Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation
Unbound: Harvard Journal of the Legal Left, Vol. 7, No. 1, pp. 1-54, 2011
55 Pages Posted: 20 Jan 2012 Last revised: 22 Feb 2012
Date Written: 2011
Judge Vaughn Walker made eighty separate factual findings in Perry v. Schwarzenegger, many of them facts about gay people drawn from the testimony of plaintiffs’ experts – and many are contradictory. The plaintiffs called experts who testified that gay people are virtually indistinguishable from straight people, arguing that “like things should be treated alike.” The plaintiffs also called witnesses, however, who depicted gay people as a discrete class, defined by a coherent and consistent set of distinguishing traits. Plaintiffs used expert testimony to demonstrate that gay people have a higher prevalence of depression, substance abuse and suicidality due to the stress of anti-gay discrimination. Plaintiffs also called experts, however, to substantiate the psychological fitness of gay people to maintain stable and satisfying relationships and raise well-adjusted children. The Paper shows how pro-gay litigators and a sympathetic judge relied on contradictory images of gay people and imports a key insight from queer theory to illuminate the peril of such an unstable representation: none of these “facts” is logically tethered to the pro-gay cause. The Paper also argues that expertise has a history of performing a depoliticizing function in law, one that can help to legitimate counter-majoritarian action. Rights perform a similar function. Both are to be distinguished sharply from politics, which is ordinarily reserved for legislative arenas. To justify a judicial intrusion into a state marriage law requires a discourse of neutrality, which both scientific expertise and constitutional rights argumentation provide. The two discourses converge in Perry to a powerful legitimating effect, but they leave us with a highly unstable, internally riven gay subject. The importation of queer insights into legal analysis, especially insights regarding the chronic instability of the gay subject, can help us to understand the likely recurrent consequences of a law reform strategy focused on “equal rights,” especially in judicial settings, which elicit discourses such as expertise and rights precisely because they aspire to neutral legal correctness.
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