May 29, 2008

The Field Poll: Hopeful News For Marriage Equality Supporters

Posted at 11:12 am (Pacific Time)

A single photograph provides a static view of its subject. But when we connect a series of images together and shuffle through them, as with a flip-book or the frames of a movie, what we see corresponds more closely to the real world.

The same is true of opinion polls. One poll gives us a snapshot of the public at a particular moment in time. Having two, three, or more polls on the same topic reveals the range of public opinion, its consistencies and its volatilities.

Thus, Wednesday’s new California Field Poll on marriage equality attitudes — the second poll to be publicly released on this topic since the state Supreme Court’s May 15 marriage decision — expands our knowledge about Californians’ reactions to the ruling and their views about overturning it in November.

For supporters of marriage equality, the news is good. The Field Poll results may mean that last week’s LA Times poll — which itself provided hopeful signs for the November election — actually painted too pessimistic a picture.

Field Poll Findings

The new poll included two questions about general attitudes toward marriage equality. First, repeating a question that has been included in the Field Poll since 1977, respondents were asked:

“Do you approve or disapprove of California allowing homosexuals to marry members of their own sex and have regular marriage laws apply to them?”

  • 51% Approved
  • 42% Disapproved
  • 7% had no opinion

This marks the first time ever that a majority of Field Poll respondents has supported marriage equality. In a 2006 survey, by comparison, 44% approved while 50% disapproved.

The poll also included a question — similar to the one asked in last week’s LA Times poll — to which respondents indicated which of three different statements about legal recognition of same-sex relationships most closely resembles their own view:

  • 45% selected “gay and lesbian couples should be allowed to legally marry”
  • 32% selected “gay and lesbian couples should be allowed to form civil unions or domestic partnerships, but not legally marry”
  • 19% selected “there should be no legal recognition of a gay or lesbian couple’s relationship”
  • 4% had no opinion.

Regarding the pending state ballot initiative, the poll randomly divided the sample and asked each group of respondents a slightly different version of the question.

VERSION A: “Do you favor or oppose changing the California State Constitution to define marriage as between a man and a woman, thus barring marriage between gay and lesbian couples?”

  • 40% Favor
  • 54% Oppose
  • 6% DK

VERSION B: “There may be a vote on this issue in the November election. Would you favor or oppose having the State Constitution prohibit same-sex marriage, by defining marriage as only between a man and a woman?”

  • 43% Favor
  • 51% Oppose
  • 6% DK

The Margin of Error

When considering the results of this (or any) poll, it’s important to keep in mind that the percentages reported above are estimates of how many people in the entire population hold these opinions. Although the specific percentage is the best guess that can be derived from the data, the poll actually provides a range of percentages within which the correct value for the population probably lies. This range is described by the poll’s margin of error.

For most of the Field Poll marriage questions, the margin of error is about 3 percentage points. Thus, what the poll really tells us is that there’s a high likelihood that somewhere between 48% and 54% of California voters currently approve of marriage equality, while somewhere between 39% and 45% disapprove.

For the two versions of the question about amending the California constitution, the margin of error is slightly larger (because each question was asked of only a portion of the sample). Between 50% and 58% of voters oppose the ballot measure as it was described in Version A, while 36% – 44% favor it. And between 47% and 55% oppose the B Version, while 38% – 48% favor Version B.

Note that the ranges of those favoring and opposing Version B overlap. This is what’s meant by a virtual tie or a statistical dead heat.

The results for both versions indicate that the anti-marriage initiative may be in trouble before it even qualifies for the ballot. To quote from a previous post:

The LA Times article noted that “ballot measures on controversial topics often lose support during the course of a campaign” and, for this reason, “strategists typically want to start out well above the 50% support level.” According to Susan Pinkus, the Times Poll Director, “Although the amendment to reinstate the ban on same-sex marriage is winning by a small majority, this may not bode well for the measure.”

Comparing Polls

To get a better sense of the California electorate’s current views, it’s useful to compare the Field Poll results with last week’s Los Angeles Times survey on the same topic.

Both polls found that attitudes toward marriage equality and toward the ballot initiative differed substantially according to age, party affiliation, political ideology, and geographic region. Younger respondents, Democrats, liberals, and residents of Los Angeles and the San Francisco Bay Area were more likely to support marriage equality, while older respondents, Republicans, conservatives, and residents of the Central Valley and other rural areas tended to oppose it. In both polls, the attitudes of moderates and independents were closer to those of Democrats and liberals than to those of Republicans and conservatives.

