3:09-cv-02292 #204

Case3:09-cv-02292-VRW Document204 Filed09/23/09 Page1 of 4
1 GIBSON, DUNN & CRUTCHER LLP

Theodore B. Olson, SBN 38137
2 tolson@gibsondunn.com
Matthew D. McGill, pro hac vice
3 Amir C. Tayrani, SBN 229609
1050 Connecticut Avenue, N.W., Washington, D.C. 20036
4 Telephone: (202) 955-8668, Facsimile: (202) 467-0539
5 Theodore J. Boutrous, Jr., SBN 132009

tboutrous@gibsondunn.com
6 Christopher D. Dusseault, SBN 177557
Ethan D. Dettmer, SBN 196046
7 Sarah E. Piepmeier, SBN 227094
Theane Evangelis Kapur, SBN 243570
8 Enrique A. Monagas, SBN 239087
333 S. Grand Avenue, Los Angeles, California 90071
10 BOIES, SCHILLER & FLEXNER LLP

David Boies, pro hac vice
11 dboies@bsfllp.com
Theodore H. Uno, SBN 248603
12 333 Main Street, Armonk, New York 10504
Telephone: (914) 749-8200, Facsimile: (914) 749-8300
13
Attorneys for Plaintiffs KRISTIN M. PERRY, SANDRA B. STIER,
14 PAUL T. KATAMI, and JEFFREY J. ZARRILLO
15 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
16
KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW
17 PAUL T. KATAMI, and JEFFREY J.
ZARRILLO, DECLARATION OF ENRIQUE A.
18 Plaintiffs, MONAGAS IN SUPPORT OF PLAINTIFFS’
v. AND PLAINTIFF-INTERVENOR’S
19 JOINT OPPOSITION TO DEFENDANT-
ARNOLD SCHWARZENEGGER, in his official INTERVENORS’ MOTION FOR
20 capacity as Governor of California; EDMUND SUMMARY JUDGMENT
G. BROWN, JR., in his official capacity as
21 Attorney General of California; MARK B.
HORTON, in his official capacity as Director of
22 the California Department of Public Health and
State Registrar of Vital Statistics; LINETTE
23 SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
24 Planning for the California Department of Public
Health; PATRICK O’CONNELL, in his official
25 capacity as Clerk-Recorder for the County of
Alameda; and DEAN C. LOGAN, in his official
26 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
27
Defendants.
28
Gibson, Dunn &

Crutcher LLP
09-CV-2292 VRW DECLARATION OF ENRIQUE A. MONAGAS IN SUPPORT OF PLAINTIFFS’ AND PLAINTIFF-
INTERVENOR’S JOINT OPPOSITION TO DEFENDANT-INTERVENORS’ MOTION FOR SUMMARY JUDGMENT
1 I, Enrique A. Monagas, declare as follows:
2 1. I am an attorney licensed to practice law in the State of California and in the Northern
3 District of California. I am an associate in the law firm of Gibson, Dunn & Crutcher LLP, counsel of
4 record for Plaintiffs Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo in the
5 above-captioned matter. I make this declaration in support of Plaintiffs’ and Plaintiff-Intervenor City
6 and County of San Francisco’s (collectively, “Plaintiffs”) Joint Opposition to Defendant-Intervenors’
7 Motion for Summary Judgment. The information below is stated on personal knowledge and if
8 called as a witness, I could and would testify completely thereto.
9 2. Attached hereto as Exhibit A is a true and correct copy of the Attorney General’s
10 Responses to Plaintiffs’ Requests for Admission, Set One, served on September 23, 2009.
11 3. Attached hereto as Exhibit B is a true and correct copy of the Transcript of
12 Proceedings before this Court on August 19, 2009.
13 4. Attached hereto as Exhibit C is a true and correct copy of Defendant-Intervenors’
14 Responses to Plaintiffs’ First Set of Requests for Admission, served on September 11, 2009.
15 5. Attached hereto as Exhibit D is Plaintiffs’ Responses to Defendant-Intervenors
16 Proposition 8 Proponents’ First Set of Interrogatories, served on September 16, 2009.
17 6. Attached hereto as Exhibit E is a true and correct copy of the American Psychological
18 Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009),
19 http://www.apa.org/pi/lgbc/publications/therapeutic-response.pdf.
20 7. Attached hereto as Exhibit F is Plaintiffs’ Responses to Defendant-Intervenors
21 Proposition 8 Proponents’ First Set of Requests for Admission, served on September 16, 2009.
22 8. Attached hereto as Exhibit G is a true and correct copy of David R. Francis, Is
23 Population Growth a Ponzi Scheme?, CHRISTIAN SCIENCE MONITOR, Aug. 17, 2009, available at
24 http://features.csmonitor.com/economyrebuild/2009/08/17/economic-scene-is-population-growth-a-
25 ponzi-scheme/.
26 9. Attached hereto as Exhibit H is a true and correct copy of American Psychiatric
27 Association, Healthy Minds. Healthy Lives., Gay/Lesbian/Bisexuals, at
28 http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx (last visited Sept. 23, 2009).
Gibson, Dunn &

2
Crutcher LLP
1 10. Attached hereto as Exhibit I is a true and correct copy of Kristin Anderson Moore et
2 al., Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What
3 Can We Do about It?, Child Trends Research Brief (June 2002).
4 11. Attached hereto as Exhibit J is a true and correct copy of Yongmin Sun, The Well-
5 Being of Adolescents in Households with No Biological Parents, 65 J. MARRIAGE & FAM. 894 (2003).
6 12. Attached hereto as Exhibit K is a true and correct copy of Herma Hill Kay,
7 Symposium, From the Second Sex to the Joint Venture: An Overview of Women’s Rights and Family
8 Law in the United States During the Twentieth Century, 88 CAL. L. REV. 2017 (2000).
9 13. Attached hereto as Exhibit L is a true and correct copy of Alana Semuels, Gay
10 Marriage a Gift to California’s Economy, L.A. TIMES, June 15, 2008, available at
11 http://articles.latimes.com/2008/jun/02/business/fi-wedding2.
12 14. Attached hereto as Exhibit M is a true and correct copy of the Ballot Pamphlet
13 materials for Proposition 8, California General Election, November 4, 2008 (“Voter Guide”).
14 15. Attached hereto as Exhibit N is a true and correct copy of a Letter from Andrew P.
15 Pugno to Station Managers (Sept. 29, 2008), produced by Defendant-Intervenors, at
16 DEFINT_PM_003184 – 003192.
17 I declare, under penalty of perjury under the laws of the United States, that these facts
18 are true and correct and that this Declaration is executed this 23rd day of September 2009 at San
19 Francisco, California.
20
21 /s/ Enrique A. Monagas

Enrique A. Monagas
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Gibson, Dunn &

3
Crutcher LLP
1 ATTESTATION PURSUANT TO GENERAL ORDER NO. 45
2 Pursuant to General Order No. 45 of the Northern District of California, I attest that
3 concurrence in the filing of the document has been obtained from each of the other signatories to this
4 document.
5 /s/ Theodore B. Olson

Theodore B. Olson
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Gibson, Dunn &

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Case3:09-cv-02292-JW Document204-1 Filed09/23/09 Page1 of 22
Exhibit A
Case3:09-cv-02292-VRW Document204-2 Filed09/23/09 Page1 of 72
Exhibit B
Volume 1
Pages 1 - 70
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER, JUDGE
KRISTIN PERRY, ET AL., )

)
Plaintiffs, )
)
VS. ) NO. C 09-2292 VRW
)
ARNOLD SCHWARZENEGGER, ET AL., )
) San Francisco, California
Defendants. ) Wednesday
) August 19, 2009
___________________________________) 10:02 a.m.
TRANSCRIPT OF PROCEEDINGS
APPEARANCES:
For Plaintiffs: Gibson, Dunn & Crutcher

333 South Grand Avenue
Los Angeles, California 90071-3197
BY: CHRISTOPHER D. DUSSEAULT, ESQ.
THEANE E. KAPUR, ESQ.
THEODORE J. BOUTROUS, JR., ESQ.
and
Gibson, Dunn & Crutcher
555 Mission Street
Suite 3000
San Francisco, California 94105-2933
BY: ENRIQUE A. MONAGAS, ESQ.
and
Gibson, Dunn & Crutcher
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: THEODORE B. OLSON, ESQ.
MATTHEW D. MCGILL, ESQ.
Reported By: Belle Ball, CSR 8785, RMR, CRR

Official Reporter, U.S. District Court
(Appearances continued, next page)
Belle Ball, CSR #8785, RMR, CRR

Official Reporter - U.S. District Court
(415) 373-2529
Case3:09-cv-02292-VRW Document204-2 Filed09/23/09 Page3 of 72 2
APPEARANCES, CONTINUED:
Also For Plaintiffs: BOIES, SCHILLER & FLEXNER

333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQ.
JEREMY M. GOLDMAN, ESQ.
THEODORE H. UNO, ESQ.
For Defendants Schwarzenegger, Scott and Horton:

Mennemeier, Glassman & Stroud
980 9th Street
Suite 1700
Sacramento, California 95814
BY: KENNETH C. MENNEMEIER, ESQ.
For Defendant Attorney General Edmund G. Brown, Jr.:

California Department of Justice
Office of the Attorney General
1300 I Street
17th Floor
SACRAMENTO, CALIFORNIA 95814
BY: GORDON B. BURNS
Deputy Solicitor General
and
California Department of Justice
455 Golden Gate Avenue
Suite 11000
San Francisco, California 94102
BY: TAMAR PACHTER, ESQ.
For Defendant Logan:

Office of the County Counsel
County of Los Angeles
500 West Temple Street
Room 652
Los Angeles, California 90012
BY: JUDY W. WHITEHURST
Principal Deputy County Counsel

(415) 373-2529
For Defendant Patrick O'Connell:

Office of County Counsel
County of Alameda
1221 Oak Street
Suite 450
Oakland, California 94612
BY: CLAUDE F. KOLM
LINDSEY STERN
Deputy County Counsel
For Proposed Intervenor Plaintiffs Our Family Coalition,

Lavender Seniors of East Bay, and PFLAG:
American Civil Liberties
Union Foundation
125 Broad Street
18th Floor
New York City, New York 10004-2400
BY: JAMES D. ESSEKS, ESQ.
and
American Civil Liberties Union
Foundation of Northern California
39 Drumm Street
BY: ELIZABETH GILL, ESQ.
and
Lambda Legal
3325 Wilshire Boulevard
Suite 1300
Los Angeles, California 90010
BY: JENNIFER C. PIZER, ESQ.
and
National Center for Lesbian Rights
870 Market Street
Suite 370
BY: SHANNON PRICE MINTER, ESQ.
CHRISTOPHER STOLL, ESQ.

(415) 373-2529
For Proposed Intervenor Defendant Campaign for California

Families:
Liberty Counsel
Post Office Box 11108
Lynchburg, Virginia 24506
BY: RENA M. LINDEVALDSEN, ESQ.
For Intervenor Defendants:

Cooper & Kirk
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
BY: CHARLES J. COOPER, ESQ.
DAVID H. THOMPSON, ESQ.
For Intervenor Defendants:

Alliance Defense Fund
15100 North 90th Street
Scottsdale, Arizona 85260
BY: BRIAN W. RAUM, ESQ.
JAMES A. CAMPBELL, ESQ.
For City and County of San Francisco:

City and County of San Francisco
Office of the City Attorney
1390 Market Street
Seventh Floor
BY: THERESE STEWART, ESQ.
ERIN BERNSTEIN, ESQ.
CHRISTINE VAN AKEN, ESQ.
DENNIS HERRERA, ESQ.
Reported By: Belle Ball, CSR 8785, RMR, CRR

Official Reporter, U.S. District Court

(415) 373-2529
1 WEDNESDAY, AUGUST 19, 2009
2 10:02 A.M.
3 P R O C E E D I N G S
4 THE CLERK: Calling Civil Case 09-2292, Christine
5 Perry, et al. versus Arnold Schwarzenegger, et al.
6 Appearances on the Plaintiffs' side, please.
7 MR. OLSON: Good morning, Your Honor. Theodore B.
8 Olson, Gibson, Dunn & Crutcher, on behalf of the Plaintiffs.
9 THE COURT: Good morning, Mr. Olson.
10 MR. BOIES: Good morning, Your Honor. David Boies of
11 Boies, Schiller & Flexner, on behalf of Plaintiffs.
12 THE COURT: Mr. Boies, good morning.
13 MR. BOUTROUS: Theodore J. Boutrous, Jr., for the
14 Plaintiffs. Good morning, Your Honor.
15 THE COURT: Mr. Boutrous, good morning.
16 MS. KAPUR: Good morning. Theane Kapur for the
17 Plaintiff.
18 MR. MONAGAS: Good morning, Your Honor. Enrique
19 Monagas for the Plaintiffs.
20 THE COURT: Good morning.
21 MR. GOLDMAN: Good morning, Your Honor. Jeremy
22 Goldman of Boies, Schiller & Flexner, for the Plaintiffs.
23 MR. UNO: Good morning, Your Honor. Theodore Uno,
24 Boies, Schiller & Flexner, for the Plaintiffs.
25 MR. McGILL: Good morning, Your Honor. Matthew

(415) 373-2529
1 McGill, Gibson, Dunn & Crutcher, for the Plaintiffs.
3 MR. DUSSEAULT: Good morning, Your Honor.
4 Christopher Dusseault, also of Gibson, Dunn & Crutcher, for the
5 Plaintiffs.
6 THE COURT: Good morning. Any more on the
7 Plaintiffs' side? Very well.
8 How about the other side?
9 MR. MENNEMEIER: Good morning, Your Honor. Ken
10 Mennemeier on behalf of Governor Schwarzenegger and two members
11 of his administration.
12 THE COURT: Good morning, Mr. Mennemeier.
13 MR. MENNEMEIER: Thank you.
14 MS. LINDEVALDSEN: Rena Lindevaldsen, Proposed
15 Intervenor Defendant, Campaign for California Families.
17 MS. PACHTER: Good morning, Your Honor. Deputy
18 Attorney General Tamar Pachter, for the Attorney General.
20 MR. BURNS: Good morning. Deputy Solicitor Gordon
21 Burns for the Attorney General.
23 MS. WHITEHURST: Good morning, Your Honor. Judy
24 Whitehurst with the Los Angeles County Counsel's office, on
25 behalf of Dean C. Logan.

(415) 373-2529
2 MR. KOLM: Good morning, Your Honor. Claude Kolm,
3 Alameda County Counsel's Office, on behalf of Defendant Patrick
4 O'Connell, the Alameda County Clerk Recorder.
6 MS. STERN: Good morning, Your Honor. Lindsey Stern,
7 Alameda County Counsel's Office, on behalf of Defendant Patrick
8 O'Connell.
9 MR. ESSEKS: Good morning, Your Honor. James Esseks
10 from the American Civil Liberties Union, on behalf of Proposed
11 Plaintiff Intervenors Our Family Coalition, Lavender Seniors of
12 East Bay, and PFLAG.
13 THE COURT: I'm sorry.
14 MR. ESSEKS: And PFLAG.
15 THE COURT: Yes, all right.
16 MR. ESSEKS: Thank Your Honor.
17 MS. PIZER: Good morning, Your Honor. Jennifer
18 Pizer, Lambda Legal Defense and Education Fund, also for the
19 Proposed Plaintiff Intervenors, Our Family Coalition,
20 et cetera.
22 MR. MINTER: Good morning. Shannon Minter, National
23 Center for Lesbian Rights, also on behalf of Proposed
24 Intervenor Plaintiffs.

(415) 373-2529
1 MS. STEWART: Good morning, Chief Judge Walker.
2 Terry Stewart and City Attorney Dennis Herrera, Erin Bernstein,
3 and Christine Van Aken on behalf of the City and County of
4 San Francisco.
5 THE COURT: Very well. Good morning.
6 MR. COOPER: Good morning, Mr. Chief Judge. Charles
7 Cooper of Cooper & Kirk, for the Defendant Intervenors.
8 THE COURT: Good morning, Mr. Cooper.
9 MR. THOMPSON: Good morning, Your Honor. David
10 Thompson from Cooper & Kirk, for the Defendant Intervenors.
11 MR. RAUM: Good morning, Your Honor. Brian Raum for
12 Defendant Intervenor.
14 MR. CAMPBELL: Good morning, Your Honor. Jim
15 Campbell from -- I'm sorry, on behalf of the Proposed
16 Plaintiffs Intervenors -- or, I'm sorry, the Prop 8 proponent.
17 THE COURT: All right. Any other appearances? All
18 right, that's quite a lineup.
19 Now, we have basically, I think, two things to do
20 this morning. We have the motions to intervene which need to
21 be addressed, and I think we should probably take up those
22 issues first. And then after we address the motions to
23 intervene, I want to talk to Counsel about case management.
24 But because the case management issues may depend upon who's in
25 the case and who's not in the case, and exactly what role

(415) 373-2529
1 various parties have, I think we should take up the motions to
2 intervene first.
3 My inclination is to hear the motions to intervene by
4 the Our Family Coalition and the Campaign for California
5 Families first. And then because I think there are somewhat
6 different issues raised by the City and County of
7 San Francisco, to take up that motion.
8 So, that would be the agenda that I would set for
9 this morning. Do counsel have any alternatives that he or she
10 would like to propose?
11 MR. OLSON: (Shakes head)
12 THE COURT: All right. Let's proceed, then. Who
13 would like to lead off for the Our Family Coalition?
14 MR. ESSEKS: Your Honor --
15 THE COURT: Let's see, you are Mister --
16 MR. ESSEKS: Esseks.
17 THE COURT: Esseks.
18 MR. ESSEKS: Yes, Your Honor. I'm James Esseks from
19 the ACLU. Together with my colleagues at Lambda Legal and the
20 National Center for Lesbian Rights, we represent three LGBT
21 community organizations, Your Honor, that wish to intervene in
22 the lawsuit.
23 Those organizations are Our Family Coalition, which
24 is an organization that consists of families headed by same-sex
25 couples and LGBT individuals; Lavender Seniors of the East Bay,

(415) 373-2529
1 which is an organization that is made up of LGBT seniors; and
2 PFLAG, Parents, Friends and Families of Lesbians and Gays,
3 which is an organization that consists both of the LGBT
4 individuals and people who are their family and their
5 supporters.
6 Your Honor, these three community organizations move
7 to intervene here for three reasons. First off, the rights of
8 these organizations' members will be significantly affected by
9 the rulings of this Court.
10 Second, these organizations want to join the lawsuit
11 in order to help illustrate the various different harms that
12 Proposition 8 inflicts on same-sex couples throughout
13 California.
14 And third, these organizations seek to intervene,
15 Your Honor, because through their counsel, they bring expertise
16 and -- a deep understanding of the issues and expertise in
17 putting together the kind of factual record that the Court has
18 indicated it is interested in developing in this case.
19 Given the liberal standards for intervention in the
20 Ninth Circuit, Your Honor, we believe that these three
21 organizations should be allowed to intervene. Either under
22 intervention as of right, or intervention with the Court's
23 permission.
24 THE COURT: Well, tell me what the significant
25 protectable interest of these organizations is.

(415) 373-2529
1 MR. ESSEKS: Your Honor, the significant protectable
2 interests would be the interests of the organization's members.
3 That is, each is these organizations has among its members
4 same-sex couples who live in California who would like to
5 marry. And Proposition 8 obviously makes that impossible at
6 the moment.
7 THE COURT: But isn't that interest represented by
8 the Plaintiffs?
9 MR. ESSEKS: That is an interest that is represented
10 by the Plaintiffs, Your Honor. But in terms of getting to the
11 adequacy-of-representation prong of the
12 intervention-as-of-right analysis, they are -- first off, we do
13 share the same ultimate objective with the Plaintiffs. That
14 is, the objective of striking down Proposition 8.
15 That raises a presumption that indeed, the Plaintiffs
16 will adequately represent the interests of our clients, the
17 community organizations and their members. However, that
18 presumption is easily rebutted if the interests of our
19 organizations and the interests of the Plaintiffs' may diverge.
20 And they may diverge in multiple ways, Your Honor.
21 First off, the community organizations, through their
22 members, have experienced a range of harms from Proposition 8
23 that the two Plaintiffs -- and quite frankly, Your Honor, any
24 two couples -- cannot have experienced.
25 THE COURT: Well, as a practical matter, it is not

(415) 373-2529
1 going to be possible to bring in every individual, with his or
2 her background, his or her socioeconomic status, views on these
3 issues. So, it's simply going to be impossible to represent
4 the entire mosaic of the backgrounds of the individuals who
5 wish to marry but are precluded from doing so by Proposition 8.
6 So, really, what does adding your group or groups to
7 this lawsuit bring that is not otherwise presented by the
8 Plaintiffs?
9 MR. ESSEKS: Your Honor, the -- the variety of
10 interests that the members of the community organizations can
11 present to the Court are directly relevant to legal questions
12 that this Court is going to have to grapple with.
13 For example, one of the questions the Court is going
14 to have to deal with is whether the registered domestic
15 partnership system that California has set up is an adequate
16 substitute for marriage or not. It goes to the core issue of
17 whether there is inequality here, and the degree of that
18 inequality.
19 THE COURT: Is that a legal question? Or a factual
20 question?
21 MR. ESSEKS: I think it's both, Your Honor. But
22 certainly, the facts that the community organizations can bring
23 to the Court to show the full range of harms inflicted by on
24 same-sex couples by Proposition 8, and how those harms are not
25 remediated by access to the domestic partnership system can

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1 help this Court grapple with the degree and the nature of the
2 inequality that is prepared by Proposition 8.
3 So, for example, members of the community
4 organizations have lived for a number of years with domestic
5 partnership registries. And they have experienced how, in very
6 concrete terms, that registry and that registration has not
7 solved the problems that we expect the proponents to say they
8 have solved.
9 For example, situations where, for example, older
10 LGBT couples --
11 THE COURT: Well, but does -- is it necessary for
12 your organizations to enter as parties in the litigation, for
13 that evidence to be presented?
14 MR. ESSEKS: Well, Your Honor, certainly we would be
15 hard-pressed to present that evidence ourselves if we were
16 solely appearing before the Court amicus. It is possible, Your
17 Honor, that the Plaintiffs could present similar evidence.
18 But, we don't have to show, in terms of the
19 adequacy-of-representation prong of the
20 intervention-as-of-right test, that they won't represent our
21 interests. We simply need to show that the interests may
22 diverge.
23 And these organizations, with their members, are very
24 well-suited to bring to the Court and present the wide range of
25 harms, and with very specific concrete detail, in a way that

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1 will give the Court a better ability to grapple with the
2 factual issues and the legal issues that the Court has to
3 decide in the course of putting together the case.
4 A second example, Your Honor, of how the -- the
5 myriad experiences of the members of our community
6 organizations are relevant to legal issues is in the -- one of
7 the in-process claims that is in both the Plaintiffs' complaint
8 and the complaint that the community organizations would file.
9 One.
10 Of those due-process claims, Your Honor, is based on
11 not only the right to marry, but --
12 THE COURT: Not on what?
13 MR. ESSEKS: Not on the right to marry, but on the
14 right to form intimate relationships, which is a right
15 protected by the U.S. Supreme Court decision in Lawrence versus
16 Texas.
17 In the Ninth Circuit's decision in Witt versus
18 Department of the Air Force, Your Honor, which is a case about
19 the don't ask, don't tell restriction on gay people in the
20 military, the Ninth Circuit said that if a law intrudes upon
21 the rights protected by the Supreme Court's decision in
22 Lawrence versus Texas, that then this Court's job is to do a
23 balancing act, to weigh two different competing interests. On
24 the one hand, the interests of the government that undergird
25 the law at question -- in that case it was don't ask, don't

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1 tell; in this case, obviously, it would be Proposition 8 -- and
2 to weigh thoughts interests against the interests of the
3 individuals whose rights are compromised by that law.
4 And Your Honor, we submit that for this Court to
5 adequately do that balancing, it needs to have or it would be
6 helpful for it to have before it the full range of facts that
7 our clients can provide about all the different ways in which
8 Proposition 8 hurts those individuals.
9 And while it is possible, as I said earlier, that the
10 Plaintiffs could present at least some of that evidence, our --
11 THE COURT: No, you're not presenting actual
12 plaintiffs who have personal experience, and are able to
13 present evidence based upon that personal experience. You --
14 you're a group of organizations. And whatever rights your
15 organizations have are derivative of your members.
16 MR. ESSEKS: Indeed.
17 THE COURT: Whereas the Plaintiffs, of course, are
18 directly affected by the law that is at issue here.
19 MR. ESSEKS: That's correct, Your Honor. But it's
20 clear that organizations can bring claims on behalf of their
21 members.
22 And one of the advantages -- and I think it's an
23 advantages that the U.S. Supreme Court has identified of using
24 organizations as plaintiffs, is -- that these organizations who
25 have -- it's not a random collection of individuals. It's

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1 people who have come together, for the express purpose of
2 protecting certain rights and advancing certain agendas.
3 And so, these are organizations that collectively
4 have the best interests of the community at heart, and can, you
5 know, bring easily together a full range of the harms that are
6 inflicted by Proposition 8.
7 THE COURT: So, basically what you're saying is that
8 the factual record would be richer if your organizations were
9 made parties to the litigation, as opposed to simply
10 participating as amici.
11 MR. ESSEKS: Your Honor, I think that is -- that is
12 absolutely correct, that is part of our argument. There.
13 Is a second way, Your Honor, in which the interests
14 of the proposed community organization intervenors may diverge
15 from the interests of the Plaintiffs. And that is that the
16 Plaintiffs, obviously, are interested in this case because it's
17 about marriage. And the community organizations are also
18 interested in this case because of the core issues about
19 marriage, and access to marriage for same-sex couples that the
20 case will raise.
21 In the course of deciding the issues in this
22 litigation, Your Honor, the Court will make rulings and factual
23 findings that affect not just the question of whether
24 restrictions on the right to marry for gay people violate the
25 Constitution, but will also be relevant to other issues in gay

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1 rights litigation and gay rights law. And these are issues
2 that are directly relevant and of great concern to the
3 community organizations, in a range of issues outside of
4 marriage.
5 And there is a concern, Your Honor, that the
6 arguments by the Plaintiffs may be pitched solely in terms of
7 the right to marry, and without considering other issues that
8 may affect other parts of LGBT rights law.
9 THE COURT: Very well. Thank you very much,
10 Mr. Esseks.
11 And, let's hear from the Campaign for California
12 Families. Is that Ms. --
13 MS. LINDEVALDSEN: Lindevaldsen, yes.
14 THE COURT: Yes, Lindevaldsen. Good morning.
15 MS. LINDEVALDSEN: Good morning, Your Honor. Rena
16 Lindevaldsen.
17 The case management statement filed by the
18 Proposition 8 Defendants makes very clear -- the one that was
19 just filed on August 17th -- why it is the Campaign's motion
20 should be grated, to intervene in this case.
21 In light of the stipulations that the Proposition 8
22 Defendants have indicated they're willing to agree in whole to,
23 or in part, it is very clear that the interests of the
24 Campaign, and in fact, those who voted to protect marriages
25 between a man and a woman, are inadequately represented in this

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1 litigation.
2 It bears emphasis at the outset that the motion to
3 intervene is to be liberally construed in favor of
4 intervention, but --
5 (Reporter interruption)
6 THE COURT: Well, are you saying -- are you saying
7 that your client's interests go beyond those that are
8 represented by the Intervenor Defendants, represented by
9 Mr. Cooper? Is that what you're saying?
10 MS. LINDEVALDSEN: They include and go beyond those
11 represented by the current Defendants, insofar as the Campaign
12 for California Families has fought for 15 years in this state
13 on behalf of voters to both protect the name of marriage, which
14 is what Proposition 8 does, as well as the substantive rights
15 of marriage and benefits.
16 THE COURT: Okay. Explain, then, to me where your
17 client's interests go beyond those represented by Mr. Cooper's
18 client.
19 MS. LINDEVALDSEN: Sure. The interests -- and
20 probably the best way to show this is I've actually gone
21 through the case management statement, and come up with eleven
22 arguments or facts that the Proposition 8 Defendants are
23 willing to stipulate to, in whole or part, that the Campaign,
24 in order to vigorously defend marriage as between a man and a
25 woman, which is what the voters so voted to protect in November

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1 of 2008, they're willing to concede too much of Plaintiffs'
2 case, both with regard to the similarly-situated aspect of the
3 case, and the factors that Plaintiff have to show to be a
4 suspect classification.
5 So, I can point those out to the Court, but with
6 regard to the interests -- and in fact, this is the
7 give-and-take --
8 THE COURT: Well, that would be interesting, if you
9 would do so.
10 MS. LINDEVALDSEN: Sure. The Campaign --
11 THE COURT: Let me catch up with you, and get the
12 case management statement.
13 MS. LINDEVALDSEN: The August 17th filing, yes.
14 THE COURT: Yes.
15 MS. LINDEVALDSEN: Exhibit B to the case management
16 statement filed by Proposition 8 Defendants has a list of
17 proposed stipulations by the Plaintiffs that the Proposition 8
18 Defendants are willing to agree, in whole or in part.
19 THE COURT: All right.
20 MS. LINDEVALDSEN: And I have gone through those, and
21 can indicate where the Campaign stands ready to make arguments
22 that the Proposition 8 Defendants are not ready to make
23 arguments on, that are necessary to preserve marriage.
24 THE COURT: Okay. Well, give me have a couple of
25 examples, here.

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1 MS. LINDEVALDSEN: Sure. For example, Proposition 8
2 Defendants -- I'll start with No. 64.
3 THE COURT: Okay. Hold on.
4 MS. LINDEVALDSEN: -- are ready -- have agreed --
5 have agreed in whole that gays and lesbians, including
6 Plaintiffs, have formed lasting, committed relationships. And,
7 the Proposition 8 Defendants stand ready to agree to that one.
8 Based -- first of all, there's no -- there's no
9 evidence in the sociological research that's out there that
10 indicates this should be agreed to, in whole. Perhaps in part.
11 And this goes to the similarly-situated aspect of Plaintiffs'
12 case.
13 No. 19. Proposition 8 Defendants are willing to
14 agree in whole that with the exception of, quote, "certain
15 matters related to procreation," end quote, sexual orientation
16 bears no relationship on the ability to contribute to society.
17 It does impact more than the ability to procreate.
18 It impacts the ability to raise children, according to
19 sociological research, educate them, and also given high-risk
20 factors of certain pathologies, is going to go to the four
21 factors necessary to show sexual orientations as suspect
22 classification.
23 No. 21, "Same-sex sexual orientation does not result
24 in any impairment of judgment..." Given the high risk factors
25 that is out there right now in the scientific and psychological

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1 research, concerning medical, psychological and relationship
2 dysfunctions. This concedes too much to agree to this in
3 whole. And this will relate to the suspect classification
4 aspect.
5 One more that they've agreed in whole, Nos. 35 and
6 36, that lesbians and gays are unable to secure hate crimes in
7 federal legislation protecting them in employment, housing,
8 et cetera.
9 While it's true they haven't secured the legislation,
10 it goes too far to agree to this in whole, because there is no
11 evidence to indicate, as the Congressional testimony back and
12 forth has indicated, that they need protecting in this area
13 because there's no evidence of discrimination in this area.
14 Some of the other ones in particular that they
15 indicate they are willing to agree in part go directly to the
16 suspect classifications.
17 No. 14, that gays and lesbians have suffered severe
18 discrimination. This will go to the history of discrimination.
19 And the Campaign stands ready to make arguments that it appears
20 the Proposition 8 Defendants are not.
21 That discrimination, including hate crimes, exists
22 today, No. 29. Again, the Campaign is willing to make
23 arguments Proposition 8 is not.
24 "Sexual orientation is the kind of distinguishing
25 characteristic that defines gays and lesbians as a discrete

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1 group." This practically gives away Factor 2 in the suspect
2 classification.
3 And according to the research, there's no evidence
4 for the Proposition 8 Defendants to agree to this, even in
5 part.
6 MR. COOPER: Forgive me. I didn't follow --
7 MS. LINDEVALDSEN: Oh, that was No. 28. I apologize.
8 No. 27, again going to suspect classification, that
9 sexual orientation is fundamental to a person's identity.
10 I have three more.
11 No. 26, "harmful to an individual to attempt to
12 change sexual orientation." In light of the APA -- the
13 American Psychological Association's task force report that
14 just came out in August of 2009, even that report by the APA
15 indicates that there is no research to show that it's harmful
16 to attempt to change your sexual orientation.
17 And yet, No. 26, the Proposition 8 Defendants are
18 willing to concede to some form of stipulation on this, which
19 gives away part of Plaintiffs' case, that they will have to
20 show that they are entitled to suspect classification.
21 There are two more, Nos. 20 and 59, that are related
22 to this, again, that help to identify for suspect
23 classification.
24 The medical and psychological communities do not
25 consider sexual orientation to be an illness or disorder.

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1 Again, the APA task force report just issued in the beginning
2 of August admits that part of the reason the APA declassified
3 homosexuality as a disorder was based in politics. The report
4 admits that.
5 And there are major medical organizations today that
6 believe that individuals should be entitled to treatment to
7 change your sexual orientation, that it's not harmful. And in
8 fact, two past presidents of the APA indicate that individuals
9 should be able to change their sexual orientation.
10 And finally, No. 59, an individual's capacity to
11 raise children does not depend on one's sexual orientation.
12 Proposition 8 Defendants stand ready to stipulate in some form
13 to this, when the sociological and psychological research
14 suggests that it is relevant to raising children.
15 And, the Campaign stands ready to make argument,
16 based on the scientific literature, that Proposition 8
17 Defendants apparently stand ready not to make.
18 Going back again, since one of the factors is the
19 inability -- the -- there are arguments that are likely not to
20 be made by existing parties, I went through those arguments on
21 that factor.
22 Back to the interest just briefly -- and then I'll
23 conclude, Your Honor -- the Campaign's interests includes in
24 part defense of the definition of "marriage." But the Campaign
25 has a broader interest it's fought for for years that if this

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1 case goes the wrong way, it will not be able to pursue.
2 If the Plaintiffs win this case, the Campaign will
3 not be able to pursue, as it has tried to do for the past 15
4 years, to fully protect the rights of marriage solely for a man
5 and a woman.
6 THE COURT: How so?
7 MS. LINDEVALDSEN: If the Plaintiffs win their case
8 here, and it's declared unconstitutional simply to define
9 "marriage" as one man and one woman, it's going to impair the
10 Campaign's ability to seek an even stronger amendment, as I
11 would characterize it, that preserves the name and the rights
12 of marriage.
13 Not only will the Campaign's interests be impaired if
14 the Plaintiffs win, but the Campaign's interests will be
15 impaired if the Plaintiffs lose, and the Defendants have
16 conceded too much on sexual orientation and suspect
17 classification.
18 This Court is being asked to be the first court in
19 this -- federal court in this nation to declare sexual
20 orientation to be a suspect classification. Proposition 8's
21 case management statement makes very clear that they do not
22 stand ready to make all of the available arguments based on the
23 available sociological, psychological, and medical research to
24 defend against a classification of sexual orientation as a
25 suspect classification.

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1 The Campaign stands ready do that, and it must be
2 done, in order to preserve marriage in the state of California.
3 THE COURT: Very well. Well, thank you very much,
4 Ms. Lindevaldsen.
5 Now let's hear from the City and County of
6 San Francisco. Ms. Stewart?
7 MS. STEWART: Thank you, Your Honor.
8 As the Court's aware, the City has sought
9 intervention under the permissive part of Rule 24, which really
10 is, focuses on a bit of a different inquiry than 24(a).
11 Instead of really being about a movant's right to be
12 at the table, the focus of the Rule 24(b) inquiry really is
13 about whether the moving party will contribute to the
14 development of a factual and legal record, and help assist the
15 Court in arriving at a good and solid legal and factual
16 decision.
17 THE COURT: You make an interesting argument that's a
18 little different from those that we have heard from the Our
19 Family Coalition or the Campaign for California Families.
20 And, that is that the City and County of
21 San Francisco has a governmental interest in the outcome of
22 this litigation that is different from the Plaintiffs, and
23 different from any of the intervenors.
24 Just exactly what is that interest?
25 MS. STEWART: Thank you, Your Honor. It is a

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1 perspective, number one, that comes from being a city that has
2 one of the highest lesbian and gay populations -- in fact, the
3 highest, I think -- of any city across the nation, and has been
4 long involved in trying to eliminate sexual-orientation
5 discrimination because of its experience with the very real
6 economic and public health costs that come with discrimination
7 against a part of its citizenry.
8 THE COURT: What are you prepared to show in that
9 regard?
10 MS. STEWART: Well, we would put on, in addition to
11 the experts that the Perry Plaintiffs Perry have listed in
12 their case management statement, we would suggest that we might
13 offer the testimony of someone like the controller, who can
14 inform the Court about -- I mean, one of the key issues in the
15 case, as the Court knows, is is there is a legitimate and very
16 real government interest that supports this law. That's a key
17 issue.
18 And what the controller of our city -- and it might
19 not be from our city, but our experience is that the costs are
20 very high on cities, and in fact, on the state and the federal
21 government.
22 Now the State is here, and there are two other
23 counties. But those entities have indicated that they don't
24 plan to play an active role in the trial of this case. And I
25 think we -- we bring, both because our work on these issues

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1 goes quite far back, and in part also because of our work on
2 the marriage cases --
3 THE COURT: Well, if there is a financial impact on
4 the City and County of San Francisco, there should, I would
5 think, be a similar impact on the State of California.
6 MS. STEWART: That's correct, Your Honor.
7 THE COURT: The Governor's represented here, and the
8 Attorney General. Isn't that sufficient to bring these issues
9 to the fore?
10 MS. STEWART: Well, for two reasons, I don't think it
11 is, Your Honor. Most significantly, the Governor and the State
12 have indicated they don't intend to play an active role in the
13 litigation.
14 Secondly, the City has been studying these issues for
15 quite a long time, and it has a developed body of evidence.
16 And it is also familiar with the evidence that goes to the
17 costs to the State and the federal government as well as to
18 local government.
19 But remember that local governments really serve as
20 the bottom-line social safety net for individuals and families
21 who end up falling apart when they're not adequately recognized
22 and supported.
23 And so, the City and the County, in a way that is
24 different from the State, ends up being responsible when
25 families fall apart if there are no obligations.

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1 THE COURT: Well, explain to me the sequential facts
2 that you're going to attempt to show that how the elimination
3 of Proposition 8 would minimize or ameliorate these social
4 costs that the City you allege has to bear.
5 MS. STEWART: Sure. The City would put on evidence
6 to show that first of all, recent studies indicate that where
7 same-sex couples are offered marriage, they are far more likely
8 to marry than they are to enter into civil unions or domestic
9 partnerships.
10 THE COURT: And how does that relieve the City of
11 certain social costs of the kind that you are talking about?
12 MS. STEWART: When couples enter into marriage, they
13 take on the reciprocal obligations, legal obligations, they get
14 the social support that comes with marriage, and they take on
15 obligations to the children of the couple that the couple is
16 responsible for. What --
17 THE COURT: And they don't do this in a domestic
18 partnership?
19 MS. STEWART: They can do it in a domestic
20 partnership, but as -- again, as the evidence shows, couples
21 are far more likely to enter into marriage where it's
22 available.
23 One of the reasons for that, I think, Your Honor, is
24 because when you enter into a domestic partnership, it's not a
25 recognized institution. It gets questioned a lot. It is not

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1 something that people immediately understand.
2 Furthermore, at this point in time, you are not
3 getting even the whole thing that marriage conveys, in terms of
4 the federal rights. So, without either of those two things,
5 domestic partnership is less attractive.
6 Now, marriage today doesn't provide the federal
7 benefits that come with marriage for heterosexual couples.
8 But, the social valuation, the validation that the government
9 gives and that society gives, induces people to marry.
10 There are many people who have indicated -- and in
11 fact, that is probably why some of the Plaintiffs may have not
12 married, and some of the people in the groups, that they are
13 not going to do it until they get the entire social validation
14 that comes with marriage equality.
15 And so, because of that, with couples not entering
16 into those kinds of relationships where they're bound together
17 and have mutual obligations, they then are much more likely to
18 fall on the government.
19 There's a case, incidentally, that the California
20 Supreme Court heard not too long ago that involved a couple
21 that was in a domestic partnership, where one partner tried to
22 walk away from the child. And, you know, the county ended up
23 trying to sue for support, and in the end, did obtain support.
24 But the problem with relationships that are not fully
25 recognized or relationships --

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1 THE COURT: And that would have been different, had
2 they been married?
3 MS. STEWART: It would have, Your Honor. I mean, I
4 think there's no question that with marriage comes presumed
5 family status, presumed parent status.
6 Now, that is true in California, but at every level,
7 every time an issue like this comes up with domestic
8 partnership, it gets litigated. And people question it.
9 And further, there are a number of public benefits
10 that are determined, eligibility that is determined by marital
11 status. So for all of those reasons, the City brings a unique
12 perspective.
13 It also -- there's another aspect of it, Your Honor,
14 besides the purely economic one. And that has to do with the
15 fact that when society has a law, when the government has a law
16 that makes this distinction between lesbians and gay men on the
17 one hand and heterosexual people on the other, it sends the
18 message that there is something different about them. And it
19 is a difference that matters.
20 And that has tremendous public health consequences
21 that go far beyond just the economic ones. The City of
22 San Francisco is the home to literally hundreds, and I think
23 thousands of lesbian and gay youth who come here from other
24 states where they are kicked out of their homes, and from
25 counties around California, because they are gay.

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1 The message that something is wrong with being gay is
2 still alive and well in California, because of Proposition 8.
3 And so, the public health costs that counties like
4 San Francisco have to incur to deal with discrimination and its
5 effects on youth, its effects on the elderly, its effects on
6 all levels of society are very real.
7 So, another area of testimony that we would bring
8 would be someone from our Public Health Department, to talk
9 about what those effects are.
10 We believe that this will go a long way to showing
11 the utter lack of justification, any kind of government
12 interests and in fact, the -- the counter interest, the
13 interest of the government in eliminating discrimination.
15 MS. STEWART: So, in the Romer case, I wanted to
16 remind the Court, Romer versus Evans, the city government, city
17 and county local governments were the lead plaintiffs in this
18 case.
19 And they actually put on testimony of the kind that I
20 just described to the Court. They had public officials talking
21 about --
22 THE COURT: That was in state court, wasn't it?
23 MS. STEWART: It started out in state court, that's
24 correct, Your Honor. However, it went all the way to the U.S.
25 Supreme Court, as the Court knows, and those cities remain --

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1 THE COURT: (Inaudible) familiar with the
2 intervention principals under Colorado law.
3 MS. STEWART: Correct, Your Honor. It wasn't an
4 intervention matter, actually. They were party plaintiffs.
5 THE COURT: They were initial parties, were they?
6 MS. STEWART: Right. And they remained parties. And
7 the Supreme Court did not suggest in any way that there was
8 anything to question about that.
9 I am happy to address the arguments -- I would say
10 that neither the state nor the local government entities object
11 to our appearing. I think some of them, at least, support it.
12 The Plaintiffs have objected solely about a concern
13 about delay, but I think that we have demonstrated, in the way
14 that we have dealt with them and with the Court, that we won't
15 delay the case.
16 We did not submit a case management statement because
17 the Court had not decided that we were a party, and I didn't
18 want to be presumptuous. If we were to submit one, it would be
19 in many respects quite similar to the Plaintiffs'. It --
20 probably wouldn't even repeat it, but would join in theirs. I
21 would add the witnesses I mentioned.
22 I would also suggest that an education expert of some
23 sort may need to be called, because so much of the campaign
24 focused on education issues and supposed changes to the
25 curriculum that would be necessitated if same-sex couples were

(415) 373-2529
1 permitted to marry.
2 And, one other area of difference we would have would
3 concern the schedule. And I think that -- the schedule that
4 the Perry Plaintiffs are arguing. It's very important
5 obviously to get the case decided quickly, but the Court has to
6 balance the need to have a really full factual record. And we
7 think that it may be too ambitious a schedule.
8 THE COURT: All right. Anything further,
9 Ms. Stewart?
10 MS. STEWART: I will leave it at that, Your Honor.
11 THE COURT: Very well.
12 Mr. Olson. Now, most, most folks who are in your
13 situation and they have people who are trying to come in on the
14 same side welcome intervenors. Why aren't you taking that
15 attitude?
16 MR. OLSON: Well, I will explain. Thank you,
17 Your Honor. And I know that the Court has read the briefs and
18 knows the law, so I will try to be brief in response to your
19 question.
20 First, it is very important for me to say that we
21 have the greatest respect for counsel for the proposed
22 intervenors. Particularly I'm focusing now on the Our Family
23 Coalition. We have worked with them from the outset of this
24 case. And we have the greatest respect for their experience,
25 and their points of view.

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1 However, experience and reputation of counsel is not
2 a basis for intervention. And we are concerned that the
3 consequent dilution of the rights of the Plaintiffs to control
4 the strategy, timing, and issues in this case that they brought
5 to this Court and the proposed intervenors chose not to bring
6 to this Court to validate their constitutional rights can be
7 affected by the addition of additional parties, no matter how
8 much they might want to help.
9 THE COURT: How so, other than possibly slowing down
10 the process?
11 MR. OLSON: Well, slowing down the process is very
12 important, as you recognized on July 2.
13 I think you must have said five times in your
14 June 30th order and a number of times during that hearing on
15 July 2, that in -- in not granting the motion for a preliminary
16 injunction, however serious these issues are, that it was
17 important to have a prompt expeditious and efficient resolution
18 of the merits of this case.
19 THE COURT: I'm glad that message got through.
20 MR. OLSON: It certainly got through to us, because
21 we went along with -- and you may have come to the same
22 conclusion anyway, what -- we agreed with Your Honor about
23 proceeding to the resolution on the merits and not granting a
24 preliminary injunction, although we fully felt the Plaintiffs
25 were entitled to it because their constitutional rights are

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1 being violated, the State of California admits. And that is
2 irrepairable injury every day.
3 However, we were persuaded by your statement in your
4 order of June 30th, that it is important to get to a resolution
5 on the merits, and you were balancing the uncertainty that
6 might come from a preliminary injunction with the importance of
7 getting to a resolution on the merits.
8 Every additional party that the Court adds as
9 intervenors will add to the complexity and the time that this
10 case takes. And as you heard from Our Family Our Families
11 Coalition, they say, they acknowledge, that their interests
12 diverge. They talked about other issues besides the right to
13 marry that they might want to have ventilated in this Court.
14 I'm not sure that I know all of those issues.
15 Our Plaintiffs, our clients, are concerned with the
16 right to marry. And they are concerned that they are being
17 deprived of that right every single day. The State of
18 California acknowledges that that's a violation of the
19 Constitution.
20 Let me add that the intervenors Our Family -- I'm
21 focusing on them for a moment -- assert the same injury, make
22 essentially the same arguments, and seek the same relief,
23 ultimate relief as the Plaintiffs. So they are adding nothing
24 there. I think your question suggested that you are at least
25 sensitive to that point.

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1 The diversity of their membership adds nothing to the
2 actual claims. It doesn't change the actual claims, it doesn't
3 change the actual relief sought by the Plaintiffs. At bottom,
4 they tender nothing new to this case, other than the talent and
5 experience of the lawyers that they have selected. And, we
6 respect that. But that is not a basis for intervention.
7 And the Plaintiffs chose lawyers whose talents and
8 expertise they respected. And their choice should not be
9 usurped by the proposed intervenors, by --
10 THE COURT: What about the other two intervenors, the
11 Campaign for California Families, and then the City and County?
12 MR. OLSON: Well, the Campaign for California
13 Families demonstrated today that it's going to be a great deal
14 longer and more complicated case, because they are not willing
15 to stipulate to things that the State of California implicitly
16 agrees to by acknowledging that the statute -- the proposition
17 is unconstitutional, that the proponents of Proposition 8 --
18 and they are very skilled individuals represented by very
19 skilled lawyers -- they are willing to stipulate to certain
20 things because, I'm confident, they believe that we could prove
21 those things if we had to go through a six-month trial with
22 expert witnesses and all of that.
23 To their credit, and as you suggested in your orders
24 and in hearing on July 2nd, we need to work together to resolve
25 those issues that don't need to be contested. This, this

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1 intervening -- proposed intervening group wants to challenge
2 virtually everything.
3 And I submit that you could find any number of
4 groups, any number of permutations of groups in the United
5 States that were willing to say "The proponents are not being
6 adequately represented because they are admitting something
7 that I'm not willing to admit, and I want to put them to their
8 proof, and I'm going to bring in evidence and so forth."
9 And so I think that they only add delay which
10 competent counsel -- very competent counsel are willing to
11 avoid.
12 THE COURT: What about the City and County of
13 San Francisco?
14 MR. OLSON: The City and County of San Francisco I
15 think is, as you suggested, a slightly different case. I
16 listened to the presentation by Ms. Stewart this morning, and I
17 read the materials very carefully.
18 We have the same concerns about additional parties
19 and additional -- because it's a permutation thing, everything
20 takes a little bit longer. But I do acknowledge that the City
21 of San Francisco, because in a sense, it's a parens patriae
22 kind of thing. They are looking out for citizens that are
23 affected by an unconstitutional statute.
24 And they do indicate that they are capable of
25 addressing and willing to address governmental perspectives

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1 that cause this statute to be unconstitutional, and cause this
2 statute to discriminate and hurt individuals in their city.
3 Many -- so many individuals that are affected live in the City
4 of San Francisco.
5 And they are apparently willing to present reasons
6 that the State of California, through the Governor and the
7 Attorney General's office, while they are willing to concede
8 that Proposition 8 is unconstitutional, they are not willing to
9 say why they think, as representative of the citizens of
10 California, why it is unconstitutional. They want to play --
11 and I respect this, but they want to play a passive role.
12 The City of San Francisco seems to me willing to add
13 something to this case that we probably, on behalf of the
14 Plaintiffs, are not in a position very well to add. We don't
15 see things from the perspective of a government being adversely
16 affected by an unconstitutional constitutional provision.
17 So although we're not withdrawing our opposition, I
18 do think it is a separate situation, that -- the other thing
19 about The City and County of San Francisco is what they wish to
20 add seems to me does not appreciably encumber the proceedings
21 or delay the process.
22 They want to focus on certain narrow things about
23 which they do have expertise. They're not interested in
24 duplicating the things that the Plaintiffs are interested in
25 doing. So, I do think it's a slightly different story.

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1 I think at the end of the day, whatever you decide
2 with respect to intervention, I can't stress enough that -- and
3 again I'm turning back to the Coalition. These are individuals
4 and attorneys who had the opportunity to raise federal
5 constitutional questions in the Proposition 8 litigation in the
6 California Supreme Court.
7 For reasons that --
8 THE COURT: So did the Attorney General.
9 MR. OLSON: Yes.
10 THE COURT: And the Attorney General is under an oath
11 to uphold the Constitution of the United States. And he didn't
12 raise these issues in the California Supreme Court.
13 MR. OLSON: And I'm not going to criticize the
14 Attorney General of California, because the Attorney General of
15 California -- particularly because the Attorney General of
16 California has now recognized that it is an unconstitutional
17 statute. And we welcome that.
18 But my point, I guess, is that the issues were not --
19 that were not raised before the California courts and then were
20 not raised by the attorneys who wish to participate now, those
21 decisions were made for tactical, strategic reasons. And we
22 respect that, and we respect them.
23 But, these Plaintiffs are real people. They have
24 announced their intention to get married now, if they possibly
25 can. They're not groups. And I respect the fact that these

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1 groups represent interests. But we represent real people with
2 real concerns that are -- present, ripe for adjudication now,
3 and represent issues. And they have demonstrated that they are
4 going to present the issues responsibly, professionally,
5 thoroughly and expeditiously.
6 We respectfully submit that whatever you decide with
7 respect to intervention, the lawyers that were selected by the
8 Plaintiffs should remain in control of this case.
9 And I refer to the Stringfellow case, which is a
10 Ninth Circuit decision that went to the Supreme Court, where
11 limitations were imposed.
12 And I simply request in closing that if there is any
13 further intervention on the side of the Plaintiffs, at least,
14 that the Plaintiffs' lawyers who were carefully selected by the
15 Plaintiffs who are willing to take the chance by bringing this
16 case remain in full control, unequivocal control, and
17 undisputable control over the destiny of the case they choose
18 to bring, and others chose not to bring.
19 THE COURT: Very well. Thank you, Mr. Olson.
20 Mr. Cooper, are you going to be speaking on behalf of
21 the proponents of Proposition 8?
22 MR. COOPER: With the Court's permission, my
23 colleague Mr. Thompson would like to address the Court on
24 intervention. Thank you.
25 THE COURT: That's fine.

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1 Well, Mr. Thompson, that was kind of an unkind cut
2 that Ms. Lindevaldsen cast in your direction. What is your
3 response?
4 MR. THOMPSON: Well, we saw vivid reflection and
5 example, Your Honor, of the complexity that will be brought to
6 trying to resolve this expeditiously if another Defendant
7 Intervenor is permitted into the case.
8 In terms of negotiating stipulations, they don't
9 become easier the more lawyers you put in a room, Your Honor.
10 The experts will multiply like locusts, if they are permitted
11 and other intervenors are permitted to come into this.
12 So we would respectfully suggest that in terms of
13 permissive intervention, it would be a grave error.
14 In terms --
15 THE COURT: Well, Ms. Lindevaldsen says that you're
16 not raising the issues, you're not adequately defending all of
17 the interests at stake here.
18 MR. THOMPSON: Well, we are -- she -- they have not
19 identified any interest that we are not going to vigorously
20 pursue.
21 What they are saying is they disagree on tactics with
22 us. They say it's a tactical mistake not to contest each one
23 of these points that the Plaintiffs could make the rubber
24 bounce on, and that we need to be in the trenches fighting
25 every war, even battles that can't be won. And, that is a

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1 tactical concern.
2 And under Rule 24(a), that is not sufficient to show
3 inadequacy of representation. And moreover -- it's rather,
4 which arguments should be advanced. They need to be able to
5 show that there's some divergence of interests. They need to
6 be able to establish under 24(a) that they have an interest
7 that is different from ours. And they haven't done it.
8 In their brief, they try to conjure up the notion
9 that, well, there are three other statutes that reference
10 marriage is between a man and a woman. And, all those statutes
11 are being challenged, and the proponents are only interested in
12 upholding the validity of Proposition 8.
13 Your Honor, we will defend all -- all those three
14 statutes and Proposition 8. And those three statutes raise or
15 fall with Proposition 8. So there's just no separate interest.
16 All we have heard are tactical concerns about what is
17 well-advised and not advised to stipulate to.
18 So that, that would be our submission on the
19 California Families. They were denied the right to intervene
20 in the Strauss case in the California Supreme Court, and we
21 would respectfully suggest they should be -- the same result
22 should obtain here.
23 THE COURT: What about the other two intervenors?
24 MR. THOMPSON: With respect to the ACLU, the
25 community organizations, we've read their briefs very

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1 carefully, and listened very carefully this morning, looking
2 for -- they say that their interests may diverge. But they
3 never explain how that is so.
4 They talk about subjective reasons why their members
5 may want to have Proposition 8 struck down, but when you look
6 at how could there be a divergence of interest between what
7 their members want and what the Plaintiffs want, you see
8 nothing. So under 24(a), they haven't been able to show that
9 they're inadequately represented.
10 And under 24(b), their case management statement
11 shows that they want to bring on at least 14 new experts. In
12 terms of delay, it will necessarily delay the trial, and the
13 amount of discovery, if they can bring in 14 experts from
14 different countries and different continents, as they promise
15 to do in their case management statement. So, we would
16 suggest, under 24(b), they should be kept out.
17 With respect to the City of San Francisco, they
18 articulated this morning a governmental interest. And we would
19 submit that binding Ninth Circuit precedent precludes their
20 being able to intervene under 24(b).
21 We cited in our brief EEOC versus Pan American, which
22 is 897 F.2d, 1499. And that in turn cited to EEOC versus
23 Nevada Resort, 792 F.2d, 882. And those --
24 THE COURT: What is the logic of those decisions?
25 MR. THOMPSON: Those cases are very interesting, Your

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1 Honor, because what they say is that when the EEOC is
2 litigating and then an entity that has standing -- in the
3 Nevada Resorts case, an organization that had a member that was
4 injured, the injury was caused by the action, and it was
5 redressable.
6 They nevertheless were -- and the District Court
7 granted 24(b) intervention, and it was reversed by the Ninth
8 Circuit. And the reason was is because there was no private
9 right of action. The permissive intervenor that the show that
10 there was a subject matter jurisdiction for their claim.
11 And because there was no private right of action
12 under that provision of Title VII that was at issue, the Ninth
13 Circuit said they're not allowed in.
14 And this is exactly the flip of it. There's no
15 public right of action under the Supreme Court cases that we've
16 identified. In other words, no one disputes that the
17 plaintiffs have a private right of action under 1983 to bring
18 this claim, but the City cannot turn on its creator like a
19 Frankenstein monster and then try to challenge the
20 constitutionality of its conduct.
21 And when they say, "Oh, but the Attorney General and
22 the Governor aren't contesting it," it is the people of
23 California that enacted Proposition 8. And they are sovereign
24 in this matter. And they have not given San Francisco the
25 right to come in and challenge their will.

