with a boy, you might cheat with a girl. Cheating is bad period, so that’s retarded. And they girls don’t wanna touch girls who like penis in their goodies so they won’t date you either. I’m still honest about being bi, and I know too too many “lesbians” who need to get a grip.

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