The polls differed, however, in their findings about gender. The Field Poll didn’t report men’s and women’s attitudes toward the ballot measure separately, suggesting that they didn’t differ. But in the Times poll, likely women voters overwhelmingly said they would support the initiative — 62% to 29%. (Men were evenly split — 44% to 44%.) As I explained in another post, this pattern puzzles me. Past research on heterosexuals’ attitudes toward sexual minorities and policies affecting them has revealed a fairly consistent gender gap, with heterosexual women less prejudiced and more supportive of gay civil rights than heterosexual men. And previous polling in California has found that marriage equality receives more support from women than men.

In addition to the gender difference, the polls differed in many of their key numbers, even when we take their respective margins of error into account. In the LA Times poll, between 32% and 38% favored marriage equality (compared to 42% – 48% in the Field poll) and 26% – 32% opposed all legal recognition of same-sex couples (compared to 16% – 22% in the Field Poll). And the Times estimate of voters who would support the November ballot initiative is between 50% and 58% — nowhere near the ranges for the Field Poll’s Version A (36% – 44% favored it) or Version B (38% – 48% favored it).

Such differences can be caused by a variety of factors. For example, data collection for the Field poll spanned a considerably longer period – 10 days, compared to 2 days for the Times poll. This may mean that its sample was ultimately more representative because having more time means more opportunities to reach sample members who initially weren’t at home.

The wording of poll questions can also affect response patterns, especially among those who don’t hold strong opinions or haven’t thought about the issue extensively. In this regard, perhaps some differences resulted from the fact that the Field Poll asked about general attitudes toward amending the California constitution, while the LA Times poll asked about respondents’ actual intention to vote for or against the measure.

What Does It Mean?

As new data become available, we’ll get a better sense of whether the LA Times or the Field Poll better describes the California electorate. It will be especially interesting to see new results from polling by the Public Policy Institute of California, which has tracked Californians’ attitudes on this issue throughout the decade and found increasing support for marriage equality. In their 2007 survey, the PPIC found that likely voters were evenly divided, with 46% supporting marriage equality and 48% opposing it.

For now, the results from the two available polls suggest the November ballot initiative is currently in trouble — capturing only a slight majority (LA Times), losing outright (Field Poll Version A), or being too close to call (Field Poll Version B).

This doesn’t mean supporters of marriage equality should be complacent. Elections are decided by actual ballots, not survey responses, and backers of the initiative will be working hard to get out the vote among those most likely to endorse the amendment in November.

Indeed, as an antidote to overconfidence, it’s instructive to consider the Field Poll’s batting average in predicting the outcomes of California ballot initiative contests. In 2000, Field correctly predicted that Proposition 22 (the antigay Knight Initiative) would pass. However, it seriously underestimated the extent of support for that initiative. The last Field Poll before election day found that 53% of voters supported Prop 22, but it ultimately passed with 61% of the vote.

Needless to say, a similar undercount could be occurring in this year’s polling.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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May 25, 2008

LA Times Poll Postscript: A Reverse Gender Gap?

Posted at 12:11 pm (Pacific Time)

Survey researchers are quick to point out that every poll is a snapshot of a portion of the population at a particular moment in time. Because samples vary in how representative they are, and because attitudes and beliefs change over time, it’s always advisable to examine multiple surveys before drawing conclusions about public opinion.

These caveats are important to remember when considering the recent LA Times poll about Californians’ views on marriage equality, which I discussed in a previous posting. Many more opinion surveys will be conducted in California between now and November 4th, and it will be interesting to see if those polls replicate the LA Times findings, especially in one key area.

In the Times poll, women were much more likely than men to say they would vote for the anti-equality constitutional amendment. Among likely voters, men were evenly split on the ballot measure — 44% would vote for it and 44% would vote against it. But likely women voters overwhelmingly said they would support the initiative — 62% to 29%. Women were also more likely than men to say that same-sex relationships between consenting adults are morally wrong — 42% of women agreed, compared to 37% of men — while men were more likely than women to say it’s not a moral issue (58% versus 50% of women).

These patterns are surprising. Past research on heterosexuals’ attitudes toward sexual minorities and policies affecting them has revealed a fairly consistent gender gap, with heterosexual women less prejudiced and more supportive of gay civil rights than heterosexual men.