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1 So in terms of the governmental interest, it just
2 doesn't hold water. And these two EEOC cases, especially
3 Nevada Resorts, show quite conclusively that there is no
4 subject matter jurisdiction, and they cannot be permitted in
5 this case.
6 And with respect to the interests and the -- and the
7 complexity, these issues about the public health effects of
8 Proposition 8 will be very nuanced and complex, and will
9 necessitate expert evidence on both sides, and we would
10 respectfully suggest, are really a sideshow to the main issues
11 in this litigation.
12 And if the Court were inclined to grant their
13 intervention, we would at the very least ask the Court to
14 confine their activity to the issues that are unique to the
15 City, as opposed to allowing them to put on evidence on all the
16 various issues.
17 THE COURT: Very well. Thank you, Mr. Thompson.
18 MR. THOMPSON: Thank you.
19 THE COURT: Well, we have three motions to intervene
20 presently before the Court. And, as we have discussed this
21 morning, the speedy determination of this action requires that
22 these motions be ruled upon promptly.
23 The Our Family Coalition; Lavender Seniors of the
24 East Bay; and Parents, Families and Friends of Lesbians and
25 Gays move to intervene as of right under Rule 24(a), and

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1 alternatively, seek permissive intervention under Rule 24(b).
2 The Campaign for California Families moves to
3 intervene of right as a defendant, or alternatively, for
4 permissive intervention.
5 In addition, the City and County of San Francisco
6 seeks the Court's permission to intervene under Rule 24(b),
7 permissive intervention.
8 All three of these motions were filed within the time
9 frame provided in the Court's July 13 order. And accordingly,
10 all three motions are timely.
11 Turning first to the motions to intervene as of right
12 by the Campaign and by the Our Family Coalition, intervention
13 as of right requires the applicants for intervention to make a
14 four-part showing:
15 One, their motion is timely; two, they have a
16 significant protectable interest relating to the transaction
17 that is the subject matter of the action; three, they are so
18 situated that the disposition of the action may practically
19 impair or impede their ability to protect their interest; and
20 four, their interest is not adequately represented by the
21 parties to the action.
22 The applicants must demonstrate all four factors to
23 intervene as of right. Although the motions are timely,
24 neither the Campaign nor the Our Family Coalition demonstrate
25 the remaining factors.

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1 The second factor that must be shown for a party to
2 intervene as of right is that the party seeking intervention
3 must have a significant protectable interest in the
4 controversy.
5 An interest is significantly protectable if: One, it
6 is protected under some law; and two, applicants show a
7 relationship between the legally protected interest and the
8 claims at issue.
9 Applicants here need not assert a specific legal or
10 equitable interest in the underlying action. And no bright
11 line rule determines whether applicants have a significant
12 interest.
13 The Campaign asserts that it has a significant
14 protectable interest in assuring marriage is defined only as
15 the union between one man and one woman. The Campaign argues
16 that this interest arises from its work to ensure the passage
17 of Proposition 8.
18 But because the Campaign is not the official sponsor
19 of Proposition 8, its interest in Proposition 8 is essentially
20 no different from the interest of a voter who supported
21 Proposition 8, and is insufficient to allow the Campaign to
22 intervene as of right. The Campaign's motion to intervene of
23 right thus fails to demonstrate that the Campaign has a
24 protectible interest in the action.
25 Indeed, the Campaign asserts that its interests are

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1 broader than merely upholding Proposition 8 because it wishes
2 to assure marriage is defined only as an opposite-sex union.
3 But the Campaign fails to explain the practical effect of this
4 broader interest, or to explain how the Court could protect
5 this interest, or how Proposition 8, if upheld as
6 constitutional, would fail to assure this claimed broader
7 interest in defining marriage as only an opposite-sex union.
8 Accordingly, the Campaign's interest is not
9 significantly protectible, and intervention of right is not
10 appropriate.
11 Even if the Campaign had asserted a protectible
12 interest in the litigation, however, the Campaign has failed to
13 explain that its interest is not adequately represented by the
14 Intervenor Defendants who are, after all, the official
15 proponents of Proposition 8.
16 The Court considers several factors to determine
17 whether representation is adequate, including whether the
18 current parties will undoubtedly make all of the Intervenors'
19 arguments appropriate to the case in controversy, whether the
20 current parties are capable and willing to make such arguments,
21 and whether the intervenor offers a necessary element to the
22 proceedings that would otherwise be neglected.
23 And I'm essentially quoting from the Sagebrush
24 Rebellion case in the Ninth Circuit, of 1983.
25 The burden of making this showing is minimal. But

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1 where the existing party and the applicant have the same
2 ultimate objective, the current representative is presumptively
3 adequate.
4 The Campaign argues that the proponents of
5 Proposition 8 will not make all of the arguments the Campaign
6 wishes to present, because the Campaign has this broader
7 interest it claims in not only upholding Proposition 8 but also
8 in securing a definition of marriage as an opposite-sex union.
9 The Campaign attempts to distinguish this interest
10 from that of the proponents of Proposition 8, who, according to
11 the Campaign, seek only to uphold Proposition 8. But the
12 Campaign does not explain how its interest is meaningfully
13 distinct from the proponents' interest, or how the Court could
14 fashion a remedy for this claimed broader interest.
15 Perhaps more importantly, the Campaign fails to
16 counter proponents' assertions that they are willing and able
17 to present all of the arguments the Campaign wishes to
18 introduce that are consistent with the law and the facts.
19 Accordingly, the Campaign's interest is represented adequately
20 by the proponents of Proposition 8.
21 Because the Campaign has neither shown that it has a
22 significant protectible interest in this litigation nor that
23 the proponents of Proposition 8 would not adequately represent
24 its claimed interest, the Campaign's motion to intervene as of
25 right is denied.

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1 Our Family's motion to intervene of right is
2 similarly flawed, because the Our Family Coalition fails to
3 identify an interest that is not adequately represented by the
4 current Plaintiffs.
5 Unlike the Campaign, it appears that the Our Family
6 Coalition may have a significant protectible interest in this
7 litigation, because many of the organization's members are
8 individuals who wish to marry a person of the same sex but
9 cannot do so because of Proposition 8.
10 It is possible that this derivative or organizational
11 interest may rise to the level of a protectible interest for
12 purposes of intervention. This is, after all, the very
13 interest that the Plaintiffs assert. But Plaintiffs possess
14 this interest directly as they are the parties who allege that
15 they seek to marry but are barred by Proposition 8 from doing
16 so. The Our Family Coalition, if it possesses this interest,
17 does so only indirectly or derivatively.
18 Nonetheless, the Our Family Coalition fails to
19 overcome the presumption that the Plaintiffs' representation of
20 the interests the Our Family Coalition alleges is adequate.
21 The Our Family Coalition does not identify an interest that
22 Plaintiffs are unwilling or unable to protect or an argument
23 that Plaintiffs are unwilling or unable to make.
24 The Our Family Coalition argues that it represents a
25 broad spectrum of individuals who wishes to enter same-sex

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1 marriages, including individuals who may differ from the
2 current Plaintiffs, based on age, race, parental status or
3 socioeconomic class.
4 While the Our Family Coalition asserts that the
5 effect on an individual of denial of same-sex marriage may be
6 distinct, based in part on an individual's peculiar
7 circumstances, the Our Family Coalition fails to identify the
8 relevance of this distinction.
9 No doubt, those seeking to marry a person of the same
10 sex possess a great variety of backgrounds and probably have
11 varied reasons for seeking marital status. But both the
12 Plaintiffs and the Our Family Coalition assert that the root of
13 the harms they face is the alleged discrimination based on
14 sexual orientation or sex worked by Proposition 8.
15 The remedy the Plaintiffs and the Our Family
16 Coalition seek is identical. Accordingly, the Court finds that
17 the interests identified by the Our Family Coalition can be
18 adequately represented by the current Plaintiffs. And the Our
19 Family Coalition's motion to intervene of right is therefore
20 denied.
21 Next, the Court considers whether to permit any party
22 to intervene under Rule 24(b), permissive intervention. Rule
23 24(b) permits the Court, in its discretion, to allow an
24 applicant to intervene when its motion is timely and it has a
25 claim or defense that it shares with the main action, in short,

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1 possesses a common question of law or fact with that raised by
2 the parties.
3 The Court considers several factors in making this
4 determination. These include the nature and extent of the
5 applicants' interest, their standing to raise relevant legal
6 issues, the legal position they seek to advance and its
7 probable relation to the merits of the case. These factors are
8 explained by the Ninth Circuit in Spangler versus Pasadena City
9 Board of Education, reported at 552 F.2d, a 1977 decision of
10 our circuit.
11 Additional factors include whether the applicants'
12 interests are adequately represented by the other parties,
13 whether intervention will prolong or unduly delay the
14 litigation, and whether parties seeking intervention will
15 significantly contribute to the full development of the
16 underlying factual issues in the suit and to the just and
17 equitable adjudication of the legal questions presented.
18 In this case, in addition to the Campaign and the Our
19 Family Coalition, the City and County of San Francisco seeks
20 permissive intervention under Rule 24(b).
21 Turning first to the motions by the Our Family
22 Coalition and the Campaign, the Spangler factors weigh against
23 permitting Our Family Coalition and the Campaign to intervene.
24 Their interests are represented by the current parties to the
25 action.

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1 While the Our Family Coalition and the Campaign
2 appear capable of presenting evidence and developing a record
3 on the factual issues at stake in this litigation, nothing in
4 the record before the Court suggests that the current parties
5 are not independently capable of developing a complete factual
6 record encompassing all of the applicants' interests.
7 Furthermore, permitting the Our Family Coalition and the
8 Campaign to intervene might very well delay the proceedings, as
9 each group would need to conduct discovery on substantially
10 similar issues.
11 As noted, the interests asserted by the Campaign and
12 the Our Family Coalition are indistinguishable from those
13 advanced by the Plaintiffs. Hence, the participation of these
14 additional parties would add very little, if anything, to the
15 factual record, but in all probability would consume additional
16 time and resources of both the Court and the parties that have
17 a direct stake in the outcome of these proceedings.
18 Accordingly, the motions to intervene of the Our
19 Family Coalition and the Campaign are denied. Of course, the
20 Our Family Coalition and the Campaign may seek to file amicus
21 briefs on specific legal issues that they believe require
22 elaboration or explication that the parties fail to provide.
23 Those applications will be considered, and if appropriate,
24 granted.
25 Now, San Francisco's motion to intervene presents a

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1 somewhat different circumstance. Unlike the Our Family
2 Coalition and the Campaign's, San Francisco has identified an
3 independent interest in the action: It claims a financial
4 interest that it alleges is adversely affected by Proposition
5 8.
6 The City points out that it acts as a social and
7 economic safety net for those individuals it asserts lay claim
8 to City services who would not require those services if
9 Proposition 8 were invalidated. Currently, San Francisco is
10 the only governmental entity seeking to present evidence on the
11 effects of Proposition 8 on governmental services and budgets.
12 Despite Defendant Intervenors' argument to the contrary,
13 San Francisco does not need independent standing to intervene
14 permissively.
15 Plaintiffs acknowledge what they describe as the
16 extraordinary factual record that San Francisco appends to its
17 motion, and strongly suggests that San Francisco is well on its
18 way to contributing to full development of the underlying
19 factual issues in the suit.
20 Despite the timeliness of the City's motion to
21 intervene, the factual record that San Francisco appends to its
22 motion, standing alone, would probably not be sufficient to
23 warrant intervention, with the additional complications that
24 attend adding an additional party.
25 This is especially the case here, given that the

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1 factual record the City seeks to present is largely, if not
2 entirely, a record based upon testimony and evidence presented
3 by expert witnesses. These witnesses are as available to
4 Plaintiffs as well as the City. And to the extent the
5 Plaintiffs believe such evidence is necessary, Plaintiffs can
6 call these witnesses, and no doubt obtain cooperation of the
7 City in the development of such evidence.
8 Rather, it seems to the Court that what distinguishes
9 San Francisco as an intervenor, especially from the others
10 seeking intervention, that is San Francisco claims a
11 governmental interest that no other party, including the
12 Governor and the Attorney General of California, has asserted.
13 Because of this interest, it appears that
14 San Francisco has an independent interest in the proceedings,
15 and the ability to contribute to the development of the
16 underlying issues without materially delaying the proceedings.
17 The Court notes that the City has filed a proposed
18 complaint in intervention that appears straightforward, and it
19 should not require prolonged effort for the other parties to
20 answer or otherwise respond to this pleading promptly.
21 Because it is San Francisco's governmental interest
22 that warrants the decision to allow it to intervene, it seems
23 that San Francisco shares interests with the State Defendants,
24 the Governor and the Attorney General. Furthermore, as the
25 Attorney General has taken the position that Proposition 8 is

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1 unconstitutional, it would appear appropriate in the interest
2 of a speedy determination of the issues that the Attorney
3 General and San Francisco work together in presenting facts
4 pertaining to the affected governmental interests.
5 Counsel for San Francisco and the Attorney General
6 are therefore directed to confer, and if possible, agree on
7 ways to present these facts so as to avoid unnecessary
8 duplication of effort and delay.
9 But I want to emphasize that I believe on the general
10 issues that pertain to the interests of Californians who seek
11 to marry but are barred by Proposition 8 from doing so, it
12 appears that Plaintiffs adequately represent those interests,
13 and unnecessary duplication would be involved in San Francisco
14 seeking to present those facts, especially under these
15 circumstances, and that San Francisco should cooperate with the
16 Plaintiffs and Plaintiffs' counsel in presenting whatever
17 issues pertain to these general interests.
18 To the extent that San Francisco claims a government
19 interest in the controversy about the constitutionality of
20 Proposition 8, it may represent that interest and present such
21 evidence as necessary for the Court to decide that issue.
22 Hence, San Francisco's involvement in this litigation
23 may very well be quite limited. But as the City's interest
24 does appear distinct from any other party except possibly the
25 State Defendants, it is unclear at this point the extent to

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1 which the -- and it is unclear at this point the degree to
2 which the State Defendants may seek to defend these alleged
3 governmental interests, San Francisco's motion for permissive
4 intervention under Rule 24(b) will be granted.
5 And I would suggest, unless any of the parties
6 object, that any answer or otherwise -- any answer or
7 responsive pleading to the complaint and intervention by the
8 City and County of San Francisco be answered in ten days.
9 Is that possible, Mr. Cooper, on your side?
10 MR. COOPER: It is, indeed, Your Honor.
11 THE COURT: Very well. Now, let's turn to case
12 management. And first of all, I want to commend the parties,
13 and particularly Mr. Olson and Mr. Cooper. You have obviously
14 taken to heart the discussion that we had here last month, and
15 the order that was issued in the wake of the earlier case
16 management statements.
17 I thought that the specification of issues that the
18 Plaintiffs proposed and the responses by the Intervenor
19 Defendants was very helpful, very helpful indeed, in narrowing
20 the issues, and defining what it is that is before us, in terms
21 of how we are going to develop the record in this case.
22 Obviously, not every one of these facts is agreed to
23 by the Intervenors, but a number of them were. And, quite
24 understandable that in some instances Mr. Cooper might have a
25 little different verbal formulation of some of them.

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1 But nonetheless, I think we have made and you have
2 made some very considerable progress in shaping up the issues
3 so that we can proceed to a prompt determination of the cause
4 that is before the Court.
5 Now, before telling you what schedule I have in mind,
6 I gather, Mr. Cooper, at some point or other, it would be your
7 intent to file a motion for judgment on the pleadings as to
8 some -- perhaps more than some issues. Perhaps quite a number
9 of issues. Is that a fair reading?
10 MR. COOPER: That is, Your Honor, yes, sir. We -- we
11 believe that there are several issues on which -- on which this
12 Court's not free to depart from binding precedent in the Ninth
13 Circuit. And that -- and that if we are right on that, it
14 would significantly skinny down the -- now the discovery
15 burdens that will face the Plaintiffs and the Defendant
16 Intervenors as we go forward.
17 We may not be right, but we -- we would certainly --
18 we believe we are, and we would like an initial opportunity to
19 present those arguments to the Court.
20 THE COURT: I'm inclined to think that while we
21 should, in view of your position, schedule a dispositive motion
22 schedule with a hearing date, that at least some of the basic
23 discovery in the case can and should go forward very promptly.
24 I assume you want to take the depositions of the
25 Plaintiffs. And, Mr. Olson has indicated that he has some

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1 depositions in mind of your folks. And, seems to me we can get
2 those depositions out of the way very quickly. And, should do
3 so.
4 What's your reaction to that?
5 MR. COOPER: Your Honor, I don't quarrel with that
6 proposition.
7 I will say that some of the things that Mr. Olson
8 would like to inquire into of my clients -- the official
9 Proposition 8 proponents -- going to voter motivation are
10 issues that we earnestly believe are not fit and appropriate
11 for judicial inquiry, and that in fact, would raise the gravest
12 possible First-Amendment issues.
13 And we -- we have cited to the Court a case called
14 Sasso (Phonetic), but we would like an opportunity to fully
15 brief that proposition before we get off in the direction of
16 taking depositions of our clients and subpoenaeing their
17 e-mails and the rest of it, going to their internal campaign
18 strategies and the rest of it.
19 THE COURT: Disagreements as to the scope of
20 discovery are not unusual.
21 MR. COOPER: No, Your Honor, they're not. But
22 discovery that at least we believe we would be privileged
23 against on a constitutional basis are pretty unusual.
24 And we think this is a -- this, at least as we
25 understand their intentions, would be unprecedented insofar as

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1 we have been able to tell. We have not been able to find a
2 single case where this kind of discovery was taken of the
3 proponents of a referendum measure in this state or in any
4 other.
5 And, so we think it's gravely serious issue, Your
6 Honor. We would urge the Court to give us an opportunity to
7 fight this out in briefing to the Court before we get down that
8 road.
9 And if we do go down that road, obviously we will
10 want to take the same kind of deposition testimony, as well as
11 document inquiries of those --
12 THE COURT: Who oppose Proposition 8.
13 MR. COOPER: Of course, Your Honor.
15 MR. COOPER: But --
16 THE COURT: What, in your view -- without getting too
17 far down the road, in your view, what is the scope of
18 appropriate discovery with reference to the proponents and the
19 opponents of Proposition 8?
20 MR. COOPER: That -- and I don't want to get too far
21 in front of myself, because to be quite honest with Your Honor,
22 I'm not sure where that line can safely be drawn as a
23 First-Amendment matter.
24 I do believe that when a judicial inquiry into the
25 intendment and meaning and purpose of a voter referendum is

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1 before the Court, that the one clear and certain analysis is to
2 test the conceivable legitimate state interests that it might
3 serve. And if it will serve none, the inference that flows
4 from that is that there was some illegitimate purpose at work.
5 That was the Romer case.
6 The Romer case concluded, the Court concluded that
7 "We have assessed against the language of the statute, we have
8 assessed against every conceivable purpose offered to us, or
9 that we could think of ourselves," the Court. "And we've
10 assessed it against its various impacts and effects."
11 And --
12 THE COURT: What discovery was taken in the Romer
13 case on that issue?
14 MR. COOPER: Your Honor, the interesting thing, I
15 understand there was a trial in this case. I don't understand
16 there was any discovery taken into the --
17 THE COURT: Well, that's refreshing, a trial without
18 discovery. That's like the old days.
19 MR. COOPER: Well, actually, there was discovery, but
20 it -- but there was no discovery taken into -- that we've been
21 able to find, in that case or any other, into the subjective
22 motivations of the voters, which -- or into the subjective
23 motivation presumably of their proxies, those that organized
24 the referendum effort, and those who organized and provided the
25 strategy for the campaign for the referendum, itself. We

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1 haven't been able to find any evidence that a party was allowed
2 to make inquiry into those things.
3 And, think of what that might mean. How could
4 proposition proponents, future proposItion proponents, not be
5 chilled in the exercise of their First-Amendment rights as they
6 sought to bring forward for consideration by the people these
7 types of propositions. So, Your Honor, we think that that's
8 off the table.
9 Clearly, the kind of inquiry that Romer engaged in is
10 plenty on the table. I think it is going to be hard for me
11 probably to convince myself, let alone you, that -- that the
12 types of public statements, official campaign literature,
13 certainly the official ballot information and brochures that
14 have the imprimatur of the state, and go to every voter, those
15 things are, it would appear, legitimate sources of information
16 about the purposes of the referendum.
17 But again, Your Honor, the -- the inquiries that we
18 think neither side should be allowed to take of the other are
19 those that go to -- and we believe would encroach and gravely
20 threaten First-Amendment freedoms.
21 THE COURT: Mr. Olson, what are your views on this
22 subject?
23 MR. OLSON: I would like to have my colleague,
24 Mr. Boies, address the case management issues.
25 THE COURT: All right. Mr. Boies? You've taken a

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1 lot of discovery in your life.
2 MR. BOIES: I have, Your Honor. And one of the
3 things that I think it underscores is what the Court said,
4 which is that discovery disputes are not uncommon, and that
5 they ordinarily are worked out in the course of discovery.
6 I think the very issue that Mr. Cooper candidly
7 addresses, which is the difficulty of finding exactly where
8 that line is, is something that experiences counsel can try to
9 work out among themselves, and if there's a problem, bring to
10 the Court.
11 I frankly do not believe that we will have a problem,
12 at least at the initial stages of the discovery, in limiting
13 discovery in a way that does not impermissibly infringe on any
14 First-Amendment issues. I think --
15 THE COURT: But I gather that you are planning some
16 discovery of the proponents.
17 MR. BOIES: Yes, Your Honor. And for example, I
18 think Mr. Cooper's exactly right, that there is some stuff that
19 is clearly on the table; there's some stuff that I think is
20 probably not on the table unless we were to make a showing that
21 we have not yet made; and then there's a number of things that
22 are in the middle.
23 I think that in terms of their official statements,
24 the statements that were made publicly, none of those, I think,
25 are something that can be plausibly argued should not be

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1 subject to discovery. Certainly, there are subjective,
2 unexpressed motivations. Those things I think we would not be
3 inquiring into, because we do not believe that those would
4 actually go to the issues that we are presenting to the Court.
5 So, I think that if there is a -- if there's a gray
6 area, there will be some objectively-stated assertions,
7 propositions, that may be encompassed in documents and the like
8 that may or may not have become public, and there may be some
9 issue as to what it means to say something has become public.
10 How broad does have it to be distributed in order to be
11 classified as public?
12 Those are all the kinds of gray-area discovery
13 decisions that we will make along the way. And I don't think
14 that any of those ought to hold up the commencement of
15 discovery, because no matter whose view you take, and -- and it
16 may be that we're not even in disagreement as to where the line
17 will ultimately be drawn, we are in agreement that there are
18 many areas that are going to be subject to discovery.
19 And if we are going to get this process going, and
20 really achieve what I know the Court's objective is and what
21 all of our objective is, which is a prompt resolution of this,
22 I think we need to get started. And I think that we can get
23 started on fact discovery, we can get started in preparing
24 expert reports now.
25 That doesn't mean that you can't have dispositive

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1 motions. But what it means is that we don't have to delay the
2 commencement of the work towards trial until we go through the
3 dispositive motions.
4 THE COURT: Well, with that in mind, let me discuss
5 with you and Mr. Cooper a schedule that I have in mind, based
6 upon what lies before me in the next several months.
7 And, that would be that we commence discovery in this
8 case today. That by the 2nd of October, experts, expert
9 witnesses, opinion witnesses, will be designated. We will have
10 a close of discovery by November 30, except for rebuttal
11 witnesses, which will be designated at that time, rebuttal
12 expert witnesses.
13 We will have a pretrial conference on the 17th of
14 December, a close of rebuttal expert recovery on the 31st of
15 December, and a trial beginning January 11.
16 Is that --
17 MR. BOIES: Your Honor, I think that is easily
18 doable.
19 THE COURT: Good. Mr. Cooper?
20 MR. COOPER: Your Honor, I wasn't able, honestly, to
21 get all of that down, but --
22 THE COURT: Well, let's go through it again.
23 MR. COOPER: Yeah, thank you.
24 THE COURT: Close of all discovery except expert
25 rebuttal discovery, November 30. Designation of experts,

(415) 373-2529
1 October 2. Pretrial conference, December 17. We will have to
2 pick a time. The Clerk will remind me, that's a Wednesday, I
3 believe. Is it not?
4 THE CLERK: December 17, Your Honor?
5 THE COURT: No, it's a Thursday.
6 THE CLERK: That's a Thursday.
7 THE COURT: Maybe we ought to --
8 THE CLERK: Move it up to 16?
9 THE COURT: Why don't we make that the 16th. That is
10 a Wednesday, I believe.
11 THE CLERK: It is a Wednesday, Your Honor.
12 THE COURT: And what does the calendar look like on
13 the 16th?
14 (Off-the-Record discussion)
15 THE COURT: Well, we're in trial on the 16th. Let's
16 set it for the 16th, in any event. I may be in trial that
17 week, but we can work around that in some fashion.
18 And in any event, in any event, if you have to wait
19 and listen to the evidence in that case, it is an interesting
20 case.
21 MR. COOPER: Well, that's a relief, Your Honor.
23 MR. COOPER: Your Honor, this schedule, while a
24 bit -- a bit more relaxed than the one which the Plaintiffs
25 initially offered, is quite an aggressive schedule. I don't

(415) 373-2529
1 think it's impossible. I think it is something we may be able
2 to cope with.
3 I am mainly concerned, frankly, about the expert
4 witness and expert discovery element of this. And in all
5 candor, Your Honor, we -- we have been in a reactive profile,
6 of course, as -- as is typical of Defendants, especially
7 Defendant Intervenors.
8 And so, it isn't -- it hasn't been, honestly, until
9 we received the supplemental case management papers from
10 Plaintiffs, which were, as you say, very -- very helpful, that
11 we became clear on -- on exactly where the Plaintiffs were
12 going, and -- and came to our own resolves, that okay, we are
13 going to now need to really hurry up and line up expert
14 analysis -- experts, in order to help us analyze some subject
15 matters that we weren't altogether clear we were going to be
16 involved with.
17 And so the truth is, we haven't done the hundreds and
18 hundreds of hours or had a chance to do the hundreds and
19 hundreds of hours that the City of San Francisco, in their
20 papers, indicated it took them to identify potential experts,
21 interview those experts, assess their backgrounds, and all the
22 things that you know, as a litigator, one has to do before one
23 commits oneself to designating an expert.
24 But with all that having been said, Your Honor, I
25 have -- I -- we will commit all the resources that we have

(415) 373-2529
1 available to us to comply with this schedule, with the hope
2 that the Court will keep an open mind as this thing unfolds.
3 THE COURT: Well, I do remember what it is like to
4 practice law, so --
5 MR. COOPER: Yes, Your Honor.
6 THE COURT: But I think if I were to set anything
7 other than an ambitious schedule, why, this case might
8 metastasize into something that would be un- --
9 MR. COOPER: I don't think so with these guys, but --
10 I might also add, I very much welcome Mr. Boies's
11 clarification, perhaps, of some of the points that were made in
12 their supplemental case management order, in terms of what they
13 intended to inquire of the proponents.
14 And with the comments that he's made, which I accept,
15 it may well be possible --
16 THE COURT: I suspect most of these issues, you will
17 be able to work out between yourselves. But, I'm prepared to
18 rule on any discovery disputes that you have, to do so
19 informally. I commend to you our local rules with respect to
20 how those are handled, on the telephone or a short letter.
21 And in the event you have a dispute and I'm
22 unavailable, I'm going to appoint Magistrate Judge Spero to
23 handle any of those discovery disputes, so that you get a very
24 prompt resolution. And so the discovery can move on and not be
25 impeded by having to wait for some kind of a decision on a

(415) 373-2529
1 discovery dispute.
2 So, I'm sure you will have some disputes on
3 discovery, but probably less than in the hands -- in
4 less-capable hands would arise.
5 MR. COOPER: Very well, Your Honor. Thank you.
6 THE COURT: All right? Now. I have not built in a
7 dispositive motion hearing date. The date that I had in mind
8 for that -- and Mr. Cooper, this is probably of more interest
9 to you than it is to the Plaintiffs, although the Plaintiffs
10 may have some issues that they want to bring forward by a
11 motion -- I was thinking about October 14th.
12 I don't know whether that's too soon, or whether that
13 date works on your calendars, but we can build in that date.
14 MR. BOIES: We can do that, Your Honor.
15 THE COURT: Mr. Cooper?
16 MR. COOPER: Your Honor, that should work fine.
17 THE COURT: All right. Fine. Now, what else do we
18 have to do this morning?
19 MR. BOIES: I don't think anything, from our
20 standpoint, Your Honor.
21 THE COURT: Mr. Cooper?
22 MR. COOPER: We have no further business, Your Honor.
23 THE COURT: Very well. Mr. Mennemeier, anything
24 further on behalf of the Governor?
25 MR. MENNEMEIER: Nothing, Your Honor. Thank you.

(415) 373-2529
1 THE COURT: I must say I'm surprised at the
2 Governor's position in this case. I know he has a budget to
3 worry about, and water, and fires, and other things, but this
4 is a matter of some importance to the people of the state.
5 And you're his lawyer, and I'm sure you have his
6 attention, and it would be quite useful to have his input on a
7 constitutional issue of this magnitude that affects the state
8 in the way that it does. The Governor's thoughts and views
9 would be very helpful, and very much appreciated.
10 MR. MENNEMEIER: I will share that, Your Honor.
11 THE COURT: Very well. If there's nothing further,
12 Counsel, thank you. And I will see you at our next proceeding.
13 (Conclusion of Proceedings)
14
15
16
17
18
19
20
21
22
23
24
25

(415) 373-2529
CERTIFICATE OF REPORTER
I, BELLE BALL, Official Reporter for the United States
Court, Northern District of California, hereby certify that the
foregoing proceedings in C 09-2292 VRW, Perry, et al. v.
Schwarzenegger , et al., were reported by me, a certified
shorthand reporter, and were thereafter transcribed under my
direction into typewriting; that the foregoing is a full,
complete and true record of said proceedings as bound by me at
the time of filing.
The validity of the reporter's certification of said
transcript may be void upon disassembly and/or removal
from the court file.
____________/S/ Belle Ball______________
Belle Ball, CSR 8785, CRR, RMR
Friday, August 21, 2009

(415) 373-2529
Exhibit C
1 COOPER AND KIRK, PLLC

Charles J. Cooper (DC Bar No. 248070)*
2 ccooper@cooperkirk.com
David H. Thompson (DC Bar No. 450503)*
3 dthompson@cooperkirk.com
Howard C. Nielson, Jr. (DC Bar No. 473018)*
4 hnielson@cooperkirk.com
Peter A. Patterson (Ohio Bar No. 0080840)*
5 ppatterson@cooperkirk.com
1523 New Hampshire Ave. N.W., Washington, D.C. 20036
7 LAW OFFICES OF ANDREW P. PUGNO

Andrew P. Pugno (CA Bar No. 206587)
8 andrew@pugnolaw.com
101 Parkshore Drive, Suite 100, Folsom, California 95630
10 ALLIANCE DEFENSE FUND

Brian W. Raum (NY Bar No. 2856102)*
11 braum@telladf.org
James A. Campbell (OH Bar No. 0081501)*
12 jcampbell@telladf.org
15100 North 90th Street, Scottsdale, Arizona 85260
14 ATTORNEYS FOR DEFENDANT-INTERVENORS DENNIS HOLLINGSWORTH,

GAIL J. KNIGHT, MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
15 MARK A. JANSSON, and PROTECTMARRIAGE.COM – YES ON 8, A
PROJECT OF CALIFORNIA RENEWAL
16
* Admitted pro hac vice
17
UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA
19 KRISTIN M. PERRY, SANDRA B. STIER,

PAUL T. KATAMI, and JEFFREY J.
20 ZARRILLO, CASE NO. 09-CV-2292 VRW
21 DEFENDANT-INTERVENORS’
Plaintiffs, RESPONSE TO PLAINTIFFS’ FIRST
22 SET OF REQUESTS FOR
v. ADMISSION
23
ARNOLD SCHWARZENEGGER, in his official
24 capacity as Governor of California; EDMUND
25 G. BROWN, JR., in his official capacity as
Attorney General of California; MARK B.
26 HORTON, in his official capacity as Director of
the California Department of Public Health and
27 State Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy
28 Director of Health Information & Strategic
DEFENDANT-INTERVENORS’ RESPONSE TO PLAINTIFFS’ FIRST SET OF REQUESTS FOR ADMISSION

CASE NO. 09-CV-2292 VRW

3
capacity as Registrar-Recorder/County Clerk for
4 the County of Los Angeles,
5 Defendants,
6 and
7 PROPOSITION 8 OFFICIAL PROPONENTS

DENNIS HOLLINGSWORTH, GAIL J.
8 KNIGHT, MARTIN F. GUTIERREZ, HAK-
SHING WILLIAM TAM, and MARK A.
9 JANSSON; and PROTECTMARRIAGE.COM –
YES ON 8, A PROJECT OF CALIFORNIA
10 RENEWAL,
11 Defendant-Intervenors.
12
13 Additional Counsel for Defendant-Intervenors
14
ALLIANCE DEFENSE FUND
15 Timothy Chandler (CA Bar No. 234325)
tchandler@telladf.org
16 101 Parkshore Drive, Suite 100, Folsom, California 95630
17
Jordan W. Lorence (DC Bar No. 385022)*
18 jlorence@telladf.org
Austin R. Nimocks (TX Bar No. 24002695)*
19 animocks@telladf.org
801 G Street NW, Suite 509, Washington, D.C. 20001
21 * Admitted pro hac vice
22
23
24
25
26
27
28

1 Defendant-Intervenors (the “Proponents”), pursuant to Rules 26 and 36 of the Federal

2 Rules of Civil Procedure, file these responses to Plaintiffs’ First Set of Requests for Admission.
3
Proponents generally reserve the right to supplement and/or amend these responses to the extent
4
required and/or allowed by the Federal Rules of Civil Procedure. Proponents further note that
5
nothing in our responses to these requests for admissions constitutes an admission that the subject
6
7 matter of any or all of these requests is legally relevant.
8 RESPONSES
9 REQUEST FOR ADMISSION NO. 1:

10 Admit that the “freedom to marry has long been recognized as one of the vital personal
11
rights essential to the orderly pursuit of happiness by free men.” Loving v. Virginia, 388 U.S. 1,
12
12 (1967).
13
RESPONSE:
14
15 Request for Admission No. 1 calls for a legal conclusion and thus does not require a
16 response. Any factual assertions in Request for Admission No. 1 are admitted.

18
Admit that civil marriage is deeply meaningful to individuals, families, communities, and
19
the State of California.
20
RESPONSE:
21
Admitted.
22
24 Admit that marriage is a public expression of love and long-term commitment.
25 RESPONSE:
26
Denied.
27
28
1

2 Admit that no other designation offers the same meaning, obligations, rights, and benefits
3
as marriage itself.
4
RESPONSE:
5
Proponents admit that the word “marriage” has a unique meaning. The remaining
6
7 assertions in Request for Admission No. 4 call for a legal conclusion and thus do not require a
8 response.

10 Admit that marriage brings with it many tangible legal rights, privileges, benefits, and
11
obligations to the married individuals and also confers significant intangible benefits.
12
RESPONSE:
13
Proponents admit that marriage brings with it many tangible legal rights, privileges,
14
15 benefits, and obligations to the married individuals and that it also confers significant intangible
16 benefits to the married individuals, except that Proponents and Plaintiffs may disagree about the
17 substance and nature of those intangible benefits. The substance and nature of the legal rights,
18 privileges, benefits, and obligations provided by marriage is a legal conclusion and thus does not
19
require a response.
20
REQUEST FOR ADMISSION NO. 6:
21
Admit that the tangible and intangible benefits of marriage flow to the married couple’s
22
23 children.
24 RESPONSE:
25 Proponents admit that certain tangible and intangible benefits of marriage flow to the
26
married couple’s children, although Proponents deny that all tangible and intangible benefits of
27
marriage do so. The substance and nature of the tangible benefits of marriage that flow to the
28
2
1 married couple’s children is a legal conclusion and thus does not require a response, and
2 Proponents and Plaintiffs may disagree about the substance and nature of the intangible benefits
3
of marriage that flow to the married couple’s children.
4
5
Admit that marriage legitimizes children and provides them a sense of security.
6
7 RESPONSE:
9 response. Proponents lack information sufficient to admit or deny any factual assertions in
10 Request for Admission No. 7.
11
12
Admit that Plaintiffs desire to marry their partners.
13
RESPONSE:
14
15 Admitted.
17 Admit that for gay and lesbian individuals, such as Plaintiffs, marriage to an individual of
18 the opposite sex is not a meaningful alternative, because such marriage would force them to
19
negate their sexual orientation and identity.
20
RESPONSE:
21
Proponents admit that for many gay and lesbian individuals, marriage to an individual of
22
23 the opposite sex is not a meaningful alternative. Proponents deny that this is true for all gays and
24 lesbians. Proponents lack information sufficient to admit or deny the remaining assertions in
25 Request for Admission No. 9.

26
27
Admit that civil marriage has never been a static institution. Historically, it has changed,
28
3
1 sometimes dramatically, to reflect the changing needs, values, and understanding of our evolving
2 society.
3
RESPONSE:
4
Proponents admit that historically, civil marriage has changed in certain respects, although
5
it always has been and nearly always still is limited to opposite-sex unions. Proponents and
6
7 Plaintiffs may disagree about the nature and characterization of the changes that have taken place
8 in civil marriage.

10 Admit that California banned interracial marriage from the founding of the State until the
11
California Supreme Court invalidated the prohibition in Perez v. Sharp, 32 Cal. 2d 711 (1948).
12
RESPONSE:
13
Request for Admission No. 11 calls for a legal conclusion and thus does not require a
14
15 response. To the extent that it is a factual matter, Proponents admit that California banned certain
16 interracial marriages from early in its history as a State until the California Supreme Court
17 invalidated those restrictions in Perez v. Sharp, 32 Cal. 2d 711 (1948). See Perez, 32 Cal. 2d at
18 712 (reciting history).
19
20
Admit that the doctrine of coverture, under which women, once married, lost their
21
independent legal identity and became property of their husbands, was once viewed as a central
22
23 component of the civil institution of marriage.
24 RESPONSE:
26
response. Any factual assertions in Request for Admission No. 12 are denied.
27
28
4

2 Admit that neither the race- nor gender-based reforms in civil marriage law deprived
3
marriage of its vitality and importance as social institution.
4
RESPONSE:
5
Proponents admit that eliminating racial restrictions on marriage and eliminating the
6
7 doctrine of coverture have not deprived marriage of its vitality and importance as a social
8 institution. Any remaining factual assertions in Request for Admission No. 13 are denied.

10 Admit that the persecution suffered by gays and lesbian individuals in the United States has
11
been severe.
12
RESPONSE:
13
Proponents admit that in the past gays and lesbians experienced discrimination in the United
14
15 States, except that Proponents and Plaintiffs may disagree about the scope or nature of that
16 discrimination. In addition, Proponents deny any implication that gays and lesbians face severe
17 discrimination in California today.

18
19
Admit that gay and lesbian individuals have been subjected to and stigmatized by a long
20
history of purposeful and invidious discrimination that continues to this day.
21
RESPONSE:
22
23 Denied.

25 Admit that gay and lesbian individuals are still among the most stigmatized groups in the
26
country.
27
28
5
1 RESPONSE:
2 Denied.
3
4
Admit that hate crimes against gay and lesbian individuals remain prevalent.
5
RESPONSE:
6
7 Denied.
9 Admit that although social antipathy toward gay and lesbian individuals has moderated,
10 these groups suffer from continuing political disabilities and discrimination.
11
RESPONSE:
12
Denied.
13
14
15 Admit that sexual orientation bears no relation to a person’s ability to perform or contribute
16 to society.
17 RESPONSE:
18
Denied.
19
20
Admit that the medical and psychiatric communities do not consider sexual orientation an
21
illness or a disorder.
22
23 RESPONSE:
24 Proponents admit that certain prominent medical and psychiatric professional organizations
25 no longer consider sexual orientation an illness or a disorder. Any remaining factual assertions in
26
Request for Admission No. 20 are denied.
27
28
6

2 Admit that same-sex sexual orientation does not result in any impairment in judgment or
3
general social and vocational capabilities.
4
RESPONSE:
5
Admitted.
6
8 Admit that it is the policy of the State of California that sexual orientation bears no relation
9 to an individual’s ability to raise children, to an individual’s capacity to enter into a relationship

10 that is analogous to marriage, or otherwise to participate fully in all economic and social
11
institutions.
12
RESPONSE:
13
14
15 response. Any factual assertions in Request for Admission No. 22 are denied.
17 Admit that “[s]exual orientation and sexual identity is so fundamental to one’s identity that
18 a person should not be required to abandon them.” Hernandez-Montiel v. I.N.S., 225 F.3d 1084,
19
1093 (9th Cir. 2000).
20
RESPONSE:
21
Proponents admit that Hernandez-Montiel contains language similar to that quoted by
22
23 Plaintiffs. Hernandez-Montiel speaks for itself, and the assertion for which Plaintiffs quote it calls
24 for a legal conclusion and thus does not require a response. Proponents lack information sufficient
25 to admit or deny any remaining factual assertions in Request for Admission No. 23.
26
27
Admit that sexual orientation is fundamental to a person’s identity.
28
7
1 RESPONSE:
2 Proponents lack information sufficient to admit or deny the statement in Request for
3
Admission No. 24.
4
5
Admit that there is no credible evidence that sexual orientation can or should be changed.
6
7 RESPONSE:
8 Denied.

10 Admit that it can be harmful to an individual to attempt to change his or her sexual
11
orientation.
12
RESPONSE:
13
Proponents lack information sufficient to admit or deny the statement in Request for
14
15 Admission No. 26.
17 Admit that forcing an individual to change his or her sexual orientation would infringe on
18 “the protected right of homosexual adults to engage in intimate, consensual conduct,” which is “an
19
integral part of human freedom.” Lawrence v. Texas, 539 U.S. 558, 576-77 (2003).
20
RESPONSE:
21
22
23 response.

25 Admit that sexual orientation is the kind of distinguishing characteristic that defines gay and
26
lesbian individuals as a discrete group.
27
28
8
1 RESPONSE:
2 Denied.
3
4
Admit that discrimination against gay and lesbian individuals, including through hate
5
crimes, exists to this day.
6
7 RESPONSE:
8 Proponents admit that gays and lesbians continue to experience instances of discrimination,
9 albeit in increasingly rare circumstances. Any remaining assertions in Request for Admission No.
10 29 call for a legal conclusion and thus do not require a response.
11
12
Admit that there are only three openly gay members of the U.S. House of Representatives
13
and no openly gay Senators.
14
15 RESPONSE:
16 Admitted.

18
Admit that there are no openly gay governors.
19
RESPONSE:
20
Admitted.
21
22
23 Admit that no openly gay person has ever been appointed to a Cabinet Secretary position.
24 RESPONSE:
25 Admitted.
26
27
Admit that 52% of California voters voted in favor of Prop. 8, which denied gay and lesbian
28
9
1 individuals the right to marry.

2 RESPONSE:
3
Proponents admit that “Proposition 8 was approved by . . . 52.3 percent . . . of the voters
4
casting votes on the proposition.” Strauss v. Horton, 207 P.3d 48, 68 (Cal. 2009). Any remaining
5
assertions in Request for Admission No. 33 call for a legal conclusion and thus do not require a
6
7 response.
9 Admit that fewer than half of the States ban sexual orientation discrimination in
10 employment, housing, and/or accommodations.
11
RESPONSE:
12
13
Admission No. 34.
14
16 Admit that lesbians and gay men have been unable to secure national legislation to protect
17 them from hate crimes.

18
RESPONSE:
19
Admitted.
20
21
Admit that lesbians and gay men have been unable to secure national legislation to protect
22
23 them from discrimination in housing, employment, or public accommodations.
24 RESPONSE:
25 Admitted.
26
27
Admit that establishing a separate institution for State recognition and support of lesbian
28
10
1 and gay families, even if well-intentioned, marginalizes and stigmatizes gay families.
2 RESPONSE:
3
Denied.
4
5
Admit that there is a significant symbolic disparity between domestic partnership and
6
7 marriage.
8 RESPONSE:
9 Admitted.
11
Admit that denying same-sex couples and their families access to the familiar and favorable
12
official designation “marriage” harms them by denying their family relationships them the same
13
dignity and respect afforded to opposite-sex couples and their families.
14
15 RESPONSE:
16 Denied.

18
Admit that the inability to marry relegates gay and lesbian relationships to second-class
19
status.
20
RESPONSE:
21
Denied.
22
24 Admit that because two types of relationships—one for same-sex couples and one for
25 opposite-sex couples—exist in California, a gay or lesbian individual is forced to disclose his or her
26
sexual orientation when asked about his or her marital status.
27
28
11
1 RESPONSE:
2 Denied.
3
4
Admit that in light of the history of discrimination that gay and lesbian individuals have
5
faced, the creation of the alternative regime of domestic partnership reinforces anti-gay prejudice,
6
7 which has the potential to escalate into violence.
8 RESPONSE:
9 Denied.
11
Admit that the stigma associated with discrimination and second-class treatment takes a toll
12
on the well-being of gay men and lesbians and their families.
13
RESPONSE:
14
15 Denied.
17 Admit that private, consensual, sexual relations between gay and lesbian couples are
18 protected by the Due Process Clause of the Fourteenth Amendment.
19
RESPONSE:
20
21
response.
22
24 Admit that notions that marriage should be limited to opposite-sex couples reinforces
25 harmful stereotypes regarding innate gender characteristics and the roles of men and women in
26
child rearing and family responsibilities.
27
28
12
1 RESPONSE:
2 Denied.
3
4
Admit that gay and lesbian individuals had a constitutional right to marry before Prop. 8.
5
RESPONSE:
6
8 response. To the extent that it is a factual matter, Proponents admit that, in Marriage Cases, 183
9 P.3d 384 (Cal. May 15, 2008), the California Supreme Court held that the California Constitution
10 required the State to extend marriage to same-sex couples.
11
12
Admit that Prop. 8 eliminated the right of gay and lesbian individuals to marry.
13
RESPONSE:
14
16 response. To the extent that it is a factual matter, Proponents admit that Proposition 8 restored the
17 traditional definition of marriage.

18
19
Admit that Prop. 8 was intended to strip the designation “marriage” from officially
20
sanctioned relationships of same-sex couples.
21
RESPONSE:
22
24 response. Any factual assertions in Request for Admission No. 48 are denied.

26
Admit that according to the Official General Election Voter Information Guide, Prop. 8
27
“[c]hange[d] the California Constitution to eliminate the right of same-sex couples to marry in
28
13
1 California.” Strauss v. Horton, 207 P.3d 48, 77 (Cal. 2009) (internal quotation marks omitted).
2 RESPONSE:
3
Proponents admit that the Official Title and Summary for Proposition 8 contained in the
4
Official Voter Information Guide, prepared by the Office of the Attorney General, includes, among
5
other things, the phrase quoted in Request for Admission No. 49, except for the bracketed
6
7 alterations. The legal effect of Proposition 8 is a matter of law that does not require a response.
9 Admit that Prop. 8 was driven by moral disapproval of gay and lesbian individuals.
10 RESPONSE:
11
Denied.
12
13
Admit that the advertising campaign in favor of Prop. 8 demonstrates that its supporters
14
15 drew on the fears and irrational prejudices of voters.
16 RESPONSE:
17 Denied.
18
19
Admit that heterosexual individuals with no children and/or no intent to have children, who
20
are incarcerated for serious crimes, who have failed to pay child support obligations or who are
21
adulterers are all permitted to marry.
22
23 RESPONSE:
25 response.
26
27
Admit that allowing gay and lesbian individuals to marry will not destabilize marriages of
28
14
1 heterosexual individuals.
2 RESPONSE:
3
4
Admission No. 53.
5
6
7 Admit that allowing gay and lesbian individuals to marry will not deprive heterosexual
8 individuals of any rights or benefits they currently enjoy.
9 RESPONSE:
11
response.
12
13
Admit that it is the policy of the State of California that sexual orientation bears no relation
14
15 to an individual’s ability to raise children, to an individual’s capacity to enter into a relationship
16 that is analogous to marriage, or otherwise to participate fully in all economic and social
17 institutions.
18
RESPONSE:
19
See Proponents’ Response to Request for Admission No. 22.
20
21
Admit that the State of California has declared an interest in promoting lesbian and gay
22
23 family relationships and protecting lesbian and gay family members during life crises, and reducing
24 discrimination on the basis of sex and sexual orientation.
25 RESPONSE:
26
Proponents admit that language somewhat similar to that in Request for Admission No. 56
27
is contained in the California Domestic Partner Rights and Responsibilities Act of 2003. Any
28
15
1 remaining assertions in Request for Admission No. 56 call for a legal conclusion and thus do not
2 require a response.
3
4
Admit that the State of California allows gay men and lesbians in same-sex relationships to
5
serve as foster parents and to adopt children.
6
7 RESPONSE:
11
Admit that an individual’s capacity to establish a loving and long-term committed
12
relationship with another person does not depend on the individual’s sexual orientation.
13
RESPONSE:
14
15 Proponents admit that many gay men and lesbians have established loving and committed
16 relationships. Proponents lack information sufficient to admit or deny the remaining factual
17 assertions in Request for Admission No. 58.

