by Becker, Jo
The “21 Reasons Why Gender Matters” article contained a quote from a Rutgers University sociologist: “We should disavow the notion that mummies could make good daddies, just as we should disavow the notion of radical feminists that daddies can make good mummies,” he argued. “The two sexes are different to the core and each is necessary.”
But Lamb told the court that the “overwhelming consensus” in his field, since at least the early 1990s, was that having parents of different genders is not necessarily determinative of whether a child will be well adjusted. Nor is a biological connection; studies showed that adopted children and children conceived with the help of an egg or sperm donor are just as likely to achieve good outcomes.
Rather, the optimal environment for children is one in which they are raised by loving, caring parents who live in harmony with each other and are able to provide adequate economic resources. Gender and blood connections are irrelevant, Lamb told the court.
What about a point that Cooper had raised during his opening argument, when he quoted President Obama on the importance of fathers? McGill asked. He showed Obama’s quote on an overhead: “Children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison.”
First, Lamb said, those studies compared children being raised by two heterosexual parents to children being raised by a single, heterosexual mom. And “actually, the research, now quite voluminous, shows that the absence of a father in and of itself isn’t the crucial factor.” Rather, what accounted for the differences cited by the president, he said, was that children are more likely to have problems when deprived of a parent’s involvement in their life and forced to cope with the economic deprivation that often accompanies divorce or separation.
McGill moved now to the heart of the matter. “Dr. Lamb, have researchers within your field conducted any studies of the adjustment of children raised by gay or lesbian parents?”
Lamb said that there had been more than one hundred peer-reviewed studies on the subject, “documenting very conclusively that children who are raised by gays and lesbians are just as likely to be well adjusted as children raised by heterosexual parents.”
McGill, lest the court miss the significance of that statement, entered a number of those studies into the record and had Lamb read aloud the conclusion of the American Psychological Association’s policy statement:
“There is no scientific basis for concluding that lesbian mothers and gay fathers are unfit parents on the basis of their sexual orientation,” Lamb read. “On the contrary, results of research suggest that lesbian and gay parents are as likely as heterosexual parents to provide supportive, healthy environments for their children.”
The American Academy of Child and Adolescent Psychiatry, the American Academy of Pediatrics, the American Psychiatric Association, the American Psychoanalytic Association, the Child Welfare League of America, the National Association of Social Workers, and the North American Council on Adoptable Children had all reached similar conclusions, and McGill dumped them into the record as well.
The inference, of course, was that if the rationale offered by proponents of Prop 8 was not fact- or evidence-based, it must be the result of the kind of prejudice that Justice Kennedy had described as the “want of careful, rational reflection.” Next, McGill turned to some of the other claims made in the article that Prentice had circulated for use in the Prop 8 campaign, the kind Cooper was not using to try to justify Prop 8 in court because they fell into the more overtly hostile category.
Among them: that “gender disorientation pathology,” as the article described homosexuality, is a sex addiction that “encourages the sexual and psychological exploitation of children” because “the sad truth is, homosexual abuse of children is proportionately higher than heterosexual abuse of children.” The term itself, Lamb testified, could be found nowhere in the psychiatric or psychological literature, and studies going all the way back to the 1970s proved that gays and lesbians are no more likely to abuse children than are straight people.
Another of the article’s assertions, that the children of gays and lesbians are more likely to be gay themselves, deliberately misled readers, Lamb told the court, by footnoting a study that concluded no such thing. (What the study did find was that there was no difference between the psychosocial outcomes of children of lesbian parents and children of straight couples, a fact not mentioned in the “21 Reasons Why Gender Matters” article Prentice had circulated.) In fact, Lamb told the court, the consensus of the scientific community was that while the children of gays and lesbians tend to be less likely to embrace sex role stereotypes, the sexual orientation of their parents has no bearing on whether they will be gay or straight.
If gay and lesbian parents were allowed to marry, he concluded, the only likely impact on their children would be to improve their chances of achieving the best outcomes in life, in exactly the same way that research showed that the children of cohabitating straight couples benefit when their parents wed.
“In the thousands of books and publications you have written and reviewed in your career, have you ever encountered a sound rationale for purposefully denying a child the opportunity to achieve the best possible outcome?” McGill asked.
“No, I have not.”
“I have no more questions, Your Honor.”
It was 2:45 P.M. when McGill rose again.
“Dr. Lamb, do you need a break?” he asked, hamming it up a little with the solicitousness of his tone. “Are you all right?”
The courtroom erupted in laughter. For four hours, Lamb had endured a cutting cross-examination by David Thompson. Voice like a jackhammer, Thompson had thrown out one staccato question after the next in a tone that made clear what he thought of this particular witness’s pedigree.
You have been a member of the American Civil Liberties Union, is that correct? And a member of the National Organization for Women, the NAACP, Amnesty International, and the Nature Conservancy, is that correct?
“You have even given money to PBS!” Thompson charged. “So we can agree you are a committed liberal, is that right?”