And in a 2004 LA Times survey that asked Californians the same “morality” question as in the recent poll, 53% of women said same-sex relationships aren’t a moral issue, while 38% said they are morally wrong. (For men respondents, the numbers were 53% and 42%, respectively.)

Thus, compared to the 2004 survey, the new poll suggests that California women have become slightly more likely to view same-sex relationships in moral terms (from 38% then to 42% now), while men have become less likely to do so (from 42% then to 37% now). These are fairly small differences and, because they fall within the poll’s margin of error, may simply reflect random variations across samples. For example, the sample for the newer poll may have included more women with conservative religious beliefs than did the 2004 sample.

My personal hunch is that this is the case, and that subsequent polls will show that California women are at least as likely as men to oppose the November ballot initiative.

If this week’s results are replicated in future statewide surveys, however, it may indicate a shift in public opinion patterns, one with potentially important implications for efforts to retain marriage equality in California.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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May 24, 2008

California Polling: Bad News and Hope About Marriage Equality

Posted at 2:40 pm (Pacific Time)

A new Los Angeles Times/KTLA poll reveals some of the challenges facing supporters of marriage equality in California during the next 5 months. But it also suggests that passage of a state constitutional amendment to restrict marriage to heterosexual couples is hardly a certainty.

The Bad News

At first glance, the poll results are likely to be disheartening to marriage equality supporters. A majority of participants said they disapprove of last week’s California Supreme Court decision that denying marriage rights to same-sex couples is unconstitutional. Here’s the relevant question:

“As you may know, last week the California Supreme Court ruled that the California Constitution requires that same-sex couples be given the same right to marry that opposite-sex couples have. Based on what you know, do you approve or disapprove of the Court’s decision to allow same-sex marriage in California?”

  • 41% Approve
  • 52% Disapprove
  • 7% Don’t know

The depth of public opposition to the Court’s ruling is indicated by the fact that 42% of those polled strongly disapproved of it, compared to only 29% who strongly approved.

These opinions generally translated into support for the proposed ballot initiative:

“As you may also know, a proposed amendment to the state’s constitution may appear on the November ballot which would reverse the Supreme Court’s decision and reinstate a ban on same-sex marriage. The amendment would state that marriage is only between a man and a woman. If the November election were held today, would you vote for or against the amendment to make marriage only between a man and a woman?”

  • 54% of registered voters would vote FOR it
  • 35% of registered voters would vote AGAINST it
  • 9% don’t know

A question about general attitudes toward legal recognition of relationships between two people of the same sex revealed that nearly two-thirds of California adults believe the state should recognize same-sex couples through marriage or civil unions:

  • 35% said “Same-sex couples should be allowed to legally marry.”
  • 30% said “Same-sex couples should be allowed to legally form civil unions, but not marry.”
  • 29% said “Same -sex couples should not be allowed to either marry or form civil unions.”
  • 6% were undecided.

These numbers indicate a small increase in support for marriage equality since April of 2004, when 31% of Californians said same-sex couples should be able to marry. They also indicate a similar rise in the proportion of Californians opposing any recognition of same-sex relationships, from 25% in 2004 to 29% now. The proportion endorsing civil unions but not marriage (effectively, the situation before last week’s Court ruling) decreased from 40% in 2004 to 30% now.

Respondents’ opinions about same-sex relationships didn’t perfectly predict their stated voting intentions. The LA Timesextended report on the poll includes the following breakdown of poll respondents:

  • 27% support marriage equality and plan to vote against the November initiative.
  • 21% oppose any legal recognition and plan to vote for the initiative.
  • 21% support civil unions but not marriage and plan to vote for the initiative.

These patterns are somewhat predictable. In addition, however:

  • 10% oppose marriage equality but plan to vote against the initiative.
  • 7% support marriage equality but plan to vote for the initiative.

Another 14% of respondents gave other combinations of answers to the two questions. Thus, a person’s stated attitudes toward marriage equality don’t necessarily reveal her or his voting intentions. In addition, some voters may be confused about the meaning of voting for the initiative versus opposing it.

Cause for Hope

At first glance, the polling numbers are likely to be disheartening to supporters of marriage equality. Some additional findings, however, offer hope for the fall election and suggest potential strategies for combating the ballot initiative.