18
19
Admit that an individual’s capacity to raise children does not depend on the individual’s
20
sexual orientation.
21
RESPONSE:
22

26
Admit that the best interests of a child are equally served by being raised by same-sex
27
parents.
28
16
1 RESPONSE:
2 Because it does not identify the class of individuals to which same-sex parents are to be
3
compared, Proponents can neither admit nor deny the statement in Request for Admission No. 60.
4
5
Admit that lesbian and gay parents are as likely as heterosexual parents to provide
6
7 supportive and healthy environments for children.
8 RESPONSE:
9 Denied.
11
Admit that the State of California allows same-sex couples married before Prop. 8 was
12
enacted to remain married.
13
RESPONSE:
14

18
Admit that approximately 18,000 same-sex couples currently are recognized by the State of
19
California as married.
20
RESPONSE:
21
22

25 Admit that if the marriages of any of approximately 18,000 same-sex couples currently
26
recognized by the State of California as married end by reason of death or divorce, the gay and
27
lesbian individuals in those marriages would not be allowed to remarry.
28
17
1 RESPONSE:
3
response. Any factual assertions in Request for Admission No. 64 are admitted, except that
4
Proponents lack information sufficient to admit or deny the number of same-sex couples currently
5
recognized by the State of California as married.
6
8 Admit that gay and lesbian individuals, including Plaintiffs, have formed lasting,
9 committed, and caring relationships with persons of the same sex, and same-sex couples share their
10 lives and participate in their communities together.
11
RESPONSE:
12
Admitted.
13
14
15 Admit that gay and lesbian individuals, including Plaintiffs Perry and Stier, raise children
16 together.
17 RESPONSE:
18
Admitted.
19
20
Admit that prohibiting marriage by same-sex couples hurts the State of California
21
financially.
22
23 RESPONSE:

26
27
Admit that prohibiting marriage by same-sex couples limits the State of California’s ability
28
18
1 to ensure that its citizens are treated equally regardless of sexual orientation.
2 RESPONSE:
3
Denied.
4
6 Dated: September 11, 2009

COOPER AND KIRK, PLLC
7 ATTORNEYS FOR DEFENDANT-INTERVENORS
8 DENNIS HOLLINGSWORTH, GAIL J. KNIGHT,
MARTIN F. GUTIERREZ, HAK-SHING WILLIAM TAM,
9 MARK A. JANSSON, AND PROTECTMARRIAGE.COM
– YES ON 8, A PROJECT OF CALIFORNIA RENEWAL
10
By: /s/Charles J. Cooper
11 Charles J. Cooper
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
Exhibit D



13

17 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW
18 ZARRILLO,
Plaintiffs, PLAINTIFFS’ RESPONSES TO
19 DEFENDANT-INTERVENORS
v. PROPOSITION 8 PROPONENTS’
20 FIRST SET OF INTERROGATORIES
21 capacity as Governor of California; EDMUND
G. BROWN, JR., in his official capacity as
22 Attorney General of California; MARK B.
HORTON, in his official capacity as Director of
23 the California Department of Public Health and
State Registrar of Vital Statistics; LINETTE
24 SCOTT, in her official capacity as Deputy
Director of Health Information & Strategic
27 capacity as Registrar-Recorder/County Clerk for
the County of Los Angeles,
28 Defendants.
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Crutcher LLP
09-CV-2292 VRW PLAINTIFFS’ RESPONSES TO DEFENDANT-INTERVENORS
PROPOSITION 8 PROPONENTS’ FIRST SET OF INTERROGATORIES
1 GENERAL OBJECTIONS
2 1. Plaintiffs object to these Interrogatories on the ground that they are compound in that
3 they seek (1) separate contentions of at least four Plaintiff individuals, and in some instances, their
4 children, (2) the documentary and/or other evidentiary basis for any such contentions, (3) the identity
5 of any and all possible exhibits, (4) the identity of any and all possible witnesses, and (5) the identity
6 of any evidence Plaintiffs have contradicting their contentions.
7 2. Plaintiffs object to these Interrogatories on the ground that they exceed the 25 written
8 interrogatories, including all discrete subparts, permitted by Federal Rule of Civil Procedure 33.
9 3. Plaintiffs object to these Interrogatories to the extent they seek to alter the schedule
10 imposed by the Court’s August 19, 2009 and August 24, 2004 pretrial scheduling orders. Doc ##160,
11 164. Specifically, “[d]esignation of witnesses presenting evidence under FRE 702, 703 or 705 and
12 production of written reports pursuant to FRCP 26(a)(2)(B)” is due on October 2, 2009. Doc #160
13 at 2. Additionally, the identity of proposed exhibits and witnesses is due on December 2, 2009. Doc
14 #164 at 1-2.
15 4. Plaintiffs object to each Interrogatory to the extent that it is premature and/or seeks
16 information that is more properly the subject of expert testimony.
17 5. Plaintiffs object to each Interrogatory as unduly burdensome and oppressive to the
18 extent that it purports to require Plaintiffs to provide information not in their possession, custody, or
19 control.
20 6. Plaintiffs object to each Interrogatory to the extent that it purports to impose any
21 requirement or discovery obligation on Plaintiffs other than those set forth in the Federal Rules of
22 Civil Procedure, the Civil Local Rules of the Northern District of California, and the applicable
23 Orders of Chief Judge Walker.
24 7. Plaintiffs object to each Interrogatory to the extent it calls for an answer that can be
25 derived or ascertained from records Plaintiffs have produced or will produce in this action pursuant to
26 Federal Rule of Civil Procedure 34. Plaintiffs will refer to the appropriate record or records for each
27 said Interrogatory.
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1 8. Plaintiffs object to each Interrogatory to the extent that it purports to require Plaintiffs
2 to identify documentary evidence that is in the possession, custody, or control of Defendants,
3 Defendant-Intervenors, or third parties.
4 9. Plaintiffs object to each Interrogatory to the extent that it seeks information that is
5 protected by the attorney-client privilege, the work product doctrine, and/or any other applicable
6 privilege or immunity. Any disclosure of such protected or privileged information is inadvertent and
7 is not intended to waive those privileges or protections.
8 10. Plaintiffs object to the “Definitions” and “Instructions” that Defendant-Intervenors
9 purport to incorporate in its Interrogatories to the extent that they are inconsistent with or seek to
10 impose obligations beyond those imposed by the Federal Rules of Civil Procedure, the Civil Local
11 Rules of the Northern District of California, and the applicable Orders of Chief Judge Walker.
12 11. Plaintiffs object to each Interrogatory to the extent that it seeks information that is not
13 reasonably calculated to lead to the discovery of admissible evidence.
14 12. The subject matter of these Interrogatories is under continuing investigation. Plaintiffs
15 will respond to the Interrogatories with their current knowledge and reserve the right to supplement
16 these responses if any additional information is identified at a later time and to make any additional
17 objections that may become apparent. Plaintiffs also reserve the right to make any use of, or
18 introduce at any hearing or at trial, information not known or thought to be responsive at the time of
19 responding to these Interrogatories.
20 RESPONSES TO INTERROGATORIES
21 INTERROGATORY NO. 1:
22 Please identify any and all distinct contentions you may make to the effect that, as a result of
23 Proposition 8, the Defendants and/or the State are causing gays and lesbians and/or their children and
24 families significant hardship and/or irreparable harm, including reference to each and every instance
25 of humiliation, emotional distress, pain, suffering, psychological harm, and/or stigma you contend
26 Plaintiffs and/or their children and families have experienced, the time period in and/or date on which
27 you contend Plaintiffs, their children or families suffered the significant hardship and/or irreparable
28 harm, and the full Documentary and/or other evidentiary basis for any such contention(s), including
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1 identifying any and all possible exhibits and witnesses, and identifying any evidence you have
2 contradicting your contentions.
3 RESPONSE TO INTERROGATORY NO. 1:
4 In addition to their General Objections, Plaintiffs object to this Interrogatory to the extent it
5 seeks private information, which is protected by Plaintiffs’ right to privacy under Article I, Section 1
6 of the California Constitution. Plaintiffs further object to this Interrogatory on the grounds it is
7 overly broad and unduly burdensome, as it would be literally impossible to identify “each and every
8 instance of humiliation, emotional distress, pain, suffering, psychological harm, and/or stigma you
9 contend Plaintiffs and/or their children and families have experienced.”
10 Subject to these objections, Plaintiffs respond as follows: Plaintiffs contend that marriage is a
11 highly valued and respected social institution made available to some, but not all, loving and devoted
12 couples. It provides not only a wealth of legal and social rights and responsibilities, but it also
13 describes and defines a person’s relationship to and place in society. Excluding gay and lesbian
14 individuals from the institution of civil marriage, and instead relegating them to second-class status,
15 inflicts on gay and lesbian individuals and their children humiliation, emotional distress, pain,
16 suffering, psychological harm, and stigma. This harm would be greatly diminished or eliminated if
17 gay and lesbian individuals’ right to marry the person they love was recognized, since the State
18 would no longer be treating same-sex couples as second-class citizens by excluding them, and only
19 them, from such a valued and honored social institution.
20 The harm inflicted on the Plaintiffs specifically is pervasive and constant. Accordingly,
21 documenting “each and every instance” of the harm is impossible. Nonetheless, in a good-faith effort
22 to respond to the interrogatory, Plaintiffs have documented types of harm they have experienced as
23 well as specific instances of harm they have suffered, attached hereto as Attachment A. In addition to
24 expert witnesses who will be identified at the appropriate time, Plaintiffs will testify regarding the
25 harms they have suffered as a result of Prop. 8 and their inability to marry, and third-party witnesses
26 may also testify. Documentary evidence Plaintiffs may rely on to demonstrate the harm and
27 embarrassment caused to gay and lesbian individuals includes, without limitation, the campaign
28 materials, advertisements, and other materials used in the campaign in favor of Prop. 8 by Defendant-
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1 Intervenors and their fellow supporters of Prop. 8., as well as documents that Plaintiffs’ experts may
2 rely upon in forming their opinions (which will be identified at the appropriate time).
4 Please identify and describe any contentions you may make as to whether, how, and why, as a
5 result of Proposition 8, the Defendants and/or the State are stigmatizing gays and lesbians, and/or
6 their children and families, identifying the full Documentary and/or other evidentiary basis for any
7 such contention(s), including identifying any and all possible exhibits and witnesses, and identifying
8 any evidence you have contradicting your contentions.
10 Subject to their General Objections, Plaintiffs respond as follows: Plaintiffs contend that one
11 of the “core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have
12 their official family relationship accorded the same dignity, respect, and stature as that accorded to all
13 other officially recognized family relationships.” See In re Marriage Cases, 183 P.3d 384, 434 (Cal.
14 2008). By “reserving the historic and highly respected designation of ‘marriage’ exclusively to
15 opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of
16 domestic partnership,” Prop. 8 communicates the “official view that [same-sex couples’] committed
17 relationships are of lesser stature than the comparable relationships of opposite-sex couples” and
18 impermissibly stamps gay and lesbian individuals and their children with a “mark of second-class
19 citizenship.” See id. at 402, 434, 445.
20 Documentary evidence Plaintiffs may rely on to demonstrate stigmatization of gay and
21 lesbian individuals includes, without limitation, the campaign materials, advertisements, and other
22 materials used in the campaign in favor of Prop. 8 by Defendant-Intervenors and their fellow
23 supporters of Prop. 8., as well as documents that Plaintiffs’ experts may rely upon in forming their
24 opinions (which will be identified at the appropriate time). Potential witnesses will include, in
25 addition to expert witnesses to be identified at the appropriate time, the Plaintiffs, third-party
26 witnesses, the Defendant-Intervenors and other supporters of Prop. 8.
27
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2 Please identify and describe any contentions you may make as to whether, how, and why any
3 asserted interest in extending the civil status of “marriage” to same-sex relationships is objectively,
4 deeply rooted in this nation’s history and tradition, identifying the full Documentary and/or other
5 evidentiary basis for any such contention(s), including identifying any and all possible exhibits and
6 witnesses, and identifying any evidence you have contradicting your contentions.
8 In addition to their General Objections, Plaintiffs object to this Interrogatory on the ground
9 that it is misleading and not susceptible to a meaningful response in that it incompletely and/or
10 incorrectly states the facts relating to the subject matter of the Interrogatory.
11 Subject to these objections, Plaintiffs respond as follows: Plaintiffs contend that the right to
12 marry is a fundamental right protected under the Due Process Clause and that there is no compelling
13 or even rational basis on which to distinguish, and treat differently, same-sex and opposite-sex
14 couples with respect to the fundamental right to marry. As the Supreme Court declared in Loving v.
15 Virginia, the “freedom to marry” is “one of the vital personal rights essential to the orderly pursuit of
16 happiness by free men.” 388 U.S. 1, 12 (1967). Because “the right to marry is of fundamental
17 importance for all individuals” (Zablocki v. Redhail, 434 U.S. 374, 384 (1978)), “freedom of personal
18 choice in matters of marriage and family life is one of the liberties protected by the Due Process
19 Clause.” Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639 (1974). Indeed, this Nation has a
20 deeply rooted—and frequently reaffirmed—”tradition” of “afford[ing] constitutional protection to
21 personal decisions relating to marriage,” “family relationships,” and “child rearing.” Lawrence v.
22 Texas, 539 U.S. 558, 573-74 (2003).
23 In addition, the principle of equal protection of the laws is powerful and longstanding in our
24 country and in our laws. Denying a minority of citizens an important right enjoyed by all other
25 citizens, without any compelling or even rational basis for excluding that minority from enjoying that
26 important right, is contrary to the long-standing and deeply rooted traditions of our country. See
27 Romer v. Evans, 517 U.S. 620, 633-34 (1996) (“It is not within our constitutional tradition to enact
28 laws of this sort. Central both to the idea of the rule of law and to our own Constitution’s guarantee
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1 of equal protection is the principle that government and each of its parts remain open on impartial
2 terms to all who seek its assistance. ‘Equal protection of the laws is not achieved through
3 indiscriminate imposition of inequalities.’ (citation omitted). Respect for this principle explains why
4 laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A
5 law declaring that in general it shall be more difficult for one group of citizens than for all others to
6 seek aid from the government is itself a denial of equal protection of the laws in the most literal
7 sense. ‘The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’
8 Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942) (quoting Yick Wo v. Hopkins, 118
9 U.S. 356 (1886))”); see also Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 300 (1990)
10 (Scalia, J., concurring) (“Our salvation is the Equal Protection Clause, which requires the democratic
11 majority to accept for themselves and their loved ones what they impose on you and me.”).
12 Documentary evidence Plaintiffs may rely on to demonstrate that same-sex couples have a
13 fundamental right to marry may include, without limitation, documents that Plaintiffs may produce,
14 documents that Plaintiffs’ experts may rely upon in forming their opinions (which will be identified
15 at the appropriate time), and other documents that may be produced by Defendant-Intervenors or
16 others in this litigation. Potential witnesses include, in addition to expert witnesses to be identified at
17 the appropriate time, the Plaintiffs and third-party witnesses.
19 Please identify and describe any contentions you may make as to whether, how, and why the
20 history of the enactment of and/or a Person’s support for Proposition 8 demonstrates animus by that
21 Person, the Defendants, and/or the State against gays and lesbians, identifying the full Documentary
22 and/or other evidentiary basis for any such contention(s), including identifying any and all possible
23 exhibits and witnesses, and identifying any evidence you have contradicting your contentions.
25 Subject to their General Objections, Plaintiffs respond as follows: Plaintiffs contend that
26 Prop. 8 purposely singled out gay and lesbians individuals for disparate treatment and enshrined
27 discrimination against gay and lesbian individuals into the California Constitution. Prop. 8 was
28 narrowly approved by California voters in November 2008—160 years after the adoption of the
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1 State’s first constitution—and was a direct response to the California Supreme Court’s decision in In
2 re Marriage Cases, 183 P.3d 384 (Cal. 2008). That decision held that the California Family Code’s
3 prohibition of same-sex couples from civil marriage was unconstitutional under the due process and
4 equal protection guarantees of the California Constitution. Id. at 452. According to the official
5 General Election Voter Information Guide, Prop. 8 “[c]hange[d] the California Constitution to
6 eliminate the right of same-sex couples to marry in California.” Strauss v. Horton, 207 P.3d 48, 77
7 (Cal. 2009) (internal quotation marks omitted). Thus, the express and stated purpose of the ballot
8 initiative was to strip gays and lesbians of constitutional rights afforded to them by the California
9 Constitution and to impose a special disability on gays and lesbians alone by stripping them of state
10 constitutional protections that apply to all other citizens.
11 Documentary evidence Plaintiffs may rely on to demonstrate animus against gay and lesbian
12 individuals includes, without limitation, the campaign materials, advertisements, and other materials
13 used in the campaign in favor of Prop. 8 by Defendant-Intervenors and their fellow supporters of
14 Prop. 8, as well as other documents that may be produced by Defendant-Intervenors or others in this
15 litigation. Plaintiffs may also seek to admit documents that Plaintiffs’ experts rely upon in forming
16 their opinions (which will be identified at the appropriate time). Potential witnesses will include, in
21 result of Proposition 8, the Defendants and/or the State accord same-sex couples and/or their children
22 and families less respect and dignity than they accord opposite-sex couples, identifying the full
23 Documentary and/or other evidentiary basis for any such contention(s), including identifying any and
24 all possible exhibits and witnesses, and identifying any evidence you have contradicting your
25 contentions.
27 Subject to their General Objections, Plaintiffs respond as follows: Plaintiffs contend that one
28 of the “core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have
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1 their official family relationship accorded the same dignity, respect, and stature as that accorded to all
2 other officially recognized family relationships.” See In re Marriage Cases, 183 P.3d at 434. By
3 “reserving the historic and highly respected designation of ‘marriage’ exclusively to opposite-sex
4 couples while offering same-sex couples only the new and unfamiliar designation of domestic
5 partnership,” Prop. 8 communicates the “official view that [same-sex couples’] committed
7 impermissibly stamps gay and lesbian individuals—and their children—with a “mark of second-class
9 Documentary evidence Plaintiffs may rely on to demonstrate the lack of dignity and respect
10 accorded gay and lesbian individuals includes, without limitation, the campaign materials,
11 advertisements, and other materials used in the campaign in favor of Prop. 8 by Defendant-
12 Intervenors and their fellow supporters of Prop. 8, as well as other documents that may be produced
13 by Defendant-Intervenors or others in this litigation. Plaintiffs may also seek to admit documents
14 that Plaintiffs’ experts rely upon in forming their opinions (which will be identified at the appropriate
15 time). Potential witnesses will include, in addition to expert witnesses to be identified at the
16 appropriate time, the Plaintiffs, third-party witnesses, the Defendant-Intervenors and other supporters
17 of Prop. 8.
20 result of Proposition 8, the Defendants and/or the State deny social, legal, and/or other benefits to
21 same-sex couples, and/or their children and families, identifying the full Documentary and/or other
22 evidentiary basis for any such contention(s), including identifying any and all possible exhibits and
23 witnesses, and identifying any evidence you have contradicting your contentions.
26 that the terms “social benefits” and “other benefits” are vague and ambiguous. Plaintiffs also object
27 to this Interrogatory on the ground, and to the extent, that it calls for a legal conclusion.
28
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1 Subject to these objections, Plaintiffs respond as follows: Plaintiffs contend that one of the
2 “core elements of th[e] fundamental right [to marry] is the right of same-sex couples to have their
3 official family relationship accorded the same dignity, respect, and stature as that accorded to all
4 other officially recognized family relationships.” See In re Marriage Cases, 183 P.3d at 434. By
5 “reserving the historic and highly respected designation of ‘marriage’ exclusively to opposite-sex
6 couples while offering same-sex couples only the new and unfamiliar designation of domestic
7 partnership,” Prop. 8 communicates the “official view that [same-sex couples’] committed
9 impermissibly stamps gay and lesbian individuals—and their children—with a “mark of second-class
11 While Plaintiffs cannot describe or document every instance of discrimination,
12 embarrassment, and other harm resulting from Prop. 8 and their inability to marry, Plaintiffs refer
13 Defendant-Intervenors to the response to Interrogatory No. 1 for examples. Documentary evidence
14 Plaintiffs may rely on to demonstrate denial of social and other benefits to gay and lesbian
15 individuals includes, without limitation, the campaign materials, advertisements, and other materials
16 used in the campaign in favor of Prop. 8 by Defendant-Intervenors and their fellow supporters of
17 Prop. 8, as well as other documents that may be produced by Defendant-Intervenors or others in this
18 litigation. Plaintiffs may also seek to admit documents that Plaintiffs’ experts rely upon in forming
19 their opinions (which will be identified at the appropriate time). Potential witnesses will include, in
23 Please identify and describe any contentions you may make as to whether, how, and why
24 child-rearing is not optimized by limiting marriage to opposite-sex couples, identifying the full
25 Documentary and/or evidentiary basis for any such contention(s) including identifying any and all
26 possible exhibits and witnesses and identifying any evidence you have contradicting your
27 contention(s).
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3 there is no difference between the ability of a same-sex couple to provide a healthy, positive child-
4 rearing environment and the ability of an opposite-sex couple to provide such an environment. The
5 well-being of children is not contingent on the parents’ sexual orientation. Excluding same-sex
6 couples from marriage does not advance, and indeed actually harms, the objective of providing an
7 optimal child-rearing environment for all children, including the children of gay and lesbian couples
8 who have been denied the rights and status attendant to civil marriage. Lastly, excluding gay and
9 lesbian individuals from the institution of marriage and relegating them to the separate-but-unequal
10 status of domestic partnership does not prevent same-sex couples from raising children or change the
11 fact that many children in California are raised by same-sex couples. It does, however, change the
12 respect and dignity afforded to those families.
13 Documentary evidence Plaintiffs may rely on to demonstrate that there is no difference
14 between the ability of a same-sex couple to provide a healthy, positive child-rearing environment and
15 the ability of an opposite-sex couple of provide such an environment includes, without limitation,
16 documents that may be produced by Plaintiffs, documents relied upon by experts in this matter, as
17 well as other documents that may be produced by Defendant-Intervenors or others in this litigation.
18 Potential witnesses will include, in addition to expert witnesses to be identified at the appropriate
19 time, the Plaintiffs, and third-parties.
21 Please identify and describe any contentions you may make regarding the comparative
22 stability of homosexual relationships versus traditional, opposite-sex married relationships, breaking
23 your contention down where possible by gay men and lesbian women, and identifying the full
25 all possible exhibits and witnesses, and any evidence you have contradicting your contention(s).
28 that the term “homosexual relationships” is vague and ambiguous.
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1 Subject to these objections, Plaintiffs respond as follows: Plaintiffs contend that marriage
2 improves the stability of relationships, whether they be committed same-sex relationships or
3 committed opposite-sex relationships. Marriage gives legally wed spouses access to a host of
4 economic and social benefits and obligations, and serves as a barrier to the dissolution of
5 relationships. The rights and responsibilities of marriage help to improve and ensure the stability of a
6 couple’s relationship. Further, many opposite-sex married relationships are unstable for any number
7 of reasons, and indeed less stable than many same-sex relationships.
8 Documentary evidence that Plaintiffs may rely on to demonstrate that marriage improves the
9 stability of relationships includes, without limitation, the campaign materials, advertisements, and
10 other materials used in the campaign in favor of Prop. 8 by Defendant-Intervenors and their fellow
11 supporters of Prop. 8, as well as other documents that may be produced by Defendant-Intervenors or
12 others in this litigation. They may also include documents relied upon by Plaintiffs’ experts, which
13 will be identified at the appropriate time. Potential witnesses will include, in addition to expert
14 witnesses to be identified at the appropriate time, the Plaintiffs, third-party witnesses, the Defendant-
15 Intervenors and other supporters of Prop. 8.
17 Please identify and describe any contentions you may make regarding the number of
18 1) homosexual persons in the United States, 2) the number of homosexual persons in California,
19 3) the number of homosexual parents in the United States, 4) the number of homosexual parents in
20 California, 5) the number of homosexual persons in the United States in committed, long-term
21 relationships; and 6) the number of homosexual persons in California in committed, long-term
22 relationships, breaking your contentions down, where possible by gay men and lesbian women and
23 identifying the full Documentary and/or other evidentiary basis for any such contention(s), including
24 identifying any and all possible exhibits and witnesses, and any evidence you have contradicting your
25 contention(s).
27 In addition to their General Objections, Plaintiffs objects to this Interrogatory to the extent
28 that it seeks information not relevant to the subject matter of this action and not reasonably calculated
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1 to lead to the discovery of admissible evidence. Plaintiffs further object to this Interrogatory on the
2 grounds it is overly broad and unduly burdensome. Plaintiffs further object to this Interrogatory to
3 the extent that the information requested is not within Plaintiffs’ knowledge and the inquiry is
4 properly directed at other parties.
5 Subject to these objections, Plaintiffs respond as follows: The information sought in this
6 Interrogatory is expected to be the subject of expert evidence and is therefore premature. Plaintiffs
7 will supplement their response as appropriate and required by the Scheduling Order set forth by
8 the Court.
11 result of Proposition 8, it is less likely gays and lesbians will formalize their relationships, including
12 any contentions you may have as to whether, how, and why same-sex couples are significantly less
13 likely to enter into domestic partnerships than to enter into marriages, identifying the full
15 all possible exhibits and witnesses, and identifying any evidence you have contradicting your
16 contentions.
19 that the phrase “formalize their relationships” is vague and ambiguous.
20 Subject to these objections, Plaintiffs respond as follows: Plaintiffs contend that the separate
21 institutions of civil marriage for opposite-sex couples and domestic partnership for same-sex couples
22 are inherently unequal and thus, same-sex couples are significantly less likely to enter into domestic
23 partnerships than to enter into marriages. One of the “core elements of th[e] fundamental right [to
24 marry] is the right of same-sex couples to have their official family relationship accorded the same
25 dignity, respect, and stature as that accorded to all other officially recognized family relationships.”
26 See In re Marriage Cases, 183 P.3d at 434. By “reserving the historic and highly respected
27 designation of ‘marriage’ exclusively to opposite-sex couples while offering same-sex couples only
28 the new and unfamiliar designation of domestic partnership,” Prop. 8 communicates the “official
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1 view that [same-sex couples’] committed relationships are of lesser stature than the comparable
2 relationships of opposite-sex couples” and impermissibly stamps gay and lesbian individuals—and
3 their children—with a “mark of second-class citizenship.” See id. at 402, 434, 445.
4 Documentary evidence Plaintiffs may rely on to demonstrate that gay and lesbian individuals
5 desire the same recognition of their committed relationships that opposite-sex couples enjoy through
6 marriage includes, without limitation, documents that Plaintiffs may produce or that Plaintiffs’
7 experts may rely upon in forming their opinions, as well as other documents that may be produced by
8 Defendant-Intervenors or others in this litigation. Potential witnesses will include, in addition to
9 expert witnesses to be identified at the appropriate time, the Plaintiffs and third-party witnesses.
11 Please identify any and all distinct contentions you may make to the effect that sexual
12 orientation is immutable, identifying the full Documentary and/or other evidentiary basis for any such
13 contention(s), including identifying any and all possible exhibits and witnesses and identifying any
14 evidence you have contradicting your contention(s).
16 Subject to their General Objections, Plaintiffs respond as follows: Plaintiffs contend that the
17 Ninth Circuit has concluded that “[s]exual orientation and sexual identity are immutable,” and that
18 “[h]omosexuality is as deeply ingrained as heterosexuality.” Hernandez-Montiel v. INS, 225 F.3d
19 1084, 1093 (9th Cir. 2000) (internal quotation marks omitted). Furthermore, because sexual
20 orientation is “so fundamental to one’s identity,” a “person should not be required to abandon” it in
21 order to secure access to fundamental rights that the Constitution guarantees to all persons. Id.
22 Documentary evidence Plaintiffs may rely on to demonstrate that sexual orientation and
23 sexual identity are immutable includes, without limitation, documents that Plaintiffs’ experts may
24 rely upon in forming their opinions. Potential witnesses include, in addition to expert witnesses to be
25 identified at the appropriate time, the Plaintiffs and third-party witnesses.
27 Please identify and describe any contentions you may make as to whether, how, and why gays
28 and lesbians lack political power, including any contentions you may have as to whether, how, and
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1 why gays and lesbians cannot protect their rights through the political process, identifying the full
3 all possible exhibits and witnesses and identifying any evidence you have contradicting your
4 contention(s).
7 that the term “political power” as used in this interrogatory is vague and ambiguous. Plaintiffs
8 further object to this interrogatory to the extent it calls for a legal conclusion.
9 Subject to these objections, Plaintiffs respond as follows: Plaintiffs contend that gay and
10 lesbian individuals possess less political power than other groups that are afforded the protection of
11 suspect or quasi-suspect status under the Equal Protection Clause, including African-Americans and
12 women. Indeed, of the more than half million people who hold political office at the local, state, and
13 national levels in this country, fewer than 300 are openly gay. Kerrigan v. Comm’r of Pub. Health,
14 957 A.2d 407, 446 (Conn. 2008). No openly gay person has ever served in the United States Cabinet,
15 on any federal court of appeals, or in the United States Senate. Id. at 447. In contrast, African-
16 Americans have served as President of the United States, Attorney General, and Secretary of State, as
17 well as in the United States Senate, and on the U.S. Supreme Court. Similarly, women currently head
18 the Departments of State, Homeland Security, and Labor, and the 111th Congress includes seventeen
19 female Senators and seventy-eight female representatives. See Congressional Research Service,
20 Membership of the 111th Congress: A Profile 5 (2008).
21 Congress has passed no law affording protection from discrimination on the basis of sexual
22 orientation. Instead, there are two major federal laws that explicitly discriminate against gay and
23 lesbian individuals: Don’t Ask, Don’t Tell and the Defense of Marriage Act (“DOMA”). There are
24 no similar such laws discriminating against racial and ethnic minorities or women. There is no hate
25 crimes legislation at the federal level that includes gay and lesbian individuals, and no federal
26 legislation that prohibits discrimination against them in employment, housing, education or public
27 accommodations. A majority of states lack statewide legislation prohibiting discrimination on the
28 basis of sexual orientation in employment, housing, education or public accommodations. A majority
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1 of states contain explicitly discriminatory laws prohibiting marriage, and in some instances, any kind
2 of relationship recognition for same-sex couples. Gay and lesbian individuals have faced a barrage of
3 anti-gay initiatives and referenda that far exceed in number and frequency the use of such measures
4 to target any other unpopular groups. While comparisons among types of discrimination must be
5 made cautiously, it is apparent that gay and lesbian individuals have not yet come close to making the
6 great political strides accomplished by other groups subject to similar histories of discrimination in
7 this country.
9 possess less political power than other groups that are afforded the protection of suspect or quasi-
10 suspect status under the Equal Protection Class includes, without limitation, documents that
11 Plaintiffs’ experts may rely upon in forming their opinions; as well as other documents that may be
12 produced by Defendant-Intervenors or others in this litigation. Potential witnesses include, in
13 addition to expert witnesses to be identified at the appropriate time, the Plaintiffs and third-party
14 witnesses.
16 Please identify and describe any contentions you may make as to whether, how, and why the
17 definition of marriage has evolved over time, identifying the full Documentary and/or evidentiary
18 basis for any such contention(s) including identifying any and all possible exhibits and witnesses and
19 identifying any evidence you have contradicting your contention(s).
22 marriage is not a static institution, but rather has evolved over time. Indeed, marriage has been a
23 successful civil institution precisely because it has been flexible. For example, race-based restrictions
24 on marriage were common until the Supreme Court declared such restrictions unconstitutional in
25 Loving v. Virginia, 388 U.S. 1 (1967). More recently, several states, including California, have
26 recognized gay and lesbian individuals’ right to marry. In California alone there are 18,000 same-sex
27 married couples.
28
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1 Documentary evidence Plaintiffs may rely on to demonstrate that marriage is not a static
2 institution includes, without limitation, documents that Plaintiffs’ experts may rely upon in forming
3 their opinions. Potential witnesses include expert witnesses to be identified at the appropriate time.
4 Other third-parties may also testify.
6 Please identify and describe any contentions you may make as to whether, how, and why
7 same-sex marriage would not destabilize the marriages of opposite-sex couples, identifying the full
8 Documentary and/or evidentiary basis for any such contention(s) including identifying any and all
9 possible exhibits and witnesses and identifying any evidence you have contradicting your
10 contention(s).
13 there is no reputable evidence suggesting that the exclusion of same-sex couples from marriage
14 increases the stability of opposite-sex marriage or that including same-sex couples destabilizes
15 opposite-sex marriages.
16 Documentary evidence Plaintiffs may rely on to demonstrate that exclusion of same-sex
17 couples from marriage does not increase the stability of opposite-sex marriage includes, without
18 limitation, documents that Plaintiffs’ experts may rely upon in forming their opinions. Potential
19 witnesses include expert witnesses to be identified at the appropriate time. Other third-parties may
20 also testify.
22 Please identify and describe any contentions you may make as to whether, how, and why gay
23 and lesbian individuals have suffered persecution, and/or purposeful and invidious discrimination that
24 continues to this day, identifying the full Documentary and/or evidentiary basis for any such
25 contention(s) including identifying any and all possible exhibits and witnesses and identifying any
27
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2 Subject to their General Objections, Plaintiffs respond as follows: Plaintiffs contend that gay
3 and lesbian individuals have suffered persecution and purposeful and invidious discrimination that
4 continues to this day, and that Proposition 8 itself is an example of how gay and lesbian individuals
5 have suffered persecution, and purposeful and invidious discrimination that continues to this day.
6 The widespread discrimination faced by gay and lesbian individuals has been historically unique and
7 unprecedented. There are far too many examples of persecution and purposeful and invidious
8 discrimination to list them here. For example, gays and lesbians have been executed for being
9 homosexual, classified as mental degenerates, targeted by police, discriminated against in the
10 workplace, censored, demonized as child molesters, excluded from the United States military,
11 arrested for engaging in private sexual relations, and, as evident in this case, had their state
12 constitutional rights stripped away by popular vote.
14 have suffered persecution includes, without limitation, documents that Plaintiffs’ experts may rely
15 upon in forming their opinions. Potential witnesses will include, in addition to expert witnesses to be
16 identified at the appropriate time, the Plaintiffs, third-party witnesses, the Defendant-Intervenors and
17 other supporters of Prop. 8.
19 Please identify and describe what you contend to be the appropriate definition of “sexual
20 orientation,” identifying the full Documentary and/or evidentiary basis supporting the use of your
21 suggested definition, and identifying any evidence you have contradicting your suggested definition.
24 “sexual orientation” refers to an enduring pattern or disposition to experience sexual, affectional, or
25 romantic desires for and attractions to men, women, or both sexes. The term is also used to refer to
26 an individual’s sense of personal and social identity based on those desires and attractions, behaviors
27 expressing them, and membership in a community of others who share them.
28
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1 Documentary evidence Plaintiffs may rely on to support the definition of sexual orientation
2 includes documents that Plaintiffs’ experts may rely upon in forming their opinions. Potential
3 witnesses include, in addition to expert witnesses to be identified at the appropriate time, the
4 Plaintiffs and third-party witnesses.
7 result of Proposition 8, Plaintiff-Intervenor, the Defendants, and/or the State are promoting
8 stereotypical gender roles, identifying the full Documentary and/or evidentiary basis for any such
9 contention(s) including identifying any and all possible exhibits and witnesses, and identifying any
12 Subject to their General Objections, Plaintiffs respond as follows: Plaintiffs contend that to
13 the extent Defendant-Intervenors and other supporters of Prop. 8 have stated and continue to state
14 that the optimal parents or optimal family consists of a mother, a father, and their children, such
15 statements are based on and designed to promote gender-based stereotypes about the roles mothers
16 and fathers are supposed to play in raising children. Similarly, to the extent Defendant-Intervenors
17 and other supporters of Prop. 8 have stated and continue to state that same-sex couples are not
18 optimal parents, such assertions are based on and designed to promote the idea that women play
19 distinct, prescribed roles in raising children that cannot or should not be performed by men and vice
20 versa. Likewise, to the extent Defendant-Intervenors and other supporters of Prop. 8 have stated and
21 continue to state that “traditional” marriage is better or needs protection, or that retaining the
22 opposite-sex definition of marriage is justified by “tradition,” such assertions are based, at least in
23 part, on the idea that women can and should play distinct roles in the marital relationship and/or in
24 raising children that cannot be performed by men and vice versa.
26 Please identify and describe any contention you may make as to whether, how, and why,
27 Proposition 8 hurts the State of California financially, identifying the full Documentary and/or
28
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1 evidentiary basis for any such contention(s) including identifying any and all possible exhibits and
2 witnesses, and identifying any evidence you have contradicting your contention(s).
4 In addition to their General Objections, Plaintiffs object to this interrogatory on the grounds
5 that the information requested is not within Plaintiffs’ knowledge and the inquiry is properly directed
6 at other parties.
7 DATED: September 16, 2009 GIBSON, DUNN & CRUTCHER LLP

8
9 By: /s/Ethan D. Dettmer

Ethan D. Dettmer
10
and
11
BOIES, SCHILLER & FLEXNER LLP
12
David Boies
13
Attorneys for Plaintiffs KRISTIN M. PERRY,
14 SANDRA B. STIER, PAUL T. KATAMI, and
JEFFREY J. ZARRILLO
15
16
17
18
19
20
21
22
23
24
25
26
27
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1 ATTACHMENT A
2 KRISTIN M. PERRY
3 1. Having been denied access to the institution of civil marriage that most other
4 Californians have, and instead being relegated to second-class status, has caused me humiliation,
5 emotional distress, pain, suffering, psychological harm, and stigma.
6 2. People view marriage as a sign of stability and commitment. My relationship with
7 Sandy is not as valued by some of my friends, family, and community because we are not married.
8 Introducing Sandy as my “partner” or “girlfriend” is confusing to others, painful to me and Sandy
9 and, in a very real sense, wrong, because it does not express proper respect to Sandy, nor does it
10 express the importance of our commitment to one another. People who are told we are “domestic
11 partners” or “girlfriends” are unable to appreciate our profound commitment to one another and the
12 validity of our relationship, as they would if they were told that we were married.
13 3. My family does not treat Sandy like they treat other in-laws. Although I believe they
14 respect her, she is not as accepted or welcomed as my family’s opposite-sex spouses.
15 4. Because we are not married, Sandy and I do not have a wedding anniversary date to
16 celebrate. Instead, we celebrate various milestones in our relationship but never our “anniversary,”
17 like every married couple enjoys. Our friends and family do not have a date that they can celebrate
18 our relationship along with us, as they do for friends and family who are married.
19 5. On May 21, 2009, Sandy and I attempted to get a marriage license from the Alameda
20 County Clerk-Registrar, but were denied because we are a same-sex couple. The experience was
21 embarrassing and painful for us because we were so clearly being treated differently from opposite-
22 sex couples. In fact, at the same time the clerk was explaining to us that we could not get married
23 because we are both women, opposite-sex couples next to us were getting marriage certificates
24 without any delay or difficulty.
25 6. Hearing of my straight friends’ weddings and anniversaries is a painful experience.
26 Sandy and I desire our own legally recognized wedding but are denied that fundamental right. We
27 are happy for our friends, but just the same, are constantly reminded of what we are wrongfully
28 denied by Proposition 8.
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Crutcher LLP 09-CV-2292 VRW PLAINTIFFS’ RESPONSES TO DEFENDANT-INTERVENORS
PROPOSITION 8 PROPONENTS’ FIRST SET OF INTERROGATORIES (ATTACHMENT A)
1 7. Being asked “What does your husband do?” when people notice my ring is
2 embarrassing and painful because it is a reminder of the fact that California does not recognize the
3 importance of the relationship that I have with the person I love.
4 8. Being asked “Are you married?” is embarrassing and painful because we cannot get
5 married, and the question brings that fact home. For the same reason, explaining why I am not
6 married is difficult and painful—I am forced to confront and articulate that the State does not value
7 my relationship with Sandy.
8 9. Being asked whether we are sisters in the context of situations where a spouse should
9 be present (for example, the hospital) is embarrassing and painful because it reminds me of the fact
10 that we cannot be married in California and because it reminds me of the vulnerability of our
11 relationship because we can’t be married. It reminds me that, if Sandy or I should be in an accident
12 or become seriously ill, hospitals and other caregivers could prevent us from having the ability to
13 protect and care for each other simply because we are not legally married.
14 10. Although Sandy and I are registered domestic partners, we are not treated equally with
15 our heterosexual peers. At times, I have had to show my official domestic partnership registration to
16 get benefits, where straight couples did not have to show their marriage licenses. In fact, getting the
17 domestic partnership registration materials in the first place is a far more difficult, onerous and
18 expensive process than getting a marriage license and getting married. Sandy and I have spent
19 thousands of dollars paying lawyers to help us with matters, such as a “domestic partner
20 co-ownership agreement,” that a married couple would never have to get.
21 11. Having to create an elaborate estate plan because the law does not recognize our
22 relationship is an expensive burden that is embarrassing and painful because it is a stark reminder of
23 our second-class citizenship.
24 12. When checking-in to hotel rooms, the front-desk clerks often do not acknowledge that
25 Sandy and I are a couple. They look and act uncomfortable about giving us a room with a single bed
26 and ask multiple times if we really want a single room with a single bed. If our relationship was
27 recognized as a “marriage” by the State of California, I believe that we would not experience this
28 treatment. At the very least, knowing that our relationship was honored by the State of California as
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1 “marriage,” and being able to explain to the clerks that we are married, would give us a much greater
2 sense of security and minimize the embarrassment and humiliation of having to justify our
3 relationship to strangers.
4 13. Having to fill-out forms that require information from a “husband” and wife,” such as
5 medical history forms and parental permission slips, is embarrassing and painful because it is a
6 reminder that we cannot be married in California.
7 14. I cannot access shared accounts that are held in just one of our names, such as our
8 power or water accounts. If I were married to Sandy I could easily access the account and make
9 decisions for the family.
10 15. In a business setting, I struggle with whether I should bring Sandy with me and when I
11 do, how I should introduce her. When Sandy accompanies to me to a work event, I fear that the focus
12 becomes my “gay relationship” and not my work. I have to make tactical decisions every time my
13 “spouse” is invited to a client event, meeting, speech, or even holiday party. Proposition 8’s official
14 disapproval of my relationship with Sandy creates this difficulty and embarrassment. If we were
15 married, and our relationship had the state-sanctioned privilege and approval of marriage, this would
16 not be the difficult and painful experience that it is.
17 16. Communicating to our child’s teacher about our relationship is difficult because we
18 are not married. I fear that my children will be treated differently if the teacher knows that we are in
19 a same-sex relationship, but we would not be treated differently if we were married and California
20 recognized that marriage.
21 17. As a result of our domestic partnership, Sandy and I have additional expenses and
22 burdens associated with our state and federal income tax filings. If we were married, our tax
23 preparer’s fees would be significantly reduced and the process for filing taxes would be simplified.
24 18. Sandy and I fear traveling to other states because they do not recognize our
25 relationship. For example, if Sandy or I needed to be hospitalized while in another state, we would
26 not have any right to visit one another in the hospital. I believe that, if we were married, such fears
27 would be much less disturbing, because being able to explain to people that we are married, and
28
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1 knowing that our marriage was recognized by California, would cause people to afford us more
2 respect and make them more likely to recognize our relationship as a marriage like any other.
3 19. When Sandy and I go shopping together, the sales personnel do not know who to
4 address. They don’t see us as a married couple, but rather as a customer and her friend. If we and
5 other same-sex couples could be married, we would be much less likely to be treated as something
6 different and less than the loving and devoted couple that we are, and much more like any other
7 loving and devoted couple.
8 20. When Sandy and I attend parties thrown by our straight friends we feel reluctant to
9 dance because of the looks we receive; married couples are not treated the same way. On one
10 occasion, we were at a country music night club and restaurant in Bakersfield, California and started
11 to dance together. Because of the uncomfortable looks we received, we immediately stopped dancing
12 together. If we could be legally married, I believe we would be more accepted by society as a couple
13 and would feel less intimidated about being ourselves in public.
14 21. Sandy and I have attended high school reunions separately because we are fearful of
15 how people are going to react to our relationship. If we were married, we would feel very differently
16 about attending these events because our relationship would be officially approved by the State.
17 22. Sandy and I are fearful to simply hold hands in public because of how people will
18 react. We have been yelled at by strangers just for holding hands in public, and it is frightening and
19 intimidating. If we were married, we would feel much more secure in this simple and ordinary
20 gesture of affection and solidarity because our relationship would be recognized by the State as equal
21 to other peoples’ relationships.
22 23. Sandy’s nieces and nephews do not refer to me as their aunt because I am not married
23 to Sandy. On two occasions, most recently the summer 2008, they used the term “Miss Kris.” If we
24 were married, I would clearly be their aunt and they would refer to me as their aunt, instead of
25 making up awkward and uncomfortable substitute names.
26 24. Because Sandy and I are not married, there isn’t a good word to describe our blended
27 family. We awkwardly use “stepson” or “stepmother” but feel it is off limits since we are not
28
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1 married. Not having the language to describe our family and refer to one another causes us pain and
2 embarrassment.
3 25. The passage of Prop. 8 brought back painful memories of the invalidation of our 2004
4 marriage when the California Supreme Court, prior to its decision in In re Marriage Cases, held that
5 marriages conducted earlier that year were void.
6 26. The Yes on Prop. 8 advertisements and campaign literature were painful and caused
7 me distress given that they sought to portray our family as less than equal and a threat to all families.
8 27. When Sandy and I had our wedding ceremony in 2004, we gave my parents our
9 wedding photo as a gift. Later, when I visited my parents, I found the photo hidden away in a sewing
10 closet. If our marriage were recognized by the State I believe my parents would not be embarrassed
11 of my relationship with Sandy and would display our photo.
12 28. On multiple occasions when I have visited my doctors’ offices, they have not been
13 able to locate Sandy’s medical insurance information on their respective computer systems. The
14 office clerks sometimes do not understand what domestic partners are and why Sandy is covered
15 under my plan. I have been shocked and embarrassed when the clerks have proceeded to loudly state
16 in the waiting room “who is she?” (meaning “what is your relationship to Sandy?”) and have
17 demanded to know why she should be covered under my insurance. If I could have simply told these
18 clerks that we were “married,” this would not have happened.
19 29. Every year my family celebrates a family reunion. No one knows what to call Sandy
20 or how to treat her. We take a picture every year of all the family members and of all those who
21 married into the family. Because we are not married, we and other members of the family are
22 confused and awkward as to whether Sandy should be included in the picture. If Sandy and I were
23 married, it would be very clear to everyone that she should be included in this family event just like
24 all of the married people in our family.
25 30. Sandy’s family does not acknowledge me as a member of their family. I do not feel
26 warmly welcomed at family events or annual visits. I believe that, if we were married, it would be
27 easier for members of Sandy’s family to include and welcome me.
28 ///
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1 SANDRA B. STIER
6 Kris is not as valued by some of my friends, family, and community because we are not married.
7 Introducing Kris as my “partner” or “girlfriend” is confusing to others, painful to me and Kris and, in
8 a very real sense, wrong, because it does not express proper respect to Kris, nor does it express the
9 importance of our commitment to one another. People who are told we are “domestic partners” or
10 “girlfriends” are unable to appreciate our profound commitment to one another and the validity of our
11 relationship, as they would if they were told that we were married.
12 33. When Kris asked me to marry her in 2004, before gay marriages were performed in
13 San Francisco, I answered “Yes. . . What does that mean?” It is terribly painful to me that such a
14 special event was marred by the fact that the State does not allow us to express our relationship in this
15 most meaningful and commonly-shared way.
16 34. When Kris and I had our wedding ceremony in 2004, we gave my parents our
17 wedding photo as a gift. Later, when I visited my parents, I found the photo hidden away in a bureau.
18 This was especially painful given that my parents display photos of my siblings’ opposite-sex
19 relationships prominently in their home. If our marriage were recognized by the State I believe my
20 parents would not be embarrassed of my relationship with Kris and would display our photo.
21 35. On one occasion, I asked one of my nephews if he would call Kris “Aunt Kris.” He
22 told me he wouldn’t because “you are not married. Two girls can’t get married.”
23 36. At my parents’ 50th anniversary celebration, which all of my family members
24 attended but that Kris was not invited to attend, my family performed a ceremony where they
25 acknowledged everyone’s husband and wife. My relationship from Kris was deliberately excluded
26 from that ceremony so as “not to upset mom and dad.” If we were married, I don’t believe that Kris
27 and I would have been excluded from acknowledgement at this family event.
28
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1 37. When we were married in 2004, my parents, and several other close members of my
2 family, did not come to the wedding. If it had been a “legitimate” wedding, I believe they would
3 have come.
4 38. As a recent example, on September 11, 2009, I attended a 10-year wedding
5 anniversary party for an opposite-sex couple, where they renewed their vows. They proclaimed that
6 their marriage had been the most joyous experience of their lives and recalled that their wedding day
7 was the best day of their lives. They told their guests that they were honored to be husband and wife.
8 It felt embarrassed and hurt. It was a vivid reminder of what Kris and I are denied – our right to
9 marry the person we love.
10 39. As a way to get to know one another, I am frequently asked by people I have just met
11 if I am married and have children. While I wear a wedding band and have a committed relationship
12 and legal domestic partnership with Kris, I cannot simply answer that question “yes” because I am
13 not married and instead, find myself worrying about the comfort level of the individual with whom
14 I’m speaking—will they understand and/or accept my same-sex relationship?
15 40. My family does not treat Kris like they treat other in-laws. Although I believe they
16 respect her, she is not as accepted or welcomed as my family’s opposite-sex spouses.
17 41. Because we are not married, Kris and I do not have a wedding anniversary date to
21 42. On May 21, 2009, Kris and I attempted to get a marriage license from the Alameda
22 County Clerk-Registrar, but were denied because we are a same-sex couple. The experience was
23 embarrassing and painful for us because we were so clearly being treated differently from opposite-
24 sex couples. In fact, at the same time the clerk was explaining to us that we could not get married
25 because we are both women, opposite-sex couples next to us were getting marriage certificates
26 without any delay or difficulty.
28 Kris and I desire our own legally recognized wedding but are denied that fundamental right. We are
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1 happy for our friends, but just the same, are constantly reminded of what we are wrongfully denied
2 by Proposition 8.
3 44. Being asked “What does your husband do?” when people notice my ring is
4 embarrassing and painful because it is a reminder of the fact that California does not recognize the
5 importance of the relationship that I have with the person I love.
6 45. Being asked “Are you married?” is embarrassing and painful because we cannot get
7 married, and the question brings that fact home. For the same reason, explaining why I am not
8 married is difficult and painful—I am forced to confront and articulate that the State does not value
9 my relationship with Kris.
10 46. For example, in March 2009, I met with a high school college counselor to seek advice
11 on college admissions and loans. The counselor asked “are you married?” I answered “yes, but not
12 legally.” The college counselor apologized for the question; but I felt embarrassed for both of us.
13 47. Being asked whether we are sisters in the context of situations where a spouse should
14 be present (for example, the hospital) is embarrassing and painful because it reminds me of the fact
15 that we cannot be married in California and because it reminds me of the vulnerability of our
16 relationship because we can’t be married. It reminds me that, if Kris or I should be in an accident or
17 become seriously ill, hospitals and other caregivers could prevent us from having the ability to
18 protect and care for each other simply because we are not legally married.
19 48. Although Kris and I are registered domestic partners, we are not treated equally with
20 our heterosexual peers. At times, I have had to show my official domestic partnership registration to
21 get benefits, where straight couples did not have to show their marriage licenses. In fact, getting the
22 domestic partnership registration materials in the first place is a far more difficult, onerous and
23 expensive process than getting a marriage license and getting married. Kris and I have spent
24 thousands of dollars paying lawyers to help us with matters, such as a “domestic partner
25 co-ownership agreement,” that a married couple would never have to get.
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2 Kris and I are a couple. They look and act uncomfortable about giving us a room with a single bed
5 treatment. At the very least, knowing that our relationship was honored by the State of California as
6 “marriage,” and being able to explain to the clerks that we are married, would give us a much greater
7 sense of security and minimize the embarrassment and humiliation of having to justify our
8 relationship to strangers.
9 51. Having to fill-out forms that require information from a “husband” and wife,” such as
10 medical history forms and parental permission slips, is embarrassing and painful because it is a
11 reminder that we cannot be married in California.
12 52. I cannot access shared accounts that are held in just one of our names, such as our
13 power or water accounts. If I were married to Kris I could easily access the account and make
14 decisions for the family.
15 53. In a business setting, I struggle with whether I should bring Kris with me and when I
16 do, how I should introduce her. When Kris accompanies to me to a work event, I fear that the focus
17 becomes my “gay relationship” and not my work. I have to make tactical decisions every time my
18 “spouse” is invited to a client event, meeting, speech, or even holiday party. Proposition 8’s official
19 disapproval of my relationship with Kris creates this difficulty and embarrassment. If we were
20 married, and our relationship had the state-sanctioned privilege and approval of marriage, this would
21 not be the difficult and painful experience that it is.
22 54. Communicating to our child’s teacher about our relationship is difficult because we
23 are not married. I fear that my children will be treated differently if the teacher knows that we are in
24 a same-sex relationship, but we would not be treated differently if we were married and California
25 recognized that marriage.
26 55. As a result of our domestic partnership, Kris and I have additional expenses and
27 burdens associated with our state and federal income tax filings. If we were married, our tax
28 preparer’s fees would be significantly reduced and the process for filing taxes would be simplified.
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1 56. Kris and I fear traveling to other states because they do not recognize our relationship.
2 For example, if Kris or I needed to be hospitalized while in another state, we would not have any
3 right to visit one another in the hospital. I believe that, if we were married, such fears would be much
4 less disturbing, because being able to explain to people that we are married, and knowing that our
5 marriage was recognized by California, would cause people to afford us more respect and make them
6 more likely to recognize our relationship as a marriage like any other.
7 57. When Kris and I go shopping together, the sales personnel do not know who to
8 address. They don’t see us as a married couple, but rather as a customer and her friend. If we and
9 other same-sex couples could be married, we would be much less likely to be treated as something
10 different and less than the loving and devoted couple that we are, and much more like any other
11 loving and devoted couple.
12 58. When Kris and I attend parties thrown by our straight friends we feel reluctant to
13 dance because of the looks we receive; married couples are not treated the same way. On one
14 occasion, we were at a country music night club and restaurant in Bakersfield, California and started
15 to dance together. Because of the uncomfortable looks we received, we immediately stopped dancing
16 together. If we could be legally married, I believe we would be more accepted by society as a couple
17 and would feel less intimidated about being ourselves in public.
18 59. Kris and I have attended high school reunions separately because we are fearful of
19 how people are going to react to our relationship. If we were married, we would feel very differently
20 about attending these events because our relationship would be officially approved by the State.
21 60. Kris and I are fearful to simply hold hands in public because of how people will react.
22 We have been yelled at by strangers just for holding hands in public, and it is frightening and
23 intimidating. If we were married, we would feel much more secure in this simple and ordinary
24 gesture of affection and solidarity because our relationship would be recognized by the State as equal
25 to other peoples’ relationships.
26 61. My nieces and nephews do not refer to Kris as their aunt because I am not married to
27 Kris. On two occasions, most recently the summer 2008, they used the term “Miss Kris.” If we were
28
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1 married, Kris would clearly be their aunt and they would refer to her as their aunt, instead of making
2 up awkward and uncomfortable substitute names.
3 62. Because Kris and I are not married, there isn’t a good word to describe our blended
4 family. We awkwardly use “stepson” or “stepmother” but feel it is off limits since we are not
5 married. Not having the language to describe our family and refer to one another causes us pain and
6 embarrassment.
7 63. The passage of Prop. 8 brought back painful memories of the invalidation of our 2004
8 marriage when the California Supreme Court, prior to its decision in In re Marriage Cases, held that
9 marriages conducted earlier that year were void.
11 me distress given that they sought to portray our family as less than equal and a threat to all families.
12 65. During the campaign against Prop. 8, I stood on a street corner at a rally in Oakland
13 and held a sign against Prop. 8. I was told by a Yes on 8 supporter who went by that if I married Kris
14 it would be like me marrying a dog.
15 PAUL T. KATAMI
20 Jeff is not as valued by some of my friends, family, and community because we are not married.
21 Introducing Jeff as my “partner” or “boyfriend” is confusing to others, painful to me and Jeff and, in
22 a very real sense, wrong, because it does not express proper respect to Jeff, nor does it express the
24 “boyfriends” are unable to appreciate our profound commitment to one another and the validity of
25 our relationship, as they would if they were told that we were married.
26 68. On May 20, 2009, Jeff and I attempted to get a marriage license from the Los Angeles
27 County Clerk, but were denied because we are a same-sex couple. The experience was embarrassing
28 and painful for us because we were so clearly being treated differently from opposite-sex couples. In
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1 fact, at the same time the clerk was explaining to us that we could not get married because we are
2 both men, opposite-sex couples next to us were getting marriage certificates without any delay,
3 difficulty, or questioning.
4 69. A member of my immediate family has harassed, disparaged and threatened me as a
5 result of my relationship with Jeff. When I asked him why he did not support our relationship he told
6 me “because it’s not natural.” If Jeff and I were married, and the State of California recognized and
7 honored our relationship like any other one, I believe my family member would be much more likely
8 to accept us for what we are—a loving and devoted couple like any other, and not harbor this
9 irrational anger and fear about us.
10 70. Because of this experience with my family member, at times, I fear that I will be
11 physically harmed because I am not in an opposite-sex relationship. Before going to an unfamiliar
12 location or even before getting into my own car, I look around to make sure I have not been followed.
13 I believe that if the State recognized my relationship with Jeff and granted us marriage, then more
14 and more people would recognize that we are a loving and devoted couple like any other loving and
15 devoted couple. Fewer and fewer people would feel the irrational fear and hate of same-sex couples
16 that some now do, and Jeff, me, and other same-sex couples would have much less reason to fear for
17 our safety.
18 71. Members of my family are ashamed of and angered by my relationship with Jeff.
19 I have even been asked to change my last name so that people do not associate me with the Katami
20 family. No one has ever asked a family member in an opposite-sex relationship to change his or her
21 last name. I believe Proposition 8’s official condemnation of same-sex relationships has given my
22 family reason to be ashamed of and angered by my relationship with Jeff.
23 72. Because Proposition 8 officially sanctioned discrimination, fear, and hatred against
24 gay and lesbian individuals, members of my family believe that they can lose their jobs if their
25 employers learn about my relationship with Jeff. It is painful to think that my family believes that my
26 love for Jeff will cost them their livelihoods. If I had the right to marry the person I love, and if the
27 State recognized and honored my relationship with Jeff, my family would not shoulder this fear.
28
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12
1 73. Because we are not married, Jeff and I do not have a wedding anniversary date to
6 Jeff and I desire our own legally recognized wedding but are denied that fundamental right. We are
8 by Proposition 8.
9 75. Being asked “What does your wife do?” when people notice my ring is embarrassing
10 and painful because it is a reminder of the fact that California does not recognize the importance of
11 the relationship that I have with the person I love.
12 76. Being asked “Are you married?” or “How long have you been married?” is
13 embarrassing and painful because we cannot get married, and the question brings that fact home. For
14 the same reason, explaining why I am not married is difficult and painful—I am forced by the very
15 question to confront and articulate that the State does not value my relationship with Jeff.
16 77. Being asked whether we are brothers by our neighbors, or in other contexts where a
17 spouse should be present (for example, at the hospital), is embarrassing and painful because it
18 reminds me of the fact that we cannot be married in California and because it reminds me of the
19 vulnerability of our relationship because we can’t be married. It reminds me that, if Jeff or I should
20 be in an accident or become seriously ill, hospitals and other caregivers could easily prevent us from
21 having the ability to protect and care for each other simply because we are not legally married.
25 79. Opening a joint bank account is a far more difficult and onerous when you are not
26 married and instead are treated as two “single” individuals.
27 80. Because we are not a married couple, Jeff and I must have our medical authorizations
28 readily available just in case one of us is hospitalized. Without the authorizations we would not be
Gibson, Dunn &

13
1 allowed to visit one another in the hospital. If we were married, this would not be a fear and daily
2 concern for us.
3 81. Because we are not married, Jeff has to pay additional taxes for including me on his
4 medical plan.
6 Jeff and I are a couple. They look and act uncomfortable about giving us a room with a single bed
9 treatment, or, at the very least, we could explain to the clerks that we are married and feel much more
10 secure in the knowledge that our relationship is recognized and valued by the State.
11 83. Having to fill-out forms that require information from a “husband” and wife,” or to
12 acknowledge if you are “single” or “married,” such as medical history forms and employment
13 applications, is embarrassing and painful because it is a reminder that we cannot be married in
14 California.
15 84. Jeff and I fear traveling to other states because they do not recognize our relationship.
16 For example, if Jeff or I needed to be hospitalized while in another state, we would not have any right
17 to visit one another in the hospital. I believe that, if we were actually married, the honor and respect
18 accorded this status and the very term would make people with whom we interact more likely to
19 recognize and honor our relationship to one another.
20 85. When I introduce Jeff as my “partner,” I am sometimes asked “Do you work
21 together?” It is painful and embarrassing that people do not recognize our relationship. If I could
22 simply call Jeff my husband, the pain and embarrassment I am subjected to every time I introduce
23 Jeff as my “partner” would be entirely avoided.
25 me distress given that they sought to portray my relationship with Jeff as less than equal and a threat
26 to all Californians.
27 87. During the campaign against Prop. 8, I was told by a supporter of Yes on 8 that
28 “marriage isn’t for your people anyway.” This struck me hard and I thought to myself this person
Gibson, Dunn &

