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The Perry Case: If This is the Evidence They’re After, No Worries

August 19th, 2009 No comments

Judge Vaughn Walker isn’t fooling around. Today, in the case challenging the constitutionality of Proposition 8 (Perry v. Schwarzenegger), he rejected requests by both various LGBT advocacy groups and a pro-Prop 8 group to intervene in the litigation.  Law Dork has a typically clear summary of the ruling here. The judge also appears to have set a remarkably early date for trial — January 11, 2010!

Too bad that this truncated timeline won’t give the Proponents of Prop 8 much time to pursue what is surely one of the most quixotic — even counterproductive — discovery efforts I’ve ever seen.

In response to Judge Walker’s order for specifics on what evidence they’re hoping to gather, and what it might prove, they offer these two statements (again, h/t to Chris Geidner at Law Dork — I can’t find this document on-line). Here they are (brace yourself!), followed by my analysis:

We will…develop evidence that homosexuality is not immutable by analyzing marriage and domestic partnership records from California. . . . From the domestic partnership records, we will compile a list of all the individuals in California who have entered a same-sex domestic partnership.  We will then cross-reference these names with the marriage records to identify individuals were previously or subsequently married to a member of the opposite sex.

Proposition 8 promotes the natural and mutually beneficial bond between parents and their biological children by encouraging parents to raise their biological children.  We plan to develop evidence that many gay and lesbian individuals desire to have biological rather than adopted or foster children, and that many satisfy these desires with the assistance of technology or by other means.  We will seek discovery of the names of Californians in registered domestic partnerships with the parents listed on birth records from the Department of Health’s Office of Vital Records (which maintains birth records) and the Secretary of State’s Office (which maintains domestic partnership records).  We may also seek discovery from companies and organizations that offer assisted reproductive technology and services to develop evidence on this issue.

The first of these is comically absurd, and might tend to prove the opposite of what the Proponents hope. The second is a fascinating mix of the unintelligible and the irrelevant.

As to the first: I have no idea how many same-sex couples now married or in domestic partnerships were once married to members of the opposite-sex, but their “conversion” surely doesn’t prove that sexual orientation is “mutable.” Indeed, given the societal pressure on gays and lesbians to conform to heterosexual norms, including marriage, evidence that some moved from straight to gay relationships only serves to reinforce that self-abnegation and denial are painful and, for some, impossible to sustain. In short, migration in this direction might reinforce that sexual orientation is stronger than even powerful forces in the other direction — immutable, perhaps?1 And am I the only one who finds interesting that the Proponents aren’t offering to find evidence of people moving from gay unions into straight ones? Wouldn’t that at least be more logically relevant? Not if you don’t have any exhibits to produce.

I’m not sure what point the Proponents are trying to make in the second proposed evidentiary expedition.  In addition to the possible concerns about privacy that Geidner has raised, there’s the more basic question of what the evidence  would show. Same-sex couples, just like single people and members of opposite-sex couples, already have the legal right to use technological assistance to reproduce. Nothing about Proposition 8 affects that right one way or the other. Moreover, if  “many are [already] satisfying these desires with the assistance of technology or by other means,” shouldn’t the law step in to help the kids born through such means by recognizing their parents’ relationships? I don’t get it.  And what about foster and adopted children? It seems the Proponents are tacitly acknowledging that recognizing the relationships of parents of these kids would make sense.  Otherwise, why are they seeking to prove that most same-sex couples want to create their families in a different way?

OK, so maybe facts aren’t their best bet….

  1. I should say for the record that the whole “mutability” issue is to me a distraction; as the California Supreme Court has stated, sexual orientation, whether mutable or not, is central to one’s identity — and that should be that.