Rachel Maddow   |  April 26, 2012

'Gay cure' retraction undermines Prop 8 case

Kenji Yoshino, constitutional law professor at New York University, talks with Rachel Maddow about the legal ramifications of Dr. Robert Spitzer's retraction of his study claiming that homosexuality can be cured.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> in september of 1998 , two men, john lawrence and jer rone garner were arrested at an apartment in texas for violating the texas state law against two people having sex by any means other than the one specific combination that might some day produce baby. there is a new book out that casts doubt whether or not mr. lawrence and mr. garner were actually having sex when police burst into mr. lawrence 's apartment and arrested them. in any case that is what they were charged with, two consenting adults charged with having a kind of tex illegal in texas . in 1998 , when they were arrested, mr. lawrence and mr. garner both vowed to contest the fine they were charged and to appeal their case and did all the way to the united states supreme court . in june 1993 , nearly five years after they were arrested, the supreme court quashed the case against them, struck down the texas law.

>> until today, it was legal for individual states to at least try to legislate what went on in the bedroom. not anymore. ho homosexual conduct is no longer a crime. nbc news justice correspond pete williams is with us from the court tonight. good evening.

>> reporter: good evening to you. people on both sides of this issue are calling it the most significant gay rights issue ever. the government cannot use moral grounds to make private sexual conduct illegal. the ruling was 6-3. justices antoine antoine scalia and thomas and the longer alive. and rick perry thought he should be president on defense of that rule with regulating the kind of sex you and your partner are allowed to have in your own home. pennsylvania state senator rick santorum also took that position in the campaign. that call to limited government and personal liberty was not enough to propel either of them to the presidency. another big gay civil rights case making its way to the courts that may very well end up being decided by the supreme court . that's the prop 8 case the referendum in california in 2008 to take away existing marriage rights from same sex couples. prop 8 has been in litigation since it passed in 2008 . the case around prop 8 hinges in part on the question of im immutability. is being gay and immutable characteristic. can you change it. if you find yourself gay for some reason, do you have to stay that way? one of the arguments the anti- gay rights side makes is being gay is a choice so marriage then isn't a question of equal rights . everybody has an equal right to get married already, if you want to get married and you're gay, you can get married, you just have to stop being gay, choose to become straight, now, you can get married, presto change-oh here comes the bride. this is a part of the transcripts from the oral arguments in the prop 8 case . the lawyer is arguing on the ant anti- gay side against gay marriage and questioning an expert, psychology prefeofessor. you will find here a document premarked. can you identify that document? answer interpret this is an argument of robert spitzer of sexual behavior in 2003 . can some gay and lesbians change their sexual orientation .

>> you are a familiar with the author, correct? a prominent psychiatrist considered to be an expert in his field.

>> answer. he is a prominent psychiatrist.

>> question. please turn to page 413 and the second column first full paragraph. some gays and res bans following repairtive therapy report they have made major changes from a predominantly homosexual orientation to predominantly heterosexual orientation. it was important for the lawyer on the anti- gay side to get it on the record this prominent study by this prominent expert psychiatrist proved gay people can change. it is relatively central to their argument denying gay people access to marriage isn't some kind of second class citizenship for gay people . they have first class citizenship. all they have to do is change into straight people and have all the rights they want. that argument has kind of fallen apart n. dr. roberts spitzer , the aforementioned prominent psychiatrist quoted there in the prop 8 trial whose work is supposed to prove gay people can change themselves into straight people . dr. robert spitzer recently revealed to the american prospect he would like to retract his study cited in that prop 8 trial and he does not think it qualifies as science. his study was published in this journal " archives of sexual behavior ." the editor says it will not formal retract the study but will publish this letter from dr. spitzer . thanks to truth wins out for being the first to publish it. it is kind of astonishing. he writes there is no way to determine if the people in his study who said they turned ex-gay were credible when they said it. no way to determine if they were credible when they said they had been cured of the gay. he also goes on to apologize. quote i believe i owe the gay community an apology for my study making unproven claims of the efficacy of repairtive therapy and apologize to any gay person who wasted time and energy undergoing some form of repa repairtive therapy because i believed i had proven that repairtive therapy works. if the next gay rights civil rights case hinges on the idea you can change being gay if you want to and if the basis for that claim just evaporated in a puff of, i'm sorry, from dr. spitzer , what does that do to the law as civil rights in the country. joining us is chief justice earl warren professor of constitutional law . thanks for being here.