First, whether or not the initiative passes will depend on who votes in the fall election. The Timesextended report on the poll noted that partisan affiliation and political ideology are key predictors of opinion about the initiative. And, compared to the voters who enacted the anti-marriage Proposition 22 in the March 2000 primary, historical turnout patterns suggest that those who vote this November will be more likely to be Democratic and liberal. When the LA Times analysts constructed a statistical model that factored in the likely characteristics of November voters, they found that “the amendment would still be ahead, but by half the margin found in the survey today.”

Second, although many California voters are currently opposed to marriage equality per se, their views of same-sex relationships are fairly positive. Consider the following results:

  • 59% agreed with the statement “As long as two people are in love and are committed to each other it doesn’t matter if they are a same-sex couple or a heterosexual couple.”
  • 54% disagreed with the statement, “If gays are allowed to marry, the institution of marriage will be degraded,” while 41% agreed. At the extremes, 38% strongly disagreed and 31% strongly agreed.
  • Overall, only 39% said they “personally believe that same-sex relationships between consenting adults are morally wrong,” compared to 54% who said such relationships are “not a moral issue.”

Third, the poll reflects voters’ intentions “if the November election were held today.” More than 5 months remain until the actual vote, however, and the fact that only a small majority supports the initiative at this point may be a sign that its passage is in doubt. The LA Times article noted that “ballot measures on controversial topics often lose support during the course of a campaign” and, for this reason, “strategists typically want to start out well above the 50% support level.” According to Susan Pinkus, the Times Poll Director, “Although the amendment to reinstate the ban on same-sex marriage is winning by a small majority, this may not bode well for the measure.”

Thus, California voters don’t overwhelmingly favor the initiative and, based on historical patterns, their support is likely to erode in the months ahead. Nor do most of them hold exceedingly hostile attitudes toward same-sex relationships. Moreover, those who will turn out to vote in November may be more supportive of marriage equality than the California population as a whole.

Strategies for Winning in November

Nevertheless, supporters of marriage rights in California clearly have a big job ahead of them. In that regard, the poll also highlights some key correlates of attitudes toward the ballot initiative, and thereby suggests approaches to confronting this challenge. In upcoming postings, I’ll discuss several such strategies. For now, I’ll focus on one.

For sexual minority Californians who want to rally opposition to the ballot measure, the poll highlights the importance of reaching out to heterosexual relatives, friends, and colleagues. Among survey respondents who said they don’t have a friend, family member or co-worker whom they know to be gay or lesbian, the ballot initiative was supported by a huge margin — 63% to 25%. But among those who said they know a gay or lesbian person, the initiative was supported by only a plurality — 47% to 41%.

Based on other empirical research about the effects of personal contact on heterosexuals’ attitudes toward sexual minorities, my guess is that these differences would have been even more pronounced if the poll had distinguished between participants who have a close relationship with a sexual minority individual and those who simply are acquainted with someone who isn’t heterosexual.

Interestingly, the benefits of having personal relationships were most pronounced among Democrats and independents. Support for marriage equality was 7 points higher among Democrats who know someone who is gay or lesbian than among Democrats who don’t. Among independents, the difference was 6 points.

Similarly, support for marriage equality was 9 points higher among liberals who know someone who is gay or lesbian, and 5 points higher among moderates. Among Republicans and conservatives, however, knowing a gay person added only a few percentage points.

This pattern could mean that political ideology and partisanship trump personal relationships in shaping attitudes toward marriage equality. Or it could mean that conservatives and Republicans have different kinds of relationships with sexual minorities than do moderates, liberals, Democrats, and independents. My own research, for example, indicates that personal relationships are more likely to reduce heterosexuals’ prejudices when they include open discussion of what it’s like to be gay or lesbian. Maybe conservative Republicans are less likely than others to have those conversations with their sexual minority acquaintances.

At any rate, this pattern — considered in conjunction with other research on sexual prejudice — suggests some actions that sexual minority Californians can start taking today:

  • Come out to your relatives and friends. Talk with them about what it’s like to be gay, lesbian, or bisexual.
  • If you’re in a committed relationship, introduce your partner to your heterosexual friends and family.
  • Talk with them about the initiative. Explain how it will adversely affect you and other people they care about.
  • Enlist them as allies; encourage them to persuade their friends to vote against the initiative.
  • If you’re planning a wedding, help your heterosexual guests to understand that your marriage may be rendered invalid if the initiative passes.