14
1 doesn’t even know me, and simply wants to see me and Jeff as different from and less than opposite-
2 sex couples. I felt like I was punched in the gut.
3 JEFFREY J. ZARRILLO
8 Paul is not as valued by some of my friends, family, and community because we are not married.
9 Introducing Paul as my “partner” or “boyfriend” is confusing to others, painful to me and Paul and, in
10 a very real sense, wrong, because it does not express proper respect to Paul, nor does it express the
12 “boyfriends” are unable to appreciate our profound commitment to one another and the validity of
13 our relationship, as they would if they were told that we were married.
14 90. In 2004, Paul and I lived next door to a co-worker of mine and had a friendly
15 relationship with this neighbor. On or about January 2004, my neighbor/co-worker told my manager
16 at work that “Jeff is my neighbor. He lives with his brother.” My manager, who knew that Paul and
17 I were in a committed relationship, advised me of what my neighbor had informed her. I was
18 embarrassed that my neighbor and co-worker did not recognize my relationship with Paul. I doubt he
19 would have thought that I lived with my sister if I lived with a woman. I believe that if the State were
20 to recognize same-sex marriages my neighbor would come to realize that two men living together are
21 not necessarily brothers, and rather might be a committed same-sex couple, thus avoiding the pain
22 and embarrassment he caused me.
23 91. On our about January 2006, my company merged with another company. At the prior
24 company, I had included Paul in my medical coverage since he was my domestic partner. After the
25 companies merged, a human resources representative contacted me because they noticed that Paul
26 and I did not share a last name and demanded that I provide proof that Paul was my domestic partner.
27 Not only did I have to provide materials proving the validity of my relationship, I had to wait and see
28 whether Paul would be accepted on my medical plan. Married couples at my company did not have
Gibson, Dunn &

15
1 to complete the same administrative work to prove their marriage or have to worry about whether
2 their spouse would be covered on the company medical plan.
3 92. In 2007, Paul and I had a neighbor who was studying to be a pastor. We were very
4 good friends with him and his family. On or about January 2007, this neighbor asked whether he
5 could interview Paul and I for his religious schooling. We agreed. He asked us general questions
6 about our relationship and faith. Toward the end of the interview, we asked him how he felt about
7 same-sex relationships in light of his religious studies. He pulled out the bible and told us “I believe
8 the lifestyle is wrong and that the bible is right.” We were shocked and hurt that our friend was
9 condemning our relationship and our existence. When we pressed him on the point, he explained that
10 he was right because “society does not agree with you. You are not allowed to be married. You
11 cannot share and display your relationship in public. Don’t you see that this is indicative that your
12 lifestyle is perverted and not right?” If the State recognized our marriage, people like our neighbor,
13 would not use the lack of our marital status as proof that we are not deserving of respect and equal
14 rights.
15 93. On May 20, 2009, Paul and I attempted to get a marriage license from the Los Angeles
16 County Clerk, but were denied because we are a same-sex couple. The experience was embarrassing
17 and painful for us because we were so clearly being treated differently from opposite-sex couples. In
18 fact, at the same time the clerk was explaining to us that we could not get married because we are
19 both men, opposite-sex couples next to us were getting marriage certificates without any delay,
20 difficulty, or questioning.
21 94. My nieces love spending time with their two uncles, but have never had a conversation
22 with their parents about our relationship. My brother feels that it is necessary for them to be older
23 before he has “the conversation” with them about our same-sex relationship. If Paul and I were
24 married, it would be much easier and simpler for my brother to have this conversation with his
25 daughters. If he could simply tell them we were married it would explain our relationship perfectly
26 and succinctly.
27 95. Although my family accepts my relationship with Paul, they specifically asked that I
28 not inform my grandfathers because “they come from a different time.” I honored their request and
Gibson, Dunn &

16
1 never told my grandfathers. It was painful not to share my relationship with Paul with my
2 grandfathers. It was also painful to realize that my family believes that certain people should not
3 know about Paul and I. If we were married, it would be easier for my family to accept our
4 relationship and easier for them to share it with other people.
5 96. Because we are not married, Paul and I do not have a wedding anniversary date to
10 Paul and I desire our own legally recognized wedding but are denied that fundamental right. We are
12 by Proposition 8.
13 98. Being asked “What does your wife do?” when people notice my ring is embarrassing
14 and painful because it is a reminder of the fact that California does not recognize the importance of
15 the relationship that I have with the person I love.
16 99. Being asked “Are you married?” or “How long have you been married?” is
17 embarrassing and painful because we cannot get married, and the question brings that fact home. For
18 the same reason, explaining why I am not married is difficult and painful—I am forced by the very
19 question to confront and articulate that the State does not value my relationship with Paul.
20 100. Being asked whether we are brothers by our neighbors, or in other contexts where a
21 spouse should be present (for example, at the hospital), is embarrassing and painful because it
22 reminds me of the fact that we cannot be married in California and because it reminds me of the
23 vulnerability of our relationship because we can’t be married. It reminds me that, if Paul or I should
24 be in an accident or become seriously ill, hospitals and other caregivers could easily prevent us from
25 having the ability to protect and care for each other simply because we are not legally married.
Gibson, Dunn &

17
1 102. Opening a joint bank account is a far more difficult and onerous when you are not
2 married and instead are treated as two “single” individuals.
3 103. Because we are not a married couple, Paul and I must have our medical authorizations
4 readily available just in case one of us is hospitalized. Without the authorizations we would not be
5 allowed to visit one another in the hospital. If we were married, this would not be a fear and daily
6 concern for us.
7 104. Because we are not married, I have to pay additional taxes for including Paul on my
8 medical plan.
10 Paul and I are a couple. They look and act uncomfortable about giving us a room with a single bed
13 treatment, or, at the very least, we could explain to the clerks that we are married and feel much more
14 secure in the knowledge that our relationship is recognized and valued by the State.
15 106. Having to fill-out forms that require information from a “husband” and wife,” or to
16 acknowledge if you are “single” or “married,” such as medical history forms and employment
17 applications, is embarrassing and painful because it is a reminder that we cannot be married in
18 California.
19 107. Paul and I fear traveling to other states because they do not recognize our relationship.
20 For example, if Paul or I needed to be hospitalized while in another state, we would not have any
21 right to visit one another in the hospital. I believe that, if we were actually married, the honor and
22 respect accorded this status and the very term would make people with whom we interact more likely
23 to recognize and honor our relationship to one another.
24 108. When I introduce Paul as my “partner,” I am sometimes asked “Do you work
25 together?” It is painful and embarrassing that people do not recognize our relationship. If I could
26 simply call Paul my husband, the pain and embarrassment I am subjected to every time I introduce
27 Paul as my “partner” would be entirely avoided.
28
Gibson, Dunn &

18
2 me distress given that they sought to portray my relationship with Paul as less than equal and a threat
3 to all Californians.
4 110. On our about November 5, 2008, I attended a Proposition 8 rally attended by both pro
5 and anti-Prop. 8 supporters. It was painful to see people carrying signs that read “Fags are going to
6 hell,” “God doesn’t love you,” and “Marriage is not for you,” and shouting out vitriolic hate speech.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gibson, Dunn &

19
Exhibit E
Report of the American Psychological Association Task Force on
Appropriate Therapeutic Responses

to Sexual Orientation

Task Force Members

Judith M. Glassgold, PsyD, Chair
Lee Beckstead, PhD
Jack Drescher, MD
Beverly Greene, PhD
Robin Lin Miller, PhD
Roger L. Worthington, PhD
Clinton W. Anderson, PhD, Staff Liaison


Available online at www.apa.org/pi/lgbc/publications/
Printed copies available from:

Lesbian, Gay, Bisexual, and Transgender Concerns Office
Public Interest Directorate
American Psychological Association
750 First Street, NE
Washington, DC 20002-4242
202-336-6041
lgbc@apa.org
Suggested bibliographic reference:

APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation. (2009). Report of the Task Force on Appropriate
Therapeutic Responses to Sexual Orientation. Washington, DC: American Psychological Association.
Copyright © 2009 by the American Psychological Association. This material may be reproduced in whole or in part without fees or
permission provided that acknowledgment is given to the American Psychological Association. This material may not be reprinted,
translated, or distributed electronically without prior permission in writing from the publisher. For permission, contact APA, Rights and
Permissions, 750 First Street, NE, Washington, DC 20002-4242.
APA reports synthesize current psychological knowledge in a given area and may offer recommendations for future action. They do not
constitute APA policy or commit APA to the activities described therein. This particular report originated with the APA Task Force on
Appropriate Therapeutic Responses to Sexual Orientation.
August 2009
Printed in the USA
CONTENTS
Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Executive Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Laying the Foundation of the Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Psychology, Religion, and Homosexuality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. A Brief History of Sexual Orientation Change Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Homosexuality and Psychoanalysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Sexual Orientation Change Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Affirmative Approaches: Kinsey; Ford and Beach; and Hooker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Decline of SOCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Sexual Orientation Change Efforts Provided to Religious Individuals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3. A Systematic Review of Research on the Efficacy of SOCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Overview of the Systematic Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Methodological Problems in the Research Literature on SOCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
4. A Systematic Review of Research on the Efficacy of SOCE: Outcomes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Reports of Benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Reports of Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
iii
5. Research on Adults Who Undergo Sexual Orientation Change Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Demographics. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Why Individuals Undergo SOCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Reported Impacts of SOCE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Remaining Issues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Summary and Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6. The Appropriate Application of Affirmative Therapeutic Interventions for Adults Who Seek SOCE. . . . . . . . . . . . 54
A Framework for the Appropriate Application of Affirmative Therapeutic Interventions. . . . . . . . . . . . . . . . . . . . . . . . . . 55
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
7. Ethical Concerns and Decision Making in Psychotherapy With Adults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

Bases for Scientific and Professional Judgments and Competence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Benefit and Harm. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Justice and Respect for Rights and Dignity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
8. Issues for Children, Adolescents, and Their Families. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

Task Force Charge and Its Social Context. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Literature Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Appropriate Application of Affirmative Intervention With Children and Adolescents. . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
9. Summary and Conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

Summary of the Systematic Review of the Literature. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Recommendations and Future Directions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Appendix A: Resolution on Appropriate Affirmative Responses

to Sexual Orientation Distress and Change Efforts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Appendix B: Studies Reviewed in the Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
iv Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation
Abstract
T
he American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation
conducted a systematic review of the peer-reviewed journal literature on sexual orientation change efforts
(SOCE) and concluded that efforts to change sexual orientation are unlikely to be successful and involve some
risk of harm, contrary to the claims of SOCE practitioners and advocates. Even though the research and clinical
literature demonstrate that same-sex sexual and romantic attractions, feelings, and behaviors are normal and
positive variations of human sexuality, regardless of sexual orientation identity, the task force concluded that
the population that undergoes SOCE tends to have strongly conservative religious views that lead them to seek
to change their sexual orientation. Thus, the appropriate application of affirmative therapeutic interventions for
those who seek SOCE involves therapist acceptance, support, and understanding of clients and the facilitation of
clients’ active coping, social support, and identity exploration and development, without imposing a specific sexual
orientation identity outcome.
Abstract v
executive summary
I
n February 2007, the American Psychological -- Recommendations regarding treatment protocols
Association (APA) established the Task Force on that promote stereotyped gender-normative
Appropriate Therapeutic Responses to Sexual behavior to mitigate behaviors that are perceived
Orientation with a charge that included three major to be indicators that a child will develop a
tasks: homosexual orientation in adolescence and
adulthood.
1. Review and update the Resolution on Appropriate
Therapeutic Responses to Sexual Orientation (APA, 3. Inform APA’s response to groups that promote
1998). treatments to change sexual orientation or its
behavioral expression and support public policy that
2. Generate a report that includes discussion of furthers affirmative therapeutic interventions.
the following:
-- The appropriate application of affirmative As part of the fulfillment of its charge, the task
therapeutic interventions for children and force undertook an extensive review of the recent
adolescents who present a desire to change either literature on psychotherapy and the psychology of
their sexual orientation or their behavioral sexual orientation. There is a growing body of evidence
expression of their sexual orientation, or both, or concluding that sexual stigma, manifested as prejudice
whose guardian expresses a desire for the minor and discrimination directed at non-heterosexual sexual
to change. orientations and identities, is a major source of stress
-- The appropriate application of affirmative for sexual minorities. This stress, known as minority
therapeutic interventions for adults who present a stress, is a factor in mental health disparities found in
desire to change their sexual orientation or their some sexual minorities. The minority stress model also
behavioral expression of their sexual orientation, provides a framework for considering psychotherapy
or both. with sexual minorities, including understanding
stress, distress, coping, resilience, and recovery. For
-- The presence of adolescent inpatient facilities
instance, the affirmative approach to psychotherapy
that offer coercive treatment designed to change
grew out of an awareness that sexual minorities benefit
sexual orientation or the behavioral expression of
Note. We use the term sexual minority (cf. Blumenfeld, 1992; McCarn
sexual orientation. & Fassinger, 1996; Ullerstam, 1966) to designate the entire group of
-- Education, training, and research issues as they individuals who experience significant erotic and romantic attractions
to adult members of their own sex, including those who experience
pertain to such therapeutic interventions. attractions to members of both their own and the other sex. This term
is used because we recognize that not all sexual minority individuals
adopt a lesbian, gay, or bisexual identity.
Executive Summary 1
when the sexual stigma they experience is addressed • Are sexual orientation change efforts (SOCE) effective
in psychotherapy with interventions that reduce and at changing sexual orientation?
counter internalized stigma and increase active coping.
• Are SOCE harmful?
The task force, in recognition of human diversity,
conceptualized affirmative interventions within • Are there any additional benefits that can be
the domain of cultural competence, consistent with reasonably attributed to SOCE?
general multicultural approaches that acknowledge
the importance of age, gender, gender identity, race, The review covered the peer-reviewed journal articles
ethnicity, culture, national origin, religion, sexual in English from 1960 to 2007 and included 83 studies.
orientation, disability, language, and socioeconomic Most studies in this area were conducted before 1978,
status. We see this multiculturally competent and and only a few studies have been conducted in the last
affirmative approach as grounded in an acceptance of 10 years. We found serious methodological problems
the following scientific facts: in this area of research, such that only a few studies
met the minimal standards for evaluating whether
• Same-sex sexual attractions, behavior, and
psychological treatments, such as efforts to change
orientations per se are normal and positive variants
sexual orientation, are effective. Few studies—all
of human sexuality—in other words, they do not
conducted in the period from 1969 to 1978—could be
indicate either mental or developmental disorders.
considered true experiments or quasi-experiments that
• Homosexuality and bisexuality are stigmatized, would isolate and control the factors that might effect
and this stigma can have a variety of negative change (Birk, Huddleston, Miller, & Cohler, 1971; S.
consequences (e.g., minority stress) throughout James, 1978; McConaghy, 1969, 1976; McConaghy,
the life span. Proctor, & Barr, 1972; Tanner, 1974, 1975). Only one
of these studies (i.e., Tanner, 1974) actually compared
• Same-sex sexual attractions and behavior occur
people who received a treatment with people who did
in the context of a variety of sexual orientations
not and could therefore rule out the possibility that
and sexual orientation identities, and for some,
other things, such as being motivated to change, were
sexual orientation identity (i.e., individual or group
the true cause of any change the researchers observed
membership and affiliation, self-labeling) is fluid or
in the study participants.
has an indefinite outcome.
None of the recent research (1999–2007) meets
• Gay men, lesbians, and bisexual individuals form methodological standards that permit conclusions
stable, committed relationships and families that are regarding efficacy or safety. The few high-quality
equivalent to heterosexual relationships and families studies of SOCE conducted recently are qualitative (e.g.,
in essential respects. Beckstead & Morrow, 2004; Ponticelli, 1999; Wolkomir,
2001) and aid in an understanding of the population
• Some individuals choose to live their lives in
that undergoes sexual orientation change but do not
accordance with personal or religious values
provide the kind of information needed for definitive
(e.g., telic congruence).
answers to questions of safety and efficacy. Given the
limited amount of methodologically sound research,
Summary of the Systematic claims that recent SOCE is effective are not supported.
We concluded that the early high-quality evidence
Review of the Literature is the best basis for predicting what would be the
outcome of valid interventions. These studies show that
Efficacy and Safety enduring change to an individual’s sexual orientation
In order to ascertain whether there was a research is uncommon. The participants in this body of research
basis for revising the 1997 Resolution and providing continued to experience same-sex attractions following
more specific recommendations to licensed mental SOCE and did not report significant change to other-
health practitioners, the public, and policymakers, the sex attractions that could be empirically validated,
task force performed a systematic review of the peer- though some showed lessened physiological arousal to
reviewed literature to answer three questions: all sexual stimuli. Compelling evidence of decreased
same-sex sexual behavior and of engagement in sexual
behavior with the other sex was rare. Few studies
2 Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation
provided strong evidence that any changes produced in these studies and the entire population of people who
laboratory conditions translated to daily life. Thus, the seek SOCE is unknown because the studies have relied
results of scientifically valid research indicate that it is entirely on convenience samples.
unlikely that individuals will be able to reduce same- Former participants in SOCE reported diverse
sex attractions or increase other-sex sexual attractions evaluations of their experiences: Some individuals
through SOCE. perceived that they had benefited from SOCE,
We found that there was some evidence to indicate while others perceived that they had been harmed.
that individuals experienced harm from SOCE. Early Individuals who failed to change sexual orientation,
studies documented iatrogenic effects of aversive while believing they should have changed with such
forms of SOCE. These negative side effects included efforts, described their experiences as a significant
loss of sexual feeling, depression, suicidality, and cause of emotional and spiritual distress and negative
anxiety. High drop rates characterized early aversive self-image. Other individuals reported that SOCE was
treatment studies and may be an indicator that helpful—for example, it helped them live in a manner
research participants experienced these treatments consistent with their faith. Some individuals described
as harmful. Recent research reports on religious and finding a sense of community through religious SOCE
nonaversive efforts indicate that there are individuals and valued having others with whom they could
who perceive they have been harmed. Across studies, identify. These effects are similar to those provided by
it is unclear what specific individual characteristics mutual support groups for a range of problems, and the
and diagnostic criteria would prospectively distinguish positive benefits reported by participants in SOCE, such
those individuals who will later perceive that they been as reduction of isolation, alterations in how problems
harmed by SOCE. are viewed, and stress reduction, are consistent with
the findings of the general mutual support group
literature. The research literature indicates that
Individuals Who Seek SOCE the benefits of SOCE mutual support groups are not
and Their Experiences unique and can be provided within an affirmative
Although the recent SOCE research cannot provide and multiculturally competent framework, which can
conclusions regarding efficacy or safety, it does mitigate the harmful aspects of SOCE by addressing
provide some information on those individuals who sexual stigma while understanding the importance of
participate in change efforts. SOCE research identified religion and social needs.
a population of individuals who experienced conflicts Recent studies of SOCE participants do not
and distress related to same-sex attractions. The adequately distinguish between sexual orientation and
vast majority of people who participated in the early sexual orientation identity. We concluded
studies were adult White males, and many of these that the failure to distinguish these aspects of
individuals were court-mandated to receive treatment. human sexuality has led SOCE research to obscure
In the research conducted over the last 10 years, the what actually can or cannot change in human sexuality.
population was mostly well-educated individuals, The available evidence, from both early and recent
predominantly men, who consider religion to be an studies, suggests that although sexual orientation
extremely important part of their lives and participate is unlikely to change, some individuals modified
in traditional or conservative faiths (e.g., The Church their sexual orientation identity (i.e., individual or
of Jesus Christ of Latter-Day Saints, evangelical group membership and affiliation, self-labeling) and
Christianity, and Orthodox Judaism). These recent other aspects of sexuality (i.e., values and behavior).
studies included a small number of participants who They did so in a variety of ways and with varied and
identified as members of ethnic minority groups, and a unpredictable outcomes, some of which were temporary.
few studies included women. For instance, in some research, individuals, through
Most of the individuals studied had tried a variety of participating in SOCE, became skilled in ignoring or
methods to change their sexual orientation, including tolerating their same-sex attractions. Some individuals
psychotherapy, support groups, and religious efforts. report that they went on to lead outwardly heterosexual
Many of the individuals studied were recruited from lives, developing a sexual relationship with an other-
groups endorsing SOCE. The relation between the sex partner, and adopting a heterosexual identity.
characteristics of the individuals in samples used in These results were less common for those with no prior
heterosexual experience.
Executive Summary 3
Literature on Children client’s values, beliefs, and needs; and a reduction in
internalized sexual stigma. Active coping includes both
and Adolescents cognitive and emotional strategies to manage stigma
As part of the fulfillment of our change, we reviewed and conflicts, including the development of alternative
the limited research on child and adolescent issues and cognitive frames to resolve cognitive dissonance and
drew the following conclusions. There is no research the facilitation of affective expression and resolution of
demonstrating that providing SOCE to children or losses. Identity exploration and development include
adolescents has an impact on adult sexual orientation. offering permission and opportunity to explore a wide
The few studies of children with gender identity range of options and reducing the conflicts caused
disorder found no evidence that psychotherapy provided by dichotomous or conflicting conceptions of self and
to those children had an impact on adult sexual identity without prioritizing a particular outcome.
orientation. There is currently no evidence that teaching This framework is consistent with multicultural and
or reinforcing stereotyped gender-normative behavior evidence-based practices in psychotherapy (EBPP) and
in childhood or adolescence can alter sexual orientation. is built on three key findings:
We have concerns that such interventions may increase
self-stigma and minority stress and ultimately increase • Our systematic review of the early research found
the distress of children and adolescents. that enduring change to an individual’s sexual
We were asked to report on adolescent inpatient orientation was unlikely.
facilities that offer coercive treatment designed to • Our review of the scholarly literature on individuals
change sexual orientation or the behavioral expression distressed by their sexual orientation indicated that
of sexual orientation. The limited published literature clients perceived a benefit when offered interventions
on these programs suggests that many do not present that emphasize acceptance, support, and recognition
accurate scientific information regarding same- of important values and concerns.
sex sexual orientations to youths and families, are
excessively fear-based, and have the potential to • Studies indicate that experiences of felt stigma—
increase sexual stigma. These efforts pose challenges such as self-stigma, shame, isolation and rejection
to best clinical practices and professional ethics, as from relationships and valued communities, lack of
they potentially violate current practice guidelines emotional support and accurate information, and
by not providing treatment in the least-restrictive conflicts between multiple identities and between
setting possible, by not protecting client autonomy, and values and attractions—played a role in creating
by ignoring current scientific information on sexual distress in individuals. Many religious individuals’
orientation. desired to live their lives in a manner consistent
with their values (telic congruence); however, telic
congruence based on stigma and shame is unlikely to
Recommendations result in psychological well-being.
and Future Directions In terms of formulating the goals of treatment, we
propose that, on the basis of research on sexual
Practice orientation and sexual orientation identity, what
The task force was asked to report on the appropriate appears to shift and evolve in some individuals’ lives is
application of affirmative therapeutic interventions sexual orientation identity, not sexual orientation. Given
for adults who present a desire to change their sexual that there is diversity in how individuals define and
orientation or their behavioral expression of their sexual express their sexual orientation identity, an affirmative
orientation, or both. The clinical literature indicated approach is supportive of clients’ identity development
that adults perceive a benefit when they are provided without an a priori treatment goal concerning how
with client-centered, multicultural, evidence-based clients identify or live out their sexual orientation or
approaches that provide (a) acceptance and support, (b) spiritual beliefs. This type of therapy can provide a
assessment, (c) active coping, (d) social support, and (e) safe space where the different aspects of the evolving
identity exploration and development. Acceptance and self can be acknowledged, explored, and respected and
support include unconditional acceptance and support potentially rewoven into a more coherent sense of self
for the various aspects of the client; respect for the that feels authentic to the client, and it can be helpful to
those who accept, reject, or are ambivalent about their a developmentally appropriate informed consent to
same-sex attractions. The treatment does not differ, treatment.
although the outcome of the client’s pathway to a sexual Some religious individuals with same-sex attractions
orientation identity does. Other potential targets of experience psychological distress and conflict due to the
treatment are emotional adjustment, including shame perceived irreconcilability of their sexual orientation
and self-stigma, and personal beliefs, values, and norms. and religious beliefs. The clinical and research
We were asked to report on the appropriate literature encourages the provision of acceptance,
application of affirmative therapeutic interventions support, and recognition of the importance of faith
for children and adolescents who present a desire to to individuals and communities while recognizing
change either their sexual orientation or the behavioral the science of sexual orientation. This includes an
expression of their sexual orientation, or both, or understanding of the client’s faith and the psychology
whose parent or guardian expresses a desire for the of religion, especially issues such as religious coping,
minor to change. The framework proposed for adults motivation, and identity. Clients’ exploration of
(i.e., acceptance and support, assessment, active possible life paths can address the reality of their
coping, social support, and identity exploration and sexual orientation and the possibilities for a religiously
development) is also relevant—with unique relevant and spiritually meaningful and rewarding life. Such
features—to children and adolescents. For instance, psychotherapy can enhance clients’ search for meaning,
the clinical literature stresses interventions that accept significance, and a relationship with the sacred in
and support the development of healthy self-esteem, their lives; increase positive religious coping; foster an
facilitate the achievement of appropriate developmental understanding of religious motivations; help integrate
milestones—including the development of a positive religious and sexual orientation identities; and reframe
identity—and reduce internalized sexual stigma. sexual orientation identities to reduce self-stigma.
Research indicates that family interventions that Licensed mental health providers strive to provide
reduce rejection and increase acceptance of their child interventions that are consistent with current ethical
and adolescent are standards. The APA Ethical Principles of Psychologists
LMHP can provide to helpful. Licensed and Code of Conduct (APA, 2002b) and relevant APA
parents who are concerned mental health guidelines and resolutions (e.g., APA, 2000, 2002c, 2004,
or distressed by their child’s providers (LMHP) can 2005a, 2007b) are resources for psychologists, especially
sexual orientation accurate provide to parents Ethical Principles B (Benefit and Harm), D (Justice),
who are concerned and E (Respect for People’s Rights and Dignity,
information about sexual or distressed by including self-determination). For instance, LMHP
orientation and sexual their child’s sexual reduce potential harm and increase potential benefits
orientation identity and can orientation accurate by basing their scientific and professional judgments
offer anticipatory guidance information about and actions on the most current and valid scientific
and psychotherapy that sexual orientation and evidence, such as the evidence provided in this report
sexual orientation (see APA, 2002b, Standard 2.04, Bases for Scientific
support family reconciliation. identity and can and Professional Judgment). LMHP enhance principles
offer anticipatory guidance and psychotherapy that of social justice when they strive to understand the
support family reconciliation (e.g., communication, effects of sexual stigma, prejudice, and discrimination
understanding, and empathy) and maintenance of the on the lives of individuals, families, and communities.
child’s total health and well-being. Further, LMHP aspire to respect diversity in all aspects
Additionally, the research and clinical literature of their work, including age, gender, gender identity,
indicates that increasing social support for sexual race, ethnicity, culture, national origin, religion, sexual
minority children and youth by intervening in schools orientation, disability, and socioeconomic status.
and communities to increase their acceptance and safety Self-determination is the process by which a person
is important. Services for children and youth should controls or determines the course of her or his own life
support and respect age-appropriate issues of self- (according to the Oxford American Dictionary). LMHP
determination; services should be provided in the least maximize self-determination by (a) providing effective
restrictive setting that is clinically possible and should psychotherapy that explores the client’s assumptions
maximize self-determination. At a minimum, the assent and goals, without preconditions on the outcome; (b)
of the youth should be obtained and, whenever possible, providing resources to manage and reduce distress;
Executive Summary 5
and (c) permitting the client to decide the ultimate focus on treatment of individuals distressed by their
goal of how to self-identify and live out her or his same-sex attractions, especially those who struggle to
sexual orientation. Although some accounts suggest integrate religious and spiritual beliefs with sexual
that providing SOCE increases self-determination, we orientation identities; and (d) disseminate this report
were not persuaded by this argument, as it encourages widely, including publishing a version of this report in
LMHP to provide treatment that has not provided an appropriate journal or other publication.
evidence of efficacy, has the potential to be harmful, and The information available to the public about
delegates important professional decisions that should SOCE is highly variable and can be confusing and
be based on qualified expertise and training—such misleading. Sexual minorities, individuals aware of
as diagnosis and type of therapy. Rather, therapy same-sex attractions, families, parents, caregivers,
that increases the client’s ability to cope, understand, policymakers, the public, and religious leaders can
acknowledge, and integrate sexual orientation concerns benefit from accurate scientific information about
into a self-chosen life is the measured approach. sexual orientation and about appropriate interventions
for individuals distressed by their same-sex attractions.
Education and Training We recommend that APA take the lead in creating
The task force was asked to provide recommendations informational materials for sexual minority individuals,
on education and training for licensed mental health families, parents, and other stakeholders, including
practitioners working with this population. We religious organizations, on appropriate multiculturally
recommend that mental health professionals working competent and client-centered interventions for those
with individuals who are considering SOCE learn about distressed by their sexual orientation and who may seek
evidence-based and multicultural interventions and SOCE and that APA collaborate with other relevant
obtain additional knowledge, awareness, and skills in organizations, especially religious organizations, to
the following areas: disseminate this information.
• Sexuality, sexual orientation, and sexual identity
development. Research
• Various perspectives on religion and spirituality, The task force was asked to provide recommendations
including models of faith development, religious for future research. We recommend that researchers
coping, and the positive psychology of religion/ and practitioners investigate multiculturally competent
and affirmative evidence-based treatments for sexual
• Identity development, including integration of minorities. In addition, we recommend that researchers
multiple identities and the resolution of identity and practitioners provide such treatments to those who
conflicts. are distressed by their sexual orientation but not aim
• The intersections of age, gender, gender identity, to alter sexual orientation. For such individuals, the
race, ethnicity, culture, national origin, religion, focus would be on frameworks that include acceptance
sexual orientation, disability, language, and and support, assessment, active coping, social support,
socioeconomic status. and identity exploration, development, and integration
without prioritizing one outcome over another.
• Sexual stigma and minority stress. The research on SOCE has not adequately assessed
efficacy and safety. Any future research should conform
We also recommend that APA (a) take steps to to best-practice standards for the design of efficacy
encourage community colleges, undergraduate research. Research on SOCE would (a) use methods
programs, graduate school training programs, that are prospective and longitudinal; (b) employ
internship sites, and postdoctoral programs in sampling methods that allow proper generalization; (c)
psychology to include this report and other relevant use appropriate, objective, and high-quality measures
material on lesbian, gay, bisexual, and transgender of sexual orientation and sexual orientation identity; (d)
(LGBT) issues in their curriculum; (b) maintain address preexisting and co-occurring conditions, mental
the currently high standards for APA approval of health problems, other interventions, and life histories
continuing professional education providers and to test competing explanations for any changes; and (e)
programs; (c) offer symposia and continuing professional include measures capable of assessing harm.
education workshops at APA’s annual convention that
Policy
The task force was asked to inform (a) the association’s
response to groups that promote treatments to change
sexual orientation or its behavioral expression and
(b) public policy that furthers affirmative therapeutic
interventions. We encourage APA to continue its
advocacy for LGBT individuals and families and
to oppose stigma, prejudice, discrimination, and
violence directed at sexual minorities. We recommend
that APA take a leadership role in opposing the
distortion and selective use of scientific data about
homosexuality by individuals and organizations and
in supporting the dissemination of accurate scientific
and professional information about sexual orientation
in order to counteract bias. We encourage APA to
engage in collaborative activities with religious
communities in pursuit of shared prosocial goals
when such collaboration can be done in a mutually
respectful manner that is consistent with psychologists’
professional and scientific roles.
Finally, the task force recommends that the 1997
APA Resolution on Appropriate Responses to Sexual
Orientation be retained. This resolution focuses on
ethical issues for practitioners and still serves this
purpose. However, on the basis of (a) our systematic
review of efficacy and safety issues, (b) the presence
of SOCE directed at children and adolescents, (c) the
importance of religion for those who currently seek
SOCE, and (d) the ideological and political disputes that
affect this area, we recommend that APA adopt a new
resolution, the Resolution on Appropriate Affirmative
Responses to Sexual Orientation Distress and Change
Efforts, to address these issues (see Appendix A).
Executive Summary 7
Preface
I
n February 2007, the American Psychological behavior to mitigate behaviors that are perceived
Association (APA) established the Task Force on to be indicators that a child will develop a
Appropriate Therapeutic Responses to Sexual homosexual orientation in adolescence and
Orientation with the following charge: adulthood.
1. Review and update the Resolution on Appropriate 3. Inform APA’s response to groups that promote
Therapeutic Responses to Sexual Orientation (APA, treatments to change sexual orientation or its
1998); behavioral expression and support public policy that
furthers affirmative therapeutic interventions.
2. Generate a report that includes discussion of the
following:
Nominations of task force members were solicited
-- The appropriate application of affirmative through an open process that was widely publicized
therapeutic interventions for children and through professional publications, electronic media,
adolescents who present a desire to change either and organizations. The qualifications sought were (a)
their sexual orientation or their behavioral advanced knowledge of current theory and research
expression of their sexual orientation, or both, or on the development of sexual orientation; (b) advanced
whose guardian expresses a desire for the minor to knowledge of current theory and research on therapies
change. that aim to change sexual orientation; and (c) extensive
-- The appropriate application of affirmative expertise in affirmative mental health treatment for
therapeutic interventions for adults who present one or more of the following populations: children
a desire to change their sexual orientation or their and adolescents who present with distress regarding
behavioral expression of their sexual orientation, their sexual orientation, religious individuals in
or both. distress regarding their sexual orientation, and adults
who present with desires to their change sexual
-- The presence of adolescent inpatient facilities
orientation or have undergone therapy to do so. An
additional position was added for an expert in research
design and methodology. Nominations were open to
sexual orientation.
psychologists, qualified counselors, psychiatrists, or
-- Education, training, and research issues as they social workers, including members and nonmembers
pertain to such therapeutic interventions. of APA. Nominations of ethnic minority psychologists,
-- Recommendations regarding treatment protocols bisexual psychologists, psychologists with disabilities,
that promote stereotyped gender-normative transgender psychologists, and other psychologists
who are members of underrepresented groups were committees were asked to select reviewers to provide
welcomed. In April 2007, then-APA President Sharon feedback to the task force. After these reviews were
Stephens Brehm, PhD, appointed the following people received, the report was revised in line with these
to serve on the task force: Judith M. Glassgold, PsyD comments. In 2009, a second draft was sent to a second
(chair); Lee Beckstead, PhD; Jack Drescher, MD; group of reviewers, including those who had previously
Beverly Greene, PhD; Robin Lin Miller, PhD; and Roger reviewed the report, scholars in the field (including
L. Worthington, PhD. some who were not members of APA), representatives
The task force met face-to-face twice in 2007 and of APA boards and committees, and APA staff. The
supplemented these meetings with consultation and task force consulted with Nathalie Gilfoyle, JD, of the
collaboration via teleconference and the Internet. APA Office of General Counsel, as well as with Stephen
Initially, we reviewed our charge and defined necessary Behnke, PhD, JD, of the APA Ethics Office. Other staff
bodies of scientific and professional literature to review members of APA were consulted as needed.
to meet that charge. In light of our charge to review the We would like to thank the following two individuals
1997 resolution, we concluded that the most important who were invaluable to the accomplishment of our
task was to review the existing scientific literature on charge: Clinton W. Anderson, PhD, and Charlene
treatment outcomes of sexual orientation change efforts. DeLong, who supported the task force. Dr. Anderson’s
We also concluded that a review of research before knowledge of the field of LGBT psychology as well as his
1997 as well as since 1997 was necessary to provide sage counsel, organizational experience, and editorial
a complete and thorough evaluation of the scientific advice and skills were indispensable. Ms. DeLong was
literature. Thus, we conducted a review of the available fundamental in providing technological support and
empirical research on treatment efficacy and results aid in coordinating the activities of the task force. Mary
published in English from 1960 on and also used Campbell also provided editorial advice on the report,
common databases such as PsycINFO and Medline, and Stephanie Liotta provided assistance in preparing
as well as other databases such as ATLA Religion the final manuscript.
Database, LexisNexis, Social Work Abstracts, and We would also like to acknowledge 2007 APA
Sociological Abstracts, to review evidence regarding President Sharon Stephens Brehm, PhD, who was
harm and benefit from sexual orientation change supportive of our goals and provided invaluable
efforts (SOCE). The literature review for other areas perspective at our first meeting, and to thank Alan
of the report was also drawn from these databases E. Kazdin, PhD, past president, James H. Bray, PhD,
and included lay sources such as GoogleScholar and president, and Carol D. Goodheart, EdD, president-
material found through Internet searches. Due to our elect, for their support. Douglas C. Haldeman, PhD,
charge, we limited our review to sexual orientation and served as the Board of Director’s liaison to the task
did not address gender identity, because the final report force in 2007–2008 and provided counsel and expertise.
of another APA task force, the Task Force on Gender Melba J.T. Vasquez, PhD, Michael Wertheimer, PhD,
Identity and Gender Variance, was forthcoming (see and Armand R. Cerbone, PhD, members of the APA
APA, 2009). Board of Directors, also reviewed this report and
The task force received comments from the public, provided feedback.
professionals, and other organizations and read all We would very much like to thank Gwendolyn
comments received. We also welcomed submission of Puryear Keita, PhD, the executive director of the APA
material from the interested public, mental health Public Interest Directorate, for her advice, support,
professionals, organizations, and scholarly communities. and expertise. In addition, we acknowledge Rhea
All nominated individuals who were not selected for the Farberman, executive director, and Kim Mills, associate
task force were invited to submit suggestions for articles executive director, of the APA Public and Member
and other material for the task force to review. We Communications office, for their expertise and support.
reviewed all material received. Finally, APA staff met Stephen H. Behnke, PhD, director of the APA Ethics
with interested parties to understand their concerns. Office, and Nathalie Gilfoyle, APA Office of the General
The writing of the report was completed in 2008, with Counsel, provided invaluable feedback on the report.
editing and revisions occurring in 2009. After a draft We acknowledge the following individuals, who
report was generated in 2008, the task force asked for served as scholarly reviewers of the first and second
professional review by noted scholars in the area who drafts of the report; their feedback on the content was
were also APA members. Additionally, APA boards and invaluable (in alphabetical order): Eleonora Bartoli,
Preface 9
PhD; Rosie Phillips Bingham, PhD; Elizabeth D.
Cardoso, PhD; Isiaah Crawford, PhD; June W. J. Ching,
PhD; David Michael Corey, PhD; Anthony D’Augelli,
PhD; Sari H. Dworkin, PhD; Randall D. Ehrbar, PsyD;
Angela Rose Gillem, PhD; Terry Sai-Wah Gock, PhD;
Marvin R. Goldfried, PhD; John C. Gonsiorek, PhD;
Perry N. Halkitis, PhD; Kristin A. Hancock, PhD;
J. Judd Harbin, PhD; William L. Hathaway, PhD;
Gregory M. Herek, PhD; W. Brad Johnson, PhD; Jon
S. Lasser, PhD; Alicia A. Lucksted, PhD; Connie R.
Matthews, PhD; Kathleen M. Ritter, PhD; Darryl S.
Salvador, PsyD; Jane M. Simoni, PhD; Lori C. Thomas,
JD, PhD; Warren Throckmorton, PhD; Bianca D. M.
Wilson, PhD; Mark A. Yarhouse, PsyD; and Hirokazu
Yoshikawa, PhD.
1. IntroductioN
I
n the mid-1970s, on the basis of emerging scientific (LMHP)2 of all professions increasingly took the
evidence and encouraged by the social movement perspective throughout this period that homosexuality
for ending sexual orientation discrimination, the per se is a normal variant3 of human sexuality and that
American Psychological Association (APA) and other lesbian, gay, and bisexual (LGB) people deserve to be
professional organizations affirmed that homosexuality affirmed and supported in their sexual orientation,4
per se is not a mental disorder and rejected the relationships, and social opportunities. This approach
stigma of mental illness that the medical and mental to psychotherapy is generally termed affirmative,
health professions had previously placed on sexual gay affirmative, or lesbian, gay, and bisexual (LGB)
minorities.1 This action, along with the earlier action affirmative.
of the American Psychiatric Association that removed Consequently, the published literature on
homosexuality from the Diagnostic and Statistical psychotherapeutic efforts to change sexual orientation
Manual of Mental Disorders (DSM; American that had been relatively common during the 1950s
Psychiatric Association, 1973), helped counter the social and 1960s began to decline, and approaches to
stigma that the mental illness concept had helped to psychotherapy that were not LGB affirmative came
create and maintain. Through the 1970s and 1980s, under increased scrutiny (cf. Mitchell, 1978; Wilson
APA and its peer organizations not only adopted a range & Davison, 1974). The mainstream organizations for
of position statements supporting nondiscrimination psychoanalysis and behavior therapy—the two types
on the basis of sexual orientation (APA, 1975, 2005a; of therapeutic orientation most associated with the
American Psychiatric Association, 1973; American published literature on sexual orientation change
Psychoanalytic Association, 1991, 1992; National therapies—publicly rejected these practices (American
Association of Social Workers [NASW], 2003) but also Psychoanalytic Association, 1991, 1992; Davison, 1976,
acted on the basis of those positions to advocate for legal 1978; Davison & Wilson, 1973; Martin, 2003).
and policy changes (APA, 2003, 2005a, 2008b; NASW,
2003). On the basis of growing scientific evidence 2
We use the term licensed mental health providers (LMHP) to refer
(Gonsiorek, 1991), licensed mental health providers to professional providers of mental health services with a variety
of educational credentials and training backgrounds, because state
licensure is the basic credential for independent practice.
3
We use the adjective normal to denote both the absence of a mental
1
We use the term sexual minority (cf. Blumenfeld, 1992; McCarn & disorder and the presence of a positive and healthy outcome of human
Fassinger, 1996; Ullerstam, 1966) to designate only those individuals development.
who experience significant erotic and romantic attractions to adult
members of their own sex, including those who experience attractions 4
We define sexual orientation as an individual’s patterns of erotic,
to members of both their own and the other sex. This term is used sexual, romantic, and affectional arousal and desire for other persons
because we recognize that not all sexual minority individuals adopt a based on those persons’ gender and sex characteristics (see pp. 29–32
lesbian, gay, or bisexual identity. for a more detailed discussion).
Introduction 11
In the early 1990s, some APA members began to were substantially different from APA’s position, which
express concerns about the resurgence of individuals did not address questions of efficacy or safety of SOCE.
and organizations that actively promoted the idea of Second, several highly publicized research reports
homosexuality as a developmental defect or a spiritual on samples of individuals who had attempted sexual
and moral failing and that advocated psychotherapy orientation change (e.g., Nicolosi, Byrd, & Potts,
and religious ministry to alter homosexual feelings 2000; Shidlo & Schroeder, 2002; Spitzer, 2003) and
and behaviors, because these practices seemed to other empirical and theoretical advances in the
be an attempt to repathologize sexual minorities understanding of sexual orientation were published
(Drescher & Zucker, 2006; Haldeman, 1994; S. L. (e.g., Blanchard, 2008; Chivers, Seto, & Blanchard,
Morrow & Beckstead, 2004). Many of the individuals 2007; Cochran & Mays, 2006; Diamond, 2008; Diaz,
and organizations appeared to be embedded within Ayala, & Bein, 2004; DiPlacido, 1998; Harper,
conservative political and religious movements Jernewall, & Zea, 2004; Herek, 2009; Herek & Garnets,
that supported the stigmatization of homosexuality 2007; Mays & Cochran, 2001; Meyer, 2003; Mustanski,
(Drescher, 2003; Drescher & Zucker, 2006; Southern Chivers, & Bailey, 2002; Mustanski, Rahman & Wilson,
Poverty Law Center, 2005). 2005; Savic & Lindstrom 2008; Szymanski, Kashubeck-
The concerns led to APA’s adoption in 1997 of the West, & Meyer, 2008).
Resolution on Appropriate Therapeutic Responses to Third, advocates who promote SOCE as well as those
Sexual Orientation (APA, 1998). In the resolution, who oppose SOCE have asked that APA take action on
APA reaffirmed the conclusion shared by all the issue. On the one hand, professional organizations
mainstream health and mental health professions that and advocacy groups that believe that sexual
homosexuality is not a mental disorder and rejected any orientation change is unlikely, that homosexuality is
form of discrimination based on sexual orientation. In a normal variant of human sexuality, and that efforts
addition, APA highlighted the ethical issues that are to change sexual orientation are potentially harmful6
raised for psychologists when clients present with a wanted APA to take a clearer stand and to clarify
request to change their sexual orientation—issues such the conflicting media reports about the likelihood of
as bias, deception, competence, and informed consent sexual orientation change (Drescher, 2003; Stålström
(APA, 1997; Schneider, Brown, & Glassgold, 2002). APA & Nissinen, 2003). On the other hand, the proponents
reaffirmed in this resolution its opposition to “portrayals of SOCE that consist of organizations that adopt a
of lesbian, gay, and bisexual youths and adults as disorder model of homosexuality and/or advocate a
mentally ill due to their sexual orientation” and defined religious view of homosexuality as sinful or immoral
appropriate interventions as those that “counteract bias wanted APA to clearly declare that consumers have
that is based in ignorance or unfounded beliefs about the right to choose SOCE (Nicolosi, 2003; Nicolosi &
sexual orientation” (APA, 1998, p. 934). Nicolosi, 2002; Rosik, 2001).
In the years since APA’s adoption of the 1997 For these reasons, in 2007, APA established the Task
resolution, there have been several developments Force on Appropriate Therapeutic Responses to Sexual
that have led some APA members to believe that the Orientation, with the following charge:
resolution needed to be reevaluated. First, several
professional mental health and medical associations
1. Revise and update the Resolution on Appropriate
Therapeutic Responses to Sexual Orientation
adopted resolutions that opposed sexual orientation
(APA, 1998);
change efforts5 (SOCE) on the basis that such efforts
were ineffective and potentially harmful (e.g., American 2. Generate a report that includes discussion of the
Counseling Association, 1998; American Psychiatric following:
Association, 2000; American Psychoanalytic Association,
-- The appropriate application of affirmative
2000; NASW, 1997). In most cases, these statements
therapeutic interventions for children and
adolescents who present a desire to change either
5
In this report, we use the term sexual orientation change efforts their sexual orientation or their behavioral
(SOCE) to describe methods that aim to change a same-sex sexual expression of their sexual orientation, or both, or
orientation (e.g., behavioral techniques, psychoanalytic techniques,
medical approaches, religious and spiritual approaches) to
heterosexual, regardless of whether mental health professionals or lay 6
Two advocacy organizations (Truth Wins Out and Lambda Legal) are
individuals (including religious professionals, religious leaders, social encouraging those who feel they were harmed by SOCE to seek legal
groups, and other lay networks, such as self-help groups) are involved. action against their providers.
whose guardian expresses a desire for the minor 7 returns to the 1997 APA resolution and its focus on
to change. ethics to provide an updated discussion of the ethical
-- The appropriate application of affirmative issues surrounding SOCE. Chapter 8 considers the
therapeutic interventions for adults who present a more limited body of research on SOCE and reports of
desire to change their sexual orientation or their affirmative psychotherapy with children, adolescents,
behavioral expression of their sexual orientation, and their families. Chapter 9 summarizes the report
or both. and presents recommendations for research, practice,
education, and policy. The policy resolution that the task
-- The presence of adolescent inpatient facilities that
force recommends for APA’s adoption is Appendix A.
offer coercive treatment designed to change sexual
orientation or the behavioral expression of sexual
orientation. Laying the Foundation
-- Education, training, and research issues as they
pertain to such therapeutic interventions.
of the Report
-- Recommendations regarding treatment protocols Understanding Affirmative
that promote stereotyped gender-normative
behavior to mitigate behaviors that are perceived
Therapeutic Interventions
to be indicators that a child will develop a The task force was asked to report on appropriate
homosexual orientation in adolescence and application of affirmative psychotherapeutic
adulthood. interventions for those who seek to change their
sexual orientation. As some debates in the field
3. Inform APA’s response to groups that promote frame SOCE and conservative religious values as
treatments to change sexual orientation or its competing viewpoints to affirmative approaches (cf.
behavioral expression and support public policy that Throckmorton, 1998; Yarhouse, 1998a) and imply that
furthers affirmative therapeutic interventions. there is an alternative “neutral” stance, we considered
it necessary to explain the term affirmative therapeutic
The task force addressed its charge by completing a interventions, its history, its relationship to our
review and analysis of the broad psychological literature charge and current psychotherapy literature, and our
in the field. After reviewing the existing 1997 resolution application and definition of the term. The concept of
in light of this literature review, we concluded that gay-affirmative therapeutic interventions emerged
a new resolution was necessary. The basis for this in the early literature on the psychological concerns
conclusion, including a review and analysis of the of sexual minorities (Paul, Weinrich, Gonsiorek, &
extant research, is presented in the body of this report, Hotvedt, 1982; Malyon, 1982), and its meaning has
and a new resolution for APA adoption is presented in evolved over the last 25 years to include more diversity
Appendix A. and complexity (Bieschke, Perez, & DeBord, 2007;
The report starts with a brief review of the task Herek & Garnets, 2007; Perez, DeBord, & Bieschke,
force charge and the psychological issues that form 2000; Ritter & Terndrup, 2002).
the foundation of the report. The second chapter is a The affirmative approach grew out of a perception
brief history of the evolution of psychotherapy, from that sexual minorities benefit when the sexual stigma7
treatments based on the idea that homosexuality is a they experience is addressed in psychotherapy with
disorder to those that focus on affirmative approaches interventions that address the impacts of stigma (APA,
to sexual orientation diversity. Chapters 3 and 4 are 2000; Brown, 2006; Browning, Reynolds, & Dworkin,
a review of the peer-reviewed research on SOCE. 1991; Davison, 1978; Malyon, 1982; Ritter & Terndrup,
Chapter 3 provides a methodological evaluation of this 2002; Shannon & Woods, 1991; Sophie, 1987). For
research, and Chapter 4 reports on the outcomes of this example, Garnets, Hancock, Cochran, Goodchilds,
research. Chapter 5 reviews a broader base of literature and Peplau (1991) proposed that LHMP use an
regarding the experience of individuals who seek SOCE understanding of societal prejudice and discrimination
in order to elucidate the nature of clients’ distress and to guide treatment for sexual minority clients and
identity conflicts. Chapter 6 then examines affirmative help these clients overcome negative attitudes about
approaches for psychotherapy practice with adults and themselves.
presents a specific framework for interventions. Chapter 7
See p. 15 for the definition of sexual stigma.
Introduction 13
The most recent literature in the field (e.g., APA, R. L. Worthington & Reynolds, 2009). We define an
2000, 2002c, 2004, 2005b, 2007b; Bartoli & Gillem, affirmative approach as supportive of clients’ identity
2008; Brown, 2006; Herek & Garnets, 2007) places development without a priori treatment goals for how
affirmative therapeutic interventions within the larger clients identify or express their sexual orientations.
domain of cultural competence, consistent with general Thus, a multiculturally competent affirmative approach
multicultural approaches. Multicultural approaches aspires to understand the diverse personal and cultural
recognize that individuals, families, and communities influences on clients and enables clients to determine
exist in social, political, historical, and economic (a) the ultimate goals for their identity process; (b) the
contexts (cf. APA, 2002b) and that human diversity is behavioral expression of their sexual orientation; (c)
multifaceted and includes age, gender, gender identity, their public and private social roles; (d) their gender
race, ethnicity, culture, national origin, religion, sexual roles, identities, and expression;8 (e) the sex9 and gender
orientation, disability, language, and socioeconomic of their partner; and (f) the forms of their relationships.
status. Understanding and incorporating these aspects
of diversity are important to any intervention (APA, Evidence-Based Practice and Empirically
2000, 2002c, 2004, 2005b, 2007b). Supported Treatments
The task force takes the perspective that a multi-
Interest in the efficacy,10 effectiveness, and empirical
culturally competent and affirmative approach with
basis of psychotherapeutic interventions has grown in
sexual minorities is based on the scientific knowledge
the last decade. Levant and Hasan (2009) distinguished
in key areas: (a) homosexuality and bisexuality are
between two types of treatments: empirically supported
stigmatized, and this stigma can have a variety
treatments (EST) and evidence-based approaches
of negative consequences throughout the life span
to psychotherapy (EBPP). EST are interventions for
(D’Augelli & Patterson, 1995, 2001); (b) same-sex
individuals with specific disorders that have been
sexual attractions, behavior, and orientations per se are
demonstrated as effective through rigorously controlled
normal and positive variants of human sexuality and
trials (Levant & Hasan, 2009). EBPP is, as defined by
are not indicators of either mental or developmental
APA’s Policy Statement on Evidence-Based Practice
disorders (American Psychiatric Association, 1973;
in Psychology11 (2005a), “the integration of the best
APA, 2000; Gonsiorek, 1991); (c) same-sex sexual
available research with clinical expertise in the context
attractions and behavior can occur in the context of a
of patient characteristics, culture, and preferences”
variety of sexual orientation identities (Klein, Sepekoff,
(p. 1; see also, Sackett, Rosenberg, Gray, Haynes, &
& Wolf, 1985; McConaghy, 1999; Diamond, 2006,
Richardson, 1996).
2008); and (d) lesbians, gay men, and bisexual people
We were not able to identify affirmative EST for
can live satisfying lives and form stable, committed
this population (cf. Martell, Safran, & Prince, 2004).
relationships and families that are equivalent to
The lack of EST is a common dilemma when working
heterosexuals’ relationships and families in essential
with diverse populations for whom EST have not been
respects (APA, 2005c; Kurdek, 2001, 2003, 2004; Peplau
developed or when minority populations have not been
& Fingerhut, 2007).
Although affirmative approaches have historically
8
Gender refers to the cultural roles, behaviors, activities, and
been conceptualized around helping sexual minorities
psychological attributes that a particular society considers appropriate
accept and adopt a gay or lesbian identity (e.g., for men and women. Gender identity is a person’s own psychological
Browning et al., 1991; Shannon & Woods, 1991), the sense of identification as male or female, another gender, or
identifying with no gender. Gender expression is the activities and
recent research on behaviors that purposely or inadvertently communicate our gender
We define an affirmative sexual orientation identity to others, such as clothing, hairstyles, mannerisms, way of
approach as supportive of identity diversity speaking, and social roles.
clients’ identity development illustrates that 9

We define sex as biological maleness and femaleness in contrast to
without a priori treatment sexual behavior, gender, defined above.
goals for how clients identify or sexual attraction, 10

