Judge Vaughn Walker

SAN FRANCISCO – Friday morning’s court session began with the surprising announcement by U.S. District Court Chief Judge Vaughn Walker that he would delay the delivery of closing arguments in the case until at least several weeks after case is presented.

Walker, who engaged in an unusually active questioning of both sides during their opening statements, has the aggressive approach of a Supreme Court justice rather than a district trial level juror.

“Given the volume of material” being introduced into evidence in the lawsuit challenging Proposition 8, said Walker, he thinks it would be “much more productive and useful if I have a chance to tease out some questions.” That, of course, means he intends to have an equally active questioning of both sides during closing arguments.

This is Day 10 of the historic trial to determine whether the California state constitutional ban on same-sex marriage licensing violates the U.S. Constitution’s guarantee of equal protection of the law.

Today’s first witness—social psychology expert Gregory Herek—is also the last witness which attorneys challenging Proposition 8 plan to bring to the witness stand. Then they plan to introduce a number of documents into evidence, and then the case swings to the legal team presenting a defense of Proposition 8. The defense has already indicated it is withdrawing most of its original witnesses and it is unclear at this point whether they will bring any to the stand.

During his testimony, Herek identified sexual orientation as “an enduring sexual, romantic…and affectionate attraction to men, women, or both.” The “enduring” designation is important because it supports the notion that sexual orientation for gay people is “immutable.” And groups that are targeted for disparate treatment under the laws because of an “immutable” trait can expect the courts to scrutinize those laws with the strongest level of scrutiny—strict scrutiny.

Herek discussed the results of two recent studies he helped conductone published in the Journal of Counseling Psychology this year and one accepted for publication in another journal, but not yet published. The studies as gay and bisexual people “how much choice they had” about being gay, lesbian, or bisexual. The first study covered 2,200 people. 87 percent of gay men in the study said they felt they had no or little choice. Seventy percent of lesbians said they had no or little choice.

Plaintiff attorney Ethan Dettmer asked Herek to offer his understanding of reparative therapy, towards establishing whether sexual orientation was immutable. Herek testified about a 2009 study from a American Psychological Association task force that found available studies have found reparative therapy to have “very limited effect” and potentially harmful to its participants.

There was, said the report, “insufficient evidence to support use of psychological interventions to change sexual orientation.”

On cross-examination, defense attorney Howard Nielson was clearly aimed at trying to establish that there is no clearly identifiable group that can be considered gay/lesbian. In order for Proposition 8 to receive the most stringent judicial review, the law must be said to target an clearly defined population.