Professor Lisa M. Diamond has claimed that lawyers acting on behalf of the United States House or Representatives to defend in court Section 3 of the Defense of Marriage Act that bans the federal government from recognizing same-sex marriage, have “completely misrepresented” her research and “distorted” her findings.
Lawyers for the House Bipartisan Legal Advisory Group (BLAG), headed by lawyer Paul Clement, recently intervened in the case of Windsor v. United States where New York resident Edie Windsor is challenging the exorbitantly high inheritance tax penalty on her late wife’s estate levied because DOMA means the federal government treats married same-sex partners as legal strangers. She is asking the United States District Court for the Southern District of New York to deliver a summary judgement on DOMA Section 3. In a court memorandum arguing against such a move, BLAG lawyers asserted that gay and lesbian identity is fluid and that therefore it cannot be a cognizable group.
In doing so, they cited — on a number of occasions – research by Utah Professor Lisa M. Diamond, a leading researcher on human sexuality. Diamond has now filed a court brief in this case in which she says that BLAG’s lawyers have misrepresented her research.
BLAG misconstrues and distorts my research findings, which do not support the propositions for which BLAG cites them. Specifically, on p. 11 of their opposition to the motion for summary judgement, BLAG quotes the following statement from one of my papers: “…there is currently no scientific or popular consensus on the exact constellation of experiences that definitively ‘qualify’ an individual as lesbian, gay, or bisexual” — as support for their claim that sexual orientation is not immutable. This is incorrect.
My quoted statement concerns the scientific and popular debates over the defining characteristics of LGBT individuals and it says nothing whatsoever about the immutability of sexual orientation itself. Hence, BLAG has incorrectly characterized my research. BLAG goes on to state on page 11 that “according to multiple studies, a high number of persons who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction” and in support of this claim the provide the following quote from on of my articles: “50% [of respondents] had changed their identity label more than once since first relinquishing their heterosexual identity”.
This quoted statement refers to sexual identity labels (i.e., how individuals describe and interpret their sexuality), and not to sexual orientation. Neither this article nor any of my other published work supports BLAG’s claim that “a high number of persons who experience sexual attraction to members of the same sex early in their adult lives later cease to experience such attraction” (p.11). Hence they have completely misrepresented my research.
Diamond goes on to say:
Counsel for BLAG never requested that I serve as an expert witness for them in the above-refrenced lawsuit. If they had so requested, I would not have agreed to do so.
Lawyers acting on behalf of Edie Windsor, who sort to strike 12 of BLAG’s pieces of evidence they say were based on here-say and not facts, have said Professor Diamond’s brief rather proves their point that BLAG’s evidence is unreliable, writing in a reply memo (h/t AMERICAblog Gay):
As for citations to writings by individuals who may well have expertise for purposes of Federal Rule of Evidence 702, many of these individuals’ work simply does not support BLAG’s position, as one of thse authors has now made exceedingly clear… And others have made statements contrary to the porpositions BLAG advances in the very materials that BLAG cites.
The Obama administration announced in February of this year that, having undertaken a review of Section 3 of DOMA and finding it lacking, it would no longer defend the constitutionality of the law in court. House Republicans duly took up defending the law.
Both President Obama and the attorney general for the state of New York have filed briefs in support of the plaintiff.