Efficacy is the measurable effect of an intervention, and effectiveness
and sexual aims to determine whether interventions have measurable effects
express their sexual orientations. orientation identity in real-world settings across populations (Nathan, Stuart, & Dolan,
2000).
are labeled and expressed in many different ways, some
11
Discussion of the overall implications for practice can be found in
of which are fluid (e.g., Diamond, 2006, 2008; Firestein,
Goodheart, Kazdin, and Sternberg (2006) and the Report of the 2005
2007; Fox, 2004; Patterson, 2008; Savin-Williams, 2005; Presidential Task Force on Evidence-Based Practice (APA, 2005b).
included in trials (Brown, 2006; Martell et al., 2004; Sue Jones & Gabriel, 1999). King et al. concluded that a
& Zane, 2006; Whaley & Davis, 2007). Thus, we provide knowledge base about sexual minorities’ lives and social
an affirmative model in Chapter 6 that is consistent context is important for effective practice.
with APA’s definition of EBPP in that it applies the
most current and best evidence available to guide
decisions about the care of this population (APA, 2005a;
Sexual Stigma
Sackett et al., 1996). We considered the APA EBPP To understand the mental health concerns of
resolution as utilizing a flexible concept of evidence, sexual minorities, one must understand the social
because it incorporates research based on well-designed psychological concept of stigma (Herek & Garnets,
studies with client values and clinical expertise. Given 2007). Goffman (1963) defined stigma as an undesirable
that the distress surrounding sexual orientation is not difference that discredits the individual. Link and
included in psychotherapy research (because it is not a Phelan (2001) characterized stigma as occurring
clearly defined syndrome) and most treatment studies when (a) individual differences are labeled; (b) these
in psychology are for specific mental health disorders, differences are linked to undesirable traits or negative
not for problems of adjustment or identity relevant to stereotypes; (c) labeled individuals are placed in distinct
sexual orientation concerns, we saw this flexibility as categories that separate them from the mainstream;
necessary (Brown, 2006). However, EST for specific and (d) labeled persons experience discrimination and
disorders can be incorporated into this affirmative loss of status that lead to unequal access to social,
approach (cf. Martell et al., 2004). We acknowledge that economic, and political power. This inequality is a
the model presented in this report would benefit from consequence of stigma and discrimination rather than
rigorous evaluation. of the differences themselves (Herek, 2009). Stigma is
Affirmative approaches, as understood by this task a fact of the interpersonal, cultural, legal, political, and
force, are evidence-based in three significant ways: social climate in which sexual minorities live.
The stigma that defines sexual minorities has been
• They are based on the evidence that homosexuality termed sexual stigma:12 “the stigma attached to any
is not a mental illness or disorder, which has non-heterosexual behavior, identity, relationship or
a significant empirical foundation (APA, 2000; community” (Herek, 2009, p. 3). This stigma operates
Gonsiorek, 1991). both at the societal level and at the individual level. The
• They are based on studies of the role of stigma impact of this stigma as a stressor may be the unique
in creating distress and health disparities in factor that characterizes sexual minorities as a group
sexual minorities (Cochran & Mays, 2006; Mays & (Herek, 2009; Herek & Garnets, 2007; Katz, 1995).
Cochran, 2001; Meyer, 1995, 2003; Pachankis, 2007; Further, stigma has shaped the attitudes of mental
Pachankis & Goldfried, 2004; Pachankis, Goldfried, & health professions and related institutions toward
Ramrattan, 2008; Safren & Heimberg, 1999). this population
In the late modern period, (Drescher, 1998a;
• They are based on the literature that has shown the medical and mental Haldeman, 1994;
the importance of the therapeutic alliance and health professions added a LeVay, 1996; Murphy,
relationship on outcomes in therapy and that these new type of stigmatization 1997; Silverstein,
outcomes are linked to empathy, positive regard, 1991). Moral and
and discrimination by
honesty, and other factors encompassed in the
affirmative perspective on therapeutic interventions
conceptualizing and treating religious values in
North America and
(Ackerman & Hilsenroth, 2003; Brown, 2006; Farber homosexuality as a mental
Europe provided the
& Lane, 2002; Horvath & Bedi, 2002; Norcross, 2002; illness or disorder.
initial rationale for
Norcross & Hill, 2004). criminalization, discrimination, and prejudice against
same-sex behaviors (Katz, 1995). In the late modern
The affirmative approach was the subject of a recent period, the medical and mental health professions
literature review that found that clients describe the added a new type of stigmatization and discrimination
safety, affirmation, empathy, and nonjudgmental
acceptance inherent in the affirmative approach as 12
Herek (2009) coined this term, and we use it because of the
helpful in their therapeutic process (M. King, Semlyen, comprehensive analysis in which it is embedded. There are other
Killaspy, Nazareth, & Osborn, 2007; see also, M. A. terms for the same construct, such as Balsam and Mohr’s (2007)
sexual orientation stigma.
Introduction 15
by conceptualizing and treating homosexuality as a minorities. Members of the stigmatized groups as well
mental illness or disorder (Brown, 1996; Katz, 1995). as nonmembers of the group can internalize these
Sexual minorities may face additional stigmas, values. Self-stigma is internalized stigma in those
as well, such as those related to age, gender, gender individuals who experience same-sex sexual attractions
identity, race, ethnicity, culture, national origin, and whose self-concept matches the stigmatizing
religion, sexual orientation, disability, language, and interpretations of society. Examples of this self-stigma
socioeconomic status. At the societal level, sexual are (a) accepting society’s negative evaluation and (b)
stigma is embedded in social structures through civil harboring negative attitudes toward oneself and one’s
and criminal law, social policy, psychology, psychiatry, own same-sex sexual attractions. Sexual prejudice
medicine, religion, and other social institutions. is the internalized sexual stigma held by the non-
Sexual stigma is reflected in disparate legal and stigmatized majority.
social treatment by institutions and is apparent in,
for example, (a) the long history of criminalization
of same-sex sexual behaviors; (b) the lack of legal
The Impact of Stigma on Members
protection for LGB individuals from discrimination of Stigmatized Groups
in employment, health care, and housing; and (c) the One of the assumptions of the stigma model is that
lack of benefits for LGB relationships and families that social stigma influences the individual through
would support their family formation, in contrast to the its impact on the different settings, contexts, and
extensive benefits that accrue to heterosexual married relationships that each human being is a part of
couples and even sometimes to unmarried heterosexual (D’Augelli, 1994). This hypothesis appears to be
couples.13 The structural sexual stigma, called confirmed by a body of literature comparing sexual
heterosexism in the scholarly literature, legitimizes minority populations to the general population that
and perpetuates stigma against sexual minorities and has found health disparities between the two (Cochran
perpetuates the power differential between sexual & Mays, 2006; Mays & Cochran, 2001). The concept of
minorities and others (Herek, 2007; see also Szymanski minority stress (e.g., DiPlacido, 1998; Hatzenbuehler,
et al., 2008). Nolen-Hoeksema, & Erickson, 2008; Meyer, 1995,
Expressions of stigma, such as violence, discrimin- 2003) has been increasingly used to explain these
ation, rejection, and other negative interpersonal health disparities in much the same way that concepts
interactions, are enacted stigma (Herek, 2009). of racism-derived stress and minority stress have
Individuals’ expectations about the probability that been used to explain health disparities and mental
stigma will be enacted in various situations is felt health concerns in ethnic minority groups (Carter,
stigma. Individuals’ efforts to avoid enacted and felt 2007; Harrell, 2000; Mays, Cochran, & Barnes, 2007;
stigma may include withdrawing from self (e.g., self- Saldaina, 1994; Wei, Ku, Russell, Mallinckrodt, &
denial or compartmentalization) and withdrawing from Liao, 2008). Theoretically any minority group facing
others (e.g., self-concealment or avoidance) (e.g., see social stigma and prejudice, including stigma due to
Beckstead & Morrow, 2004; Drescher, 1998a; Malyon, age, gender, gender identity, race, ethnicity, culture,
1982; Pachankis, 2007; Pachankis, Goldfried, & national origin, religion, sexual orientation, disability,
Ramrattan, 2008; Troiden, 1993). language, and socioeconomic status, could develop
In Herek’s (2009) model, internalized stigma14 is minority stress.
the adoption of the social stigma applied to sexual In theory, minority stress—chronic stress experienced
by members of minority groups—causes distress in
13
Same-sex sexual behaviors were only recent universally
decriminalized in the United States by Supreme Court action certain sexual minority individuals (DiPlacido, 1998;
in Lawrence v. Texas (2003). There is no federal protection from Meyer, 1995, 2003). Meyer (2003) described these stress
employment and housing discrimination for LGB individuals, and processes as due to (a) external objective events and
only 20 states offer this protection. Only 4 states permit same-sex
couples to marry, 7 permit civil unions or domestic partnerships, conditions, such as discrimination and violence;
and 5 have some limited form of recognition. For more examples, see (b) expectations of such events, and the vigilance that
National Gay and Lesbian Task Force, n.d.).
14
Herek (2009) defined internalization as “the process whereby (Malyon, 1982; Sophie, 1987; Weinberg, 1972). However, this term has
individuals adopt a social value, belief, regulation, or prescription for been criticized because holding negative attitudes does not necessarily
conduct as their own and experience it as part of themselves” (p. 7). involve a phobia; in other words, “an exaggerated usually inexplicable
The internalization of negative attitudes and assumptions concerning and illogical fear of a particular object, class of objects, situation
homosexuality has often been termed internalized homophobia (Merriam-Webster’s Online Dictionary, n.d.).
such expectations bring; and (c) internalization of community participation, and identity confusion
negative social and cultural attitudes. For instance, predicted coping with sexual stigma.
mental health outcomes among gay men have been
found to be influenced by negative appraisals of stigma-
related stressors (Meyer, 1995). Psychology, Religion,
The task force sees stigma and minority stress as and Homosexuality
playing a manifest role in the lives of individuals
who seek to change their sexual orientation (Davison, Most of the recent studies on SOCE focus on
1978, 1982, 1991; Herek, Cogan, Gillis, & Glunt, 1998; populations with strong religious beliefs (e.g., Beckstead
Green, 2003; Silverstein, 1991; Tozer & Hayes, 2004). & Morrow, 2004; Nicolosi et al., 2000; Schaeffer, Hyde,
Davison, in particular, has argued that individuals who Kroencke, McCormick, & Nottebaum, 2000; Ponticelli,
seek psychotherapy to change their sexual orientation 1999; Spitzer, 2003; Tozer & Hayes, 2004; Wolkomir,
do so because of the distress arising from the impact 2001). Beliefs about sexual behavior and sexual
of stigma and discrimination. A survey of a small orientation rooted in interpretations of traditional
sample of former SOCE clients in Britain supports religious doctrine also guide some efforts to change
this hypothesis, as many of the former participants others’ sexual orientation as well as political opposition
reported that hostile social and family attitudes and the to the expansion of civil rights for LGB individuals
criminalization of homosexual conduct were the reasons and their relationships (Burack & Josephson, 2005; S.
they sought treatment (Smith, Bartlett, & King, 2004). L. Morrow & Beckstead, 2004; Southern Poverty Law
One of the advantages of the minority stress model Center, 2005; Pew Forum on Religion and Public Life,
is that it provides a framework for considering the 2003; Olyam & Nussbaum, 1998). One of the issues
social context of stress, distress, coping, resilience in SOCE is the expansion of religiously based SOCE.
(Allen, 2001; David & Knight, 2008; Herek, Gillis, & Religious beliefs, motivations, and struggles play a role
Cogan, 2009; Selvidge, Matthews, & Bridges, 2008; in the motivations of individuals who currently engage
Levitt et al., 2009; Pachankis, 2007), and the goals of in SOCE (Beckstead & Morrow, 2004; Ponticelli, 1999;
affirmative psychotherapy (Beckstead & Israel, 2007; Shidlo & Schroeder, 2002; Wolkomir, 2001; Yarhouse,
Bieschke, 2008; Frost & Meyer, 2009; Glassgold, 2007; Tan, & Pawlowski, 2005). Thus, we considered an
Rostosky, Riggle, Horne, & Miller, 2009; Martell et al., examination of issues in the psychology of religion to be
2004; Russell & Bohan, 2007). Some authors propose an important part in fulfilling our charge.
that lesbians, gay men, and bisexual men and women
improve their mental health and functioning through Intersections of Psychology, Religion,
a process of positive coping, termed stigma competence
(David & Knight, 2008). In this model, it is proposed
and Sexual Orientation
that through actions such as personal acceptance of World religions regard homosexuality from a spectrum
one’s LGB identity and reduction of internalized stigma, of viewpoints. It is important to note that some
an individual develops a greater ability to cope with religious denominations’ beliefs and practices have
stigma (cf. Crawford, Allison, Zamboni, & Soto, 2002; changed over time, reflecting evolving scientific and
D’Augelli, 1994). For instance, Herek and Garnets civil rights perspectives on homosexuality and sexual
(2007) proposed that collective identity (often termed orientation (see, e.g., Dorff, Nevins, & Reisner, 2006;
social identity)15 mitigates the impact of minority stress Hebrew Union College, n.d.; Olyam & Nussbaum,
above and beyond the effects of individual factors such 1998; Ontario Consultants on Religious Tolerance,
as coping skills, optimism, and resiliency. Individuals n.d). A number of religious denominations in the
with a strong sense of positive collective identity United States welcome LGB laity, and a smaller
integrate their group affiliation into their core self- number ordain LGB clergy (e.g., Reconstructionist
concept and have community resources for responding Judaism, Reform Judaism, Conservative Judaism,
to stigma (Balsam & Mohr, 2007; Crawford et al., Buddhist Peace Fellowship, Buddhist Churches
2002; Levitt et al., 2009). In support of this hypothesis, of America, Episcopal Church of America, Friends
Balsam and Mohr (2007) found that collective identity, General Conference, Unitarian Society, United Church
of Christ Congregational) (Greenberg, 2004; Hebrew
15
A collective or social identity refers to an individual’s sense of Union College, n.d.; Olyam & Nussbaum, 1998; Ontario
belonging to a group (the collective), and the collective or social
identity forms a part of his or her personal identity. Consultants on Religious Tolerance, n.d.). However,
Introduction 17
others view homosexuality as immoral and sinful (e.g., communication, June 30, 2008; cf. Gonsiorek, 2004;
Christian Reformed Church of North America, Church Malyon, 1982). This perspective gives priority to the
of Jesus Christ of Latter-Day Saints, Eastern Orthodox unfolding of developmental processes, including self-
Christianity, Orthodox Judaism, Presbyterian Church awareness and personal identity.
in American, Roman Catholicism, Southern Baptist This difference in worldviews can impact
Convention, United Methodist Church) (Ontario psychotherapy. For instance, individuals who have
Consultants on Religious Tolerance, n.d.). These issues strong religious beliefs can experience tensions and
are being discussed within numerous denominations conflicts between their ideal self and beliefs and their
(e.g., Van Voorst, 2005), and some views are in sexual and affectional needs and desires (Beckstead
flux (e.g., the Presbyterian Church (USA) (Ontario & Morrow, 2004; D. F. Morrow, 2003). The different
Consultants on Religious Tolerance, n.d). worldviews would approach psychotherapy for these
Several professional publications (e.g., Journal of Gay individuals from dissimilar perspectives: The telic
and Lesbian Psychotherapy, 2001, 5[3/4]; Professional strategy would prioritize values (Rosik, 2003; Yarhouse
Psychology, 2002, 33[3]; Archives of Sexual Behavior, & Burkett, 2002), whereas the organismic approach
2003, 32[5]; The would give priority to the development of self-awareness
Some difficulties arise Counseling Psychologist, and identity (Beckstead & Israel, 2007; Gonsiorek,
because the professional 2004, 32[5]; Journal 2004; Haldeman, 2004). It is important to note that
psychological community of Psychology and the organismic worldview can be congruent with
considers same-sex sexual Christianity, 2005, and respectful of religion (Beckstead & Israel, 2007;
24[4]) have specifically Glassgold, 2008; Gonsiorek, 2004; Haldeman, 2004;
attractions and behaviors
considered the Mark, 2008), and the telic worldview can be aware
to be a positive variant of interactions among of sexual stigma and respectful of sexual orientation
human sexuality, while some scientific views of sexual (Throckmorton & Yarhouse, 2006; Tan, 2008; Yarhouse,
traditional faiths continue orientation, religious 2008). Understanding this philosophical difference may
to consider it a sin, moral beliefs, psychotherapy, improve the dialogue between these two perspectives
failing, or disorder that and professional ethics. represented in the literature, as it refocuses the debate
Some difficulties arise not on one group’s perceived rejection of homosexuals
needs to be changed.
because the professional or the other group’s perceived minimization of religious
psychological community considers same-sex sexual viewpoints but on philosophical differences that extend
attractions and behaviors to be a positive variant of beyond this particular subject matter. However, some of
human sexuality, while some traditional faiths continue the differences between these philosophical assumptions
to consider it a sin, moral failing, or disorder that needs may be difficult to bridge.
to be changed. Contrasting views exist within psychology regarding
The conflict between psychology and traditional faiths religious views about homosexuality. One way in which
may have its roots in different philosophical viewpoints. psychology has traditionally examined the intersections
Some religions give priority to telic congruence (i.e., between religion and homosexuality is by studying the
living consistently within one’s valuative goals16) (W. impact of religious beliefs and motivations on attitudes
Hathaway, personal communication, June 30, 2008; cf. and framing the discussion in terms of tolerance and
Richards & Bergin, 2005). Some authors propose that prejudice (Fulton, Gorsuch, & Maynard, 1999; Herek,
for adherents of these religions, religious perspectives 1987; Hunsberger & Jackson, 2005; Plugge-Foust
and values should be integrated into the goals of & Strickland, 2000; Schwartz & Lindley, 2005). For
psychotherapy (Richards & Bergin, 2005; Throckmorton instance, one finding is that religious fundamentalism
& Yarhouse, 2006). Affirmative and multicultural is correlated with negative views of homosexuality,
models of LGB psychology give priority to organismic whereas a quest orientation is associated with decreased
congruence (i.e., living with a sense of wholeness in discriminatory or prejudicial attitudes (Batson, Flink,
one’s experiential self17) (W. Hathaway, personal Schoenrade, Fultz, & Pych, 1986; Batson, Naifeh,
& Pate, 1978; Fulton et al., 1999; Plugge-Foust &
16
These conflicts are not unique to religious individuals but are
applicable to individuals making commitments and decisions about
Strickland, 2000). However, some authors have argued,
how to live according to specific ethics and ideals (cf. Baumeister &
Exline, 2000; Diener, 2000; Richards & Bergin, 2005; Schwartz, 2000). organization, unity, and integration of human beings expressed
through each individual’s inherent growth or developmental tendency
17
Such naturalistic and empirically based models stress the (see, e.g., Rogers, 1961; Ryan, 1995).
in contrast to this approach, that conservative religious by religion are harmful to individuals, society, and
moral beliefs and evaluations about same-sex sexual international relations.
behaviors and LGB individuals and relationships should In areas of conflicts between psychology and
be treated as religious diversity rather than as sexual religion, as the APA Resolution on Religious, Religion-
prejudice (e.g., Rosik, 2007; Yarhouse & Burkett, 2002; Related, and/or Religion-Derived Prejudice (2008b)
Yarhouse & Throckmorton, 2002). states, psychology has no legitimate function in
“arbitrating matters of faith and theology” (line 433)
or to “adjudicate religious or spiritual tenets,” and
APA Policies on the Intersection psychologists are urged to limit themselves to speak
of Religion and Psychology to “psychological implications of religious/spiritual
APA has addressed the interactions of religion and beliefs or practices when relevant psychological findings
psychology in two recent resolutions: the Resolution about those implications exist” (line 433). Further,
Rejecting Intelligent Design as Scientific and the resolution states that faith traditions “have no
Reaffirming Support for Evolutionary Theory (APA, legitimate place arbitrating behavioral or other
2008b) and the Resolution on Religious, Religion- sciences” (line 432) or to “adjudicate empirical scientific
Related, and/or Religion-Derived Prejudice (2008c). The issues in psychology” (line 432).
first resolution articulates psychology’s epistemological The APA (2002b, 2008c) recommends that
commitment: Hypothesis testing through rigorous psychologists acknowledge the importance of religion
scientific methods is the best means to gain new and spirituality as forms of meaning-making,
knowledge and to evaluate current practices, and tradition, culture, identity, community, and diversity.
psychologists base their theories on such research: Psychologists do not discriminate against individuals
based on those factors. Further, when devising
While we are respectful of religion and individuals’ interventions and conducting research, psychologists
right to their own religious beliefs, we also
consider the importance of religious beliefs and cultural
recognize that science and religion are separate and
values and, where appropriate, consider religiously and
distinct. For a theory to be taught as science it must
be testable, supported by empirical evidence and culturally sensitive techniques and approaches (APA,
subject to disconfirmation. (APA, 2007a) 2008c).
This is in contrast to viewpoints based on faith, as faith

does not need confirmation through scientific evidence. Psychology of Religion
Further, science assumes some ideas can be rejected Historically, some in psychology and psychiatry have
when proven false; faith and religious beliefs cannot be held negative views of religion (Wulff, 1997). Yet, with
falsified in the eyes of adherents. the development of more sophisticated methodologies
The APA Council of Representatives also passed and conceptualizations, the field of the psychology of
a Resolution on Religious, Religion-Related, and/or religion has flourished in the last 30 years (Emmons
Religion-Derived Prejudice (2008b). This resolution & Paloutzian, 2003), culminating in new interest in a
acknowledges the diverse field (e.g., Koenig & Larson, 2001; Paloutzian &
The resolution affirms APA’s existence of two forms Park, 2005; Pargament, 2002; Pargament & Mahoney,
position that prejudices of prejudice related to 2005; Richards & Bergin, 2005; Sperry & Shafranske,
directed at individuals religion: one derived 2004; Spilka, Hood, Hunsberger, & Gorsuch, 2003).
from religious beliefs Many scholars have attempted to elucidate what is
because of their religious
and another directed significant and unique about religious and spiritual
beliefs and prejudices at religions and their faith, beliefs, and experiences (e.g., George, Larson,
derived from or justified adherents. The APA Koenig, & McCullough, 2000; McClennon, 1994).
by religion are harmful to strongly condemns Pargament, Maygar-Russell, and Murray-Swank
individuals, society, and both forms of prejudice. (2005) summarized religion’s impact on people’s lives
The resolution affirms as a unique form of motivation regarding how to
international relations.
APA’s position that live one’s life and how to respond to self, others, and
prejudices directed at individuals because of their life events; a source of significance regarding what
religious beliefs and prejudices derived from or justified aspects of life one imbues with meaning and power; a
contributor to mortality and health; a form of positive
Introduction 19
and negative coping; and a source of fulfillment and Haldeman, 2004; Lasser & Gottlieb, 2004; S. L.
distress. Others, such as Fowler (1981, 1991) and Morrow & Beckstead, 2004; Ritter & O’Neill, 1989;
colleagues (Oser, 1991; Streib, 2001, 2005) have posited Tan, 2008; Throckmorton & Yarhouse, 2006; Yarhouse,
developmental models of religious identity that are 2008). For instance, a growing number of authors
helpful in understanding personal faith. address the religious
Additionally, there is a growing literature on We take the perspective and spiritual needs
integrating spirituality into psychotherapy practice that religious faith and of LGBT individuals
(Richards & Bergin, 2000, 2004, 2005; Shafranske, psychology do not have to from integrative and
2000; Sperry & Shafranske, 2004; E. L. Worthington,
be seen as being opposed affirmative perspectives
Kurusu, McCullough, & Sandage, 1996). These that provide resources
approaches include delineating how LMHP can work to each other. Further, for LMHP working
effectively with individuals from diverse religious psychotherapy that respects with this population
traditions (Richards & Bergin, 2000, 2004; Sperry & faith can also explore the (Astramovich, 2003;
Shafranske, 2004). Many of these techniques can be psychological implications Beckstead & Israel,
effective (McCullough, 1999) and improve outcomes 2007; Beckstead
and impacts of such beliefs.
in clinical treatment with religious clients (Probst, & Morrow, 2004;
Ostrom, Watkins, Dean, & Mashburn, 1992; Richards, Glassgold, 2008; Haldeman, 1996, 2004; Horne &
Berrett, Hardman, & Eggett, 2006; E. L. Worthington Noffsinger-Frazier, 2003; Mark, 2008; D. F. Morrow,
et al., 1996), even for clients in treatment with secular 2003; O’Neill & Ritter, 1992; Ritter & O’Neill, 1989;
LMHP (Mayers, Leavey, Vallianatou, & Barker, 2007). Throckmorton & Yarhouse, 2006; Yarhouse, 2008).
These innovations point to ways that psychology can Based on of these scholarly contributions, we take the
explore and understand religious beliefs and faith in an perspective that religious faith and psychology do not
evidence-based and respectful manner. have to be seen as being opposed to each other. Further,
There have been claims that some LMHP do not psychotherapy that respects faith can also explore the
address the issues of conservative religious individuals psychological implications and impacts of such beliefs.
who are distressed by their same-sex sexual attractions We support affirmative and multi-culturally
(e.g., Yarhouse, 1998a; Throckmorton, 2002; Yarhouse competent approaches that integrate concepts from the
& Burkett, 2002; Yarhouse & Throckmorton, 2002). psychology of religion and the modern psychology of
One of the problems in the field has been an either/or sexual orientation. These perspectives are elaborated
perspective in which sexual orientation and religion later in this report. In the next chapter we review the
are seen as incompatible (Phillips, 2004). Certainly, history of SOCE in order to provide a perspective on the
some individuals may perceive their religion and foundation and evolution of these approaches.
their sexual orientation as incompatible, because in
some faiths homosexuality is perceived as sinful and
immoral. However, there is a growing body of evidence
illustrating that many individuals do integrate their
religious and sexual orientation identities (Coyle &
Rafalin, 2000; Kerr, 1997; Mahaffy, 1996; Rodriguez,
2006; Rodriguez & Ouellete, 2000; Thumma, 1991;
Yip, 2002, 2003, 2005). Thus, this dichotomy may be
enabling a discourse that does not fully reflect the
evidence and may be hindering progress to find a
variety of viable solutions for clients.
Recently, some authors have suggested alternative
frameworks, many of which are drawn from a variety of
models of psychotherapy, such as multicultural views of
psychology and the psychology of religion, that provide
frames for appropriate psychotherapeutic interventions
seeking to bridge this divide (Bartoli & Gillem, 2008;
Beckstead & Israel, 2007; Buchanon, Dzelme, Harris,
& Hecker, 2001; Glassgold, 2008; Gonsiorek; 2004;
2. A Brief History of Sexual

Orientation Change Efforts
S
exual orientation change efforts within mental psychoanalysis, the dominant psychiatric paradigm of
health fields originally developed from the science that time (Drescher, 1998a).
of sexuality in the middle of the 19th century
(Katz, 1995). At that time, same-sex eroticism and
gender nonconforming behaviors came under increased Homosexuality
medical and scientific scrutiny. New terms, such as and Psychoanalysis
urnings, inversion, homosexual, and homosexuality,
emerged as scientists, social critics, and physicians Initial psychotherapeutic approaches to homosexuality
sought to make sense of what was previously defined of the first half of the 20th century reflected
as sin or crime (Katz, 1995). This shift to a scientific psychoanalytic theory. Freud’s own views on sexual
approach did not challenge the underlying social values, orientation and homosexuality were complex. Freud
however, and thus continued to reflect the existing viewed homosexuality as a developmental arrest and
sexual stigma, discrimination, criminalization, and heterosexuality as the adult norm, although bisexuality
heterosexism. Much of the medical and scientific work was normative (Freud, 1905/1960). However, in a now-
at that time conceptualized homosexual attractions and famous letter, Freud (1935/1960) reassured a mother
behaviors as abnormal or as an illness (Katz, 1995). writing to him about her son that homosexuality was
In that era, homosexuality was predominantly “nothing to be ashamed of, no vice, no degradation, it
viewed as either a criminal act or a medical problem, cannot be classified as an illness, but a variation of
or both (Krafft-Ebing, 1886/1965). Homosexuality was sexual function” (p. 423). He further went on to say
seen as caused by psychological immaturity (i.e., as that psychoanalysts could not promise to “abolish
a passing phase to be outgrown on the road to adult homosexuality and make normal heterosexuality take
heterosexuality) or pathology (e.g., genetic defects, its place” (p. 423), as the results of treatment could
gender-based confusions, intrauterine hormonal not be determined. Freud’s only report (1920/1960)
exposure, too much parental control, insufficient about his deliberate attempt to change someone’s
parenting, hostile parenting, seduction, molestation, or sexual orientation described his unsuccessful efforts
decadent lifestyles) (Drescher, 1998a, 2002). The first at changing the sexual orientation of a young woman
treatments attempted to correct or repair the damage brought for involuntary treatment by her parents. At
done by pathogenic factors or to facilitate maturity the end of this case, Freud concluded that attempts to
(Drescher, 1998a, 2002; LeVay, 1996; Murphy, 1992, change homosexual sexual orientation were likely to be
1997). These perspectives on homosexuality lasted into unsuccessful.18
the first half of the 20th century, shaping the views of
18
Analyses of this case have focused on Freud’s intense negative
reactions to this young woman and his attempts to enforce social
A Brief History of Sexual Orientation Change Efforts 21

In the psychoanalysis that dominated the mental reconditioning, and satiation therapy (Beckstead
health fields after Freud, especially in the United States, & Morrow, 2004; S. James, 1978; Langevin, 1983;
homosexuality was viewed negatively, considered to be LeVay, 1996; Katz, 1995; Murphy, 1992, 1997). Some
abnormal, and believed to be caused by family dynamics nonaversive treatments used an educational process of
(Bieber et al., 1962; Rado, 1940; Socarides, 1968). dating skills, assertiveness, and affection training with
Other approaches based loosely on psychoanalytic ideas physical and social reinforcement to increase other-sex
advocated altering gender-role behaviors to increase sexual behaviors (Binder, 1977; Greenspoon & Lamal,
conformity with traditional gender roles (Moberly, 1983; 1987; Stevenson & Wolpe, 1960). Cognitive therapists
Nicolosi, 1991). Significantly impacting psychiatric attempted to change gay men’s and lesbians’ thought
thought in the mid-20th century, these theories were patterns by reframing desires, redirecting thoughts,
part of the rationale for including homosexuality as a or using hypnosis, with the goal of changing sexual
mental illness in both the first (1952) and second (1968) arousal, behavior, and orientation (e.g., Ellis, 1956,
editions of the American Psychiatric Association’s 1959, 1965).
Diagnostic and Statistical Manual of Mental Disorders
(DSM), thus reinforcing and exacerbating sexual stigma
and sexual prejudice. It was during this period that Affirmative Approaches: Kinsey;
the first attempts to study the efficacy of SOCE were Ford and Beach; and Hooker
conducted (e.g., Bieber et al., 1962).
At the same time that the pathologizing views of
homosexuality in American psychiatry and psychology
Sexual Orientation were being codified, countervailing evidence was
Change Efforts accumulating that this stigmatizing view was ill

founded. The publication of Sexual Behavior in the
The pathologizing psychiatric and psychological Human Male (Kinsey, Pomeroy, & Martin, 1948)
conception of homosexuality and concomitant efforts and Sexual Behavior in the Human Female (Kinsey,
to alter sexual orientation through psychoanalytic Pomeroy, Martin, & Gebhard, 1953) demonstrated
and behavior therapy were prevalent through the that homosexuality was more common than previously
1960s and into the early 1970s. Although behavior assumed, thus suggesting that such behaviors were part
therapy emerged in the 1960s, adding a different of a continuum of sexual behaviors and orientations.
set of techniques to psychotherapy, the goals of C. S. Ford and Beach (1951) revealed that same-sex
SOCE did not change. For example, Ovesey (1969) behaviors and homosexuality were present in a wide
based his behavioral interventions on the belief that range of animal species and human cultures. This
homosexuality developed from a phobia of taking on finding suggested that there was nothing unnatural
the normal qualities of one’s gender and that sexual about same-sex behaviors or homosexual sexual
intercourse with the other19 sex would cure the so- orientation.
called phobia. Psychologist Evelyn Hooker’s (1957) research put
Behavior therapists tried a variety of aversion the idea of homosexuality as mental disorder to a
treatments, such as inducing nausea, vomiting, or scientific test. She studied a nonclinical sample of
paralysis; providing electric shocks; or having the homosexual men and compared them with a matched
individual snap an elastic band around the wrist sample of heterosexual men. Hooker found, among
when the individual became aroused to same-sex other things, that based on three projective measures
erotic images or thoughts. Other examples of aversive (the Thematic Apperception Test, the Make-a-Picture-
behavioral treatments included covert sensitization, Story test, and the Rorschach), the homosexual men
shame aversion, systematic desensitization, orgasmic were comparable to their matched heterosexual peers
on ratings of adjustment. Strikingly, the experts
conformity—especially with regard to traditional female gender
who examined the Rorschach protocols could not
roles and sexuality (e.g., Lesser & Schoenberg, 1999; O’Connor &
Ryan, 1993). distinguish the protocols of the homosexual cohort from
the heterosexual cohort, a glaring inconsistency with
19
We use other sex instead of opposite sex, as the latter term makes
assumptions regarding the binary nature of male and female that the then-dominant understanding of homosexuality
are unsupported. We acknowledge that this term also has limitations, and projective assessment techniques. Armon (1960)
as there are fluid and diverse representations of sex and gender in
many cultures.
performed research on homosexual women and found remove homosexuality as a mental disorder from the
similar results. American Psychiatric Association’s DSM (D’Emilio,
In the years following Hooker’s (1957) and Armon’s 1983; Kameny, 2009). This campaign grew stronger
(1960) research, inquiry into sexuality and sexual in the aftermath of the Stonewall riots in 1969. Those
orientation proliferated. Two major developments riots were a watershed, as the movement for gay and
marked an important change in the study of lesbian civil rights was embraced openly by thousands
homosexuality. First, following Hooker’s lead, more rather than limited to small activist groups (D’ Emilio,
researchers conducted studies of nonclinical samples 1983; Katz, 1995). In the area of mental health, given
of homosexual men and women. Prior studies the results of research, activists within and outside of
primarily included participants who were in distress or the professions led a large and vocal advocacy effort
incarcerated. Second, quantitative methods to assess directed at mental health professional associations,
human personality (e.g., Eysenck Personality Inventory, such as the American Psychiatric Association, the
Cattell’s Sixteen Personality Factor Questionnaire American Psychological Association, and the American
[16PF]) and mental disorders (Minnesota Multiphasic Association for Behavior Therapy, and called for the
Personality Inventory evaluation of prejudice and stigma within mental health
Research conducted with [MMPI]) were associations and practices (D’Emilio, 1983; Kameny,
these newly developed developed and were 2009). At the same time, some LGB professionals and
measures indicated that a vast psychometric their allies encouraged the field of psychotherapy to
homosexual men and women improvement over assist sexual minority clients to accept their sexual
were essentially similar to prior measures, orientation (Silverstein, 2007).
heterosexual men and women such as the As a result of the research and the advocacy outside
Rorschach, Thematic of and within the American Psychiatric Association,
in adaptation and functioning. Apperception Test, that association embarked upon an internal process
and House-Tree-Person Test. Research conducted of evaluating the literature to address the issue of
with these newly developed measures indicated that homosexuality as a psychiatric disorder (Bayer, 1981;
homosexual men and women were essentially similar Drescher 2003; Drescher & Merlino, 2007; Sbordone,
to heterosexual men and women in adaptation and 2003; Silverstein, 2007). Upon the recommendation of
functioning (Siegelman, 1979; M. Wilson & Green, 1971; its committee evaluating the research, the American
see also review by Gonsiorek, 1991). Studies failed to Psychiatric Association Board of Trustees and general
support theories that regarded family dynamics, gender membership voted to remove homosexuality per se21
identity, or trauma as factors in the development from the DSM in December 1973 (Bayer, 1981). The
of sexual orientation (e.g., Bell, Weinberg, & American Psychiatric Association (1973) then issued
Hammersmith, 1981; Bene, 1965; Freund & Blanchard, a position statement supporting civil rights protection
1983; Freund & Pinkava, 1961; Hooker, 1969; McCord, for gay people in employment, housing, public
McCord, & Thurber, 1962; D. K. Peters & Cantrell, accommodation, and licensing, and the repeal of all
1991; Siegelman, 1974, 1981; Townes, Ferguson, & sodomy laws.
Gillem, 1976). This research was a significant challenge In December 1974, the American Psychological
to the model of homosexuality as psychopathology. Association (APA) passed a resolution affirming the
resolution of the American Psychiatric Association.
APA concluded:
Homosexuality Removed From the
Homosexuality per se implies no impairment in
Diagnostic and Statistical Manual judgment, stability, reliability, or general social
In recognition of the legal nexus between psychiatric and vocational capabilities. Further, the American
diagnosis and civil rights discrimination, especially Psychological Association urges all mental health
for government employees, activists within the professionals to take the lead in removing the
homophile20 rights movement, including Frank Kameny stigma of mental illness that has long been
and the Mattachine Society of Washington, DC, 21
The diagnoses of sexual orientation disturbance and ego-dystonic
launched a campaign in late 1962 and early 1963 to homosexuality sequentially replaced homosexuality. These diagnoses,
however, were ultimately removed, due to conceptual problems and
psychiatry’s evolving evidence-based approach for delineating a
20
Homophile is an early term for what would become the gay rights or mental disorder (Drescher, Stein, & Byne, 2005).
gay and lesbian rights movement.

associated with homosexual orientations. (APA, (ApsaA, 1991, 1992). In 2000, ApsaA adopted a policy
1975, p. 633) against SOCE, attempting to end that practice within
Since that time, the APA has passed numerous the field:
resolutions supporting LGB civil rights and As in all psychoanalytic treatments, the
psychological well-being (see APA, 2005a). goal of analysis with homosexual patients is
Other mental health associations, including the understanding. Psychoanalytic technique does
NASW and the American Counseling Association, not encompass purposeful efforts to “convert” or
and medical associations, including the American “repair” an individual’s sexual orientation. Such
directed efforts are against fundamental principles
Medical Association and the American Academy of
of psychoanalytic treatment and often result in
Pediatrics, have passed similar resolutions. Gradual substantial psychological pain by reinforcing
shifts began to take place in the international mental damaging internalized homophobic attitudes. (¶ 1)
health community as well. In 1992, the World Health
Organization removed homosexuality per se from the Numerous publications document the theoretical
International Classification of Diseases (Nakajima, limitations and problems with SOCE within
2003). psychoanalysis (Drescher, 1998a, 1998b; O’Connor &
Ryan, 1993). In the last decade, many psychoanalytic
publications have described an affirmative approach to
Decline of SOCE sexual orientation variation and diversity.22
Currently, mainstream mental health professional
Following the removal of homosexuality from the
associations support affirmative approaches that focus
DSM, the publication of studies of SOCE decreased
on helping sexual minorities cope with the impact
dramatically, and nonaffirming approaches to
of minority stress and stigma (American Counseling
psychotherapy came under increased scrutiny. Behavior
Association Governing Council, 1998; American
therapists became increasingly concerned that aversive
Psychiatric Association, 2000; APA, 1997, 2000; NASW,
therapies designed as SOCE for homosexuality were
1997). The literature on affirmative psychotherapy has
inappropriate, unethical, and inhumane (Davison,
grown enormously during this time (e.g., Bieschke et
1976, 1978; Davison & Wilson, 1973; M. King, Smith, &
al., 2007; Eubanks-Carter, Burckell, & Goldfried, 2005;
Bartlett, 2004; Martin, 2003; Silverstein, 1991, 2007).
Ritter & Terndrup, 2002). Included in this literature are
The Association for Behavioral and Cognitive Therapies
publications that aim to support individuals with strong
(formerly the Association for Advancement of Behavior
religious beliefs and same-sex sexual orientation in
Therapy) as well as other associations affiliated with
exploring ways to integrate the two (e.g., Astramovich,
cognitive and behavior therapies currently reject the
2003; Beckstead & Israel, 2007; Glassgold, 2008;
use of SOCE (Martin, 2003). Behavior therapy for
Haldeman, 1996, 2004; Horne & Noffsinger-Frazier,
LGB individuals now focuses on issues of increasing
2003; Mark, 2008; D. F. Morrow, 2003; O’Neill & Ritter,
adjustment, as well as on addressing a variety of their
1992; Ritter & O’Neill, 1989, 1995; Ritter & Terndrup,
mental health concerns (Campos & Goldfried, 2001;
2002; Tan, 2008; Throckmorton & Yarhouse, 2006;
Hart & Heimberg, 2001; Martell et al., 2004; Pachankis
Yarhouse, 2008). These changes within the mental
& Goldfried, 2004; Safren & Rogers, 2001).
health fields are reflected in the larger society, where
Prominent psychoanalytic practitioners (see, e.g.,
there have been increasing shifts in acceptance of LGB
Mitchell, 1978, 1981) began questioning SOCE within
individuals (National Gay and Lesbian Task Force,
their own profession and challenged therapies that
n.d.). For instance, in 2003, the U.S. Supreme Court
started with assumptions of pathology. However, such
made a landmark ruling in Lawrence v. Texas that
a movement did not take hold until the late 1980s
declared as unconstitutional the sodomy laws of the 13
and early 1990s (Drescher, 1998a, 1998b; Glassgold &
states that still criminalized homosexuality. However,
Iasenza, 1995). In 1991, the American Psychoanalytic
Association (ApsaA) effectively ended stigmatization of
homosexuality by mainstream psychoanalysis when it 22
ApsaA and Divisions 39 (Psychoanalysis) and 44 (Society
adopted a sexual orientation nondiscrimination policy for the Psychological Study of Lesbian, Gay, & Bisexual
Concerns) have collaborated on a bibliography of affirmative
regarding the selection of candidates for psychoanalytic resources in psychoanalysis, and the American Psychoanalytic
training. This policy was revised in 1992 to include Association maintains its own bibliography: http://www.apsa.
selection of faculty and training analysts as well org/APSAAMEMBERSSECTION/COMMITTEEWORKROOMS/
GAYANDLESBIANISSUES/tabid/381/Default.aspx.
issues such as same-sex marriage are still controversial with charges that professional psychology has not
(Phy-Olsen, 2006). reflected the concerns of religious individuals,23 and
However, SOCE is still provided by LMHP. Some both supporters and opponents of SOCE have presented
LMHP (Nicolosi, 2003, Nicolosi & Nicolosi, 2002; themselves as advocates for consumers (cf. Brooke,
Rosik, 2001) advocate for SOCE to be provided to 2005). Despite the polarization, there have been recent
distressed individuals, and an organization was attempts to envision alternate frameworks to address
founded to advocate for these types of treatments these issues (e.g., Bartoli & Gillem, 2008; Beckstead &
(National Association for Research and Treatment of Israel, 2007; Benoit, 2005; Haldeman, 2004; McMinn,
Homosexuality). Additionally, a survey of randomly 2005; Phillips, 2004; Tan, 2008; Throckmorton &
selected British LMHP (psychologists, counselors, and Yarhouse, 2006).
psychiatrists) completed in 2003 found that 17% of the We conclude that these debates can only be resolved
total sample of 1,328 had provided SOCE in the past through an evidence-based appraisal of the potential
and that 4% would consider providing such therapy benefits and harm of SOCE. In the next two chapters,
upon client request in the future. Among those who we consider the research evidence on SOCE. In Chapter
provided such services, the number of clients provided 3 we discuss methodological concerns; in Chapter 4, the
SOCE had remained constant over time (cf. M. King et results that can be drawn from this literature.
al., 2004).
Sexual Orientation Change Efforts

Provided to Religious Individuals
The visibility of SOCE has increased in the last decade
(Drescher, 2003; Drescher & Zucker, 2006; Herek,
2003). From our survey of recent publications and
research, most SOCE currently seem directed to those
holding conservative religious and political beliefs, and
recent research on SOCE includes almost exclusively
individuals who have strong religious beliefs (e.g.,
Beckstead & Morrow, 2004; S. L. Jones & Yarhouse,
2007; Nicolosi et al., 2000; Ponticelli, 1999; Shidlo &
Schroeder, 2002; Spitzer, 2003). In an evolution for
some religious communities, sexual minorities are
not automatically expelled or shunned (Drescher &
Zucker, 2006; Sanchez, 2007; SPLC, n.d.). Instead,
individuals with a same-sex sexual orientation are
embraced for renouncing their homosexuality and
seeking “healing” or change (Burack & Josephson,
2005; Erzen, 2006; Ponticelli, 1999). This development
has led to a movement of religiously based self-help
groups for distressed individuals who often refer to
themselves as ex-gay (Erzen, 2006; Ponticelli, 1999;
Wolkomir, 2001, 2006). Individuals and organizations
that promote religion-based efforts to change sexual
orientation often target messages to adults, adolescents,
and their families that include negative portrayals of
homosexuality, religious outreach efforts, and support
groups, as well as psychotherapy (Burack & Josephson,
2005; Cianciotto & Cahill, 2006; Wolkomir, 2006).
Debates between those who advocate SOCE and
23
APA has received correspondence from individuals and
those who oppose it have at times become polemical,
organizations asserting this point.

3. A Systematic Review of Research

on the Efficacy of SOCE:
Overview and Methodological Limitations
A
lthough the charge given to the task force did not • High drop-out rates
explicitly call for a systematic review of research
• Indirect harm such as the costs (time, energy, money)
on the efficacy and safety of sexual orientation
of ineffective interventions
change efforts (SOCE), we decided in our initial
deliberations that such a review was important to the
Finally, we were charged to “inform APA’s response
fulfillment of our charge. First, the debate over SOCE
to groups that promote treatments to change sexual
has centered on the issues of efficacy, benefit, and harm.
orientation or its behavioral expression and support
Thus, we believe it was incumbent on us to address
public policy that furthers affirmative therapeutic
those issues in our report. We attempt to answer the
interventions.” We decided that a systematic review24
following questions in this review:
would likely be the only effective basis for APA’s
• Do SOCE alter sexual orientation? response to advocacy groups for SOCE.
In our review, we considered only peer-reviewed
• Are SOCE harmful?
research, in keeping with current standards for
• Do SOCE result in any outcomes other than changing conducting scientific reviews (see Khan, Kunz, Kleijnen,
sexual orientation? & Antes, 2003), which exclude the grey literature25 and
lay material. In this chapter, we provide an overview of
Second, systematic literature reviews are frequently the review and a detailed report on the methodological
used to answer questions about the effectiveness of concerns that affect the validity26 of the research. In the
interventions in health care to provide the basis for next chapter, we present our review of the outcomes of
informed treatment decisions (D. J. Cook, Mulrow, & the research.
Haynes, 1998; Petticrew, 2001). Current criteria for
effective treatments and interventions are specific in
24
A systematic review starts with a clear question to be answered,
stating that to be considered effective, an intervention strives to locate all relevant research, has clear inclusion and
has consistent positive effects without serious harmful exclusion criteria, and carefully assesses study quality and
side effects (Beutler, 2000; Flay et al., 2005). Based on synthesizes study results (Petticrew, 2001).
Lilienfeld’s (2007) comprehensive review of the issue of 25

Grey literature refers to any publication in any format published
harm in psychotherapy, our systematic review examines outside of peer-reviewed scientific journals.
harm in the following ways: 26

Validity is defined as the extent to which a study or group of
studies produce information that is useful for a specific purpose. It
• Negative side effects of treatment (iatrogenic effects) also includes an overall evaluation of the plausibility of the intended
interpretations—in this case, does SOCE produce a change in sexual
• Client reports of perceptions of harm from treatment orientation (see American Educational Research Association, APA, &
National Council on Measurement in Education, 1999).
Overview of the potential harm of SOCE and experiences of those who