>> thanks for having me.

>> the fact this study from the early 2 tho,0000s, the fact it no longer exists for the anti- gay rights side in the prop 8 case , how do you think that will affect the case going forward?

>> i think it's a big deal . the reason immutable is important because under equal protection clause of the 14th amendment there's a standard called heightened scrutiny, race, national origin , non-national parentage get that scrutiny. the $64,000 question is whether or not sexual orientation will be added to that list. one of the criteria the supreme court looks at to determine if they get heightened scrutiny is immutability. the fact spitzer retracted this and the testimony the prop 8 trial that sexual orientation is very hard to change could figure into that analysis.

>> are there other analyses of the anti- gay side in these anti-gay cases, other examples of them citing scientific literature to bolser their side? didn't that come in the marriage act ?

>> it's almost worse because the defense cites to lisa diamond a psychologist, the staple stick you just talked about, you have this pro gay person because robert spitzer was prominent in getting homosexuality declassified as a mental illness.

>> and regard ed as a hero.

>> and it was a cruel thing that they could convert and the other side made hey out of this and lisa diamond, a psychologist out of the university of utah and paul clement just argued the arizona case a conservative super lawyer said here's a pro gay scholar and she believes homosexuality is actually changeable. is the actually even worse because almost like a marshall mccluen moment, lisa diamond shows up, i will sign this document that is an a complete distortion of everything i've done and all my work and everything you cite. the same thing all over again, the kind of emperor has no clothes dynamic gradually realizing these arguments the anti- gay marriage side has are nothin nothing.

>> one of the reasons you're the right person to talk to about it, i feel you have an appreciation for what's happening in the courts but also for what's happening in culture and politics and how these things tend to interact. i guess the thing that is kind of shocking to me the more i look into this, i don't feel like anybody credible believes gay people can click their heels together and become straight. it's seen as a quack idea and popularized on the anti-gay political movement for a reason. it seems to collapse under the wealth of ridiculousness. to find out it is central to the courtroom arguments against gay rights even as far up as these cases likely to go to the supreme court is surprising, just for the base political credibility of that case. i wonder if you see it that way or if there's something i'm missing.

>> i guess i would say yes and no to that. on the other hand, yes, i've been on the front line of the professorian trying to argue against the so-called immutability criteria. it doesn't really make that much sense for the reasons you describe. for example we would never say religion is not going to be protected because can change your religion, even if we have a despised religion in this country we will still protect it under the freerks size clause and people can convert as they do all the time, it won't affect that analysis. i agree it doesn't make sense at that level. at the same time, it seems to have an odd and deep-rooted traction and it quiets people's fears their children will grow up gay if exposed to same sex marriage one and thing we will see is this infamous princess ad this little kid comes home to her mother, i just learned in school a king can marry a king because teacher read me a book and i can grow up to marry a princess. that has been incredibly difficult to overcome in the pro gay side in referendum after referendum.

>> however it functions ultimately its power is the way it evokes fear?

>> exactly right.

>> ken, thank you for being here. chief justice earl warren professor of constitutional law . somebody i've been looking forward to talking about this a long time.

>>> last word, find out what karl rove thought about the choice of dick cheney as vice president. not what you think. lawrence o'donnell has the details on that. best thing in the world, not intended to be a karaoke edition but nobody will stop you if it turns out that