What NRO's Whelan Gets Wrong In His Attempt To Pick Apart Prop 8 Brief

National Review conservative legal commentator Ed Whelan attempts to pick apart the plaintiffs' briefs in Hollingsworth v. Perry, the challenge to California's anti-marriage equality Proposition 8 that the Supreme Court will hear on March 26, by recycling anti-gay smears fueled by the right-wing media that gay marriage is harmful and sexual orientation is not permanent.  

Whelan's series of posts, which criticize the plaintiffs' brief and attempt to catch Supreme Court litigators David Boies and Ted Olson distorting facts and testimony, baselessly assert that recognizing same-sex couples' right to marry causes harm, and that in spite of scientific consensus and the experience of millions of same-sex couples, the permanence of their sexual orientation is up for debate. 

In his three posts, Whelan sets out fourteen points from the plaintiffs' brief that he identifies as myths and distortions. In his most recent post he attempts to debunk the fact that sexual orientation is a stable characteristic (in other words, disputing whether gay people, per se, exist at all) by stating, “Ample trial evidence demonstrates the lack of scientific support for the notion that homosexuality is a trait that a person is born with.” Meanwhile, the amicus brief submitted by the American Psychological Association, the American Medical Association, The American Psychiatric Association, and several other organizations note that “scientific evidence strongly supports the conclusion that homosexuality is a normal expression of human sexuality.”

Whelan claims that the plaintiffs' own expert - Professor Gregory Herek - acknowledged that “sexual orientation ... may vary throughout the course of a lifetime.” However, a comprehensive reading of his testimony complicates this response.  Herek, a psychology professor at University of California Davis, testified at length about the challenges of defining sexual orientation, and acknowledged that by the model in the study proponents cited - which defined sexual orientation as the “cumulative experiences of interaction of erotic fantasy, romantic-emotional feelings, and sexual behavior directed toward one or both genders” [[,]] - it is accurate to say that sexual orientation may vary

Herek's response was not based on his own, or the plaintiffs' own, conception of sexual orientation.

In support of his argument that sexual orientation is not an immutable trait, Whelan continued to take Herek's testimony out of context by  focusing on his statement that “we don't really understand the origins of sexual orientation in men or women.”  However, a comprehensive reading of his testimony demonstrates that it in response to the question, “Do people choose their sexual orientation, Herek asserted ”they have experienced no choice or very little choice about that.

Whelan also recycles the right-wing myth that extending marriage rights to same-sex couples causes harm.   In point 6, for example, Whelan takes issue with plaintiffs' statements that the Proposition 8 proponents “never identified a single harm that they, or anyone else, would suffer as a result of allowing gay men and lesbians to marry”  and that  plaintiffs claim that “Proponents suggest no reason to believe - indeed, they make no argument at all - that prohibiting same-sex couples from entering relationships designated 'marriage' will make it more likely that heterosexual couples in California will marry.” 

In response, Whelan claims that “the testimony and volumes of documentary evidence that Prop 8 proponents offered at trial” show that allowing for same sex marriage would ultimately result in the “deinstitutionalization” of marriage.

The assertion is not responsive to the plaintiffs' argument--there was no evidence that Proposition 8 would deter heterosexuals from marrying.  

In his next attempt to identify a harm that would result from marriage equality, Whelan takes issue with the plaintiffs' statement that the proponents produced no data or studies “tending to show” that marriage equality causes harm.   In response, he again uses one of the plaintiffs' experts, Professor Lee Badgett, to cite an accelerated long-term decline in the marriage rate of the Netherlands, the first country to redefine marriage in 2001.

The problem is that the facts do not show, nor did Badgett testify, that marriage equality caused the decline in marriage in the Netherlands.  At trial, Badgett was asked to read a passage from a defense expert's deposition, which she did

“In the Netherlands the total number of heterosexual marriages has slowly fallen since the introduction of same-sex marriage. Like most western countries, this is no doubt part of a larger secular trend.” (emphasis added). 

On cross-examination, Badgett again made clear that data on the number of different-sex marriages in the Netherlands “doesn't tell you anything about what the impact of allowing same-sex couples to marry is.”

Badgett has stated her position in previous writings.  In a 2004 article criticizing an analysis by Stanley Kurtz that sparked the myth that same-sex marriage affected marriage and unwed births in Europe, Badgett wrote:

Kurtz is also mistaken in maintaining that gay unions are to blame for changes in heterosexual marriage patterns. In truth, the shift occurred in the opposite direction: Changes in heterosexual marriage made the recognition of gay couples more likely. In my own recent study conducted in the Netherlands, I found that the nine countries with partnership laws had higher rates of unmarried cohabitation than other European and North American countries before passage of the partner-registration laws. In other words, high cohabitation rates came first, gay partnership laws followed.

Whelan also challenges thefollowing statement in plaintiffs brief: 

"[W]hen the district court asked [proponents'] counsel point blank what harm would come to opposite-sex married couples if gay men and lesbians could marry, Proponents' counsel mustered only 'I don't know.  I don't know.'" Brief at 45. 

He claimed that the plaintiffs misrepresented thecomment and included the full quotation from the trial transcript, as set forth in Whelan's own amicus brief

[T]he state and its electorate are entitled, when dealing with radical proposals for change, to a bedrock institution such as this to move with incrementally, to move with caution, and to adopt a wait-and-see attitude.

Keep in mind, your Honor, this same-sex marriage is a very recent innovation. Its implications of a social and cultural nature, not to mention its impact on marriage over time, can't possibly be known now.

Whelan goes on to state that the proponents did not have to prove harm at that stage of the proceedings, but this does not support his statement that the quote in plaintiffs' brief misrepresents what counsel said.  

It is not surprising that Whelan would ground his criticism of the plaintiffs' brief in the right-wing myth that marriage equality is harmful.  In fact, he employed the right-wing slippery slope argument at a Senate Judiciary Committee hearing on the Respect for Marriage Act, which would repeal the Defense of Marriage Act.  He claimed that “The principles invoked by advocates of same-sex marriage in their ongoing attack on traditional marriage threaten to pave the way for polygamous and other polyamorous unions.” 

His attempt to bolster his sole legal argument--that the Court's prior cases on the fundamental right to marry does not apply to same-sex marriage, through inaccurate characterizations of sexual orientation and the impact of marriage equality--doesn't hold water.