seek sexual orientation (Schroeder & Shidlo, 2001;
Systematic Review Shidlo & Schroeder, 2002). A third type is high-quality28
qualitative research investigations that provide insight
Our review included peer-reviewed empirical research
into people’s experiences of efforts aimed at altering
on treatment outcomes published from 1960 to the
their same-sex sexual attractions (e.g., Beckstead &
present. Studies were identified through systematic
Morrow, 2004; Ponticelli, 1999; Wolkimir, 2001).29
searches of scholarly databases including PsycINFO
In all areas of intervention evaluation, the quality
and Medline, using such search terms as reparative
of the methods used in the research affects the validity
therapy, sexual orientation, homosexuality, and ex-
and credibility of any claims the researcher can make
gays cross-referenced with treatment and therapy.
about whether the intervention works, for whom it
Reference lists from all identified articles were searched
works, and under what circumstances it works. Many
for additional nonindexed, peer-reviewed material.
have described
We also obtained review articles and commentaries Overall, we found that the methodological
and searched the reference lists from these articles
low quality of the research concerns regarding
to identify refereed publications of original research
investigations on treatment of same-sex attraction
on SOCE is such that claims the research
that had not been identified via the aforementioned regarding its effectiveness and literature on sexual
procedures. In all, we obtained and reviewed original widespread applicability must orientation change
efforts (e.g., Cramer,
publications of 83 studies. The reviewed studies are be viewed skeptically.
Golom, LoPresto,
listed in Appendix B.27
& Kirkley, 2008; Haldeman, 1994; S. L. Morrow &
The vast majority of research on SOCE was conducted
Beckstead, 2004; Murphy, 1992; Sandfort, 2003).
prior to 1981. This early research predominantly
Overall, we found that the low quality of the research on
focused on evaluating behavioral interventions,
SOCE is such that claims regarding its effectiveness and
including those using aversive methods. Following the
widespread applicability must be viewed skeptically.
declassification of homosexuality as a mental disorder
As shown in Appendix B, few studies on SOCE
in 1973 (American Psychiatric Association, 1973)
produced over the past 50 years of research rise to
and subsequent statements of other mental health
current scientific standards for demonstrating the
professional associations, including APA (Conger,
efficacy of psychological interventions (Chambless
1975), research on SOCE declined dramatically. Indeed,
& Hollon, 1998; Chambless & Ollendick, 2001;
we found that the peer-reviewed empirical literature
Flay et al., 2005; Shadish, Cook, & Campbell, 2002;
after 1981 contains no rigorous intervention trials on
Society for Prevention Research, 2005) or provide for
changing same-sex sexual attractions.
unambiguous causal evidence regarding intervention
There is a small, more recent group of studies
outcomes. Indeed, only six studies, all conducted in the
conducted since 1999 that assess perceived effects of
early period of research, used rigorous experimental30
SOCE among individuals who have participated in
procedures. Only one of these experiments (Tanner,
psychotherapy as well as efforts based in religious
beliefs or practices, including support groups, faith 28
These studies meet the standards of research rigor that are used for
healing, and prayer. There are distinct types of research the qualitative research paradigms that informed each of the studies
(e.g., grounded theory, ethnomethodology, phenomenology).
within this recent literature. One type focused on
evaluating individuals’ positive accounts of sexual
29
These studies are discussed more thoroughly in later sections of
the report.
orientation change (Nicolosi et al., 2000; Schaeffer
et al., 2000; Spitzer, 2003). Another type examined
30
True experiments have more methodological rigor because study
participants are randomly assigned to treatment groups such
27
A meta-analytic review of 14 research articles (Byrd & Nicolosi, that individual differences are more equally distributed and are
2002) is not discussed in this report. The review suffers from not confounded with any change resulting from the treatment.
significant methodological shortcomings and deviations from Experiments are also rigorous because they include a way for the
recommended meta-analytic practice (see, e.g., Durlak, Meerson, & researcher to determine what would have happened in the absence
Ewell-Foster, 2003; Lipsey & Wilson, 2001) that preclude reliable of any treatment (e.g., a counterfactual), usually through the use of a
conclusions to be drawn from it. However, studies that were included no-treatment control group. Quasi-experimental designs do not have
in the meta-analysis and were published in refereed journals between random assignment but do incorporate a comparison of some kind.
1960 and the present are included and described in the current review. Although they are less rigorous than experiments, quasi-experiments,
Additionally, a recent study (Byrd, Nicolosi, & Potts, 2008) is not if appropriately designed and conducted, can still provide for
included, as it was published after the review period and appears to be reasonable causal conclusions to be made.
a reworking of an earlier study by Nicolosi, Byrd, and Potts (2000).
A Systematic Review of Research on the Efficacy of SOCE: Overview and Methodological Limitations 27
1974) assessed treatment outcomes in comparison validity. Research on SOCE has rarely used designs
to an untreated control group. Only three additional that allow for confident conclusions regarding cause-
studies used strong quasi-experimental procedures such and-effect relationships between exposure to SOCE
as a nonequivalent comparison group (see Appendix and outcomes.
B). All of these studies were also from the early As noted previously, true experiments and rigorous
period. The rest of the studies that we reviewed are quasi-experiments are rare in the SOCE research.
nonexperimental (see Appendix B). We thus concluded There are only a few studies in the early period that
that there is little in the way of credible evidence that are experiments or quasi-experiments, and no true
could clarify whether SOCE does or does not work in experiments or quasi-experiments exist within the
changing same-sex sexual attractions. recent research. Thus, none of these recent studies meet
The studies in this area also include a highly current best practice standards for experimental design
select group of people who are unique among those and cannot establish whether SOCE is efficacious.
who experience same-sex sexual attractions. Thus, In early studies, comparison and no-treatment
psychologists should be extremely cautious in control groups were uncommon procedures, and early
attributing success to SOCE and assuming that the studies rarely employed multiple baseline assessments,
findings of the studies of it can be applied to all sexual randomization to condition, multiple long-term follow-
minorities. An overview of the methodological problems up assessments, or other procedures to aid in making
in determining the effects of SOCE and making causal inferences. These procedures are widely accepted
treatment decisions based on findings from these as providing the most compelling basis for ruling out
studies follows. the possibility that an alternative source is responsible
for causing an observed or reported treatment effect.
Common threats to internal validity in early
Methodological Problems in the studies include history (i.e., other events occurring
Research Literature on SOCE over the same time period as the treatment that could
produce the results in the absence of the intervention),
Problems in Making Causal Claims regression (i.e., extreme scores are typically less
extreme on retest in the absence of intervention), and
A principal goal of the available research on SOCE was
testing (i.e., taking a test once influences future scores
to demonstrate that SOCE consistently and reliably
on the test in the absence of intervention). Within-
produce changes in aspects of sexual orientation.
subject and patient case studies are the most common
Overall, due to weaknesses in the scientific validity
designs in the early SOCE research (see Appendix
of research on SOCE, the empirical research does not
B). In these designs, an individual’s scores or clinical
provide a sound basis for making compelling causal
status prior to treatment is compared with his or her
claims. A detailed analysis of these issues follows.
scores or status following treatment. These designs
are particularly vulnerable to internal validity threats,
Internal Validity Concerns notably threats to internal validity due to sample
Internally valid research convincingly demonstrates attrition and retrospective pretests.
that a cause (such as SOCE) is the only plausible
explanation for an observed outcome such as change Sample attrition
in same-sex sexual Early research is especially vulnerable to threats
Research on SOCE has attractions. Lack to internal validity related to sample attrition. The
rarely used designs that allow of internal validity proportions of participants in these studies who dropped
for confident conclusions limits certainty that out of the intervention and were lost to follow-up are
regarding cause-and-effect observed changes in unacceptably high; drop-out rates go as high as 74%
relationships between exposure people’s attitudes, of the initial study sample. Authors also reported high
beliefs, and behaviors rates of refusal to undergo treatment after participants
to SOCE and outcomes. are a function of the were initially enrolled in the studies. For instance,
particular interventions to which they were exposed. A 6 men in Bancroft’s (1969) study refused to undergo
major limitation to research on SOCE, both the early treatment, leaving only 10 men in the study. Callahan
and the recent research, stems from the use of weak and Leitenberg (1973) reported that of 23 men enrolled,
research designs that are prone to threats to internal
7 refused and 2 dropped out of treatment; 8 also showed 2005; Lam & Bengo, 2003; Norman, 2003; M. A. Ross,
inconsistent baseline responses in penile arousal to the 1989; Sprangers, 1989), and effort justification (Aronson
experimental stimuli so could not be included in the & Mills, 1959; Beauvois & Joule, 1996; Festinger,
analysis, leaving only 6 subjects on whom treatment 1957). Individuals tend to want to present themselves
analyses could be performed. Of 37 studies reviewed by in a favorable light. As a result, people have a natural
H. E. Adams and Sturgis (1977), 31 studies lost from tendency to report on their current selves as improved
36% to 58% of the sample. In many studies, therefore, over their prior selves (impression management).
what appear to be intervention effects may actually People will also report change under circumstances in
reflect systematic changes in the composition of the which they have been led to expect that change will
study sample; in the handful of available comparison occur, even if no change actually does occur (change
group studies, differences between the groups in the expectancy) and will seek to justify the time and
studies in the rate of dropout and in the characteristics effort that they have made in treatment to reduce any
of those who drop out may be the true cause of any dissonance they may feel at experiencing no or less
observed differences between the groups. Put simply, change than they had expected by overestimating the
dropout may undermine the comparability of groups in effectiveness of the treatment (effort justification).
ways that can bias study outcomes. Effort justification has been demonstrated to become
stronger as intervention experiences become more
Retrospective pretest unpleasant. In combination, these factors lead to
With the exception of prospective ethnographic studies inaccurate self-reports and inflated estimates of
(e.g., Ponticelli, 1999; Wolkomir, 2001), the recent treatment effects, distortions that are magnified in the
research relies exclusively on uncontrolled retrospective context of retrospective pretest designs.
pretest designs. In these studies, people who have been
exposed to SOCE are asked to recall and report on their Construct Validity Concerns
feelings, beliefs, and behaviors at an earlier age or time Construct validity is also a significant concern in
and are then asked to report on these same issues at research on SOCE. Construct validity refers to
present. Change is assessed by comparing contemporary the degree to which the abstract concepts that are
scores with scores provided for the earlier time period investigated in the study are validly defined, how
based on retrospective recall. In a few studies, LMHP well these concepts are translated into the study’s
who perform SOCE reported their view of how their treatments and measures, and, in light of these
clients had changed. The design is problematic because definitional and operational decisions, whether the
all of the pretest measures are not true pretests but study findings are appropriately interpreted. For
retrospective accounts of pretest status. Thus, the instance, do the researchers adequately define and
recent research studies on SOCE have even weaker measure sexual orientation? Are their interpretations
designs than do nonexperimental studies from the early of the study results regarding change in sexual
period of research on SOCE. Again, none of these recent orientation appropriate, given how the constructs were
studies can establish whether SOCE is efficacious. defined and translated into measures? On the whole,
An extensive body of research demonstrates the research on SOCE presents serious concerns regarding
unreliability of retrospective pretests. For example, construct validity.
retrospective pretests are extremely vulnerable to
response-shift biases resulting from recall distortion Definition of sexual orientation
and degradation (Schwarz & Clore, 1985; Schwartz Sexual orientation is a complex human characteristic
& Rapkin, 2004). People find it difficult to recall involving attractions, behaviors, emotions, and identity.
and report accurately on feelings, behaviors, and Modern research of sexual orientation is usually seen
occurrences from long ago and, with the passage of time, as beginning with the Kinsey studies (Kinsey et al.,
will often distort the frequency, intensity, and salience 1948, 1953). Kinsey used a unidimensional, 7-category
of things they are asked to recall. taxonomic continuum, from 0 (exclusively heterosexual)
Retrospective pretests are also vulnerable to biases to 6 (exclusively homosexual), to classify his
deriving from impression management (Fisher & Katz, participants. As the research has developed since the
2000; Schwarz, Hippler, Deutsch, & Strack, 1985; Kinsey studies, the assessment of sexual orientation has
Wilson & Ross, 2001), change expectancy (Hill & Betz, focused largely on measuring three variables—identity,
behavior, and attraction. Many studies measure only We adopted this current understanding of sexuality
one or two, but very seldom all three, of these aspects. to clarify issues in the research literature. For instance,
A key finding in the last 2 decades of research on sexual orientation refers to an individual’s patterns of
sexual orientation is that sexual behavior, sexual sexual, romantic, and affectional arousal and desire
attraction, and sexual orientation identity are labeled for other persons based on those persons’ gender
and expressed in many different ways (Carrillo, 2002; and sex characteristics. Sexual orientation is tied to
Diamond, 2003, 2006; Dunne, Bailey, Kirk, & Martin, physiological drives and biological systems that are
2000; Laumann, Gagnon, Michael, & Michals, 1994; beyond conscious choice and involve profound emotional
Savin-Williams, 2005). For instance, individuals feelings, such as “falling in love.” Other dimensions
with sexual attractions may not act on them or may commonly attributed to sexual orientation (e.g., sexual
understand, define, and label their experiences behavior with men and/or women; social affiliations
differently than those with similar desires because of with LGB or heterosexual individuals and communities,
the unique cultural and historical constructs regarding emotional attachment preferences for men or women,
ethnicity, gender, and sexuality (Harper et al., 2004; gender role and identity, lifestyle choices) are potential
Mays & Cochran, 1998; Walters, Simoni, & Horwath, correlates of sexual orientation rather than principal
2001; Weinrich & Williams, 1991). dimensions of the construct.
Further, a subset of individuals who engage in Sexual orientation identity refers to acknowledgment
same-sex sexual behaviors or have same-sex sexual and internalization of sexual orientation and reflects
attractions do not self-identify as LGB or may remain self-exploration, self-awareness, self-recognition,
unlabeled and some self-identified lesbian and gay group membership and affiliation, culture, and self-
individuals may engage in other-sex sexual behaviors stigma. Sexual orientation identity involves private
without self-identifying as bisexual or heterosexual and public ways of self-identifying and is a key
(Beckstead, 2003; Carrillo, 2002; Diamond, 2003, 2008; element in determining relational and interpersonal
Diamond & Savin-Williams, 2000; Dunne et al., 2000; decisions, as it creates a foundation for the formation of
Fox, 2004; Gonsiorek, Sell, & Weinrich, 1995; Hoburg, community, social support, role models, friendship, and
Konik, Williams, & Crawford, 2004; Kinsey et al., 1948, partnering (APA, 2003; Jordan & Deluty, 1998; McCarn
1953; Klein et al., 1985; Masters & Johnson, 1979; & Fassinger, 1996; Morris, 1997; Ponticelli, 1999;
McConaghy, 1987; McConaghy, 1999; McConaghy, Wolkomir, 2001).
Buhrich, & Silove, 1994; Storms, 1980; Thompson & Given this new understanding of sexual orientation
Morgan, 2008). Thus, and sexual orientation identity, a great deal of debate
A number of scholars have for some individuals, surrounds the question of how best to assess sexual
argued that the construct personal and social orientation in research (Gonsiorek et al., 1995; Kinsey
of sexual orientation would identities differ from et al., 1948, 1953; Masters & Johnson, 1979; Sell,
be more easily and reliably sexual attraction, and 1997). For example, some authors have criticized the
assessed and defined if it sexual orientation Kinsey scale for dichotomizing sexual orientation—with
were disentangled from sexual identities may vary heterosexuality and homosexuality as opposites along
due to personal a single dimension and bisexuality in between—
orientation identity.
concerns, culture, thus implying that in increasing desire for one sex
contexts, ethnicity, nationality, and relationships. represents reduced desire for the other sex (Gonsiorek
As a result, a number of scholars have argued that et al., 1995; Sell, 1997; R. L. Worthington, 2003; R. L.
the construct of sexual orientation would be more easily Worthington & Reynolds, 2009). An alternative that
and reliably assessed and defined if it were disentangled has been proposed suggests that same-sex and other-
from sexual orientation identity (e.g., Chang & sex attractions and desires may coexist relatively
Katayama, 1996; Drescher, 1998a, 1998b; Drescher, independently and may not be mutually exclusive
Stein, & Byne, 2005; Rust, 2003; Stein, 1999; R. L. (Diamond, 2003, 2006; 2008; Fox, 2004; Klein et al.,
Worthington, Savoy, Dillon, & Vernaglia, 2002). Recent 1985,31 Sell, 1997; Shively & DeCecco, 1977; Storms,
research has found that distinguishing the constructs of
sexual orientation and sexual orientation identity adds 31
Although Klein advanced the notion of sexual orientation as a
clarity to an understanding of the variability inherent multidimensional variable, his Sexual Orientation Grid confounds
constructs of sexual orientation and sexual orientation identity, as it
in reports of these two variables (R. L. Worthington et
includes attraction; behavior; identification; and emotional, political,
al., 2002; R. L. Worthington & Reynolds, 2009). and social preferences.
1980; R. L. Worthington, 2003; R. L. Worthington & intervention component, approach, or provider.
Reynolds, 2009). Models with multiple dimensions that For instance, these interventions were provided
permit the rating of the intensity of an individual’s simultaneously or sequentially, without specific separate
sexual desire or arousal for other-sex individuals evaluations of each intervention. The recent research
separately from the intensity of that individual’s and much of the early research cannot provide clarity
sexual desire or arousal for same-sex individuals allow regarding which specific efforts are associated with
individuals to have simultaneous levels of attractions. which specific outcomes.
Some commentators believe such models allow for
greater understanding of sexual diversity and its Outcome measures
interactions with other aspects of identity and culture Regarding assessment mode, outcomes in early studies
(Mays & Cochran, 1998; R. L. Worthington et al. 2002). were assessed by one or more of the following: gauging
Considered in the context of the conceptual an individual’s physiological responses when presented
complexities of and debates over the assessment of with sexual stimuli, obtaining the person’s self-report
sexual orientation, much of recent sexual behavior and attractions, and using
Much of the SOCE research of the SOCE research clinical opinion regarding improvement. In men
does not adequately does not adequately especially, physiological measures are considered more
define the construct of define the construct dependable for detecting sexual arousal in men and
sexual orientation, does of sexual orientation, women than self-report of sexual arousal or attraction
does not differentiate it (McConaghy, 1999). However, these measures have
not differentiate it from from sexual orientation important limitations when studying sexual orientation.
sexual orientation identity, identity, or has Many men are incapable of sexual arousal to any
or has misleading definitions misleading definitions stimuli in the laboratory and must be excluded from
that do not accurately that do not accurately research investigations in which the measure is the sole
assess or acknowledge assess or acknowledge outcome measure. More recent research indicates that
bisexual individuals. some penile circumference gauges are less consistent
bisexual individuals.
Early research that than penile volume gauges (Kuban, Barbaree, &
focuses on sexual arousal may be more precise than that Blanchard, 1999; McConaghy, 1999; Quinsey &
which relies on self-report of behavior. Overall, recent Lalumiere, 2001; Seto, 2004) and that some men can
research may actually measure sexual orientation intentionally produce false readings on the penile
identity (i.e., beliefs about sexual orientation, self-report circumference gauges by suppressing their standard
of identity or group affiliation, self-report of behavior, sexual arousal responses (Castonguay, Proulx, Aubut,
and self-labeling) rather than sexual orientation. McKibben, & Campbell, 1993; Lalumiere & Harris,
1998) or consciously making themselves aroused when
Study treatments presented with female erotic stimuli (Freund, 1971,
In general, what constitutes SOCE in empirical 1976; Freund, Watson, & Rienzo, 1988; Lalumiere &
research is quite varied. As we show in Appendix B, Earls, 1992; McConaghy, 1999, 2003). The physiological
early studies tested a variety of interventions that measure used in all the SOCE experiements was the
include aversive conditioning techniques (e.g., electric penile circumference gauge. McConaghy (1999) has
shock, deprivation of food and liquids, smelling salts, questioned the validity of the results of SOCE research
chemically induced nausea), biofeedback, hypnosis, using this gauge and believes that data illustrating
masturbation reconditioning, psychotherapy, systematic a reduction in same-sex sexual attraction should be
desensitization, and combinations of these approaches. A viewed skeptically.
small number of early studies compare approaches alone In recent research on SOCE, overreliance on self-
or in combination. The more recent research includes report measures and/or on measures of unknown
an even wider variety of interventions (e.g., gender role validity and reliability is common. Reliance on self-
reconditioning, support groups, prayer, psychotherapy) reports is especially vulnerable to a variety of
and providers (e.g., licensed and unlicensed LMHP in reactivity biases such that shifts in an individual’s
varied disciplines, pastoral counselors, laypersons). score will reflect factors other than true change. Some
The recent studies were conducted in such a way that of these biases are related to individual motivations,
it is not possible to attribute results to any particular which have already been discussed, and others are
due to features of the experimental situation. Knowing relationship among variables that are drawn
that one is being studied and what the experimenter from statistical tests. Small sample sizes, sample
hopes to find can heighten people’s tendency to self- heterogeneity, weak measures, and violations to the
report in socially desirable ways and in ways that assumptions of statistical tests (e.g., non-normally
please the experimenter. distributed data) are central threats to drawing valid
Measures used in early studies vary tremendously conclusions. In this body of research, conclusion validity
in their psychometric acceptability, particularly for is often severely compromised. Many of the studies from
attitudinal and mental health measures, with a limited the early period are characterized by samples that are
number of studies using well-validated measures. very small, containing on the average about 9 subjects
Recent research has not advanced significantly in using (see Appendix B; see also H. E. Adams & Sturgis,
psychometrically sound measures of important study 1977). Coupled with high rates of attrition, skewed
variables such as depression, despite the widespread distributions, unreliable measures, and infrequent
use of measures that permit accurate assessment of use of statistical tests designed for small and skewed
these variables in other studies. Measures in these samples, confidence in the statistical results of many
studies are also sources of bias due to problems such of these studies may be misplaced. The recent research
as item wording and response anchors from which involved unreliable measures and inappropriate
participants may have inferred that other-sex attraction selection and performance of statistical tests, which are
is a normative standard, as well as from the exclusion threats to their statistical conclusion validity,32 even
of items related to healthy homosexual functioning though these studies involved larger samples than the
to parallel items that ask for reports on healthy early research.
heterosexual functioning.
Study operations Problems in Generalizing Findings

A significant challenge to interpreting the research on
Regarding the adequacy of study operations, few of
SOCE is establishing external validity—that is, judging
the early studies attempted to overcome the demand
to whom and to what circumstances the results of any
characteristics associated with the interventionists,
obtaining measures of change themselves. In other particular study might reasonably be generalized.
words, few studies sought to minimize the possibility
that people receiving treatment would be motivated 32
For instance, to assess whether sexual orientation had changed,
to please their treatment providers by providing Nicolosi et al. (2000) performed a chi-square test of association on
them with reports that were consistent with what the individuals’ prior and current self-rated sexual orientation. Several
features of the analysis are problematic. Specifically, the nature of
providers were perceived to desire and expect. Issues in
the data and research question are inappropriate to a chi-square test
recruitment of participants may also contribute to this of association, and it does not appear that the tests were properly
effect; subjects were aware of the goals of the study, performed. Chi-square tests of association assume that data are
independent, yet these data are not independent because the row
were recruited by individuals with that knowledge, and column scores represent an individual’s rating of his or her past
or were participating in treatment to avoid legal and/ and present self. Chi-square tests ought not to be performed if a cell
or religious sanction. Novelty effects associated with in the contingency table includes fewer than five cases. Other tests,
such as the nonparametric McNemar’s test for dichotomous variables
exposure to an experimental laboratory situation (McNemar, 1969) or the sign (Conover, 1980) or Wilcoxon signed-rank
may also have influenced study results. People may tests (Wilcoxon, 1945) for nominal and ordinal data, respectively, are
become excited and energized by participating in a used to assess whether there are significant differences between an
individual’s before and after score and are appropriate when data
research investigation, and these reactions to being in fail to meet the assumptions of independence and normality, as these
the research environment may contribute to change in data do and would have been more appropriate choices. Paired t-tests
scores. Recent research is also vulnerable to demand for mean differences could also have been performed on these data.
There are procedural problems in performing the chi-square test such
characteristics as a function of how individuals are as missing data, and the analyses are conducted without adjustment
recruited into samples, which is discussed in more for chance, with different numbers of subjects responding to each
detail in the section on sampling concerns. item, and without corrections to the gain scores to address regression
artifacts. Taken together, however, the problems associated with
running so many tests without adjusting for chance associations or
Conclusion Validity Concerns correcting for regression artifacts and having different respondents
in nearly every test make it difficult to assess what changes in scores
Conclusion validity concerns the validity of the across these items actually reflect.
inferences about the presence or absence of a
Sample Composition Brown, & Castell, 1964; Thorpe, Schmidt, & Castell,
Concerns regarding the sample composition in these 1963). Thus, the early samples are notable for including
studies are common in critiques (e.g., Cramer et men who may not be same-sex attracted at all or who
al., 2008). The studies from the early period are may not be distressed by their attractions but who had
characterized by samples that are narrow in their to undergo intervention by court order or out of fear of
demographic characteristics, composed almost being caught by law enforcement in the future.
exclusively of Caucasian males over the age of 18. Moreover, in the early research—to the extent that it
No investigations are of children and adolescents was assessed—the samples contained individuals who
exclusively, although adolescents are included in a varied widely along the spectrum of same-sex sexual
very few study samples. Few SOCE studies in the early orientation prior to intervention, so that the studies
period include women. Although more recent research included men who were other-sex sexually attracted to
includes women varying degrees alongside men who were primarily or
The research findings from early and respondents of exclusively same-sex sexually attracted (Bancroft, 1969;
Barlow et al., 1975; Birk, 1974; Conrad & Wincze, 1976;
and recent studies may have diverse ethnic and
racial backgrounds Fookes, 1960; Hallman & Rachman, 1972; Kendrick &
limited applicability to non- MacCulloch, 1972; LoPiccolo, Stewart, & Watkins, 1972;
(e.g., Moran, 2007;
Whites, youth, or women. Marquis, 1970; McCrady, 1973). Additionally, study
Nicolosi et al., 2000;
Ponticelli, 1999; Schaeffer et al., 2000; Spitzer, 2003; samples included men with and without histories of
Wolkomir, 2001), White men continue to dominate current and prior sexual contact with men and women
recent study samples. Thus, the research findings (Bancroft, 1969; Colson, 1972; Curtis & Presly, 1972;
from early and recent studies may have limited Fookes, 1960; Freeman & Meyer, 1975; Gray, 1970;
applicability to non-Whites, youth, or women. The Hallman & Rachman, 1972; Herman, Barlow, & Agras,
samples in the recent research have been narrowly 1974; Larson, 1970; Levin, Hirsch, Shugar, & Kapche,
defined in other respects, focusing on well-educated, 1968; LoPiccolo et al., 1972; MacCulloch & Feldman,
middle-class individuals to whom religion is extremely 1967; McConaghy, 1969; McConaghy et al., 1972, 1981;
important (e.g., Beckstead & Morrow, 2004; Nicolosi McConaghy & Barr, 1973; Segal & Sims, 1972; Thorpe
et al, 2000; Pattison & Pattison, 1980; Schaeffer et et al., 1964), so that
Including participants with men who are or have
al., 2000; Spitzer, 2003; Wolkomir, 2001). Same-sex
sexual attraction and treatments are confounded with
attractions, sexual arousal, been sexually active
these particular demographic characteristics across and behaviors to both sexes with women and men,
the recent literature. These research findings may be in the research on SOCE only women, only
most applicable to educated White men who consider makes evaluating change men, or neither are
themselves highly religious. combined. Some recent
more difficult.
The early research sometimes included men who studies of SOCE
were receiving intervention involuntarily (e.g., Barlow, have similar problems (e.g., Spitzer, 2003). Including
Agras, Abel, Blanchard, & Young, 1975; Callahan participants with attractions, sexual arousal, and
& Leitenberg, 1973; S. James, 1978; MacCulloch & behaviors to both sexes in the research on SOCE makes
Feldman, 1967; MacCulloch et al., 1965; McConaghy, evaluating change more difficult (Diamond, 2003; Rust,
1969, 1976; McConaghy, Proctor, & Barr, 1972), 2003; Vasey & Rendell, 2003; R. L. Worthington, 2003).
usually men who were court referred as a result of Data analyses rarely adjust for preintervention
convictions on charges related to criminalized acts of factors such as voluntary pursuit of intervention, initial
homosexual sex.33 The samples also include men who degree of other-sex attraction, or past and current
were not receiving intervention because of same-sex other-sex and same-sex behaviors; in very few studies
sexual attractions; rather, some of the men receiving did investigators perform and report subgroup analyses
intervention are described as pedophiles, exhibitionists, to clarify how subpopulations fared as a result of
transvestites, and fetishists (Callahan & Leitenberg, intervention. The absence of these analyses obscure
1973; Conrad & Wincze, 1976; Fookes, 1960; Hallam results for men who are primarily same-sex attracted
& Rachman, 1972; Marquis, 1970; Thorpe, Schmidt, and seeking intervention regarding these attractions
versus any other group of men in these studies, such
33
Shidlo and Schroeder (2002) found that roughly 24% of their
as men who could be characterized as bisexual in their
respondents perceived that SOCE was imposed on them rather than
pursued voluntarily. attractions and behaviors or those on whom treatment
was imposed. For these reasons, the external validity Treatment Environments
(generalizability) of the early studies is unclear, with
Clinically trained professionals using reasonably
selection-treatment interactions of particular concern.
well-described change efforts generally conducted
It is uncertain which effects observed in these studies
early research in clinical laboratory settings. By
would hold for which groups of same-sex attracted
contrast, the recent research included a wide variety
people.
of change efforts, providers, and settings in which these
efforts may take place. The recent research has not
Sampling and Recruitment Procedures been performed in a manner that permits examination
Early and recent study samples are typically of of the interactions among characteristics of change
convenience, so it is unclear precisely what populations efforts, providers, settings, and individuals seeking to
these samples represent. Respondents in the recent change, nor does the research associate these patterns
studies are typically recruited through ex-gay ministries with outcomes.
and advocates of SOCE rather than through population-
based probability sampling strategies designed to obtain
a representative sample of same-sex attracted people Summary
or the subset of them who experience their attractions
Our analysis of the methodology of SOCE reveals
as distressing and have sought and been exposed
substantial deficiencies. These deficiencies include
to SOCE. Additionally, study respondents are often
limitations in making causal claims due to threats
invited to participate in these studies by LMHP who are
to internal validity (such as sample attrition, use
proponents of SOCE, introducing unknown selection
of retrospective pretests, lack of construct validity
biases into the recruitment process (cf. Beckstead, 2003;
including definition and assessment of sexual
Shidlo & Schroeder, 2002).
orientation, and variability of study treatments and
Qualitative studies have been more successful in
outcome measures). Additional limitations with
applying a variety of purposive stratified sampling
recent research
strategies (e.g., Beckstead & Morrow, 2004; Ponticelli, The recent empirical include problems with
1999; Wolkomir, 2001) and developing appropriate literature provides little basis conclusion validity
comparison samples. However, the qualitative studies
were not undertaken with the purpose of determining
for concluding whether (the ability to make
SOCE has any effect on inferences from the
if SOCE interventions are effective in changing sexual
data) due to small
orientation. These studies focused on understanding sexual orientation.
or skewed samples,
aspects of the experience of participating in SOCE from
unreliable measures, and inappropriate selection
the perspective of same-sex attracted people in distress.
and performance of statistical tests. Due to these
As noted previously, recent research has used designs
limitations, the recent empirical literature provides
that are incapable of making attributions of intervention
little basis for concluding whether SOCE has any effect
effects. In many of the recent studies, the nature of
on sexual orientation. Any reading of the literature on
the procedures for recruiting samples is likely to have
SOCE outcomes must take into account the limited
accentuated response-shift biases rather than to have
generalizability of the study samples to the population
minimized them, because study recruiters were open
of people who experience same-sex sexual attraction and
proponents of the techniques under scrutiny; it cannot
are distressed by it. Taking into account the weaknesses
be assumed that the recruiters sought to encourage the
and limitations of the evidence base, we next
participation of those individuals whose experiences
summarize the results from research in which same-sex
ran counter to their own view of the value of these
sexual attraction and behavior have been treated.
approaches. Proponents of these efforts may also have
limited access to the research for former clients who
were perceived to have failed the intervention or who
experienced it as harmful. Some of the recent research
to assess harm resulting from these interventions
(Schroeder & Shidlo, 2001; Shidlo & Schroeder, 2002)
suffers from sampling weaknesses and biases of a
similar nature.
4. A Systematic Review of Research

on the Efficacy of SOCE: Outcomes
I
n Chapter 3, we provided an overview of our • Increased interest in, sexual attraction to, and sexual
systematic review of research on sexual orientation behavior with other-sex sexual partners
change efforts34 (SOCE) and the results of the review
• Increased healthy relationships and marriages with
for methodological concerns. In this chapter, we describe
other-sex partners
the evidence on outcomes associated with SOCE,
whether beneficial or harmful. No studies reported • Improved quality of life and mental health
effect size estimates or confidence intervals, and many
studies did not report all of the information that Although not all of these aims are equally well
would be required to compute effect sizes. As a result, studied, these are the outcomes that have been studied
statistical significance and methodology are considered frequently enough to be reported in this systematic
in interpreting the importance of the findings. As the review. One general point that we wish to emphasize
report will show, the peer-refereed empirical research as we begin the discussion of the outcomes that have
on the outcomes of efforts to alter sexual orientation been reported in this literature is that nonexperimental
provides little evidence of efficacy and some evidence of studies often find positive effects that do not hold up
harm. We first summarize the evidence of efficacy and under the rigor of experimentation. The literature on
then the evidence of unintended harmful effects. SOCE is generally consistent with this point. In other
words, the least rigorous studies in this body of research
generally provide a more positive assessment of efficacy
Reports of Benefit than do studies that meet even the most minimal
Sexual orientation change efforts have aimed to address standards of scientific rigor.
distress in individuals with same-sex sexual attractions
by achieving a variety of different outcomes:
Decreasing Same-Sex Sexual Attraction
• Decreased interest in, sexual attraction to, and sexual
behavior with same-sex sexual partners Early Studies
A number of investigators have assessed aversion
therapy interventions to reduce physiological and
self-reported sexual arousal in response to same-sex
34
In this report, we use the term sexual orientation change efforts
(SOCE) to describe a method that aims to change a same-sex stimuli and self-reports of same-sex sexual attraction
sexual orientation (e.g., behavioral techniques, psychoanalytic (see Appendix B).
techniques, medical approaches, religious and spiritual approaches) to
heterosexual, regardless of whether mental health professionals or lay
individuals (including religious professionals, religious leaders, social
groups, and other lay networks, such as self-help groups) are involved.
A Systematic Review of Research on the Efficacy of SOCE Outcomes 35

Experimental studies differences between the experimental and control groups
Results from the experimental studies of aversive in the frequency of same-sex sexual behavior.
techniques provide some evidence that these treatments The results of the experimental studies suggest that
can reduce self-reported and physiological sexual some men who participate in clinical treatment studies
arousal for some men. The experimental studies that may be conditioned to control their sexual arousal
we reviewed showed lower rates of change in sexual response to sexual stimuli, although McConaghy’s
arousal toward the same sex than did the quasi- (cf. McConaghy, 1999) studies suggest that aversive
experimental and nonexperimental studies. This finding treatments may affect sexual arousal indiscriminately.
was consistent with H. E. Adams and Sturgis’s (1977) These studies found that not all men reduce their
review of studies published through 1976. sexual arousal to these treatments and that changes in
In their review, H. E. Adams and Sturgis (1977) sexual arousal in the lab are not necessarily associated
found that across the seven studies that they classified with change in sexual behavior.
as controlled studies, 34% of the 179 subjects that were
retained in these studies decreased their same-sex Quasi-experimental studies
sexual arousal. McConaghy (1976) found that roughly The three quasi-experiments listed in Appendix B all
half of the men who received one of four treatment compare treatment alternatives for nonequivalent
regimens reported less intense sexual interest in men at groups of men. Birk et al. (1971) found that 5 (62%)
6 months. McConaghy, Proctor, and Barr (1972) found of the 8 men in the aversive treatment condition
reductions in penile response in the laboratory following reported decreased sexual feelings following treatment;
treatment. However, penile response to female nudes one man out of the 8 (12%) demonstrated reduced
also declined for those men who initially responded to sexual arousal at long-term follow-up. In comparing
female stimuli. McConaghy (1969) similarly reported groups, the researchers found that reports of same-
a decline in sexual arousal to all stimuli as a result sex “cruising,” same-sex sexual “petting,” and orgasm
of treatment for some men and that treatment also declined significantly for men receiving shocks when
increased same-sex sexual arousal for some men. compared with men receiving associative conditioning.
Overall, however, a majority of participants showed McConaghy and colleagues (1981) found that 50%
decreases in same-sex sexual arousal immediately of respondents reported decreased sexual feelings at
following treatment. McConaghy and Barr (1973) found 1 year. S. James (1978) reported that anticipatory
that about half of men reported that their same-sex avoidance learning was relatively ineffective when
sexual attractions were reduced. Tanner (1975) found compared with desensitization. In their review, H. E.
that aversive shock could lessen erectile response to Adams and Sturgis (1977) found that 50% of the 124
male stimuli. participants in what they termed uncontrolled studies
An important caveat in considering the results of reported reduced sexual arousal.
these experiments is that none compared treatment
outcomes to an untreated control group. That is, these Nonexperimental studies
studies compared treatments to one another. The fact Nonexperimental studies, which lack sufficient rigor to
that four of these studies also involved men who were assess efficacy but which may be useful in identifying
being treated by court referral should also be considered potential treatment approaches, offer a similar view of
in interpreting the findings. These experiments cannot the impact of aversive treatment on reductions in sexual
address whether men would have changed their sexual arousal. For instance, Bancroft (1969), in a within-
arousal pattern in the absence of treatment. Only one of subject study without a comparison group, delivered
the experiments that we identified compared treatment electric shocks based on males’ penile volume response
outcomes against the outcomes for an untreated control to photographs of nude men as they were fantasizing
group. Tanner (1974) examined change in sexual arousal about homosexual sexual encounters. Research subjects
among 8 men receiving electric shock therapy. Tanner underwent a minimum of 30 treatment sessions.
found that physiological arousal to male stimuli in the Bancroft reported that of the men who were initially
laboratory had declined at the 8-week follow-up, when sexually attracted to both sexes, 30% (n = 3) of these
scores among the 8 men in the treatment were compared men lessened their same-sex sexual interest over the
with those of the 8 men in a control group. Changes long-term. Among those with no initial other-sex sexual
were not achieved for all of the men, and there were no attraction, no lasting changes were observed in sexual
arousal and attraction. Several other uncontrolled increased rather than decreased, a result that was
studies found reductions in participants’ self-reported obtained for some men in the experimental studies.
sexual attraction and physiological response under In a study by Barlow and colleagues (1975), among
laboratory conditions (range = 7%–100%; average 3 men who were each exposed to unique biofeedback
= 58%) (Callahan & Leitenberg, 1973; Feldman & treatment regimens, all maintained same-sex sexual
MacCulloch, 1965; Fookes, 1960; Hallan & Rachman, arousal patterns at follow-up, as measured by penile
1972; MacCulloch & Feldman, 1967; Sandford, Tustin, circumference change in response to photos of male
& Priest, 1975). stimuli.
As is typically found in intervention research, the Mintz (1966) found that 8 years after initiating group
average proportion of men who are reported to change and individual therapy, 5 of his 10 research participants
in uncontrolled studies is roughly double the average (50%) had dropped out of therapy. Mintz perceived
proportion of men who are reported to change in that among those who remained, 20% (n = 1) were
controlled studies. For instance, as noted previously, distressed, 40% (n = 2) accepted their same-sex sexual
results from controlled studies show that far less attractions, and 40%
change can be produced in same-sex sexual arousal by Overall, the low degree (n = 2) were free from
aversion techniques. H.E. Adams and Sturgis (1977) of scientific rigor in these conflict regarding
reported that in the nonexperimental studies in their studies is likely to lead same-sex sexual
review, 68% of 47 participants reduced their same-sex to overestimates of the attractions. Birk
sexual arousal, as compared with 34% of participants in benefits of these treatments (1974) assessed the
experimental studies. on reductions in same-sex impact of behavioral
The studies of nonaversive techniques as the sexual arousal and attraction therapy on 66 men,
primary treatment, such as biofeedback and hypnosis, of whom 60% (n =
and may also explain the
were only assessed in the nonexperimental within- 40) had dropped out
contradictory results obtained
subject and patient case studies. For example, Blitch of intervention by 7
and Haynes (1972) treated a single female who was
in nonexperimental studies. months. Among those
heterosexually experienced and whom they described who remained in the study, a majority shifted toward
as strongly committed to reducing her same-sex heterosexual scores on the Kinsey scale by 18 months.
sexual attractions. Using relaxation, rehearsal, and Overall, the low degree of scientific rigor in these
masturbation reconditioning, she was reported to be studies is likely to lead to overestimates of the benefits
able to masturbate without female fantasies 2 months of these treatments on reductions in same-sex sexual
after intervention. Curtis and Presly (1972) used covert arousal and attraction and may also explain the
sensitization to treat a married man who experienced contradictory results obtained in nonexperimental
guilt about his attraction to and extramarital studies.
engagement with men. After intervention, he showed
reduced other-sex and same-sex sexual interest, as Recent Studies
measured by questionnaire items. Huff (1970) treated Recent studies have investigated whether people
a single male who was interested in becoming sexually who have participated in efforts to change their
attracted to women. Following desensitization, his sexual orientation report decreased same-sex sexual
journal entries showed that his same-sex sexual attractions (Nicolosi et al., 2000; Schaeffer et al., 2000;
fantasies continued, though the ratio of other-sex to Spitzer, 2003) or how people evaluate their overall
same-sex sexual fantasies changed by the 6-month experiences of SOCE (Beckstead & Morrow 2004;
follow-up to favor other-sex sexual fantasies. His MMPI Pattison & Pattison, 1980; Ponticelli, 1999; Schroeder
scores showed improvement in his self-concept and & Shidlo, 2001; Shidlo & Schroeder, 2002; Wolkomir,
reductions in his distress. 2001). These studies all use designs that do not permit
By contrast, among the 4 men exposed to orgasmic cause-and-effect attributions to be made. We conclude
reconditioning by Conrad and Wincze (1976), all that although these studies may be useful in describing
reported decreased same-sex sexual attractions people who pursue SOCE and their experiences of
immediately following intervention, but only one SOCE, none of the recent studies can address the
demonstrated a short-term measurable alteration in efficacy of SOCE or its promise as an intervention.
physiological responses to male stimuli. Indeed, one These studies are therefore described elsewhere in the
subject’s sexual arousal to same-sex sexual stimuli

report in places where they contribute to understanding picture of the effects of aversive forms of SOCE similar
respondents’ motivations for and experiences of SOCE. to that painted by H. E. Adams & Sturgis.
For instance, in his study comparing aversion and
Summary aversion relief therapies,36 McConaghy (1969) reported
Overall, early studies suggest that modest short-term that about 20% of men had engaged in same-sex sexual
effects on reducing same-sex sexual arousal in the behavior within 2 weeks following treatment. No longer
laboratory may be obtained for a minority of study term data are reported. McConaghy (1976) found that
participants through some forms of SOCE, principally 50% of men had reduced the frequency of their same-sex
interventions involving aversion procedures such behavior, 25% had not changed their same-sex behavior,
as electric shock. Short-term reductions in sexual and 25% reported no same-sex behavior at 1 year.
arousal to other-sex stimuli were also reported for McConaghy and Barr (1973) reported that 25% of men
some treatments. When outcomes were described for had reduced their same-sex sexual behavior at 1-year.
individual participants or subgroups of participants, Tanner (1975) reported a significant decline in same-
short-term reductions in same-sex sexual arousal sex behavior across treatments. In the only untreated
patterns were more commonly reported for people control group study that we identified, Tanner (1974)
described as having other-sex sexual attractions prior found that intervention had no effect on rates of same-
to intervention and high levels of motivation to change. sex behavior, even though the intervention did reduce
Initial and sustained reductions in sexual arousal were changes in penile circumference in response to male
reported less commonly for people who were described stimuli in the lab.
as having no other-sex sexual attraction prior to
intervention. The results from the uncontrolled studies Quasi-experimental studies
are more positive than those from the controlled studies, Birk and colleagues (1971) found that 2 of 18 men
as would be expected. Yet these studies also found that (11%) had avoided same-sex behavior at 36 months.
reduction in sexual arousal may not occur for study McConaghy, Armstrong, and Blaszczynski (1981)
participants. Recent studies provide no sound scientific reported that among the 11 men who were sexually
basis for determining the impact of SOCE on decreasing active with same-sex partners, about 25% reduced their
same-sex sexual attraction. same-sex behavior. S. James (1978) did not report on
behavior. In their review, H. E. Adams and Sturgis
(1977) found that 50% of the 124 participants in what
Decreasing Same-Sex Sexual Behavior they called uncontrolled group studies reported reduced
sexual arousal, and 42% reported less frequent same-
Early Studies
sex sexual behavior. Among the quasi-experiments
Early studies show that SOCE have limited impact on that we reviewed, the reported reductions in sexual
same-sex sexual behavior, even in cases when lab results behavior were lower (i.e., 11% and 25%) than what was
show some reduction in same-sex sexual arousal.35 reported by Adams and Sturgis. These differences may
be due to our more rigorous criteria of what constitutes
Experimental studies a quasi-experiment than the criteria employed by
In their review, H. E. Adams and Sturgis (1977) found Adams and Sturgis.
that across the seven controlled studies published
between 1960 and 1976, 18% of 179 subjects in these Nonexperimental studies
studies were reported to have decreased same-sex Among the case and single-group within-subject studies,
sexual behavior; the percentage reporting reductions the results are mixed. Some studies found that people
in sexual arousal was nearly double that percentage, reported having abstained from same-sex behavior
at 34%. In our review, we found that the results of in the months immediately following intervention or
the experimental studies that we reviewed provided a having decreased its frequency. Bancroft (1969) found
35
In considering the results of early studies on this outcome, readers that 4 of the 10 men in his study had reduced their
are advised that data on this outcome are not always reported. In behavior at follow-up. Freeman and Meyer (1975) found
some cases, not all research participants in these studies had engaged that 7 of the 9 men in their study were abstinent at 18
in sexual activity with same-sex partners prior to treatment, though
they may have fantasized about doing so. In other studies, reducing
sexual arousal under lab conditions was examined and not behavior in 36
Aversive therapy is the application of a painful stimuli; aversion
daily life. relief therapy is the cessation of an aversive stimulus.
months. Other single-subject and case study subjects Early Studies
reported declines in or no same-sex behavior (Gray,
1970; Huff, 1970; B. James, 1962, 1963; Kendrick & Experimental studies
McCullough, 1972; Larson, 1970; LoPiccolo, 1971; Segal In many of the early experiments on aversive
& Sims, 1972). treatments, sexual arousal to female sexual stimuli
Not all individuals, however, successfully abstained was a desired outcome. McConaghy (1969) found that
on every occasion of sexual opportunity (Colson, 1972; about 16% of 40 men increased their sexual arousal to
Rehm & Rozensky, 1974), and some relapse occurred female stimuli immediately following treatment and
within months following treatment (Bancroft, 1969; that 5% increased their sexual arousal to male stimuli.
Freeman & Meyer, 1975; Hallam & Rachman, 1972; It is unclear how the 50% of men in this study who
Levin et al., 1968; MacCulloch et al., 1965; Marquis, were aroused by females prior to the treatment were
1970). In other studies, the proportion reporting that distributed among the men who increased their sexual
they changed their sexual behavior is a minority. arousal and among those who did not. In other words,
For instance, among Barlow et al.’s (1975) research it is possible that most of the men who changed were
participants, 2 of the 3 men demonstrated no change sexually aroused by women initially. In interviews
in their same-sex behavior. In the case studies, clients following treatment, McConaghy (1976) reported that
who were described as exclusively attracted to the same 25% of 157 men indicated that they felt more sexual
sex prior to treatment were most commonly reported to arousal toward females than they did before treatment.
have failed to avoid same-sex sexual behavior following McConaghy, Proctor, and Barr (1972) found no change
treatment. in rates of sexual arousal to female stimuli. McConaghy
et al.’s (1972) research participants showed no change
Recent Studies in penile volume in response to female stimuli after
intervention.
As we have noted, recent studies provide no sound
In a randomized control trial, Tanner’s (1974) 8
basis for attributing individual reports of their current
research participants reported increases in sexual
behavior to SOCE. No results are reported for these
fantasizing about other-sex partners after aversive
studies.
conditioning. However, penile circumference data
showed no increased sexual arousal to female stimuli.
Summary H. E. Adams and Sturgis (1977) found that 26% of 179
In the early studies with the greatest rigor, it appears participants in the controlled studies that they reviewed
that SOCE may have decreased short-term same-sex increased their sexual arousal toward the other-sex.
sexual behavior for a minority of men. However, in the
only randomized control group trial, the intervention Quasi-experimental studies
had no effect on same-sex sexual behavior. Quasi-
Birk and colleagues (1971) found no difference between
experimental results found that a minority of men
their treatment groups in reported sexual arousal to
reported reductions in same-sex sexual behavior
women. Two men (11% of 18 participants) in the study
following SOCE. The nonexperimental studies found
reported sustained sexual interest in women following
that study participants often reported reduced behavior
treatment. McConaghy and colleagues (1981) reported
but also found that reductions in same-sex sexual
no significant improvement in attraction to females.
behavior, when reported, were not always sustained.
S. James (1978) reported little impact of treatment on
participants in anticipatory avoidance learning. He
Increasing Other-Sex Sexual Attraction noted a general improvement among 80% of the 40 men
undergoing desensitization to other-sex situations.
Early studies provide limited evidence for reductions in
sexual arousal to same-sex stimuli and for reductions in
Nonexperimental studies
same-sex sexual behavior following aversive treatments.
The impact of the use of aversive treatments for Among the nonexperimental studies, for men who were
increasing other-sex sexual arousal is negligible. described as having some degree of other-sex sexual
attraction and experience before the intervention,
the balance of studies showed an increase in other-
sex sexual attraction over time, although given the

nonexperimental nature of these studies, this change Increasing Other-Sex Sexual Behavior
cannot be validly attributed to SOCE. For men with
Studies on whether interventions can lead to other-sex
little or no preintervention other-sex sexual attraction,
sexual activity show limited results. These studies
the research provides little evidence of increased other-
show more success for those who had an other-sex
sex sexual attraction.
sexual orientation (e.g., sexual arousal) and were
As in some of the experimental studies, the results
sexually experienced with members of the other sex
reported in the nonexperiments were not always in
prior to intervention than for those who had no other-
the desired direction. Studies occasionally showed
sex sexual orientation and no history of other-sex sexual
that reductions in sexual arousal and interest may
behavior. The results for this outcome suggest that some
occur for same- and other-sex partners, suggesting the
people can initiate other-sex sexual behavior whether or
possibility that treatments may lower sexual arousal
not they have any observed other-sex sexual orientation.
to sexual stimuli in general. For instance, Curtis and
As previously noted, in the early studies many people
Presly’s (1972) married male subject reported slightly
were described as heterosexually experienced. From
lower rates of sexual arousal in response to women than
the data provided by H.E. Adam and Sturgis in their
before intervention, in addition to reduced same-sex
1977 review, 61%–80% of male research participants
sexual arousal.
appeared to have histories of dating women, and
Among early studies, many found little or no
33%–63% had sexual intercourse with women prior
increases in other-sex sexual attraction among
to intervention. Additionally, some of the men were
participants who showed limited or no other-sex
married at the time of intervention. Because so many
sexual attraction to begin with. For instance, 2 of
of the research participants in these studies had other-
the 3 men in Barlow et al.’s (1975) within-subject
sex sexual attractions or intimate relationships at the
biofeedback investigation reported little or no other-sex
outset, it is unclear how to interpret changes in their
sexual interest prior to intervention. As measured by
levels of other-sex sexual activity.
penile circumference, one of these men demonstrated
negligible increases in other-sex sexual attraction; one
other individual showed stable low other-sex sexual Early Studies
attraction, which contradicted his self-report. Experimental studies
In contrast, a handful of the early single-patient
According to H. E. Adams and Sturgis (1977), only 8%
case studies found increases in other-sex attraction.
of participants in controlled studies are reported to have
For instance, Hanson and Adesso’s (1972) research
engaged in other-sex sexual behavior following SOCE.
participant, who was reported to be primarily same-sex
Among those studies we reviewed, only 2 participants
sexually attracted at the onset of intervention, increased
showed a significant increase in other-sex sexual
his sexual arousal to women and ultimately reported
activity (McConaghy & Barr, 1973; Tanner, 1974). In
that he enjoyed sex with women. Huff’s (1970) male
Tanner’s randomized controlled trial, men increased the
research participant also reported increased other-sex
frequency of intercourse with females but maintained
sexual attraction at 6 months following desensitization.
the frequency of intercourse with males.
Recent Studies Quasi-experimental studies

As we have noted, recent studies provide no sound basis McConaghy et al. (1981) found no difference in the
for attributing individual reports of their current other- frequency of other-sex sexual behavior following SOCE.
sex sexual attraction to SOCE. No results are reported
for these studies. Nonexperimental studies
Among within-subject patient studies in which aversion
Summary techniques were used, some studies reported that a
Taken together, the research provides little support subset of 12%–40% of people in the multiple-subject
for the ability of interventions to develop other-sex studies and all people in single-patient studies engaged
sexual attraction where it did not previously exist, in other-sex sexual behavior following intervention
though it may be possible to accentuate other-sex sexual (e.g., Bancroft, 1969; Fookes, 1960; Hallam & Rachman,
attraction among those who already experience it. 1972; Hanson & Adesso, 1972; Kendrick & McCullough,
1972; Larson, 1970). Regarding other techniques
studied in early intervention research, Barlow et weak measures of these constructs and weak study
al. (1975) reported that 1 of 3 research participants designs. Among the early studies that report on mental
began to date women after biofeedback. Huff’s (1970) health, three nonexperimental single-patient case
research participant also began to date women after studies report that clients were more self-assured
desensitization training. LoPiccolo (1971) used orgasmic (Blitch & Haynes, 1972) or less fearful and distressed
reconditioning to treat a male–female couple. The male (Hanson & Adesso, 1972; Huff, 1970).
could not achieve an erection with his female partner Overall, the lack of high-quality data on mental
and found sex with women dissatisfying. At 6 months, health outcomes of efforts to change sexual orientation
he was able to develop and maintain an erection and provide no sound basis for claims that people’s mental
ejaculate intravaginally. health and quality of life improve. Indeed, these studies
add little to understanding how SOCE affects people’s
Recent Studies long-term mental health.
As previously noted, recent studies provide no sound
basis for attributing individual reports of their current
sexual behavior to SOCE. No results are reported for
Reports of Harm
these studies. Determining the efficacy of any intervention includes
examination of its side effects and evidence of its harm
Summary (Flay et al., 2005; Lilienfeld, 2007). A central issue
in the debates regarding efforts to change same-sex
In general, the results from studies indicate that while
sexual attractions concerns the risk of harm to people
some people who undergo SOCE do engage in other-sex
that may result from attempts to change their sexual
sexual behavior afterward, the balance of the evidence
orientation. Here we consider evidence of harm in early
suggests that SOCE is unlikely to increase other-sex
and recent research.
sexual behavior. Findings show that the likelihood of
having sex with other-sex partners for those research
participants who possess no other-sex sexual orientation Early Studies
prior to the intervention is low. Early research on efforts to change sexual orientation
focused heavily on interventions that include aversion
techniques. Many of these studies did not set out to
Marriage investigate harm. Nonetheless, these studies provide
One outcome that some proponents of efforts to change some suggestion that harm can occur from aversive
sexual orientation are reported to value is entry into efforts to change sexual orientation.
heterosexual marriage. Few early studies reported on
whether people became heterosexually married after Experimental Studies
intervention. In a quasi-experimental study, Birk et In McConaghy and Barr’s (1973) experiment, 1
al. (1971) found that 2 of 18 respondents (11%) were respondent of 46 subjects is reported to have lost all
married at 36 months. Two uncontrolled studies sexual feeling and to have dropped out of the treatment
(Birk, 1974; Larson, 1970) indicated that a minority of as a result. Two participants reported experiencing
research participants ultimately married, though it is severe depression, and 4 others experienced milder
not clear what role, if any, intervention played in this depression during treatment. No other experimental
outcome. Recent research provides more information on studies reported on iatrogenic effects.
marriage, though research designs do not permit any
attribution of marital outcomes to SOCE.
Quasi-experimental Studies
None reported on adverse events.
Improving Mental Health
The relationship between mental health, psychological Nonexperimental Studies
well-being, sexual orientation, sexual orientation A majority of the reports on iatrogenic effects are
identity, and sexual behavior is important. Few studies provided in the nonexperimental studies. In the study
report health and mental health outcomes, and those conducted by Bancroft (1969), the negative outcomes
that do report outcomes tend to use psychometrically reported include treatment-related anxiety (20% of 16

participants), suicidal ideation (10% of 16 participants), perceptions of relief, happiness, improved relationships
depression (40% of 16 participants), impotence (10% with God, and perceived improvement in mental
of 16 participants), and relationship dysfunction health status, among other reported benefits. Many
(10% of 16 participants). Overall, Bancroft reported participants in studies by Beckstead and Morrow (2004)
the intervention had harmful effects on 50% of the and Shidlo and Schroeder (2002) described experiencing
16 research subjects who were exposed to it. Quinn, first the positive effects and then experiencing or
Harrison, and McAllister (1970) and Thorpe et al. acknowledging the negative effects later.
(1964) also reported cases of debilitating depression, Overall, the recent studies do not give an indication of
gastric distress, nightmares, and anxiety. Herman and the client characteristics that would lead to perceptions
Prewett (1974) reported that following treatment, their of harm or benefit. Although the nature of these studies
research participant began to engage in abusive use of precludes causal attributions for harm or benefit to
alcohol that required his rehospitalization. It is unclear SOCE, these studies underscore the diversity of and
to what extent and how his treatment failure may have range in participants’ perceptions and evaluations of
contributed to his abusive drinking. B. James (1962) their SOCE experiences.
reported symptoms of severe dehydration (acetonuria),
which forced treatment to be suspended. Overall,
although most early research provides little information
Summary
on how research participants fared over the longer term We conclude that there is a dearth of scientifically
and whether interventions were associated with long- sound research on the safety of SOCE. Early and recent
term negative effects, negative effects of treatment are research studies provide no clear indication of the
reported to have occurred for some people during and prevalence of harmful
immediately following treatment.
Studies from both periods outcomes among people
High dropout rates characterize early treatment indicate that attempts to who have undergone
studies and may be an indicator that research change sexual orientation efforts to change their
participants experience these treatments as harmful. may cause or exacerbate sexual orientation
Lilienfeld’s (2007) review of harm in psychotherapy distress and poor mental or the frequency of
identifies dropout as not only an indicator of direct occurrence of harm
health in some individuals,
harm but also of treatment ineffectiveness. because no study to date
including depression and of adequate scientific
suicidal thoughts. The lack rigor has been explicitly
Recent Studies
of rigorous research on the designed to do so. Thus,
Although the recent studies do not provide valid causal
evidence of the efficacy of SOCE or of its harm, some
safety of SOCE represents we cannot conclude how
a serious concern, as likely it is that harm
recent studies document that there are people who
do studies that report will occur from SOCE.
perceive that they have been harmed through SOCE
However, studies from
(Beckstead & Morrow, 2004; Nicolosi et al., 2000; perceptions of harm.
both periods indicate
Schaeffer et al., 2000; Schroeder & Shidlo, 2001; Shidlo
that attempts to change sexual orientation may cause
& Schroeder, 2002; Smith et al., 2004), just as other
or exacerbate distress and poor mental health in some
recent studies document that there are people who
individuals, including depression and suicidal thoughts.
perceive that they have benefited from it (Beckstead &
The lack of rigorous research on the safety of SOCE
Morrow, 2004; Nicolosi et al., 2000; Pattison & Pattison,
represents a serious concern, as do studies that report
1980; Schaeffer et al., 2000; Spitzer, 2003). Among
perceptions of harm (cf. Lilienfeld, 2007).
those studies reporting on the perceptions of harm, the
reported negative social and emotional consequences
include self-reports of anger, anxiety, confusion, Conclusion
depression, grief, guilt, hopelessness, deteriorated
relationships with family, loss of social support, loss The limited number of rigorous early studies and
of faith, poor self-image, social isolation, intimacy complete lack of rigorous recent prospective research on
difficulties, intrusive imagery, suicidal ideation, SOCE limits claims for the efficacy and safety of SOCE.
self-hatred, and sexual dysfunction. These reports Within the early group of studies, there are a small
of perceptions of harm are countered by accounts of number of rigorous studies of SOCE, and those focus on
the use of aversive treatments. These studies show that
enduring change to an individual’s sexual orientation is
uncommon and that a very small minority of people in
these studies showed any credible evidence of reduced
same-sex sexual attraction,
Few studies provided though some show lessened
strong evidence that physiological arousal
any changes produced to all sexual stimuli.
in laboratory conditions Compelling evidence of
decreased same-sex sexual
translated to daily life.
behavior and increased
attraction to and engagement in sexual behavior with
the other sex was rare. Few studies provided strong
evidence that any changes produced in laboratory
conditions translated to daily life. We found that
nonaversive and recent approaches to SOCE have not
been rigorously evaluated. Given the limited amount
of methodologically sound research, we cannot draw a
conclusion regarding whether recent forms of SOCE are
or are not effective.
We found that there was some evidence to indicate
that individuals experienced harm from SOCE. Early
studies do document iatrogenic effects of aversive
forms of SOCE. High dropout rates characterize early
aversive treatment studies and may be an indicator
that research participants experience these treatments
as harmful. Recent research reports indicate that there
are individuals who perceive they have been harmed
and others who perceive they have benefited from
nonaversive SOCE. Across studies, it is unclear what
specific individual characteristics and diagnostic criteria
would prospectively distinguish those individuals
who will later perceive that they have succeeded and
benefited from nonaversive SOCE from those who will
later perceive that they have failed or been harmed.
In the next chapter, we explore the literature on
individuals who seek to change their sexual orientation
to better understand their concerns.