Thompson never mentioned the damaging Prentice e-mail, or most of its claims, during his cross. Instead, after establishing that Dr. Lamb personally supported allowing gays and lesbians to marry, he had proceeded to phase two of the cross-examination, an attack on science itself. This was the witness Cooper had chosen to make his full-throated Brandeis brief stand, that social science should play no role in determining a constitutional question like this one, and that no matter what studies might say, the impact of allowing gays and lesbians to marry was unknowable.
Wasn’t it true that much of the science in his field was funded by government research agencies that, by their nature, were not insulated from political ideology? Thompson demanded.
“Your question presumes that the decisions are being made by governments about what sorts of topics should be studied,” Lamb replied. “In fact, certainly in this country, agencies like the National Science Foundation and the National Institutes of Health pride themselves on having peer reviewers evaluate the scientific quality and integrity and importance of the research.”
“You would agree that history is littered with scientific theories that were widely accepted within a scientific community and that have proven to be wrong, correct?”
“Well, I’m not sure about that.”
Thompson started listing some, beginning with phrenology, a theory developed in the eighteenth century that linked bumps on the head to certain aspects of an individual’s personality or character, and ending with the fact that at the beginning of the twentieth century there was widespread consensus among psychologists that homosexuality was a disease.
“And the psychological community was entirely wrong, wasn’t it?”
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sp; “Well, that portion of the scientific, of the psychological community, that held that belief was wrong, yes.”
“You would concede that there are still many differences between men and women in our society, correct?”
“Yes.”
“We can also agree that men can’t breast-feed, correct?” Thompson asked. “And breast-feeding clearly has benefits for children.”
Lamb agreed with that statement of the obvious. But he rebutted Thompson’s suggestion that the studies he had relied upon, showing that children of gays and lesbians do just as well as children of heterosexuals, were flawed because the control sample included unmarried heterosexuals. That was appropriate, Lamb said, because the effect that was being studied was whether the gender of parents mattered, not whether marriage mattered.
Thompson then moved to his next point: Hadn’t Dr. Lamb once written that children in fact do need a male parent in order to be well adjusted? If a respected academic like Lamb could do a pirouette on this issue, wasn’t it reasonable for Californians to believe that too?
McGill had expected this question and had tried to inoculate Lamb by raising it himself during the direct. Lamb had already explained that in the 1970s, in studying the attachments that babies form to mothers and fathers and the different ways that fathers and mothers behaved toward their children, he had studied the importance of fathers in determining child outcomes.
Judge Walker, watching from the bench, smiled as Lamb thanked Thompson for “bringing back these great old memories” of papers he had written as a graduate student, before answering.
It was true that it was important for children of heterosexual couples to have a good relationship with their fathers, Lamb said, but that did not mean that children of same-sex couples needed one. “That is a finding that has not held up in subsequent research.”
This was Thompson’s “ah-ha” moment: “Well, so science was wrong!”
No, Lamb replied. Science is “a cumulative process.”
Now Thompson watched, hand on chin, as his old colleague McGill approached the witness. The purpose of a redirect is to undo whatever damage has been done on cross and allow the witness to clarify any points that the opposing counsel had taken out of context. McGill approached the mission with his sardonic brand of humor.
“Let’s warm up our time machine and go way back in time, before that cross-examination began, and all the way back to 1975, when you held the view that the presence of a father itself could be a determinative factor in adjustment outcomes,” McGill ad-libbed. “Why is it that your views, from before I was born to now”—he paused for effect as people began laughing—“have changed?”
“Well, the body of evidence has been what’s changed it. The original view, as I said, was a hypothesis,” Lamb replied. “And since then we have had hundreds, thousands of articles that have explored the implications of that belief and found it to be wrong.”
McGill had worried from the outset that Thompson would try to use Lamb’s testimony to enter all sorts of studies into the record, authored by people he had no intention of calling or allowing to be cross-examined, in an effort to make it appear that scientists were divided on the question of gay parenting. His hunch had proven correct; among the voluminous exhibits that Thompson had entered into evidence were articles suggesting that research in this field was embryonic and a study that concluded that the children of gays and lesbians are in fact less well adjusted than those raised by married, biological parents.
The main problem with that study, Lamb explained when McGill asked about it, was a problem that the author, if not Thompson, had identified when he published it: The children of the gay couples he studied had frequently experienced the recent separation or divorce of their parents, and as such the study was more illustrative of the effects of divorce than the effects of same-sex parenting.
Have those findings ever been corroborated or duplicated in another study? McGill asked.
“No,” Lamb replied. “There’s no other study that finds that.”
Finally, Lamb had “confessed membership” in a variety of groups during his cross-examination, McGill drily noted. “Did the Corporation for Public Broadcasting influence your opinion in this case?”
“No, it did not.”
“Did anything other than the social science research in your field influence your opinion in this case?”
“No, it did not.”
“Thank you, Dr. Lamb.”
