Maybe one reason the Proposition 8 defense lawyers are only calling two witnesses of their own in the Perry v. Schwarzenegger trial is that they’ve been striving to make their case with dogged cross-examination of the plaintiffs’ witnesses. On Friday, the cross-examination of Gregory Herek, a social psychologist at UC Davis, kept him on the stand all day (“you win the long-distance award,” the judge told him) working to defend his point that most gays and lesbians do not experience their sexual orientation as a conscious choice. In one of Herek’s studies, for example, eighty-seven per cent of the gay men and seventy per cent of the lesbians he questioned said they felt they had little or no choice in their sexual orientation.

But Howard Nielson, the lawyer for the defense, brought out a binder full of studies to make the argument that, as he put it, sounding like postmodern academic, “social scientists conceive of sexual orientation as a complex, multi-faceted phenomenon, and operationalize it in a variety of ways.” Some people might feel attraction to people of the same sex and even act on it, without wanting to be treated as part of a gay or lesbian group identity, a point he got Herek to acknowledge. Moreover, sexual orientation was often thought of as occupying a continuum, from exclusively heterosexual to exclusively homosexual.

Read the rest Margaret Talbot’s New Yorker article here.