5. Research on Adults Who UNDERGO

Sexual orientation change efforts
I
n the three chapters preceding this one, we have for religious
focused on sexual orientation change efforts37 (SOCE), We hope that an empathic populations. We hope
because such interventions have been the primary and comprehensive review that an empathic
focus of attention and contention in recent decades. Now of the scholarly literature of and comprehensive
we turn from the problem of sexual orientation change, the population that seeks review of the
as it has been defined by “expert” narratives of sin, and participates in SOCE scholarly literature
crime, disorder, and dysfunction in previous chapters, can facilitate an increased of the population
to the problem of sexual orientation distress, as it exists understanding of the needs that seeks and
in the lives of individuals who seek sexual orientation participates in
of this population so that
change. We try to present what the research literature SOCE can facilitate
an affirmative therapeutic
reveals—and clarify what it does not—about the natural an increased
history of the phenomenon of people who present to
approach may be developed. understanding of
LMHP seeking SOCE. the needs of this population so that an affirmative
We do this for two major reasons. The first is to therapeutic approach may be developed.
provide a scholarly basis for responding to the core task We decided to expand our review beyond empirical
force charge: “the appropriate application of affirmative literature to have a fuller view of the population in
therapeutic interventions” for the population of those question. Because of the lack of empirical research in
individuals who seek sexual orientation change. The this area, the conclusions must be viewed as tentative.
second is our hope to step out of the polemic that has The studies that are included in this discussion are (a)
defined approaches to sexual orientation distress. As surveys and studies of individuals who participated
discussed in the introduction, some professional articles in SOCE and their perceptions of change, benefit, and
(e.g., Rosik, 2001, 2003; Yarhouse & Burkett, 2002), harm (e.g., S. L. Jones & Yarhouse, 2007; Nicolosi et al.,
organizations, and accounts of polemical debates (cf. 2000; Schaeffer et al., 2000; Schroeder & Shidlo, 2001;
Drescher, 2003) have argued that APA and mainstream Shidlo & Schroeder, 2002; Spitzer, 2003; Throckmorton
psychology are ignoring the needs of those for whom & Welton, 2005);38 (b) high-quality qualitative studies
same-sex sexual attractions are unwanted, especially of the concerns of participants and the dynamics of
SOCE (e.g., Beckstead & Morrow, 2004; Erzen, 2006;
37
In this report, we use the term sexual orientation change efforts Ponticelli, 1999; Wolkomir, 2001, 2006); (c) case reports,
(SOCE) to describe a method that aims to change a same-sex clinical articles, dissertations, and reviews where sexual
sexual orientation (e.g., behavioral techniques, psychoanalytic
techniques, medical approaches, religious and spiritual approaches) to
heterosexual, regardless of whether mental health professionals or lay 38
As previously noted, these studies, due to their significant
individuals (including religious professionals, religious leaders, social methodological issues, cannot assess whether actual sexual
groups, and other lay networks, such as self-help groups) are involved. orientation change occurred.
orientation or sexual orientation identity change were not fully addressed age, gender, gender identity, race,
considered or attempted (e.g., Borowich, 2008; Drescher, ethnicity, culture, national origin, disability, language,
1998a; Glassgold, 2008; Gonsiorek, 2004; Haldeman, and socioeconomic status in the population of distressed
2004; Karten, 2006; Mark, 2008; Tan, 2008; Yarhouse et individuals who have sought SOCE.
al., 2005; Yarhouse, 2008); and (d) scholarly articles on Samples in recent SOCE studies have been composed
the concerns of religious individuals who are conflicted predominantly of individuals from conservative
by their same-sex sexual attractions, many of whom Christian denominations (Beckstead & Morrow, 2004;
accept their same-sex sexual orientation (e.g., Coyle & Erzen, 2006; Nicolosi et. al., 2000; Ponticelli, 1999;
Rafalin, 2000; Horlacher, 2006; Kerr, 1997; Mahaffy, Schroeder & Shidlo, 2001; Shidlo & Schroeder, 2002;
1996; Moran, 2007; O’Neill & Ritter, 1992; Ritter Spitzer, 2003; Wolkomir, 2001). These studies included
& O’Neill, 1989, 1995; Smith et al., 2004; Thumma, very few nonreligious individuals, and the concerns of
1991; Yip, 2000, 2002, 2003, 2005). We also reviewed religious individuals of faiths other than Christian are
a variety of additional scholarly articles on subtopics not described. The published literature focused on the
such as individuals in other-sex marriages and general impact of religiously oriented self-help groups or was
literature on sexual orientation concerns. performed by those who sought referrals from groups
that advocate SOCE. Thus, the existing literature
limits information to the concerns of a particular group
Demographics of religious individuals. Finally, most individuals in
The majority of participants in research studies on studies of SOCE have tried multiple ways to change
SOCE have been Caucasian men. Early studies included their sexual orientation, ranging from individual
some men who were court-referred (S. James, 1978; psychotherapy to religiously oriented groups, over long
McConaghy, 1969, 1976; McConaghy et al., 1972) and periods of time and with varying degrees of satisfaction
whose participation was not voluntary, but more recent and varying perceptions of success (Beckstead &
research primarily includes men who indicated that Morrow, 2004; Comstock, 1996; Horlacher, 2006; S. L.
their religion is of central importance (Beckstead & Jones & Yarhouse, 2007; Mark, 2008; Nicolosi et al.,
Morrow, 2004; S. L. Jones & Yarhouse, 2007; Wolkomir, 2000; Shidlo & Schroeder, 2002).
2001). Some studies included small numbers of women
(22%–29%; Nicolosi et al., 2000; S. L. Jones & Yarhouse,
2007; Schaeffer et al., 2000; Schroeder & Shidlo, 2001;
Why Individuals
Shidlo & Schroeder, 2002; Spitzer, 2003), and two Undergo SOCE
studies focused exclusively on women (Moran, 2007;
Because no research provides prevalence estimates
Ponticelli, 1999). However, these studies do not examine
of those participating in SOCE, we cannot determine
if there are potential differences between the concerns
how prevalent the wish to change sexual orientation
of men and women. Members of racial-ethnic groups are
is among the conservative Christian men who have
not included in some samples (Beckstead & Morrow,
predominated in the recent research, or among any
2004; Ponticelli, 1999; Wolkomir, 2001) and are a small
other population. Clients’ motivations to seek out and
percentage (5%–14%) of the sample in other studies (S.
participate in SOCE seem to be complex and varied
L. Jones & Yarhouse,
To date, the research has not and may include mental health and personality issues,
2007; Nicolosi et al.,
cultural concerns, religious faith, internalized stigma,
fully addressed age, gender, 2000; Schroeder &
as well as sexual orientation concerns (Beckstead
gender identity, race, ethnicity, Shidlo, 2001; Shidlo
& Morrow, 2004; Drescher, 1998a; Glassgold, 2008;
culture, national origin, disability, & Schroeder, 2002; Gonsiorek, 2004; Haldeman, 2004; Lasser & Gottlieb,
language, and socioeconomic Spitzer, 2003). In 2004; S. L. Jones & Yarhouse, 2007; Nicolosi et al.,
status in the population of the recent studies,
2000). Some of the factors influencing a client’s request
distressed individuals who have no comparisons were for SOCE that have been identified in the literature
reported between the
sought SOCE. include the following:
ethnic minorities in
the sample and others. Thus, there is no evidence that • Confusion or questions about one’s sexuality and
can elucidate concerns of ethnic minority individuals sexual orientation (Beckstead & Morrow, 2004; Smith
who have sought SOCE. To date, the research has et al., 2004)
Research on Adults Who UNDERGO Sexual orientation change efforts 45

• Religious beliefs that consider homosexuality sinful might not feel adept at managing a minority status and
or unacceptable (Erzen, 2006; Haldeman, 2004; thus seek out SOCE as a resolution.
S. L. Jones & Yarhouse, 2007; Mark, 2008; Ponticelli, Licensed mental health providers’ views about SOCE
1999; Tan, 2008; Tozer & Hayes, 2004; Wolkomir, and homosexuality appear to influence clients’ decision
2001, 2006; Yarhouse, 2008) making in choosing SOCE; some clients reported being
urged by their provider to participate in SOCE (M.
• Fear, stress, and anxiety surrounding the
King et al. 2004; Schroeder & Shidlo, 2001; Smith et al.,
implications of an LGB identity (especially the
2004). For example, Smith et al. (2004) found that some
illegitimacy of such an identity within the client’s
who had received SOCE had not requested it. These
religious faith or community) (Beckstead & Morrow,
individuals stated they had presented with confusion
2004; Glassgold, 2008; Haldeman, 2004; Mark, 2008;
and distress about their orientation due to cultural
Shidlo & Schroeder, 2002)
and relational conflicts and were offered SOCE as
• Family pressure to be heterosexual and community the solution.
rejection of those who are LGB (Haldeman, 2004;
Glassgold, 2008; Mark, 2008; Shidlo & Schroeder,
Specific Concerns
2002; Smith et al., 2004) of Religious Individuals
In general, the participants in research on SOCE have
Some individuals who have pursued SOCE report come from faiths that believe heterosexuality and
having had only unsuccessful or unfulfilling same-sex other-sex relationships are part of the natural order
sexual experiences in venues such as bars or sexual and are morally superior to homosexuality (Beckstead
“cruising” areas (Beckstead & Morrow, 2004; Shidlo & Morrow, 2004; Ponticelli, 1999; Shidlo & Schroeder,
& Schroeder, 2002). These experiences reflected and 2002; Wolkomir, 2001, 2006). The literature on SOCE
re-created restricted views that the “gay lifestyle” suggests that individuals reject or fear their same-sex
is nonspiritual, sexually desperate, or addicted, sexual attractions because of the internalization of the
depressive, diseased, and lonely (Drescher, 1998a; values and attitudes of their religion that characterize
Green, 2003; Rosik, 2003; Scasta, 1998). Many sexual homosexuality negatively and as something to avoid
minority individuals who do not seek SOCE are also (Beckstead & Morrow, 2004; Erzen, 2006; Glassgold,
affected by these factors. Thus, these findings do not 2008; Mark, 2008; Nicolosi et al., 2000; Ponticelli, 1999;
explain why some people seek SOCE and others do not. Wolkomir, 2001, 2006).
There are some initial findings that suggest The experiences of some conservative religious
differences between those who seek SOCE and those individuals with same-sex sexual attractions who
who resolve their sexual minority stress through undergo SOCE appear to involve significant stress
other means. For example, Ponticelli (1999) and S. due to the struggle to live life congruently with their
L. Jones and Yarhouse (2007) reported higher levels religious beliefs (S. L. Jones & Yarhouse, 2007;
of self-reported family violence and sexual abuse in Yarhouse et al., 2005; Yarhouse & Tan, 2004). These
their samples than were reported by Laumann et al. individuals perceive homosexuality to be irreconcilable
(1994) in a population-based sample. Beckstead and with their faith and do not wish to surrender or change
Morrow (2004) and S. L. Jones and Yarhouse reported their faith (Wolkomir, 2006). Some report fearing
high levels of parental rejection or authoritarianism considerable shifts or losses in their core identity, role,
among their religious samples (see also Smith et al., purpose, and sense of order if they were to pursue an
2004). Wolkomir (2001) found that distress surrounding outward LGB identity (Beckstead & Morrow, 2004;
nonconformity to traditional gender roles distinguished Glassgold, 2008; Haldeman, 2004; Mark, 2008; O’Neill
the men in her sample who did not accept their sexual & Ritter, 1992; Ritter & O’Neill, 1989, 1995; Wolkomir,
orientation from those who did. Similarly, Beckstead 2006). Some report difficulty coping with intense guilt
and Morrow found that distress and questions about over the failure to live a virtuous life and inability to
masculinity were an important appeal of SOCE; some stop committing unforgivable sins, as defined by their
men who sought SOCE described feeling distress about religion (Beckstead & Morrow, 2004; Glassgold, 2008;
not acting more traditionally masculine. In reviewing Mark, 2008). Some struggled with the belief in their
the SOCE literature, Miville and Ferguson (2004) Higher Power, with the perception that this Power was
proposed that White, conservatively religious men punishing or abandoning them—or would if they acted
on their attractions; some expressed feelings of anger religion and positive and negative religious coping
at the situation in which their Power had placed them (Ano & Vasconcelles, 2005; Exline, 2002; Pargament
(Beckstead & Morrow, 2004; Glassgold, 2008; cf. Exline, & Mahoney, 2002; Pargament et al., 2005; Trenholm,
2002; Pargament, Smith, Koenig, & Perez, 1998, 2005). Trent, & Compton, 1998).
Some individuals’ distress took the form of a crisis Some individuals coped by trying to compartmen-
of faith in which their religious beliefs that a same- talize their sexual orientation and religious identities
sex sexual orientation and religious goodness are and behaviors or to suppress one identity in favor
diametrically opposed led them to question their faith of another (Beckstead & Morrow, 2004; Haldeman,
and themselves (Glassgold, 2008; Moran, 2007; Tozer 2004; Glassgold, 2008; Mark, 2008). Relief came as
& Hayes, 2004). Spiritual struggles also occurred for some sought repentance from their “sins,” but others
religious sexual continued to feel isolated and unacceptable in both
The distress experienced by minorities due to religious and sexual minority communities (Shidlo &
religious individuals appeared struggling with Schroeder, 2002; Yarhouse & Beckstead, 2007). As an
intense, for not only did they conservatively alternative, some with strong religious motivations
face sexual stigma from society religious family, and purpose were willing to make sexual abstinence a
at large but also messages from friends, and goal and to limit sexual and romantic needs in order
their faith that they were deficient, communities who to achieve congruence with their religious beliefs (S.
sinful, deviant, and possibly thought differently L. Jones & Yarhouse, 2007; Yarhouse et al., 2005;
unworthy of salvation unless they than they did. Yarhouse, 2008). These choices are consistent with
The distress the psychology of religion that emphasizes religious
changed sexual orientation.
experienced by motivations and purpose (cf. Emmons, 1999; Emmons
religious individuals appeared intense, for not only did & Paloutzian, 2003; Hayduk, Stratkotter, & Rovers,
they face sexual stigma from society at large but also 1997; Roccas, 2005). Success with this choice varied
messages from their faith that they were deficient, greatly and appeared successful in a minority of
sinful, deviant, and possibly unworthy of salvation participants of studies, although not always in the long
unless they changed sexual orientation (Beckstead & term, and both positive and negative mental heath
Morrow, 2004). effects have been reported (Beckstead & Morrow, 2004;
These spiritual struggles had mental health Horlacher, 2006; S. L. Jones & Yarhouse, 2007; Shidlo
consequences. Clinical publications and studies of & Schroeder, 2002).
religious clients (both male and female) (Beckstead & Some conservatively religious individuals felt a
Morrow, 2004; Glassgold, 2008; Haldeman, 2004; Mark, need to change their sexual orientation because of the
2008) have described individuals who felt culpable, positive benefits that some individuals found from
unacceptable, unforgiven, disillusioned, and distressed religion (e.g., community, mode of life, values, sense
due to the conflict between their same-sex sexual of purpose) (Beckstead & Morrow, 2004; Borowich,
attractions and religion. The inability to integrate 2008; Glassgold, 2008; Haldeman, 2004; Mark, 2008;
religion and sexual orientation into a religiously Nicolosi et al., 2000; Yarhouse, 2008). Others hoped that
sanctioned life (i.e., one that provides an option being heterosexual would permit them to avoid further
for positive self-esteem and religiously sanctioned negative emotions (e.g., self-hatred, unacceptability,
sexuality and family life) has been described as isolation, confusion, rejection, and suicidality) and
causing great emotional distress (Beckstead & Morrow, expulsion from their religious community (Beckstead
2004; Glassgold, 2008; Mark, 2008; D. F. Morrow, & Morrow, 2004; Borowich, 2008; Glassgold, 2008;
2003). These spiritual struggles were sometimes Haldeman, 2004; Mark, 2008).
associated with anxiety, panic disorders, depression, The literature on non-Christian religious
and suicidality, regardless of the level of religiosity or denominations is very limited, and no detailed
the perception of religion as a source of comfort and literature was found on most faiths that differed from
coping (Beckstead & Morrow, 2004; Glassgold, 2008; the descriptions cited previously. There is limited
Haldeman, 2004). The emotional reactions reported in information on the specific concerns of observant
the literature on SOCE among religious individuals and Orthodox Jews39 (e.g., Blechner, 2008; Borowich,
are consistent with the literature in the psychology of
39
Among Jewish traditions, Orthodox Judaism is the most
religion that describes both the impact of an inability
conservative and does not have a role for same-sex relationships or
to live up to religious motivations and the effects of sexual orientation identities within its faith (Mark, 2008). Individuals

2008; Glassgold, 2008; Mark, 2008; Wolowelsky & 2006; Yip, 2000, 2002, 2003, 2005). For instance, some
Weinstein, 1995). This work stresses the conflicts that individuals are adherents of more accepting faiths
emerge within a communal and insular culture that and thus experience less distress. Some end their
values obedience to religious law and separates itself relationship with all religious institutions, although
from mainstream society and other faiths, including they may retain the religious and spiritual aspects of
mainstream LGB communities, thus isolating those in their original faiths that are essential to them. Others
conflict and distress (Glassgold, 2008; Mark, 2008). As choose another form of religion or spirituality that
marriage, family, and community are the central units is affirming of sexual minorities (Lease, Horne, &
of life within such a religious context, LGB individuals Noffsinger-Frazier, 2005; Ritter & O’Neill, 1989, 1995;
do not have a place in Orthodox Judaism and traditional Ritter & Terndrup, 2002; Rodriguez & Ouellette, 2000;
Jewish society and may fear losing contact with Yip, 2000, 2002, 2003, 2004).
family and society or bringing shame and negative
consequences to their family if their sexual orientation
is disclosed.40 Many of the responses and concerns of the
Conflicts of Individuals in Other-Sex
conservative Christian population appear relevant to Marriages or Relationships
those who are Orthodox Jews, especially those that arise There is some indication that some individuals with
from the conflicts of faith and sexual orientation, such same-sex sexual attractions in other-sex marriages or
as feelings of guilt, doubt, crisis of faith, unworthiness, relationships may request SOCE. Many subjects in the
and despair (Glassgold, 2008; Mark, 2008). early studies were married (H. E. Adams & Sturgis,
We found no scholarly psychological literature on 1977). In the more recent research, some individuals
sexual minority Muslims who seek out SOCE. There were married (e.g., Horlacher, 2006; Spitzer, 2003),
is some literature on debates about homosexuality and there are clinical reports of experiences of SOCE
within Islam and among other-sex married people (e.g., Glassgold, 2008;
It is important to note that not cultural conflicts Isay, 1998). For some, the marriage to another-sex
all sexual minorities with strong for those Muslims person was described as based on socialization, religious
religious beliefs experience who live in Western views that deny same-sex sexual attractions, lack of
sexual orientation distress, and societies with more awareness of alternatives, and hopes that marriage
some resolve such distress in progressive attitudes would change them (Gramick, 1984; Higgins, 2006;
toward homosexuality Isay, 1998; Malcolm, 2000; Ortiz & Scott, 1994; M.
other ways than SOCE
(Halstead & Lewicka, W. Ross, 1989). Others did not recognize or become
1998; Hekma, 2002; de Jong & Jivraj, 2002; Massad, aware of their sexuality, including same-sex sexual
2002; Nahas, 2004). Additionally, there is some attractions, until after marriage, when they became
literature on ways in which individuals integrate LGBT sexually active (Bozett, 1982; Carlsson, 2007; Schneider
identities with their Muslim faith (Minwalla, Rosser, et al. 2002). Others had attractions to both men and
Feldman, & Varga, 2005; Yip, 2005). We did not find women (Brownfain, 1985; Coleman, 1989; Wyers, 1987).
scholarly articles about individuals from other faiths For those who experienced distress with their other-
who sought SOCE, except for one article (Nicolosi et al., sex relationship, some were at a loss as to how to
2000) that that did not report any separate results for decide what to do with their conflicting needs, roles,
individuals from non-Christian faiths. and responsibilities and experienced considerable guilt,
It is important to note that not all sexual minorities shame, and confusion (Beckstead & Morrow, 2004;
with strong religious beliefs experience sexual Bozett, 1982; Buxton, 1994, 2004, 2007; Gochros, 1989;
orientation distress, and some resolve such distress Hays & Samuels, 1989; Isay, 1998; Shidlo & Schroeder,
in other ways than SOCE (Coyle & Rafalin, 2000; 2002; Yarhouse & Seymore, 2006). Love for their spouse
Mahaffy, 1996; O’Neill & Ritter, 1992; Ritter & O’Neill, conflicted with desires to explore or act on same-sex
1989, 1995; Rodriguez & Ouellette, 2000; Rodriguez, romantic and sexual feelings and relationships or to
connect with similar others (Bridges & Croteau, 1994;
in other denominations (e.g., Conservative, Reform, Reconstructionist) Coleman, 1981/1982; Yarhouse & Seymore, 2006).
may not face this type of conflict or this degree of conflict.
However, many individuals wished to maintain their
40
These conflicts may also be relevant to those whose religion and marriage and work at making that relationship last
community are similarly intertwined and separate from larger society;
see Cates (2007), for instance, regarding an individual from an Old (Buxton, 2007; Glassgold, 2008; Yarhouse, Pawlowski,
Amish community.
& Tan, 2003; Yarhouse & Seymore, 2006). Thus, the reported that some men felt they had more control in
sexual minority individual sometimes felt frustrated their sexual behavior and struggled less with their
and hopeless in facing feelings of loss and guilt that attractions after interventions, although same-sex
result from trying to decide whether to separate from sexual attractions still existed (cf. Beckstead & Morrow,
or remain in the marriage as they balanced hopes 2004). Additionally, some SOCE consumers describe
and ambiguities (e.g., the chances of finding a same- that trying and failing to change their same-sex sexual
sex romantic or sexual partner or the possibilities of orientation actually allowed them to accept their same-
experiencing further intimacy with one’s heterosexual sex attractions (Beckstead & Morrow, 2004; Smith et
spouse) (Hernandez & Wilson, 2007). al., 2004).
Participants described the social support aspects
of SOCE positively. Individuals reported as positive
Reported Impacts of SOCE that their LMHP accepted their goals and objections
and had similar values (i.e., believing that a gay
Perceived Positives of SOCE or lesbian identity is bad, sick, or inferior and not
In this section we review the perceptions of individuals supporting same-sex relationships) (Nicolosi et al.,
who underwent SOCE in order to examine what may 2000; Throckmorton & Welton, 2005). Erzen (2006),
be perceived as being helpful or detrimental by such Ponticelli (1999), and Wolkomir (2001) described
individuals, distinct from a scientific evaluation of the these religiously-oriented ex-gay groups as a refuge
efficacy or harm associated with sexual orientation for those who were excluded both from conservative
change efforts, as reported in Chapter 4. churches and from their families, because of their same-
Individuals have reported that SOCE provided sex sexual attractions, and from gay organizations
several benefits: (a) a place to discuss their conflicts and social networks, because of their conservative
(Beckstead & Morrow, 2004; Erzen, 2006; Ponticelli, religious beliefs. In Erzen’s experiences with these
1999; Wolkomir, 2001); (b) cognitive frameworks that men, these organizations seemed to provide options for
permitted them to reevaluate their sexual orientation individuals to remain connected to others who shared
identity, attractions, and selves in ways that lessened their religious beliefs, despite ongoing same-sex sexual
shame and distress and increased self-esteem (Erzen, feelings and behaviors. Wolkomir (2006) found that
2006; Karten, 2006; Nicolosi et al., 2000; Ponticelli, ex-gay groups recast
1999; Robinson, 1998; Schaeffer et al., 2000; Spitzer, ...such groups built hope, homosexuality as
2003; Throckmorton, 2002); (c) social support and recovery, and relapse into an an ordinary sin,
role models (Erzen, 2006; Ponticelli, 1999; Wolkomir, ex-gay identity, thus expecting and thus salvation
2001, 2006); and (d) strategies for living consistently same-sex sexual behaviors was still achievable.
with their religious faith and community (Beckstead & and conceiving them as Erzen observed that
Morrow, 2004; Erzen, 2006; Horlacher, 2006; S. L. Jones such groups built
opportunities for repentance
& Yarhouse, 2007; Nicolosi et al., 2000; Ponticelli, 1999; hope, recovery, and
Robinson, 1998; Wolkomir, 2001, 2006; Throckmorton &
and forgiveness. relapse into an ex-
Welton, 2005). gay identity, thus expecting same-sex sexual behaviors
For instance, participants reporting beneficial and conceiving them as opportunities for repentance
effects in some studies perceived changes to their and forgiveness.
sexuality, such as in their sexual orientation, gender Some participants of SOCE reported what they
identity, sexual behavior, sexual orientation identity perceived as other positive values and beliefs
(Beckstead, 2001; Nicolosi et al., 2000; Schaeffer et underlying SOCE treatments and theories, such as
al., 2000; Spitzer, 2003; Throckmorton & Welton, supporting celibacy, validating other-sex marriage,
2005), or improving nonsexual relationships with and encouraging and supporting other-sex sexual
men (Karten, 2006). These changes in sexual self- behaviors (Beckstead & Morrow, 2004; S. L. Jones &
views were described in a variety of ways (e.g., ex- Yarhouse, 2007; Nicolosi et al., 2000; Throckmorton
gay, heterosexual, heterosexual with same-sex sexual & Welton, 2005). For instance, many SOCE theories
attractions, heterosexual with a homosexual past) and and communities focus on supporting clients’ values
with varied and unpredictable outcomes, some of which and views, often linked to religious beliefs and
were temporary (Beckstead, 2003; Beckstead & Morrow, values (Nicolosi et al., 2000; Schaeffer et al., 2000;
2004; Shidlo & Schroeder, 2002). McConaghy (1999) Throckmorton & Welton, 2005). Ponticelli (1999)

described that ex-gay support groups provide alternate orientation identity, and a unique self-identity. Some
ways of viewing same-sex attractions that permit individuals chose actively to disidentify with a sexual
individuals to see themselves as heterosexual, which minority identity so the individual’s sexual orientation
provided individuals a sense of possibility. identity and sexual orientation may be incongruent
Participants’ interpretations of their SOCE (Wolkomir, 2001, 2006; Yarhouse, 2001; Yarhouse &
experiences and the outcomes of their experiences Tan, 2004; Yarhouse et al., 2005).
appeared to be shaped by their religious beliefs and Further, the findings suggest that some participants
by their motivations to be heterosexual. In Schaeffer may have reconceptualized their sexual orientation
et al. (2000), people whose motivation to change was identity as heterosexual but not achieved sexual
strongly influenced by orientation change, as they still experienced same-
These findings underscore their Christian beliefs sex sexual attractions and desires (for a discussion of
the importance of the nature and convictions were the distinction between sexual orientation and sexual
and strength of participants’ more likely to perceive orientation identity, see Chapter 3; see also R. L.
motivations, as well as the themselves as having Worthington, 2003; R. L. Worthington et al., 2002). For
importance of religious a heterosexual sexual these individuals, sexual orientation identity may not
identity in shaping self- orientation after their reflect underlying attractions and desires (Beckstead,
reports of perceived sexual efforts. Schaeffer et al. 2003; Beckstead & Morrow, 2004; McConaghy, 1999;
also found that those Shidlo & Schroeder, 2002).
orientation change.
who were less religious
were more likely to perceive themselves as having an
LGB sexual orientation after the intervention. Some
Perceived Negatives of SOCE
of the respondents in Spitzer’s (2003) study concluded Participants in the studies by Beckstead and Morrow
that they had altered their sexual orientation, although (2004) and Shidlo and Schroeder (2002) described the
they continued to have same-sex sexual attractions. harm they experienced as (a) decreased self-esteem and
These findings underscore the importance of the nature authenticity to others; (b) increased self-hatred and
and strength of participants’ motivations, as well as the negative perceptions of homosexuality; (c) confusion,
importance of religious identity in shaping self-reports depression, guilt, helplessness, hopelessness, shame,
of perceived sexual orientation change. social withdrawal, and suicidality; (d) anger at and a
A number of authors (Beckstead & Morrow, 2004; sense of betrayal by SOCE providers; (e) an increase
Ponticelli, 1999; Wolkomir, 2001; Yarhouse et al., in substance abuse and high-risk sexual behaviors;
2005; Yarhouse & Tan, 2004) have found that identity (f) a feeling of being dehumanized and untrue to self;
exploration and reinterpretation were important parts (g) a loss of faith; and (h) a sense of having wasted
of SOCE. Beckstead and Morrow (2004) described the time and resources. Interpreting SOCE failures as
identity development of their research participants who individual failures was also reported in this research,
were or had been members of the Church of Jesus Christ in that individuals blamed themselves for the failure
of Latter-Day Saints and had undergone therapy to (i.e., weakness, and lack of effort, commitment, faith, or
change their sexual orientation to heterosexual. In this worthiness in God’s eyes). Intrusive images and sexual
research, those who experienced the most satisfaction dysfunction were also reported, particularly among
with their lives seemed to undergo a developmental those who had experienced aversion techniques.
process that included the following aspects: (a) Participants in these studies related that their
becoming disillusioned, questioning authorities, and relationships with others were also harmed in the
reevaluating outside norms; (b) wavering between ex- following ways: (a) hostility and blame toward parents
gay, “out” gay, heterosexual, or celibate identities that due to believing they “caused” their homosexuality;
depended on cultural norms and fears rather than on (b) anger at and a sense of betrayal by SOCE providers;
internally self-informed choices; and (c) resolving their (c) loss of LGB friends and potential romantic
conflicts through developing self-acceptance, creating partners due to beliefs they should avoid sexual
a positive self-concept, and making decisions about minority people; (d) problems in sexual and emotional
their relationships, religion, and community affiliations intimacy with other-sex partners, (e) stress due to the
based on expanded information, self-evaluations, and negative emotions of spouses and family members
priorities. The participants had multiple endpoints, because of expectations that SOCE would work (e.g.,
including LGB identity, “ex-gay” identity, no sexual disappointment, self-blame for failure of change,
perception of betrayal by partner) (see also J. G. Ford, Ponticelli (1999) and Wolkomir (2001, 2006) found
2001); (f) guilt and confusion when they were sexually several emotional and cognitive processes that
intimate with other same-sex members of the ex-gay seemed central to the sexual orientation “identity
groups to which they had turned for help in avoiding reconstruction” (i.e., recasting oneself as ex-gay,
their attractions. heterosexual, disidentifying as LGB) (Ponticelli, 1999,
Licensed mental health providers working with p. 157) that appeared to relieve the distress caused by
former participants in SOCE noted that when conflicts between religious values and sexual orientation
clients who formerly engaged in SOCE consider (Ponticelli, 1999). Ponticelli identified certain conditions
adopting an LGB identity or experience same-sex necessary for resolving identity conflicts, including (a)
romantic and sexual relationships later in life, they adopting a new discourse or worldview, (b) engaging
have more difficulty with identity development due in a biographical reconstruction, (c) embracing a new
to delayed developmental tasks and dealing with explanatory model, and (d) forming strong interpersonal
any harm associated with SOCE (Haldeman, 2001; ties. For those rejecting a sexual minority identity, these
Isay, 2001). Such treatments can harm some men’s changes occurred by participants taking on “ex-gay”
understanding of their masculine identity (Haldeman, cultural norms and language and finding a community
2001; Schwartzberg & Rosenberg, 1998) and obscure that enabled and reinforced their primary religious
other psychological issues that contribute to distress beliefs, values, and concerns. For instance, participants
(Drescher, 1998a). were encouraged to rely on literal interpretations of
These individuals identified aspects of SOCE the Bible, Christian psychoanalytic theories about
that they perceived as negative, which included (a) the causes of homosexuality, and “ex-gay” social
receiving pejorative or false information regarding relationships to guide and redefine their lives.
sexual orientation and the lives of LGB individuals; Interesting counterpoints to the SOCE support
(b) encountering overly directive treatment (told not groups are LGB-affirming religious support groups.
to be LGB) or to repress sexuality; (c) encountering These groups employ similar emotional and cognitive
treatments based on unsubstantiated theories or strategies to provide emotional support, affirming
methods; (d) being misinformed about the likelihood ideologies, and identity reconstruction. Further, they
of treatment outcomes (i.e. sexual orientation appear to facilitate integration of same-sex sexual
change); (e) receiving inadequate information about attractions and religious identities into LGB-affirming
alternative options; and (f) being blamed for lack of identities (Kerr, 1997; Thumma, 1991; Wolkomir, 2001,
progress of therapy. Some participants in Schroeder 2006).
and Shidlo’s (2001) study reported feeling coerced by Both sexual-minority-affirming and ex-gay mutual
their psychotherapist or religious institution to remain help groups potentially appear to offer benefits to
in treatment and pressured to represent to others their participants that are similar to those claimed for
that they had achieved a “successful reorientation” to self-help groups, such as social support, fellowship,
heterosexuality. role models, and new ways to view a problem through
unique philosophies or ideologies (Levine, Perkins, &
Perkins, 2004).
Religiously Oriented Mutual help groups’ philosophy often gives a
Mutual Support Groups normalizing meaning to the individual’s situation and
Much of the literature discusses the specific dynamics may act as an “antidote” to a sense of deficiency (Antze,
and processes of religiously oriented mutual self- 1976). New scripts can shape how a member views
help groups. A reduction of distress through sexual and shares her or his life story by replacing existing
orientation identity reconstruction or development personal or cultural scripts with the group ideology
is described in the literature of self-help or religious (Humphreys, 2004; Mankowski, 1997, 2000; Maton,
groups, both for individuals who reject (Erzen, 2006; 2000). For instance, individuals who are involved
Ponticelli, 1999; Wolkomir, 2001, 2006) and for in SOCE or LGB-affirming groups may adopt a new
individuals who accept a minority sexual orientation explanation for their homosexuality that permits
identity (Kerr, 1997; Rodriguez, 2006; Rodriguez & reconceptualizing themselves as heterosexual or
Ouellette, 2000; Thumma, 1991; Wolkomir, 2006). acceptable as LGB people (Ponticelli, 1999; Wolkomir,
2001, 2006).

Remaining Issues Pleck, 1995) made groups that embraced traditional

gender roles and gender-based models of homosexuality
Ponticelli (1999) ended her article with the following appealing to some men. Gender-based internalized
questions: “What leads a person to choose Exodus stigma and self-stigma increased distress in these men.
and a frame that defined them as sinful and in need Finally, “contractual promises” to God (Wolkomir,
of change?” (p. 170). Why do some individuals choose 2001, p. 332) regarding other concerns (e.g., drug/
SOCE over sexual-minority-affirming groups, and why alcohol abuse) increased the likelihood that men would
are some individuals attracted to and able to find relief choose ex-gay groups. However, these issues are as yet
in a particular ideology or group over other alternatives? underresearched and remain unresolved.
There are some indications that the nature and Very little is known about the concerns of other
type of religious motivation and faith play a role. religious faiths and diverse ethnicities and cultures
In comparing individuals with intrinsic41 and quest (Harper et al., 2004; Miville & Ferguson, 2004). There
religious motivations, Tozer and Hayes (2004) proposed are some studies in the empirical and theoretical
that those with a greater intrinsic religiosity may be literature, clinical cases, and material from other fields
motivated to seek out SOCE more than those with (e.g., anthropology, sociology) on sexual orientation
the quest motivation. However, within both groups among ethnic minorities and in different cultures
(intrinsic and quest motivation), internalized stigma and countries. Sexual orientation identity may be
influenced who sought SOCE; those who sought constructed differently in ethnic minority communities
SOCE had higher levels of internalized stigma. Tozer and internationally (Carillo, 2002; Boykin, 1996;
and Hayes (2004) and Mahaffy (1996) found that Crawford et al., 2002; Harper et al., 2004; Mays,
individuals in earlier stages of sexual minority identity Cochran, & Zamudio, 2004; Miville & Ferguson,
development (see, e.g., Cass, 1979; Troiden, 1993) were 2004; Walters, Evans-Campbell, Simoni, Ronquillo,
more likely to pursue SOCE. & Bhuyan, 2006; Wilson & Miller, 2002; Zea, Diaz, &
Wolkomir (2001, 2006) found some evidence Reisen, 2003). There is some information that such
that biographical factors may be central to these populations experience distress or conflicts due to
choices. Wolkomir (2006) found that motivations for legal discrimination, cultural stigma, and other factors
participation in faith distinguished individuals who (McCormick, 2006), and in some other countries,
joined ex-gay groups from sexual-minority-affirming homosexuality is still seen as a mental disorder or is
groups. For instance, men who joined conservative illegal (Forstein, 2001; International Gay & Lesbian
Christian communities as a solution to lives that had Human Rights Commission, n.d.). We did not identify
been lonely and disconnected and those who turned empirical research on members of these populations
to faith when they felt overwhelmed by circumstance who had sought or participated in SOCE other than as
were more likely to join ex-gay groups. Wolkomir part of the research already cited.
hypothesized that these men perceived homosexuality
as a threat to the refuge that conservative faith
provided (cf. Glassgold, 2008). Summary and Conclusion
The other common path to an ex-gay (as well as, to The recent literature identifies a population of
some degree, to a sexual-minority-affirming) group was predominantly White men who are strongly religious
remaining in the community of faith in which one was and participate in conservative faiths. This contrasts
raised and meeting the expectations of that faith, such with the early research that included nonreligious
as heterosexuality. The loss of a personal relationship or individuals who chose SOCE due to the prejudice and
a betrayal by a loved one might influence an individual’s discrimination caused by sexual stigma. Additionally,
choice of a group, and the stress of loss and the self- there is a lack of research on non-Christian individuals
blame that accompany such a loss may constitute and limited information on ethnic minority populations,
factors that lead someone to seek SOCE (Wolkomir, women, and nonreligious populations.
2001, 2006). The religious individuals in the recent literature
Additionally, Wolkomir found that a sense of gender report experiencing serious distress, including
inadequacy (see also “gender role strain”; Levant, 1992; depression, identity, confusion, and fear due to the
strong prohibitions of their faith regarding same-
41
Internal motivation refers to a motivation that focuses on belief and
values as ends in themselves, and quest sees religion as a process of sex sexual orientation, behaviors, and relationships.
exploration.
These individuals struggle to combine their faiths and • Experiencing understanding and recognition of the
their sexualities in meaningful personal and social importance of religious beliefs and concerns
identities. These struggles cause them significant
• Receiving empathy for their very difficult dilemmas
distress, including frequent feelings of isolation from
and conflicts
both religious organizations and sexual minority
communities. The ensuing struggles with faith, • Being provided with affective and cognitive tools for
sexuality and identity lead many individuals to identity exploration and development
attempt sexual orientation change through professional
interventions and faith-based efforts. Reports of clients’ perceptions of harm also provide
These individuals report a range of effects from their information about aspects of interventions to avoid:
efforts to change their sexual orientation, including
• Overly directive treatment that insists on a particular
both benefits and
Mutual self-help groups outcome
harm. The benefits
(whether affirming or rejecting include social and • Inaccurate, stereotypic, or unscientific information or
of sexual minorities) may spiritual support, a lack of positive information about sexual minorities
provide a means to resolve lessening of isolation, and sexual orientation
the distress caused by an understanding
of values and • The use of unsound or unproven interventions
conflicts between religious
faith and sexual • Misinformation on treatment outcomes
values and sexual orientation. orientation identity
reconstruction. The perceived harms include negative It is important to note that the factors that are
mental health effects (depression and suicidality), identified as benefits are not unique to SOCE and can
decreased self-esteem and authenticity to others, be provided within an affirmative and multiculturally
increased self-hatred and negative perceptions of competent framework that can mitigate the harmful
homosexuality; a loss of faith, and a sense of having aspects of SOCE by addressing sexual stigma while
wasted time and resources. understanding the importance of religion and social
Mutual self-help groups (whether affirming or needs. An approach that integrates the information
rejecting of sexual minorities) may provide a means identified in this chapter as helpful is described in an
to resolve the distress caused by conflicts between affirmative model of psychotherapy in Chapter 6.
religious values and sexual orientation (Erzen, 2006;
Kerr, 1997; Ponticelli, 1999; Thumma, 1991; Wolkomir,
2001, 2006). Sexual orientation identity reconstruction
found in such groups (Ponticelli, 1999; Thumma, 1991)
and identity work in general may provide reduction
in individual distress (Beckstead & Morrow, 2004).
Individuals may seek out sexual-minority-affirming
religious groups or SOCE in the form of ex-gay religious
support groups due to (a) a lack of other sources of social
support; (b) a desire for active coping, including both
cognitive and emotional coping (Folkman & Lazarus,
1980); and (c) access to methods of sexual orientation
identity exploration and reconstruction (Ponticelli,
1999; Wolkomir, 2001).
The limited information provided by the literature on
individuals who experience distress with their sexual
attractions and seek SOCE provides some direction to
LMHP in formulating affirmative interventions for this
population. The following appear to be helpful to clients:
• Finding social support and interacting with others in