During the coming months, millions of dollars will be spent on advertising and mass media by both sides in the marriage debate. Those expensive campaigns, however, won’t have nearly as much impact on the vote as will California’s millions of gay, lesbian, and bisexual residents personally reaching out to their heterosexual friends and family members, and urging them to embrace marriage equality.

* * * * *

The Los Angeles Times/KTLA Poll contacted 834 adults (including 705 registered voters) in the state of California by telephone May 20 –21, 2008. An extended report on the poll results is available from the Times website.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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May 19, 2008

Traditional Values Coalition Defers to Science

Posted at 9:00 am (Pacific Time)

The Traditional Values Coalition’s May 15th response to the California Supreme Court’s marriage equality ruling contained a big surprise.

I’m not referring to their view of the decision itself, which was predictably negative. TVC characterized it as a “stunning example of the ultimate tyranny of judicial activism” that “makes the voters’ will unconstitutional” and “effectively destroyed the sanctity of marriage defined as between only a man and a woman.”

No, the surprise was in their explanation of why they believe the California justices were wrong to rule that sexual orientation is a suspect classification under California law, a decision that means the California courts will now subject any laws and policies that discriminate against sexual minorities to “strict scrutiny,” the same standard that is used to evaluate the legality of gender and racial discrimination.

According to the TVC,

….This decision is also fundamentally wrong because homosexuality has never been declared by the American Psychiatric Association, the American Psychological Association, or the National Academy of Sciences as being completely genetic, nor does it fulfill the other requirements for minority-status classification. Therefore, it is still a behavior-based lifestyle choice that should not be given the equivalent of insular and discreet minority status.

Disregard the phrase about genetics. The question of whether or not sexual orientation is innate has long been a concern of the TVC’s leader, Rev. Lou Sheldon. The truly interesting subtext here is that the TVC now accepts scientific authority — including the two APAs — as the appropriate source for factual information about sexual orientation.

What a refreshing departure from the Christian Right’s frequent attempts to distort and subvert the findings of scientific research!

Since the TVC would surely never do anything so intellectually dishonest as to selectively cite only the research findings that are consistent with their own ideological position, I guess we can now expect them to echo other assertions by the APAs that are based on scientific research about sexual orientation and sexual minorities.

Here are some good candidates for immediate TVC endorsement.

  • “[T]here is no scientific evidence that parenting effectiveness is related to parental sexual orientation: lesbian and gay parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.”
  • “[R]esearch has shown that the adjustment, development, and psychological well-being of children is unrelated to parental sexual orientation and that the children of lesbian and gay parents are as likely as those of heterosexual parents to flourish.”
  • And in its Resolution on Sexual Orientation & Marriage that same year, the APA found that “psychological research on relationships and couples provides no evidence to justify discrimination against same-sex couples.”
  • For its part, the American Psychiatric Association has concluded that “altering sexual orientation is not an appropriate goal of psychiatric treatment.” Moreover, “the American Psychiatric Association opposes any psychiatric treatment, such as ‘reparative’ or ‘conversion’ therapy, which is based upon the assumption that homosexuality per se is a mental disorder, or based upon a prior assumption that the patient should change his/her homosexual orientation.”

While we await the TVC’s embrace of these and other APA declarations, a clarification is in order concerning their criticism of the California Court decision.

It’s true that the amicus brief filed by two APAs, the California Psychological Association, and the National Association of Social Workers and its California chapter correctly noted that scientific research has not determined the origins of sexual orientation. This was stated in Footnote 60 of the brief:

Although much research has examined the possible genetic, hormonal, developmental, social, and cultural influences on sexual orientation, no findings have emerged that permit scientists to conclude that sexual orientation — heterosexuality, homosexuality, or bisexuality — is determined by any particular factor or factors. The evaluation of amici is that, although some of this research may be promising in facilitating greater understanding of the development of sexual orientation, it does not permit a conclusion based in sound science at the present time as to the cause or causes of sexual orientation, whether homosexual, bisexual, or heterosexual. [bibliographic references omitted]

And here’s the text of the paragraph in the body of the brief where that footnote appeared:

As noted [above], homosexuality is neither an illness nor a disability, and the mental health professions do not regard a homosexual orientation as harmful, undesirable, or requiring intervention or prevention. Currently, there is no scientific consensus about the specific factors that cause an individual to become heterosexual, homosexual, or bisexual — including possible biological, psychological, or social effects of the parents’ sexual orientation.[60] However, the available evidence indicates that the vast majority of lesbian and gay adults were raised by heterosexual parents and the vast majority of children raised by lesbian and gay parents eventually grow up to be heterosexual.