One reason that trials make for awkward storytelling is that lawyers are not in sole control of their own narrative. Even in a major civil rights trial like this one, experts had to be reordered to accommodate witnesses’ scheduling conflicts and teaching schedules. Then there is the problem of the clock.
A witness’s direct testimony should preferably be timed so that the cross-examination does not begin so late in the day that it spills over into the next, giving opposing counsel overnight to regroup and refine attacks. At the same time, lawyers need to be ready with a fill-in witness if a cross ends earlier than expected. Judges don’t like to see the court’s time wasted, and Walker was always urging the lawyers to move things along.
So it was that when McGill finished with Lamb at 3:02 P.M. on the Friday before the long Martin Luther King Jr. holiday weekend, the legal team found itself needing to call another witness.
One way to look at the Prop 8 trial is that it boiled down, essentially, to a war of words, and one word in particular: marriage. The proponents of Prop 8 argued that because California domestic partnership law conveyed the legal benefits of marriage, the plaintiffs were not being denied anything meaningful. That very morning, Thompson had repeatedly noted that as beneficial as marriage may be to adults and children, there had been no extensive research on whether domestic partnership offered similar perks.
Helen Zia was not an expert, and her testimony did not speak to the main, parenting issue of the day. But as a California resident who had married her domestic partner prior to the passage of Prop 8, she could speak to why that one word, “married,” matters, in a way that the unmarried plaintiffs could not. And as a Chinese American living in San Francisco, her testimony offered the team an opportunity to try to close an important loop: whether voters in the city’s large Asian community had in fact been motivated by the types of messages Tam had disseminated.
Zia was supposed to be Boies’s witness. But Terry Stewart, who had found Zia and lobbied for her inclusion, had taken him aside and asked if he would mind ceding the job to one of the lawyers on her staff. Danny Chou, a former California Supreme Court clerk, had worked hard on the case, and she wanted him to have his moment in the spotlight.
It was not the way that Boies’s operation generally worked; the lawyers from his firm were there to prepare him, moons to his sun. But that was the funny thing about Boies. He could be something of a savant, so monomaniacal in his focus that at times he seemed unaware of the feelings of others. But when he dialed back in, he had a gift for making a person feel as though no one in the room was more important. He was unquestionably self-promoting, but he could also be exceedingly generous, whispering advice for which he never took credit during Stewart’s redirect of Chauncey, and now readily agreeing to her request and convincing Olson to go along.
“I can’t tell you how much real estate he occupies in my heart,” Stewart said after she learned the news.
Zia was a former executive editor of Ms. magazine and the author of two books, including one about Wen Ho Lee, the Chinese American scientist at Los Alamos National Labs who had been falsely accused of being a spy. Rosanne Baxter, a litigator at Boies’s firm who had helped prep her, had been worried that her factual journalistic delivery lacked emotion. “Show a little leg, honey!” she’d wanted to say.
But after fending off the vociferous objections of Cooper’s team—this woman had been dragged in “off the street” to testify to wha
t amounted to nothing more than “needlessly cumulative” personal experience with no “probative value,” Brian Raum, Cooper’s co-counsel at the Alliance Defense Fund, charged—Chou had managed to coax the passion out of Zia.
She was angry when describing how she and her wife, Lia Shigemura, had been treated when they campaigned in their community against Prop 8. “People would just come up to us and say, you know, ‘You dyke.’ And excuse my language, Your Honor, but ‘you fucking dyke.’ Or, ‘You’re going to die and burn in hell. You’re an abomination.’
“And while we were handing out fliers, dozens of people, separate people in separate locations, separate times in different cities, would look at the flier, laugh, or just look at us, or say something with a—the most derisive kind of expression, and say, ‘No more people. With this, no more people. No more human race.’ That we, such abominations, would be the cause of the end of the human race.”
All this, she said, because she had married a woman. Her voice softer now, she described the difference that marriage had made, especially in the way her family viewed her relationship. One of her nieces had told her wife, “Auntie Lia, now you’re really my auntie.”
“My mother, I would watch—my mother is an immigrant from China. English is her second language,” Zia told the court. “I would be around her and her friends who—who would look at Lia. And I could hear them say, sometimes in English and sometimes in Chinese, ‘Who’s she?’ You know, and my mother, before we would marry, would just struggle and just say, ‘She’s Helen’s friend.’ And then it changed. And she would say, ‘This is Helen’s—this is my daughter-in-law.’ And they would get it. And whether they approved or disapproved, it didn’t matter. They got it. It’s like, you don’t insult someone’s wife.”
Back at the Gibson Dunn offices after court adjourned for the day, the lawyers from Boies’s firm who had been involved in Zia’s prep assessed how it had gone. Their boss had already left for the weekend, bound for Las Vegas. The difficult part of Boies’s job would start next week, after the plaintiffs rested their case and cross-examination began. Gambling helped relax him, and he planned to spend the weekend hitting the tables at the Wynn casino.