Although the TVC correctly characterized the two APAs’ statement in the brief, the question of origins became irrelevant to sexual orientation’s status as a suspect classification under California law as of last Thursday’s ruling. I’m not a legal expert, but I think the California Supreme Court decision explains this pretty clearly in several passages. Here’s what the majority opinion said on pp. 96-98 (with legal case citations and quotations omitted and some punctuation modified).

First, the justices stated their opinion about the status of sexual orientation:

[W]e conclude that sexual orientation should be viewed as a suspect classification for purposes of the California Constitution’s equal protection clause and that statutes that treat persons differently because of their sexual orientation should be subjected to strict scrutiny under this constitutional provision.

Next, they summarized the lower court’s rationale for not using strict scrutiny:

In addressing this issue, the majority in the Court of Appeal stated: “For a statutory classification to be considered ‘suspect’ for equal protection purposes, generally three requirements must be met. The defining characteristic must (1) be based upon an immutable trait; (2) bear no relation to [a person's] ability to perform or contribute to society; and (3) be associated with a stigma of inferiority and second class citizenship, manifested by the group’s history of legal and social disabilities. While the latter two requirements would seem to be readily satisfied in the case of gays and lesbians, the first is more controversial.” Concluding that “whether sexual orientation is immutable presents a factual question” as to which an adequate record had not been presented in the trial court, the Court of Appeal ultimately held that “[l]acking guidance from our Supreme Court or decisions from our sister Courts of Appeal,” the court would review the marriage statutes under the rational basis, rather than the strict scrutiny, standard.

Then the justices provided the very guidance that the Court of Appeal said it lacked. They explained why strict scrutiny is to be used in cases involving sexual orientation discrimination:

Past California cases fully support the Court of Appeal’s conclusion that sexual orientation is a characteristic (1) that bears no relation to a person’s ability to perform or contribute to society, and (2) that is associated with a stigma of inferiority and second-class citizenship, manifested by the group’s history of legal and social disabilities.

We disagree, however, with the Court of Appeal’s conclusion that it is appropriate to reject sexual orientation as a suspect classification, in applying the California Constitution’s equal protection clause, on the ground that there is a question as to whether this characteristic is or is not “immutable.” …[I]mmutability is not invariably required in order for a characteristic to be considered a suspect classification for equal protection purposes.

And the justices noted a parallel that must have been particularly interesting to the TVC:

California cases establish that a person’s religion is a suspect classification for equal protection purposes… and one’s religion, of course, is not immutable but is a matter over which an individual has control. Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment.

Thus, although the TVC is correct (in my opinion) to defer to scientific authority concerning the current state of knowledge about sexual orientation’s origins, they are wrong in arguing that sexual orientation must be “completely genetic” in order to be a suspect classification under California law, and that it doesn’t “fulfill the other requirements for minority-status classification.” The California Supreme Court — whose ruling on such issues is the last word — has said otherwise.

Presumably, the TVC will soon correct this factual inaccuracy about California law on its website and in its public statements.

I’ll be watching for that, just as I’ll be eagerly waiting for the TVC to revise its past statements about sexual minorities so they are consistent with mainstream scientific opinion.

But maybe I won’t hold my breath.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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May 15, 2008

Friends of the (California) Court: A Footnote

Posted at 4:48 pm (Pacific Time)

Leading up to today’s historic decision striking down state laws that prohibit same-sex couples from marrying, the California Supreme Court received 45 amicus curiae (friend of the court) briefs. The briefs were filed by diverse sources, including California cities, elected officials, law professors, and religious, business, and professional organizations.

It’s often difficult to know what impact such briefs have on judicial decision making. As a contributor to briefs filed by the American Psychological Association (APA) in other cases, I’ve sometimes wondered whether they were even read by the Court.

In today’s written opinion, however, the California Court majority characterized the briefs they’d received as “extensively researched and well-written” and acknowledged having “benefited from the considerable assistance provided by these amicus curiae briefs in analyzing the significant issues presented by this case” (Note 10, pp. 22-23).

While many of the briefs may have influenced the justices’ thinking in a variety of ways, three of them were specifically referenced by the Court.

Two of those briefs were filed by opponents of marriage equality.

  • The Court briefly noted an argument raised by the Pacific Justice Institute, which it opted not to consider (Note 9, p. 21).
  • The Court responded to a passage in the brief filed by Pat Robertson’s American Center for Law & Justice, which cited the philosopher John Rawls to argue that recognizing a constitutional right to marry for same-sex couples will devalue the institution and will have detrimental effects on children. The Court responded that, elsewhere in the same work, Rawls explicitly argued that if gay and lesbian “rights and duties are consistent with orderly family life and the education of children, they are, ceteris paribus [all other things being equal], fully admissible” (Note 51, pp. 78-79).

The third amicus brief explicitly cited by the Court was filed by the American Psychological Association, American Psychiatric Association, National Association of Social Workers, and some of their California state affiliates. (In the interests of full disclosure, it’s appropriate to acknowledge that I played a role in writing this brief.)

The APA brief was quoted in reference to the Court’s decision that, while California marriage laws don’t constitute discrimination on the basis of gender or sex, they do unlawfully discriminate on the basis of sexual orientation:

In our view, the statutory provisions restricting marriage to a man and a woman cannot be understood as having merely a disparate impact on gay persons, but instead properly must be viewed as directly classifying and prescribing distinct treatment on the basis of sexual orientation. By limiting marriage to opposite-sex couples, the marriage statutes, realistically viewed, operate clearly and directly to impose different treatment on gay individuals because of their sexual orientation. By definition, gay individuals are persons who are sexually attracted to persons of the same sex and thus, if inclined to enter into a marriage relationship, would choose to marry a person of their own sex or gender.[59]   A statute that limits marriage to a union of persons of opposite sexes, thereby placing marriage outside the reach of couples of the same sex, unquestionably imposes different treatment on the basis of sexual orientation (pp. 94-95).

Here’s Footnote 59:

[59] As explained in the amicus curiae brief filed by a number of leading mental health organizations, including the American Psychological Association and the American Psychiatric Association:

“Sexual orientation is commonly discussed as a characteristic of the individual, like biological sex, gender identity, or age. This perspective is incomplete because sexual orientation is always defined in relational terms and necessarily involves relationships with other individuals. Sexual acts and romantic attractions are categorized as homosexual or heterosexual according to the biological sex of the individuals involved in them, relative to each other. Indeed, it is by acting — or desiring to act — with another person that individuals express their heterosexuality, homosexuality, or bisexuality. . . .

Thus, sexual orientation is integrally linked to the intimate personal relationships that human beings form with others to meet their deeply felt needs for love, attachment, and intimacy. In addition to sexual behavior, these bonds encompass nonsexual physical affection between partners, shared goals and values, mutual support, and ongoing commitment.

Consequently, sexual orientation is not merely a personal characteristic that can be defined in isolation. Rather, one’s sexual orientation defines the universe of persons with whom one is likely to find the satisfying and fulfilling relationships that, for many individuals, comprise an essential component of personal identity.”

We made this point to explain that sexual orientation is inherently about relationships. As we documented in the brief (and as I’ve discussed in earlier posts), empirical research indicates that same-sex committed relationships don’t differ from heterosexual committed relationships in their essential psychosocial qualities, their capacity for long-term commitment, and the context they provide for rearing healthy and well-adjusted children.

Thus, the basis for according same-sex couples a legal status different from that of heterosexual couples ultimately boils down to the partners’ sexual orientation and the State’s role in stigmatizing sexual minorities.

The California justices agreed and forcefully rejected sexual orientation discrimination as unconstitutional, not only in the realm of marriage but in all areas. In fact, the Court ruled that instances of sexual orientation discrimination should be subjected to strict judicial scrutiny — the same standard that is applied in cases of racial and gender discrimination.

Of course, the story doesn’t end here. Court rulings typically don’t go into effect until 30 days after they’re issued. And opponents of marriage equality plan to ask the Court to place its decision on hold until the November election, when they hope to qualify a ballot proposition that would amend the state constitution to bar same-sex couples from legally marrying.

Today, however, many Californians — gay, lesbian, bisexual, and heterosexual — are celebrating a tremendous, long sought victory. And, no doubt, many are thinking of themselves as friends of this Court.

Copyright © 2008 by Gregory M. Herek. All rights reserved.

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