similar circumstances

6. The Appropriate Application

of Affirmative Therapeutic Interventions
for Adults Who Seek SOCE
O
ur charge was to “generate a report that emphasized acceptance, support. and recognition of
includes discussion of “the appropriate important values and concerns.
application of affirmative therapeutic
interventions for children, adolescents, and adults The appropriate application of affirmative psycho-
who present [themselves for treatment expressing] a therapy is based on the following scientific facts:
desire to change either their sexual orientation or their
behavioral expression of their sexual orientation.” In
this chapter, we report on affirmative interventions
of human sexuality; in other words, they are not
for adults. Affirmative interventions for children and
indicators of mental or developmental disorders.
adolescents are reported separately in Chapter 8.
The appropriate application of affirmative therapeutic • Homosexuality and bisexuality are stigmatized,
interventions for adults is built on three key findings in and this stigma can have a variety of negative
the research: consequences (e.g., minority stress) throughout the
life span (D’Augelli & Patterson, 1995; DiPlacido,
• Our systematic review of the research on SOCE
1998; Herek & Garnets, 2007; Meyer, 1995, 2003).
found that enduring change to an individual’s
sexual orientation as a result of SOCE was unlikely. • Same-sex sexual attractions and behavior can occur
Further, some participants were harmed by the in the context of a variety of sexual orientations and
interventions. sexual orientation identities (Diamond, 2006; Hoburg
et al., 2004; Rust, 1996; Savin-Williams, 2005).
• What appears to shift and evolve in some individuals’
lives is sexual orientation identity, not sexual • Gay men, lesbians, and bisexual individuals can live
orientation (Beckstead, 2003; Beckstead & Morrow, satisfying lives as well as form stable, committed
2004; Buchanan, Dzelme, Harris, & Hecker, 2001; relationships and families that are equivalent to
Cass, 1983/1984; Diamond, 1998, 2006; McConaghy, heterosexual relationships in essential respects
1999; Ponticelli, 1999; Rust, 2003; Tan, 2008; (APA, 2005c; Kurdek, 2001, 2003, 2004; Peplau &
Throckmorton & Yarhouse, 2006; Troiden, 1988; Fingerhut, 2007).
Wolkomir, 2001, 2006; R. L. Worthington, 2003,
2004). • There are no empirical studies or peer-reviewed
research that support theories attributing same-sex
• Some participants in SOCE reported benefits, but the sexual orientation to family dysfunction or trauma
benefits were not specific to SOCE. Rather, clients (Bell et al., 1981; Bene, 1965; Freund & Blanchard,
perceived a benefit when offered interventions that 1983; Freund & Pinkava, 1961; Hooker, 1969;
McCord et al., 1962; D. K. Peters & Cantrell, 1991; & Israel, 2007, Buchanan et al., 2001; Drescher, 1998a;
Siegelman, 1974, 1981; Townes et al., 1976). Glassgold; 2008; Gonsiorek; 2004; Haldeman, 2004,
Lasser & Gottlieb, 2004; Mark, 2008; Ritter & O’Neill,
Studies indicated that experiences of felt stigma, such 1989, 1995; Tan, 2008; Throckmorton & Yarhouse,
as self-stigma, isolation and rejection from relationships 2006; Yarhouse & Tan, 2005a; and Yarhouse, 2008).
and valued communities, lack of emotional support and The client-centered approach (Rogers, 1957; cf. Brown,
accurate information, and conflicts between multiple 2006) stresses (a) the LMHP’s unconditional positive
identities and between values and attractions, played regard for and congruence and empathy with the client,
a role in creating distress in individuals (Bartoli & (b) openness to the client’s perspective as a means to
Gillem, 2008; Beckstead & Morrow, 2004; Coyle & understanding their concerns, and (c) encouragement
Rafalin, 2000; Glassgold, 2008; Haldeman, 2004; Herek, of the client’s positive self-concept. This approach
2009; Mahaffy, 1996; Mark, 2008; Ponticelli, 1999; incorporates aspects of the therapeutic relationships
Wolkomir, 2001; Yip, 2000, 2002, 2005). Consequently, that have been shown to have a positive benefit in
an essential focus of treatment is mitigating the research literature, such as empathy, positive regard,
negative mental health consequences of minority stress and honesty (APA, 2005a, 2005b; Lambert & Barley,
from stigma resulting from age, gender, gender identity, 2001; Norcross, 2002; Norcross & Hill, 2004).
race, ethnicity, culture, national origin, religion, sexual This approach consists of empathic attunement to
orientation, disability, language, and socioeconomic concerns regarding sexual orientation identity that
status (Brown, 2006; Cochran & Mays, 2006; Herek, acknowledges the role of cultural context and diversity
2009; Herek & Garnets, 2007; Mays & Cochran, and allows the different aspects of the evolving
2001; Russell & Bohan, 2007). For instance, although self to be acknowledged, explored, respected, and
many religious individuals’ desired to live their lives potentially rewoven into a more coherent sense of self
consistently with their values, primarily their religious that feels authentic to the client (Bartoli & Gillem,
values, we concluded that telic congruence grounded 2008; Beckstead &
in self-stigma and shame was unlikely to result in The client-centered Morrow, 2004; Brown,
psychological well-being (Beckstead & Morrow, 2004; therapeutic environment 2006; Buchanan et
Glassgold, 2008; Gonsiorek, 2004; Haldeman, 2004; aspires to be a place of al., 2001; Glassgold,
Mark, 2008; Shidlo & Schroeder, 2002). compassionate caring 2008; Gonsiorek, 2004;
Haldeman, 2004;
and respect that facilitates Mark, 2008; Miville &
A Framework for the Appropriate development...by exploring Ferguson, 2004; Tan,
Application of Affirmative issues without criticism 2008; Throckmorton
or condemnation and & Yarhouse, 2006;
Therapeutic Interventions reducing distress caused by Yarhouse, 2008).
On the basis of the three findings summarized The client-centered
isolation, stigma, and shame. therapeutic environment
previously and our comprehensive review of the
research and clinical literature, we developed a aspires to be a place of compassionate caring and
framework for the appropriate application of affirmative respect that facilitates development (Bronfennbrenner,
therapeutic interventions for adults that has the 1979; Winnicott, 1965) by exploring issues without
following central elements: (a) acceptance and support, criticism or condemnation (Bartoli & Gillem,
(b) assessment, (c) active coping, (d) social support, and 2008; Beckstead & Morrow, 2004; McMinn, 2005;
(e) identity exploration and development. Throckmorton & Welton, 2005) and reducing distress
caused by isolation, stigma, and shame (Drescher,
1998a; Glassgold, 2008; Haldeman, 2004; Isay, 2001).
Acceptance and Support This approach involves empathizing with the client’s
In our review of the research and clinical literature, we desire to change his or her sexual orientation while
found that the appropriate application of affirmative understanding that this outcome is unlikely (Beckstead
therapeutic interventions for adults presenting & Morrow, 2004; Glassgold, 2008; Haldeman, 2004).
with a desire to change their sexual orientation has Haldeman (2004) cautioned that LMHP who turn down
been grounded in a client-centered approach (e.g., a client’s request for SOCE at the onset of treatment
Astramovich, 2003; Bartoli & Gillem, 2008; Beckstead without exploring and understanding the many
The Appropriate Application of Affirmative Therapeutic Interventions for Adults Who Seek SOCE 55
reasons why the client may wish to change may instill as part of the whole person and to develop interventions
hopelessness in the client, who already may feel at a based on all significant variables (Beckstead & Israel,
loss about viable options. Haldeman emphasized that 2007; Gonsiorek, 2004; Haldeman, 2004; Lasser &
before coming to a conclusion regarding treatment Gottlieb, 2004). This comprehensive assessment
goals, LMHP should seek to validate the client’s wish includes understanding how a client’s distress may
to reduce suffering and normalize the conflicts at the involve (a) psychological disequilibrium from trying
root of distress, as well as create a therapeutic alliance to manage the stressors (e.g., anxiety, depression,
that recognizes the issues important to the client (cf. substance abuse and dependence, sexual compulsivity,
Beckstead & Israel, 2007; Glassgold, 2008; Liddle, 1996; posttraumatic stress disorder) and (b) negative effects
Yarhouse, 2008). from developmental experiences and traumas and
Affirmative client-centered approaches consider the impact of cultural and family norms. Assessing
sexual orientation uniquely individual and inseparable the influence of factors such as age, gender, gender
from an individual’s personality and sense of self identity, race, ethnicity, culture, national origin,
(Glassgold, 1995; 2008). This includes (a) being aware religion, disability, language, and socioeconomic status
of the client’s unique personal, social, and historical on the experience and expression of sexual orientation
context; (b) exploring and countering the harmful and sexual orientation identity may aid the LMHP in
impact of stigma understanding the complexity of the client’s distress.
LMHP who work with religious and stereotypes The literature indicated that most of the individuals
clients who are distressed by on the client’s self- who are extremely distressed about their same-sex
their sexual orientation may concept (including sexual orientation and who are interested in SOCE have
wish to consult the literature the prejudice related conservative religious beliefs. A first step to addressing
from the psychology of religion. to age, gender, the conflicts regarding faith and sexual orientation is a
gender identity, thorough assessment of clients’ spiritual and religious
This literature reminds us that race, ethnicity, beliefs, religious identity and motivations, and spiritual
religion is a complex way of culture, national functioning (Exline, 2002; Hathaway, Scott, & Garver,
making meaning that includes origin, religion, 2004; Pargament et al., 2005). This helps the LMHP
not only beliefs and values but sexual orientation, understand how the current dilemmas impact clients’
also community, relationships, disability, language, spiritual functioning (and vice versa) and assess
traditions, family ties, coping, and socioeconomic resources for growth and renewal.
status); and (c) This assessment could include (a) understanding
and social identity.
maintaining a broad the specific religious beliefs of the client; (b) assessing
view of acceptable life choices. LMHP who work with the religious and spiritual conflicts and distress
religious clients who are distressed by their sexual experienced by the client (Hathaway et al., 2004);
orientation may wish to consult the literature from (c) assessing clients’ religious goals (Emons &
the psychology of religion. This literature reminds us Paloutzian, 2003) and motivations (e.g., internal,
that religion is a complex way of making meaning that external, quest, fundamentalism) and positive
includes not only beliefs and values but also community, and negative ways of coping within their religion
relationships, traditions, family ties, coping, and social (Pargament, Koenig, Tasakeshwas, & Hahn, 2001;
identity (Mark, 2008; Pargament & Mahoney, 2002, Pargament & Mahoney, 2005; Pargament et al., 1998);
2005; Pargament et al., 2005; Park, 2005). (d) seeking to understand the impact of religious beliefs
and religious communities on the experience of self-
stigma, sexual prejudice, and sexual orientation identity
Assessment (Beckstead & Morrow, 2004; Buchanan et al., 2001;
In our review of the research and clinical literature, we Fulton et al., 1999; Herek, 1987; Hunsberger & Jackson,
found that the appropriate application of affirmative 2005; J. P. Schwartz & Lindley, 2005; Schulte & Battle,
therapeutic interventions for adults presenting with 2004); (e) developing an understanding of clients’
a desire to change their sexual orientation included faith identity development (Fowler, 1981, 1991; Oser,
comprehensive assessment in order to obtain a fuller 1991; Reich, 1991; Streib, 2005) and its intersection
understanding of the multiple issues that influence that with sexual orientation identity development (Harris,
client’s presentation. Such an assessment allows the Cook, & Kashubeck-West, 2008; Hoffman et al., 2007;
LMHP and client to see the client’s sexual orientation Knight & Hoffman, 2007; Mahaffy, 1996; Yarhouse &
Tan, 2005a; Yarhouse et al., 2005); and (f) enhancing relational health.42 Initiating sensitive but open and
with clients, when applicable, the search for meaning, educated discussions with clients about their views of
significance, and a relationship with the definitions and experiences with sexuality may be most helpful,
of the sacred in their lives (Fowler, 2001; Goldstein, especially for those who have never had permission or
2007; Pargament & Mahoney, 2005; Shafranske, 2000). space to talk about such issues (Schneider et al. 2002).
Finally, an awareness of the varieties of religious faith,
issues for religious minorities, and the unique role of
religion in ethnic minority communities is important (D.
Active Coping
A. Cook & Wiley, 2000; Zea, Mason, & Muruia, 2000; In our review of the research and clinical literature, we
Trujillo, 2000). found that the appropriate application of affirmative
Some individuals who present with requests for therapeutic interventions for adults presenting with a
SOCE may have clinical concerns that go beyond their desire to change their
sexual orientation conflicts. These may include mental
Active coping strategies are sexual orientation
health disorders, personality disorders, or trauma- efforts that include cognitive, seeks to increase
related conditions that influence the presentation of behavioral, or emotional clients’ capacity
sexual orientation conflicts and distress (cf. Brown, responses designed to for active coping to
2006; Drescher, 1998a; Glassgold, 2008; Haldeman, change the nature of the mitigate distress.
2001; Iwasaki & Ristock, 2007; Lasser & Gottlieb, Coping strategies
stressor itself or how an
2004; Mohr & Fassinger, 2003; S. L. Morrow, 2000; refer to the efforts
individual perceives it. that individuals use to
Pachankis et al., 2008; Schneider et al., 2002; Sherry,
2007; Szymanski & Kashubeck-West, 2008). Such resolve, endure, or diminish stressful life experiences,
conditions may require intervention separate from and active coping strategies are efforts that include
or in conjunction with the intervention directed at cognitive, behavioral, or emotional responses designed
the sexual orientation distress. For instance, some to change the nature of the stressor itself or how an
clients who seek SOCE may have histories of trauma individual perceives it (Folkman & Lazarus, 1980).
(Ponticelli, 1999), and in some individuals sexual abuse Research has indicated that active coping is superior
can cause sexual orientation identity confusion and to other efforts, such as passive coping, and that
other sexuality-related concerns (Gartner, 1999). Other individuals use both cognitive and emotional strategies
individuals seeking SOCE may make homosexuality the to address stressful events (Folkman & Lazarus, 1980).
explanation for all they feel is wrong with their lives These strategies are described in more depth below.
(Beckstead & Morrow, 2004; Erzen, 2006; Ponticelli,
1999; Shidlo & Schroeder, 2002). This displacement of Cognitive Strategies
self-hatred onto homosexuality can be an attempt to Research on those individuals who resolve their sexual
resolve a sense of badness and shame (cf. Brandchaft, orientation conflicts indicate that cognitive strategies
2007; Drescher, 1998a), and clients may thus need helped to reduce cognitive dissonance (Coyle & Rafalin,
effective interventions to deal with this self-hatred and 2000; Mahaffy, 1996). One of the dilemmas for many
shame (Brandchaft, 2007; Linehan, Dimeff, & Koerner, clients who seek sexual orientation change is that
2007; Zaslav, 1998). they see their situation as an either–or dichotomy. For
Sexual stigma impacts a client’s appraisal of instance, their same-sex sexual attractions make them
sexuality, and since definitions and norms of healthy unworthy or bad, and only if they are heterosexual can
sexuality vary among individuals, LMHP, and religious they be worthy (Beckstead & Morrow, 2004; Haldeman,
and societal institutions, potential conflicts can arise 2001, 2004; Lasser & Gottlieb, 2004; D. F. Morrow,
for clients about what a person should do to be sexually
acceptable and healthy. O’Sullivan, McCrudden, 42
The Pan American Health Organization and the World Health
and Tolman (2006) emphasized that sexuality is an Organization (2000) defined sexual health in the following manner:
integral component of psychological health, involving “Sexual health is the ongoing process of physical, psychological, and
sociocultural well-being in relationship to sexuality. Sexual health can
mental and emotional health, physical health, and
be identified through the free and responsible expressions of sexual
capabilities that foster harmonious personal and social wellness,
enriching life within an ethical framework. It is not merely the
absence of dysfunction, disease and/or infirmity. For sexual health
to be attained and maintained it is necessary that sexual rights be
recognized and exercised” (p. 9).
2003; Wolkomir, 2001, 2006). Cognitive strategies can promote positive meaning-making, an active process
reduce the all-or-nothing thinking, mitigate self-stigma, through which people revise or reappraise an event or
and alter negative self-appraisals (Beckstead & Israel, series of events (Baumeister & Vohs, 2002; cf. Taylor,
2007; Johnson, 2001, 2004; Lasser & Gottlieb, 2004; 1983) to resolve issues that arise out of crises, loss, and
Martell et al., 2004). For example, Buchanan et al. suffering (cf. Frankl, 1992; Nolen-Hoeksema & Davis,
(2001), using a narrative therapy approach, described 2002; O’Neill & Ritter, 1992; Pargament et al., 2005;
a process of uncovering and deconstructing dominant Ritter & O’Neill, 1989, 1995). Such new meanings
worldviews and assumptions with conflicted clients that involve creating a new purpose in life, rebuilding a sense
enabled them to redefine their attitudes toward their of mastery, and increasing self-worth (Nolen-Hoeksema
spirituality and sexuality (cf. Bright, 2004; Comstock, & Davis, 2002; Pargament & Mahoney, 2002).
1996; Graham, 1997; Yarhouse, 2008). Similarly,
rejection of stereotypes about LGB individuals Emotion-Focused Strategies
was found to be extremely important for increased For those who seek SOCE, the process of addressing
psychological well-being in a mixed sample of LGB one’s sexual orientation can be very emotionally
individuals (Luhtanen, 2003). challenging, as the desired identity does not fit the
Recent developments in cognitive–behavior individual’s psychological, emotional, or sexual
therapy, such as mindfulness-based cognitive therapy, predispositions and needs. The experience of
dialectical behavior therapy, and acceptance and irreconcilability of one’s sexual orientation to one’s
commitment therapy techniques are especially relevant deeply felt values, life situation, and life goals may
(e.g., Hayes, Strosahl, & Wilson, 2003; Linehan et disrupt one’s core sense of meaning, purpose, efficacy,
al., 2007). Acceptance of the presence of same-sex and self-worth (Beckstead & Morrow, 2004; Yarhouse,
sexual attractions and sexual orientation paired with 2008; cf. Baumeister & Vohs, 2002; L. A. King &
exploring narratives or reframing cognitions, meanings, Smith, 2004) and result in emotional conflict, loss,
or assumptions about sexual attractions have been and suffering (Glassgold, 2008; O’Neill & Ritter, 1992;
reported to be helpful (cf. Beckstead & Morrow, 2004; Ritter & O’Neill, 1989, 1995). Thus, emotion-focused
Buchanan et al., 2001; Moran, 2007; Rodriguez, 2006; strategies that facilitate grieving and mourning losses
Tan, 2008; Yarhouse, 2005a, 2005c; Yarhouse & have reportedly been helpful to some (Beckstead &
Beckstead, 2007). Israel, 2007; Glassgold, 2008; O’Neill & Ritter, 1992;
Acceptance of same-sex For instance, using Ritter & O’Neill, 1989, 1995; Yarhouse, 2008; cf.
sexual attractions and sexual these techniques, Wolkomir, 2001, 2006).
orientation may not mean the Beckstead and Therapeutic outcomes that have been reported
formation of an LGB sexual Morrow (2004) include (a) coming to terms with the disappointments,
and Tan (2008)
orientation identity; alternate losses, and dissonance between psychological and
helped conflicted emotional needs and possible and impossible selves
identities may develop instead. clients cope with
(Bartoli & Gillem, 2008; Drescher, 1998a; L.A. King
their sexual arousal experiences and live with them, & Hicks, 2007; O’Neill & Ritter, 1992; Ritter &
rather than negatively judge or fight against them. O’Neill, 1989, 1995); (b) clarifying and prioritizing
Male participants in Beckstead and Morrow’s (2004) values and needs (Glassgold, 2008; Yarhouse, 2008);
investigation, regardless of their ultimate sexual and (c) learning to tolerate and positively adapt to
orientation identity, described their ability to accept, the ambiguity, conflict, uncertainty, and multiplicity
reframe, or “surrender” to their attractions as reducing (Bartoli & Gillem, 2008; Beckstead & Morrow, 2004;
their distress by decreasing their self-judgments and Buchanan et al., 2001; Corbett, 2001; Drescher, 1998a;
reducing their fear, anxiety, and shame. However, Glassgold, 2008; Halbertal & Koren, 2006; Haldeman,
acceptance of same-sex sexual attractions and sexual 2002; Miville & Ferguson, 2004).
orientation may not mean the formation of an LGB
sexual orientation identity; alternate identities may
Religious strategies
develop instead (Beckstead & Morrow, 2004; Tan, 2008;
Throckmorton & Yarhouse, 2006; Yarhouse, 2008; Integrated with other active coping strategies,
Yarhouse et al., 2005). psychotherapeutic interventions can focus the client on
For clients with strong values (religious or secular), positive religious coping (e.g., Ano & Vasconcelles, 2005;
an LMHP may wish to incorporate techniques that Pargament et al., 2005; Park, 2005; Silberman, 2005; T.
B. Smith, McCullough, & Poll, 2003) that may present study that focused on reducing excessive self-criticism,
the client with alternatives to the concreteness of the which lessened the self-stigma surrounding same-sex
conflict between sexual orientation and religious values. sexual attractions. This approach seeks to understand
For instance, several publications indicate that active the core depressive cognitive structures and other
engagement with religious texts can reduce identity problematic schema that can become associated with the
conflicts by reducing the salience of negative messages clients’ religious values or distort their religious values
about homosexuality and increasing self-authority (Johnson, 2001, 2004; Nielsen, 2001; Robb, 2001).
or understanding
Connecting the client to (Brzezinski, 2000;
core and overarching values Comstock, 1996; Social Support
and virtues, such as charity, Coyle & Rafalin, In our review of the research and clinical literature, we
hope, forgiveness, gratitude, 2000; Glassgold, found that the appropriate application of affirmative
2008; Gross, 2008; therapeutic interventions for adults presenting
kindness, and compassion,
Mahaffy, 1996; Ritter with a desire to change their sexual orientation
may refocus clients on the seeks to increase clients’ access to social support.
& O’Neill, 1989, 1995;
more accepting elements Rodriguez, 2006; As Coyle (1993) and others have noted (e.g., Wright
of their religion, which Rodriguez & Ouellette, & Perry, 2006), struggling with a devalued identity
may provide more self- 2000; Schnoor, 2006; without adequate social support has the potential
acceptance, direction, and Schuck & Liddle, to erode psychological well-being. Increasing social
peace rather than dwelling 2001; Thumma, 1991; support through psychotherapy, self-help groups, or
Wilcox, 2001, 2002; welcoming communities (ethnic communities, social
on their religion’s rejection
Yip, 2002, 2003, groups, religious denominations) may relieve some
of homosexuality. 2005). Additionally, distress. For instance, participants reported benefits
connecting the client to core and overarching values from mutual support groups, both sexual-minority-
and virtues, such as charity, hope, forgiveness, affirming and ex-gay groups (Kerr, 1997; Ponticelli,
gratitude, kindness, and compassion, may refocus 1999; Rodriguez, 2006; Rodriguez & Ouellette, 2000;
clients on the more accepting elements of their religion, Rodriguez, 2006; Thumma, 1991; Wolkomir, 2001).
which may provide more self-acceptance, direction, These groups counteracted and buffered minority stress,
and peace, rather than on their religion’s rejection marginalization, and isolation. Religious denominations
of homosexuality (Lease et al., 2005; McMinn, 2005). that provide cognitive and affective strategies that aid
Exploration of how to integrate religious values and in the resolution of cognitive dissonance and increase
virtues into their sexuality may further development (cf. religious coping were helpful to religious individuals
Helminiak, 2004). as well (Kerr, 1997; Maton, 2000; Ponticelli, 1999;
Altering the meaning of suffering and the burden Rodriguez & Ouellette, 2000: Wolkomir, 2001, 2006).
of being conflicted as spiritual challenges rather Licensed mental health providers can provide
than as divine condemnation (Glassgold, 2008; Hall clients with information about a wide range of diverse
& Johnson, 2001) and believing that God continues sexual minority communities and religious and
to love and accept them, because of or despite their faith organizations available locally, nationally, or
sexual orientation, may be helpful in resolving distress internationally in person or over the Internet.43 These
(Graham, 1997; Ritter & O’Neill, 1989, 1995). For some, settings can provide contexts in which clients may
reframing spiritual struggles not only as a crisis of faith explore and integrate identities, find role models, and
but also as an opportunity to increase faith or delve reduce self-stigma (Heinz, Gu, Inuzuka, & Zender,
more deeply into it may be productive (Bartoli & Gillem, 2002; Johnson & Buhrke, 2006; Schneider et al.,
2008; de la Huerta, 1999; Glassgold, 2008; Horne & 2002). However, some groups may reinforce prejudice
Noffisnger-Frazier, 2003, Ritter & Terndrup, 2002). and stigma by providing inaccurate or stereotyped
Examining the intersection between mental health information about homosexuality, and LMHP may
concerns and the presentation of religious beliefs can
be helpful in understanding the client (Johnson, 2001, 43
There are growing numbers of communities available that address
2004; Nielsen, 2001; Pargament et al., 2005; Robb, unique concerns and identities (see, e.g., www.safraproject.org/ for
Muslim women or http://www.al-fatiha.org/ for LGB Muslims; for
2001; Shrafranske, 2004). For instance, Johnson (2004)
Orthodox Jews, see http://tirtzah.wordpress.com/).
described a rational emotive behavior therapy case
wish to weigh with clients alternative options in these & Mohr, 2007; Beckstead & Morrow, 2004; Coyle &
circumstances (Schneider et al., 2002). Rafakin, 2000; Drescher, 1998a; Glassgold, 2008; Herek
For those clients who cannot express all aspects & Garnets, 2007; Mahaffy, 1996; Yarhouse et al., 2005;
of themselves in the community settings currently Yip, 2002, 2003, 2005).
available to them, LMHP can help the client to Ideally, identity comprises a coherent sense of
consider more flexible and strategic ways of expressing one’s needs, beliefs, values, and roles, including those
the multiple aspects of self that include managing aspects of oneself that are the bases of social stigma,
self-disclosure and multiple identities (Bing, such as age, gender, race, ethnicity, disability, national
2004; Glassgold, 2008; Halbertal & Koran, 2006; origin, socioeconomic status, religion, spirituality, and
LaFromboise, Coleman, & Gerton, 1993). Social support sexuality (G. R. Adams & Marshall, 1996; Bartoli &
may be difficult to find for clients whose communities Gillem, 2008; Baumeister & Vohs, 2002; LaFramboise
stigmatize their sexual orientation identity and other et al., 1993; Marcia, 1966; Meyers et al., 1991; R. L.
identities (e.g., ethnic, racial, religious), and these Worthington et al., 2002). Marcia (1966) generated
clients may benefit from considering the alternate a model in which identity development is an active
frame that the problem does not lie with the client but process of exploring and assessing one’s identity and
with the community that is not able to affirm their establishing a commitment to an integrated identity. R.
sexual orientation or particular identity or meet their L. Worthington et al. (2002) hypothesized that sexual
developmental needs (Blechner, 2008; Buchanan et al., orientation identity could be conceptualized along
2001; Lasser & Gottlieb, 2004; Mark, 2008; Tremble, these same lines and advanced a model of heterosexual
1989). identity development based on the assumption that
Individuals with same-sex attractions in other-sex congruence among the dimensions of individual identity
marriages may struggle with the loss (or fear of the loss) is the most adaptive status, which is achieved by
of social support and important relationships. Several active exploration. There is some empirical research
authors (e.g., Alessi, 2008; Auerback & Moser, 1987; supporting this model (R. L. Worthington, Navarro,
Bridges & Croteau, 1994; Brownfain, 1985; Buxton, Savoy, & Hampton,
1994, 2001, 2004, 2007; Carlsson, 2007; Coleman, An affirmative approach is 2008). Additionally,
1989; Corley & Kort, 2006; Gochros, 1989; Hernandez supportive of clients’ identity there is some research
& Wilson, 2007; Isay, 1998; Klein & Schwartz, 2001; development without an a illustrating that
Malcolm, 2000; Schneider et al. 2002; Treyger, Ehlers, priori treatment goal for how resolution of identity
Zajicek, & Trepper, 2008; Yarhouse et al., 2003) clients identify or live out their development has
have laid out counseling strategies for individuals in important mental
sexual orientation.
marriages with the other sex who consider SOCE. These health benefits
strategies for individual, couples, and group counseling for sexual minorities in the formation of a collective
do not focus solely on one outcome (e.g., divorce, identity that buffers individuals from sexual stigma,
marriage) but on exploring the underlying personal and increasing self-esteem and identification with a social
contextual problems, motivations, realities, and hopes group (Balsam & Mohr, 2007; Crawford et al., 2002;
for being in, leaving, or restructuring the relationship. Herek & Garnets, 2007).
An affirmative approach is supportive of clients’
identity development without an a priori treatment
Identity Exploration and Development goal for how clients identify or live out their sexual
In our review of the research and clinical literature, orientation. Sexual orientation identity exploration
we found that identity issues, particularly the ability can be helpful for those who eventually accept or reject
to explore and integrate aspects of self, are central to their same-sex sexual attractions; the treatment does
the appropriate application of affirmative therapeutic not differ, although the outcome does. For instance,
interventions for adults presenting with a desire to the existing research indicates that possible outcomes
change their sexual orientation. As described in earlier of sexual orientation identity exploration for those
sections of this report, conflicts among disparate distressed by their sexual orientation may be:
elements of identity appear to play a major role in
the distress of those seeking SOCE, and identity • LGB identities (Glassgold, 2008; Haldeman, 2004;
exploration and development appear to be ways in Mahaffy, 1996; Yarhouse, 2008)
which individuals resolve or avoid distress (e.g., Balsam
• Heterosexual sexual orientation identity (Beckstead O’Neill, 1989, 1995). Others have found that individuals
& Morrow, 2004) disidentify or reject LGB identities (Ponticelli, 1999;
Wolkomir, 2001, 2006; Yarhouse et al., 2005). Thus,
• Disidentifying from LGB identities (e.g., ex-gay)
LMHP seeking to take an affirmative attitude recognize
(Yarhouse, 2008; Yarhouse & Tan, 2004; Yarhouse et
that individuals will define sexual orientation identities
al., 2005)
in a variety of ways (Beckstead, as cited in Shidlo,
• Not specifying an identity (Beckstead & Morrow, Schroeder, & Drescher, 2002; Diamond, 2003; 2006;
2004; Haldeman, 2004; Tan, 2008) 2008; Savin-Williams, 2005; Yarhouse et al., 2005).
Some religious individuals may wish to resolve the
The research literature indicates that there are tension between values and sexual orientation by
variations in how individuals express their sexual choosing celibacy (sexual abstinence), which in some
orientation and label their identities based on ethnicity, faiths, but not all, may be a virtuous path (Olson, 2007).
culture, age and generation, gender, nationality, We found limited empirical research on the mental
acculturation, and religion (Boykin, 1996; Carrillo, 2002; health consequences of that course of action.44 Some
Chan, 1997; Crawford et al., 2002; Denizet-Lewis, 2003; clinical articles and surveys of individuals indicate
Kimmel & Yi, 2004; Martinez & Hosek, 2005; Miville & that some may find such a life fulfilling (S. L. Jones
Ferguson, 2004; Millett, Malebranche, Mason, & Spikes, & Yarhouse, 2007); however, there are others who
2005; Stokes, Miller, & Mundhenk, 1998; Toro-Alfonso, cannot achieve such a goal and might struggle with
2007; Weeks, 1995; Yarhouse, 2008; Yarhouse et al., depression and loneliness (Beckstead & Morrow, 2004;
2005; Zea et al., 2003). Some authors have provided Glassgold, 2008; Haldeman, 2001; Horlacher, 2006;
analyses of identity that take into account diversity Rodriguez, 2006; Shidlo & Schroeder, 2002). In a similar
in sexual identity development and ethnic identity way, acting on same-sex sexual attractions may not
formation (Helms, 1995; LaFramboise et al., 1993; be fulfilling solutions for others (Beckstead & Morrow,
Myers et al., 1991; Yi & Shorter-Gooden, 1999), religious 2004; Yarhouse, 2008).
identity (Fowler, 1981, 1991; Oser, 1991; Strieb, Licensed mental health providers may approach such
2001), as well as combinations of religious and sexual a situation by neither rejecting nor promoting celibacy
orientation identities (Coyle & Rafalin, 2000; Hoffman but attempting to understand how this outcome is part
et al., 2007; Kerr, 1997; Knight & Hoffman, 2007; Ritter of the process of exploration, sexual self-awareness, and
& O’Neill, 1989, 1995; Thumma, 1991; Throckmorton & understanding of core values and goals. The therapeutic
Yarhouse, 2006; Yarhouse & Tan 2004). process could entail exploration of what drives this goal
In some of the literature on SOCE, religious beliefs for clients (assessing cultural, family, personal context
and identity are presented as fixed, whereas sexual and issues, sexual self-stigma), the possible short-
orientation is considered changeable (cf. Rosik, 2003). and long-term consequences/rewards, and impacts on
Given that there is a likelihood that some individuals mental health while providing education about sexual
will change religious affiliations during their lifetime health and exploring how a client will cope with the
(Pew Forum on Religion and Public Life, 2008) and that losses and gains of this decision (cf. L. A King & Hicks,
many scholars have found that both religious identity 2007; Ritter & O’Neill, 1989, 1995).
and sexual orientation identity evolve (Beckstead On the basis of the aforementioned analyses, we
& Morrow, 2004; Fowler, 1981; Glassgold, 2008; adopted a perspective that recognizes the following:
Haldeman, 2004; Mahaffy, 1996; Ritter & Terndrup,
• The important functional aspects of identity (G. R.
2002; Yarhouse & Tan, 2005b), it is important for
Adams & Marshall, 1996).
LMHP to explore the development of religious identity
and sexual orientation identity (Bartoli & Gillem, • The multiplicity inherent in experience and identity,
2008). Some authors hypothesize that developmental including age, gender, gender identity, race, ethnicity,
awareness or stage of religious or sexual orientation culture, national origin, religion, sexual orientation,
identity may play a role in identity outcomes (Knight disability, language, and socioeconomic status
& Hoffman, 2007; Mahaffy, 1996; cf. Yarhouse & Tan,
2005a). Other authors have described a developmental
process that includes periods of crisis, mourning, 44
However, Sipe (1990, 2003) has surveyed clergy and found difficulty
in maintaining behavior consistent with aspirations. Other studies
reevaluation, identity deconstruction, and growth indicate that this goal is only achieved for a minority of participants
(Comstock, 1996; O’Neill & Ritter, 1992; Ritter & who choose it (Brzezinski, 2000; Jones & Yarhouse, 2007).
(Bartoli & Gillem, 2008; Miville & Ferguson, 2004; Understanding gender roles and gender expression
Myers et al., 1991). and developing a positive gender identity45 continue
to be concerns for many individuals who seek SOCE,
• The influence of social context and the environment
especially as nonconformity with social expectations
on identity (Baumeister & Muraven, 1996;
regarding gender can be a source of distress and stigma
Bronfenbrenner, 1979; Meeus, Iedema, Helsen,
(APA, 2008e; Beckstead & Morrow, 2004; Corbett, 1996,
& Vollebergh, 1999; Myers et al., 1991; Steenbarger,
1998; Wolkomir, 2001). Some SOCE teach men how
1991).
to adopt traditional masculine behaviors as a means
• That aspects of multiple identities are dynamic of altering their sexual orientation (e.g., Nicolosi,
and can be in conflict (Beckstead & Morrow, 2004; 1991, 1993) despite the absence of evidence that such
Glassgold, 2008; Mark, 2008; D. F. Morrow, 2003; interventions affect sexual orientation. Such theoretical
Tan, 2008; Yarhouse, 2008). positions have been characterized as products of
stigma and bias that are without an evidentiary basis
• Identities can be explored, experienced, or integrated
and may increase distress (American Psychoanalytic
without privileging or surrendering one or another
Association, 2000; Isay, 1987, 1999; Drescher, 1998a;
at any age (Bartoli & Gillem, 2008; Glassgold, 2008;
Haldeman, 1994, 2001). For instance, Haldeman (2001)
Gonsiorek, 2004; Haldeman, 2004; Myers et al., 1991;
emphasized in his clinical work with men who had
Phillips, 2004; Shallenberger, 1996).
participated in SOCE that some men were taught that
their homosexuality made them less masculine—a belief
Approaches based on models of biculturalism
that was ultimately damaging to their self-esteem.
(LaFromboise et al., 1993) and pluralistic models
Research on the impact of heterosexism and traditional
of identity, including combining models of ethnic,
gender roles indicates that an individual’s adoption
sexual orientation, and religious identity that help
of traditional masculine norms increases sexual self-
individuals develop all aspects of self simultaneously
stigma and decreases self-esteem and emotional
or some sequentially (Dworkin, 1997; Harris et al.,
connection with others, thus negatively affecting mental
2008; Hoffman et al., 2007; Knight & Hoffman, 2007;
health (Szymanski & Carr, 2008).
Myers et al., 1991; Omer & Strenger, 1992; Ritter &
Advances in the psychology of men and masculinity
O’Neill, 1989, 1995; Rosario, Schrimshaw, & Hunter,
provide more appropriate conceptual models for
2004; Rosario, Yali, Hunter, & Gwadz, 2006; Sophie,
considering gender
1987; Troiden, 1988, 1993), can encourage identity Most literature in this area concerns—for instance,
development and synthesis rather than identity conflict, suggests that for clients who in such concepts as
foreclosure, or compartmentalization.
Sexual orientation identity exploration can help
experience distress with their gender role strain or
gender-role nonconformity, gender role stress (cf.
clients create a valued personal and social identity that
Butler, 2004; Enns,
provides self-esteem, belonging, meaning, direction, LMHP provide them with
2008; Fischer &
and future purpose, including the redefining of religious a more complex theory of Good, 1997; Heppner
beliefs, identity, and motivations and the redefining gender that affirms a wider & Heppner, 2008;
of sexual values, norms, and behaviors (Beckstead & range of gender diversity Levant, 1992; Levant
Israel, 2007; Glassgold, 2008; Haldeman, 2004; Mark,
and expands definitions and & Silverstein, 2006;
2008; Tan, 2008; Yarhouse, 2008). We encourage LMHP
expressions of masculinity O’Neil, 2008; Pleck,
to support clients in determining their own (a) goals
1995; Wester, 2008).
for their identity process; (b) behavioral expression of and femininity.
This literature suggests
sexual orientation; (c) public and private social roles; (d)
exploring with clients the role of traditional gender
gender role, identity, and expression; (e) sex and gender
norms in distress and reconceptualizing gender in ways
of partner; and (f) form of relationship(s).
that feel more authentic to the client. Such approaches
45
Gender refers to the roles, behaviors, activities, and attributes
that a particular society considers appropriate for men and women.
Gender identity is a person’s own psychological sense of identification
as male or female, another gender, or identifying with no gender.
Gender expression is the activities and behaviors that purposely or
inadvertently communicate our gender identity to others, such as
clothing, hairstyles, mannerisms, way of speaking, and social roles.
could also reduce the gender stereotypes associated with the interventions; (b) sexual orientation identity—
same-sex sexual orientation (Corbett, 1998; Haldeman, not sexual orientation—appears to change via
2001; Schwartzberg & Rosenberg, 1998). Most literature psychotherapy, support groups, and life events; and (c)
in this area suggests that for clients who experience clients perceive a benefit when offered interventions
distress with their gender-role nonconformity, LMHP that emphasize acceptance, support, and recognition of
provide them with a more complex theory of gender important values and concerns.
that affirms a wider range of gender diversity and On the basis of these findings and the clinical
expands definitions and expressions of masculinity and literature on this population, we suggest client-centered
femininity (Butler, 2004; Corbett, 1996, 1998, 2001; approaches grounded on the following scientific facts:
Haldeman, 2001; Levant & Silverstein, 2006).
Some women find current categories for
conceptualizing their sexual orientation and sexual
of human sexuality—in other words, they are not
orientation identity limiting, as concepts in popular
indicators of mental or developmental disorders.
culture and professional literature do not mirror their
experiences of fluidity and variation in sexuality and • Same-sex sexual attractions and behavior can occur
relationships (Chivers et al., 2007; Diamond, 2006, in the context of a variety of sexual orientations and
2008; Peplau & Garnets, 2000). Some women, for sexual orientation identities.
example, may experience relationships with others as
• Gay men, lesbians, and bisexual individuals can live
important parts of sexuality and may place sexuality,
satisfying lives as well as form stable, committed
sexual orientation, and sexual orientation identity
relationships and families that are equivalent to
in the context of interpersonal bonds and contexts
heterosexual relationships in essential respects.
(Diamond, 2003, 2006, 2008; Diamond & Savin-
Williams, 2000; Garnets & Peplau, 2000; Kinnish, • No empirical studies or peer-reviewed research
Strassberg, & Turner 2005; Kitzinger, & Wilkinson, support theories attributing same-sex sexual
1994; Miller, 1991; Morgan & Thompson, 2006; Peplau orientation to family dysfunction or trauma.
& Garnets, 2000; Surrey, 1991). Specific psychotherapy
approaches that focus on an understanding of emotional Affirmative client-centered approaches consider sexual
and erotic interpersonal connections in sexuality rather orientation uniquely individual and inseparable from
than simply on sexual arousal can aide LMHP in an individual’s personality and sense of self (Glassgold,
providing a positive framework and goals for therapy 1995, 2008). This includes (a) being aware of the client’s
with women (Garnets & Peplau, 2000; Glassgold, 2008; unique personal, social, and historical context; (b)
Miller, 1991; Surrey, 1991). exploring and countering the harmful impact of stigma
For many women, religious or cultural influences and stereotypes on the client’s self-concept (including
discourage exploration of sexuality and do not portray the prejudice related to age, gender, gender identity,
female sexuality as positive or self-directed (Brown, race, ethnicity, culture, national origin, religion, sexual
2006; Espin, 2005; Fassinger & Arseneau, 2006; orientation, disability, language, and socioeconomic
Mahoney & Espin, 2008; Moran, 2007; Stone, 2008). status); and (c) maintaining a broad view of acceptable
Treatment might involve deconstructing cultural scripts life choices.
in order to explore possibilities for religion, sexuality, We developed a framework for the appropriate
sexual orientation, identity, and relationships (Avishai, application of affirmative therapeutic interventions
2008; Biaggio, Coan, & Adams, 2002; Morgan & for adults that has the following central elements:
Thompson, 2006; Rose & Zand, 2000). (a) acceptance and support; (b) comprehensive
assessment; (c) active coping; (d) social support; and
Conclusion (e) identity exploration and development. Acceptance

and support include (a) unconditional positive regard
The appropriate application of affirmative therapeutic for and empathy with the client; (b) an openness to the
interventions to adults is built on three key findings client’s perspective as a means to understanding their
in the research: (a) An enduring change to an concerns; and (c) encouragement of the client’s positive
individual’s sexual orientation as a result of SOCE self-concept.
was unlikely, and some participants were harmed by
Client assessment includes an awareness of the
complete person, including mental health concerns that
could impact distress about sexual orientation. Active
coping strategies are
Psychotherapy, self-help efforts that include
groups, or welcoming cognitive, behavioral,
communities (ethnic or emotional responses
communities, social groups, designed to change the
religious denominations) nature of the stressor
provide social support that itself or how an
can mitigate distress caused individual perceives
it and includes
by isolation, rejection, and
both cognitive and
lack of role models.
emotional strategies.
Psychotherapy, self-help groups, or welcoming
communities (ethnic communities, social groups,
religious denominations) provide social support that can
mitigate distress caused by isolation, rejection, and lack
of role models.
Conflicts among disparate elements of identity
play a major role in the conflicts and mental health
concerns of those seeking SOCE. Identity exploration
is an active process of exploring and assessing
one’s identity and establishing a commitment to an
integrated identity that addresses the identity conflicts
without an a priori treatment goal for how clients
identify or live out their sexual orientation. The process
may include a developmental process that includes
periods of crisis, mourning, reevaluation, identity
deconstruction, and growth.
Licensed mental health providers address specific
issues for religious clients by integrating aspects of
the psychology of religion into their work, including by
obtaining a thorough assessment of clients’ spiritual
and religious beliefs, religious identity and motivations,
and spiritual functioning; improving positive religious
coping; and exploring the intersection of religious
and sexual orientation identities. This framework is
consistent with modern multiculturally competent
approaches and evidence-based psychotherapy practices
and can be integrated into a variety of theoretical
systems.
7. Ethical Concerns and Decision Making

in Psychotherapy with Adults 46
E
thical concerns relevant to sexual orientation For a discussion of the resolution’s application to
change efforts (SOCE) have been a major theme clinical situations, readers are referred to Schneider
in the literature and a central aspect of the debate et al. (2002). APA reaffirmed (a) its position that
around SOCE (e.g., Benoit, 2005; Cramer et al., 2008; homosexuality is not a mental disorder; (b) its
Davison, 1976, 1978, 1991; Drescher, 1999, 2001, opposition to stigma, prejudice, and discrimination
2002; Gonsiorek, 2004; Haldeman, 1994, 2002, 2004; based on sexual orientation; and (c) its concern about
Herek, 2003; Lasser & Gottlieb, 2004; Rosik, 2003; the contribution of the promotion of SOCE to the
Schreier, 1998; Schroeder & Shidlo, 2001; Sobocinski, continuation of sexual stigma in U.S. culture.
1990; Tozer & McClanahan, 1999; Wakefield, 2003; The APA’s charge to the task force included “to
Yarhouse, 1998a; Yarhouse & Burkett, 2002; Yarhouse review and update the APA Resolution on Appropriate
& Throckmorton, 2002). The major concerns raised Therapeutic Responses to Sexual Orientation.” In
in these publications have been (a) the potential for the process of fulfilling this aspect of our charge, we
harm, (b) the client’s right to choose sexual orientation considered the possibility of recommending revisions
change efforts and other issues generally related to the to the 1997 resolution to update it with the specific
ethical issue of client autonomy, and (c) questions of principles and standards of the 2002 APA Ethics Code.
how to appropriately balance respect for two aspects Ultimately, we decided against a revision,47 because the
of diversity—religion and sexual orientation. SOCE relevant concepts in the two versions of the principles
presents an ethical dilemma to practitioners because and code are similar. Instead, this chapter examines the
these publications have urged LMHP to pursue multiple relevant sections of the 2002 APA Ethical Principles for
and incompatible courses of action (cf. Kitchener, 1984). Psychologists and Code of Conduct [hereafter referred to
In 1997 APA adopted the Resolution on Appropriate as the Ethics Code] in light of current debates regarding
Therapeutic Responses to Sexual Orientation. This ethical decision making in this area.48 We build
resolution highlighted the provisions of the then- our discussion on the concepts outlined in the 1997
current Ethical Principles for Psychologists and Code of
Conduct (APA, 1992) that APA believed to be relevant 47
As the final chapter of this report reveals, we have developed a new
to situations in which clients request treatments to resolution that we recommend APA adopt.
alter sexual orientation and psychologists provide such 48
This section is for descriptive and educational purposes. It is not
treatments, including the provisions regarding bias designed to interpret the APA (2002b) Ethics Code. The APA Ethics
and discrimination, false or deceptive information, Committee alone has the authority to interpret the APA (2002b)
Ethics Code and render decisions about whether a course of treatment
competence, and informed consent to treatment. is ethical. Furthermore, this section is not intended to provide
guidelines or standards for practice. Guidelines and standards for
Ethical concerns for children and adolescents are considered in
46
practice are created through a specific process that is outside the
Chapter 8. purview of the task force.
Ethical Concerns and Decision Making in Psychotherapy with Adults 65

resolution and discuss some of the ethical controversies The first finding from our review is that there is
in light of the newer APA Ethics Code (2002b) and of insufficient evidence that SOCE are efficacious for
the systematic research review presented in Chapters changing sexual orientation. Furthermore, there is some
3 and 4 of this report. Although many of the principles evidence that such efforts cause harm. On the basis
and standards in the Ethics Code are potentially of this evidence,
pertinent,49 the principles and standards most relevant On the basis of this evidence, we consider it
to this discussion are (in alphabetical order): we consider it inappropriate inappropriate for
for psychologists and other psychologists and
1. Bases for Scientific and Professional Judgments
(Standard 2.04) and Competence (e.g. 2.01a, 2.01b)50
LMHP to foster or support in other LMHP to foster
clients the expectation that or support in clients
2. Principle A: Beneficence and Nonmaleficence they will change their sexual the expectation that
3. Principle D: Justice orientation if they participate they will change their

sexual orientation
in SOCE. if they participate
4. Principle E: Respect for People’s Rights and Dignity
in SOCE. We believe that among the various types of
SOCE, the greatest level of ethical concern is raised by
Bases for Scientific and SOCE that presuppose that same-sex sexual orientation
Professional Judgments is a disorder or a symptom of a disorder.51 Treatments
based on such assumptions raise the greatest level of
and Competence ethical scrutiny by LMHP because they are inconsistent
Many of the standards of the Ethics Code are derived with the scientific and professional consensus that
from the ethical and valuative foundations found in homosexuality per se is not a mental disorder. Instead,
the principles (Knapp & VandeCreek, 2004). Two of we counsel LMHP to consider other treatment
the more important standards are competence and options when clients present with requests for sexual
the bases for scientific and professional judgments. orientation change.
These standards are linked, as competence is based on The second key finding from our review is that those
knowledge of the scientific evidence relevant to a case who participate in SOCE, regardless of the intentions
(Glassgold & Knapp, 2008). When practicing with those of these treatments, and those who resolve their distress
who seek sexual orientation change for themselves through other means, may evolve during the course of
or for others, commentators on ethical practice have their treatment in such areas as self-awareness, self-
recommended that the practitioner understand the concept, and identity. These changes may include (a)
scientific research on sexual orientation and SOCE sexual orientation identity, including changes in private
(Glassgold & Knapp, 2008; Schneider et al., 2002). It and public identification, group membership, and
is obviously beyond the task force’s scope to provide affiliation; (b) emotional adjustment, including reducing
a systematic review of the whole body of research self-stigma and shame; and (c) personal beliefs, values,
on sexual orientation, but we have tried to provide a and norms, including changes in religious and moral
systematic review of the research on SOCE in Chapters beliefs and behaviors and motivations (Buchanon et
3 and 4. From this review, we have drawn two key al., 2001; Diamond, 1998, 2006; Rust, 2003; Savin-
conclusions. Williams, 2004; R. L. Worthington, 2002, 2004, 2005;
Yarhouse, 2008). These areas become targets of LMHP
49
The following are some of the pertinent standards: 2. Competence, interventions in order to reduce identity conflicts and
2.01 Boundaries of Competence, 2.03 Maintaining Competence, 2.04
distress and to explore and enhance the client’s identity
Bases for Scientific and Professional Judgments; 3. Human Relations,
3.01 Unfair Discrimination, 3.03 Other Harassment, 3.04 Avoiding integration.
Harm, 3.10 Informed Consent; 5.01 Avoidance of False and Deceptive Because a large number of individuals who seek
Statements, 5.04 Media Presentations; 7.01 Design of Education
SOCE are from conservative faiths and indicate that
and Training Programs; 8.02 Informed Consent to Research; 10.01
Informed Consent to Therapy; 10.02 Therapy Involving Couples or religion is very important to them, research on the
Families. psychology of religion can be integrated into treatment.
50
Knapp and VandeCreek (2004) proposed that 2. Competence is For instance, individual religious motivations can be
derived from Principle A Beneficence & Nonmaleficence, as it is more
likely that an LMHP can provide benefit if he or she is competent; 51
See, e.g., Socarides (1968), Hallman (2008), and Nicolosi
however, for our purposes, this chapter will discuss these issues (1991); these theories assume homosexuality is always a sign of
sequentially. developmental defect or mental disorder.
examined, positive religious coping increased, and Beckstead & Israel, 2007; Glassgold, 2008; Gonsiorek,
religious identity and sexual orientation identity 2004; Haldeman, 2004; Tan, 2008; Yarhouse, 2008).
explored and integrated (Beckstead & Israel, 2007;
Fowler, 1981; Glassgold, 2008; Haldeman, 2004; Knight
& Hoffman, 2007; O’Neill & Ritter, 1992; Yarhouse & Benefit and Harm
Tan, 2005a, 2005b). This is consistent with advances in Principle A of the APA Ethics Code, Beneficence and
the understanding of human diversity that place LGB- Nonmaleficence, establishes that psychologists aspire
affirmative approaches within current multicultural to provide services that maximize benefit and minimize
perspectives that include age, gender, gender identity, harm (APA, 2002b). Many ethicists and scholars
race, ethnicity, culture, national origin, religion, sexual consider the avoidance of harm to be the priority of
orientation, disability, language, and socioeconomic modern health care and medical ethics (Beauchamp &
status (e.g., Bartoli & Gillem, 2008; Brown, 2006; Childress, 2008; Herek, 2003; S. L. Morrow, 2000). The
Fowers & Davidov, 2006), consistent with Principle D literature on effective treatments and interventions
(Justice) and Principle E (Respect for People’s Rights stresses that effective interventions do not have serious
and Dignity). negative side effects (Beutler, 2000; Flay et al., 2005).
However, in some of the debates on these issues, When applying this principle in the context of providing
there are tensions between conservative religious interventions, LMHP assess the risk of harm, weigh
perspectives and affirmative and scientific perspectives that risk with the potential benefits, and communicate
(Haldeman, 2002; Rosik, 2003; Throckmorton & Welton, this to clients through informed consent procedures
2005; Yarhouse, 1998a; Yarhouse & Burkett, 2002; that aspire to provide the client with an understanding
Yarhouse & Throckmorton, 2002). Although there are of potential risks and benefits that are accurate and
tensions between religious and scientific perspectives, unbiased. Some of the published considerations of
the task force and other scholars do not view these ethical issues related to SOCE have focused on the
perspectives as mutually exclusive (Bartoli & Gillem, limited evidence for its efficacy, the potential for client
2008; Haldeman, 2004; S. L. Morrow & Beckstead, 2004; harm, and the potential for misrepresentation of these
Yarhouse, 2005b). As we noted in the introduction, issues by proponents of SOCE (Cramer et al., 2008;
in its Resolution on Religious, Religion-Related, and/ Haldeman, 1994, 2002, 2004; Herek, 2003; Schroeder
or Religion-Derived & Shidlo, 2001; Shidlo & Schroeder, 2002). Other
APA (2008a) delineates Prejudice, APA discussions focus on other harms of SOCE, such as
a perspective that (2008a) delineates reinforcing bias, discrimination, and stigma against
affirms the importance of a perspective that LGB individuals (Davison, 1976, 1978, 1991; Drescher,
science in exploring and affirms the importance 1999, 2001, 2002; Gonsiorek, 2004).
understanding human of science in exploring In weighing the harm and benefit of SOCE, LMHP
behavior while respecting and understanding can review with clients the evidence presented in
human behavior while this report. Research on harm from SOCE is limited,
religion as an important
respecting religion as and some of the research that exists suffers from
aspect of human diversity. an important aspect of methodological limitations that make broad and
human diversity. Scientific findings from the psychology definitive conclusions difficult. Early well-designed
of religion can be incorporated into treatment, thus experiments that used aversive and behavioral
respecting all aspects of diversity while providing interventions did cause inadvertent and harmful mental
therapy that is consistent with scientific research. health effects such as increased anxiety, depression,
Most important, respecting religious values does not suicidality, and loss of sexual functioning in some
require using techniques that are unlikely to have an participants. Additionally, client dropout rate is
effect. We proposed an approach that respects religious sometimes an indication of harmful effects (Lilienfeld,
values and welcomes all of the client’s actual and 2007). Early studies with aversive procedures are
potential identities by exploring conflicts and identities characterized by very high dropout rates, perhaps
without preconceived outcomes. This approach does indicating harmful effects, and substantial numbers
not prioritize one identity over another and may aide of clients unwilling to participate further. Other
a client in creating a sexual orientation identity with perceptions of harm mentioned by recipients of SOCE
religious values (see Chapter 6) (Bartoli & Gillem, 2008; include increased guilt and hopelessness due to the

failure of the intervention, loss of spiritual faith, and a regarding how to manage such inconsistencies, stigma,
sense of personal failure and unworthiness (Beckstead and negative repercussions may provide the client with
& Morrow, 2004; Haldeman, 2001, 2004; Shidlo & more informed and empowered solutions from which
Schroeder, 2002). Other indirect harms from SOCE to choose, thus increasing benefit and autonomy and
include the time, energy, and cost of interventions reducing harm.
that were not beneficial (Beckstead & Morrow, 2004;
Lilienfeld, 2007; Smith et al., 2004).
We found limited research evidence of benefits from Justice and Respect
SOCE. There is qualitative research that describes for Rights and Dignity
clients’ positive perceptions of such efforts, such as
experiencing empathy and a supportive environment In this section, we focus on two concepts, Justice
to discuss problems and share similar values, which (Principle D) and Self-Determination (Principle E,
seemed to reduce their stress about their same- Respect for People’s Rights and Dignity). The first
sex sexual attractions (Beckstead & Morrow, 2004; considers justice, both distributive and procedural
Ponticelli, 1999; Wolkomir, 2001). The literature on justice (Knapp & VandeCreek, 2004), and the second
SOCE support groups, for instance, illustrates results focuses on recognizing diversity and maximizing a
similar to those found for LGB-affirming groups and client’s ability to choose. The APA Ethics Code uses the
mutual help groups in general (e.g., Kerr, 1997; Levine term self-determination to encompass the meanings for
et al., 2004; Thumma, 1991). The positive experiences which many ethicists have used the term autonomy;
clients report in SOCE are not unique. Rather, they are we define self-determination as the process by which
benefits that have been found in studies of therapeutic a person controls or determines the course of her
relationships and or his own life (Oxford American Dictionary, n.d.).
...the benefits reported support groups in a Client self-determination encompasses the ability
by participants in SOCE number of different to seek treatment, consent to treatment, and refuse
treatment. The informed consent process is one of the
may be achieved through contexts (Levine et
ways by which self-determination is maximized in
treatment approaches that al., 2004; Norcross, psychotherapy.
do not attempt to change 2002; Norcross &
Hill, 2004). Thus, Informed consent and self-determination cannot be
sexual orientation. considered without an understanding of the individual,
the benefits reported
by participants in SOCE may be achieved through community, and social contexts that shape the lives of
treatment approaches that do not attempt to change sexual minorities. By understanding self-determination
sexual orientation. as context-specific and by working to increase clients’
Perceptions of risks and rewards of certain courses awareness of the influences of context on their
of action influence the individual’s decisions, distress, decision making, the LMHP can increase clients’ self-
and process of exploration in psychotherapy. The determination and thereby increase their ability to
client and LMHP may define these risks and rewards make informed life choices (Beckstead & Israel, 2007;
differently, leading to different perceptions of benefit Glassgold, 1995; 2008; Haldeman, 2004). For instance,
and harm. Recognizing, understanding, and clarifying some have suggested that social stigma and prejudice
these different perceptions of risks and rewards are are fundamental reasons for sexual minorities’ desire
crucial for a thorough ethical analysis of each client’s to change their sexual orientation (Davison, 1976,
unique situation and are aspects of client-centered 1978, 1982, 1991; Haldeman, 1994; Silverstein, 1991;
approaches. For instance, an LMHP may attempt G. Smith et al., 2004; Tozer & Hayes, 2004). As stigma,
to provide information to the client to reduce sexual prejudice, and discrimination continue to be prevalent,52
stigma and increase life options by informing the client 52
For instance, the criminalization of certain forms of same-sex sexual
about the research literature on same-sex couples. Such behavior between consenting adults in private was constitutional
relationships may be threatening to the client when in the United States until 2003 (see Lawrence v. Texas, 2003). The
federal government and most U.S. states do not provide civil rights
such a life course is perceived as being inconsistent
protections to LGB individuals and their families (National Gay
with existing religious beliefs and motivations and Lesbian Task Force, n.d.). In some other countries, homosexual
and potentially having negative repercussions on behavior is still illegal and subject to extreme consequences, even
death (e.g., Human Rights Watch, 2008; International Gay & Lesbian
existing relationships with religious communities.
Human Rights Commission (IGLHRC), n.d.; Wax, 2008). In extremely
Yet, discussing positive coping resources with clients repressive environments, sexual orientation conversion efforts are
we recommend that LMHP strive to understand their For instance, current ethics guidance focuses on the
clients’ request for SOCE in the context of sexual interrelatedness of ethical principles and understanding
stigma and minority stress (e.g., DiPlacido, 1998; a clinical situation fully so as to appropriately
Meyer, 2001). We further recommend that providers balance the various pertinent principles (e.g., Knapp
explore with their clients the impact of these factors & VandeCreek, 2004). Self-determination and
on their clients’ decision making in order to assess the autonomy can vary in degree due to interpersonal and
extent to which self-determination is compromised (cf. intrapersonal concerns and can be considered in relation
G. Smith et al., 2004). to other ethical principles, such as providing services
For instance, repressive, coercive, or invalidating that (a) are likely to provide benefit, (b) are not effective,
cultural, social, political, and religious influences can or (c) have the potential for harm.
limit autonomous expression of sexual orientation, We believe that simply providing SOCE to clients
including the awareness and exploration of options for who request it does not necessarily increase self-
expression of sexual orientation within an individual determination but rather abdicates the responsibility
life (e.g., Glassgold, 2008; Mark, 2008; McCormick, of LMHP to provide
2006; G. Smith et al., 2004; Wax, 2008). We recommend We also believe that competent assessment
that LMHP consider the impact of discrimination and LMHP are more likely to and interventions that
stigma on the client and themselves (e.g., Beckstead & maximize their clients’ self- have the potential for
Israel, 2007; Haldeman, 2001, 2002). This consideration determination by providing benefit with a limited
can become quite complex when the client or the effective psychotherapy that risk of harm. We also
community of the client or the LMHP believes that increases a client’s abilities believe that LMHP
homosexuality is sinful and immoral (see Beckstead & are more likely to
to cope, understand,
Israel, 2007). Further exploration of religious beliefs maximize their clients’
and the cognitive assumptions underlying those beliefs
acknowledge, explore, and self-determination
may be helpful in understanding the client’s beliefs and integrate sexual orientation by providing effective
perception of choices (Buchanan et al., 2001; Fischer concerns into a self-chosen psychotherapy
& DeBord, 2007; Johnson, 2004; Yarhouse, 2008; Yip, life in which the client that increases a
2000, 2002, 2005). determines the ultimate client’s abilities to
The issue of self-determination and autonomy manner in which he or she cope, understand,
has become controversial, and some have suggested does or does not express acknowledge, explore,
that SOCE be offered in the spirit of maximizing and integrate sexual
sexual orientation.
client autonomy53 so that clients have access to a orientation concerns
treatment they request (e.g., Rosik, 2003; Yarhouse & into a self-chosen life in which the client determines
Throckmorton, 2002). Others have cautioned against the ultimate manner in which he or she does or does
providing interventions that have very limited evidence not express sexual orientation (Bartoli & Gillem, 2008;
of effectiveness, run counter to current scientific Beckstead & Israel, 2007; S. L. Morrow & Beckstead,
knowledge, and have the potential for harm, despite 2004; Haldeman, 2004; Tan, 2008; Throckmorton &
client requests (Drescher, 1999, 2002; Forstein, 2001; Yarhouse, 2006; Yarhouse, 2008).
Gonsiorek, 2004; Haldeman, 2002; Herek, 2003). With
regard to claims that client autonomy is the defining
concern in treatment decision making, elevating one
Relational Issues in Treatment
aspect of ethical reasoning, such as autonomy, above Ideal or desired outcomes may not always be possible,
all others is not consistent with the current framework and at times, the client may face difficult decisions that
of the APA Ethics Code or medical ethics that focus on require different types and degrees of disappointment,
the interrelatedness of ethical principles (Beauchamp & distress, and sacrifice, as well as benefits, fulfillment,
Childress, 2008; Knapp & VandeCreek, 2004). and rewards (Beckstead & Morrow, 2004; Glassgold,
2008; Haldeman, 2004; Yarhouse, 2008). LMHP may
face strong emotions regarding the limits of their ability
provided in a coercive manner and have been the subject of human to provide relief from such difficult decisions or their
rights complaints (e.g., IGLHRC, 2001).
consequences. Such emotions are understandable in
53
The APA Ethics Code does not use the word autonomy; rather it this complex area, yet acting on such emotions within
uses self-determination, which is defined here as “the process by which
a person controls their own life” (Oxford American Dictionary, n.d.). treatment has the potential to be harmful to the client

(Knapp & VandeCreek, 2004; Pope & Vasquez, 2007). and to be aware of the importance of religion to clients’
In these situations, in order to aid the client, the LMHP worldviews, LMHP focus on scientific evidence and
may have to address his or her own emotional reactions professional judgment in determining mental health
to the client’s dilemmas. As the client must address interventions (APA, 2008a; Beckstead, 2001; Glassgold,
regrets, losses (such as impossible and possible selves; 2008; Haldeman, 2004; Yarhouse & Burkett, 2002).
see L. A. King & Hicks, 2007), and definitions of what is
a fulfilling and worthwhile life, the LMHP must address
his or her own values and beliefs about such issues. The Summary
LMHP’s self-awareness, self-care, and judicious use of The principles and standards of the 2002 Ethical
consultation can be helpful in these circumstances (Pope Principles for Psychologists and Code of Conduct most
& Vasquez, 2007; Porter, 1995). relevant to working with sexual minorities who seek to
Moreover, LMHP may have their own internalized alter their sexual orientation are (a) Bases for Scientific
assumptions about sexual orientation, sexual and Professional Judgments (Standard 2.04) and
orientation identity, sexuality, religion, race, ethnicity, Competence (2.01); (b) Beneficence and Nonmaleficence
and cultural issues (APA, 2000, 2002b; Garnets et al., (Principle A); (c) Justice (Principle D); and (d) Respect
1991; McIntosh, 1990; Pharr, 1988; Richards & Bergin, for People’s Rights and Dignity (Principle E). The key
2005). The ethical principles of justice and respect scientific findings relevant to the ethical concerns that
for people’s rights and dignity encourage LMHP to be are important in the area of SOCE are the limited
aware of discrimination and prejudice so as to avoid evidence of efficacy or benefit and the potential for
condoning or colluding with the prejudices of others, harm. LMHP are cautioned against promising sexual
including societal prejudices. As a way to increase orientation change to clients. LMHP are encouraged
awareness of their assumptions and promote the to consider affirmative treatment options when clients
resolution of their own conflicts, R. L. Worthington, present with requests for sexual orientation change.
Dillon, and Becker-Schutte (2005) advised LMHP to Such options include the therapeutic approaches
develop their own competence surrounding sexual included in Chapter 6 and focus on supporting a client’s
orientation, sexual minorities, and heterosexual exploration and development of sexual orientation
privilege. Such competence requires self-reflection, identity, which provide realistic opportunities for
contact with diverse sexual minority communities, and maximizing self-determination. These approaches
self-management of biases and sexual prejudice (cf. balance an understanding of the role of sexual stigma
Israel, Ketz, Detrie, Burke, & Shulman, 2003). and respect other aspects of diversity in a client’s
Several authors (e.g., Faiver & Ingersoll, 2005; exploration and maximize client self-determination.
Lomax, Karff, & McKenny, 2002; Richards & Bergin,
2005; Yarhouse & Tan, 2005a; Yarhouse & VanOrman,
1999) have described potential ethical concerns related
to working with religious clients. LMHP can strive to be
aware of how their
Although LMHP strive to own religious values
respect religious diversity and affect treatment
to be aware of the importance and can aspire to
of religion to clients’ worldviews, focus on the client’s
LMHP focus on scientific perspective and
evidence and professional aspire to become
judgment in determining mental informed about the
importance and
health interventions.
content of specific
religious beliefs and the psychology of religion (Bartoli,
2007; Yarhouse & VanOrman, 1999; Yarhouse &
Fisher, 2002). Yet, for LMHP, the goal of treatment
is determined by mental health concerns rather
than directed by religious values (Gonsiorek, 2004).
Although LMHP strive to respect religious diversity
8. Issues for Children,

Adolescents, and Their Families
Task Force Charge mitigate behaviors that are perceived to be indicators

that a child will develop a homosexual orientation in
and Its Social Context adolescence and adulthood.
T
he task force was asked to report on three issues
This charge reflects recent events and current social
for children and adolescents:
context. Advocacy groups, both for and against sexual
orientation change efforts (SOCE), law journals, and
1. The appropriate application of affirmative therapeutic the media have reported on involuntary SOCE among
interventions for children and adolescents who adolescents (Goishi, 1997; Morey, 2006; Sanchez, 2007;
present a desire to change either their sexual Weithorn, 1998; Williams, 2005).56 Publications by
orientation54 on their behavioral expression of their LMHP directed at parents and outreach from religious
sexual orientation, or both, or whose guardian organizations advocate SOCE for children and youth
expresses a desire for the minor to change. as interventions to prevent adult same-sex sexual
orientation (Cianciotto & Cahill, 2006; Kennedy &
2. The presence of adolescent inpatient facilities
Cianciotto, 2006; Nicolosi & Nicolosi, 2002; Rekers,
1982; Sanchez, 2007).
Reports by LGB advocacy groups (e.g., Cianciotto
sexual orientation.55
& Cahill, 2006; Kennedy & Cianciotto, 2006) have
3. Recommendations regarding treatment protocols that claimed that there has been an increase in attention
promote stereotyped gender-normative behavior to to youths by religious organizations that believe
that homosexuality is a mental illness or an adverse
54
In this report, we define adolescents as individuals between the developmental outcome. These reports further suggest
ages of 12 and 18 and children as individuals under age 12. The age that there has been an increasing in outreach to
of 18 was chosen because many jurisdictions in the United States use youths that portrays homosexuality in an extremely
this age as the legal age of majority, which determines issues such as
consent to treatment and other relevant issues. negative light and uses fear and shame to fuel this
message. These reports expressed concern that such
55
We define coercive treatments as practices that compel or
manipulate a child or adolescent to submit to treatment through efforts have a negative impact on adolescents’ and
the use of threats, intimidation, trickery, or some other form of their parents’ perceptions of their sexual orientation
pressure or force. The threat of future harm leads to the cooperation
or obedience. Threats of negative consequences can be physical
or emotional, such as threats of rejection or abandonment from 56
We define involuntary treatment as that which is performed
or disapproval by family, community, or peer-group; engendering without the individual’s consent or assent and may be contrary to
feelings of guilt/obligation or loss of love; exploiting physical, his or her expressed wishes. Unlike coercive treatment, no threats or
emotional, or spiritual dependence. intimidation are involved.
Issues for Children, Adolescents, and Their Families 71

or potential sexual orientation, increase the perception may be concerned about behaviors in the child that
that homosexuality and religion are incompatible, and are stereotypically associated with a same-sex sexual
increase the likelihood that some adolescents will be orientation (e.g., affection directed at another child
exposed to SOCE without information about evidence- of the same sex, lack of interest in the other sex, or
based treatments. behaviors that do not conform to traditional gender
One aspect of these concerns expressed by LGB norms) (American Academy of Pediatrics [AAP],
advocacy groups has been the presence of residential 1999; Haldeman, 2000). This situation contrasts with
programs in which adolescents have been placed by the condition of gender dysphoria in childhood and
their parents, in some cases with reported lack of adolescence, for which there is clear evidence that some
assent from the adolescent (e.g., Cianciotto & Cahill, children and adolescents experience distress regarding
2006; Kennedy & Cianciotto, 2006). In addition, a their assigned sex, and some experience distress with
longstanding concern raised by advocacy groups for the consequences of their gender and biological sex (i.e.,
both LGB people and transgender people has been the youth struggling with social discrimination and stigma
alleged use of residential psychiatric commitment and surrounding gender nonconformity) (APA, 2008e;
gender-normative behavioral treatments for children Menveille, 1998; Menveille & Tuerk, 2002; R. Green,
and adolescents whose expression of gender or sexuality 1986, 1987; Zucker & Bradley, 1995).
violates gender norms (Goishi, 1997; Morey, 2006; Childhood interventions to prevent homosexuality
Weithorn, 1988). have been presented in non-peer-reviewed literature
To fulfill our charge, we reviewed the literature on (see Nicolosi & Nicolosi, 2002; Rekers, 1982).57 These
SOCE in children and adolescents and affirmative interventions are based on theories of gender and
psychotherapy for children, adolescents, and their sexual orientation that conflate stereotypic gender roles
families. We considered the literature on best practices or interests with heterosexuality and homosexuality
in child and adolescent treatment, inpatient treatment, or that assume that certain patterns of family
and legal issues regarding involuntary or coercive relationships cause same-sex sexual orientation.
treatments and consent to and refusal of treatment. These treatments focus on proxy symptoms (such
We also reviewed the literature on the development of as nonconforming gender behaviors), since sexual
sexual orientation in children and adolescents. orientation as it is usually conceptualized does not
emerge until puberty with the onset of sexual desires
and drives (see APA, 2002a; Perrin, 2002). These
Literature Review interventions assume a same-sex sexual orientation
is caused by certain family relationships that form
Literature on Children gender identity and assume that encouraging gender
There is a lack of published research on SOCE among stereotypic behaviors and certain family relationships
children. Research on sexuality in childhood is limited will alter sexual orientation (Burack & Josephson, 2005;
and seldom includes sexual orientation or sexual see, e.g., Nicolosi & Nicolosi, 2002; Rekers, 1979, 1982).
orientation identity (Perrin, 2002). Although LGB The theories on which these interventions are based
adults and others with same-sex sexual attractions have not been confirmed by empirical study (Perrin,
often report emotional and sexual feelings and 2002; Zucker, 2008; Zucker & Bradley, 1995). Although
attractions from their childhood or early adolescence retrospective research indicates that some gay men
and recall a sense of being different even earlier in and lesbians recall gender nonconformity in childhood
childhood (Beckstead & Morrow, 2004; Bell et al., 1981; (Bailey & Zucker, 1995; Bem, 1996; Mathy & Drescher,
D’Augelli & Hershberger, 1993; Diamond & Savin-
Williams, 2000; Troiden, 1989), such concerns have not 57
The only peer-reviewed literature is on children who exhibited
nonconformity with gender roles or gender identity disorder and did
been studied directly in young children (cf. Bailey &
not focus on sexual orientation (e.g., Rekers, 1979, 1981; Rekers,
Zucker, 1995; Cohen & Savin-Williams, 2004). Bentler, Rosen, & Lovaas, 1977; Rekers, Kilgus, & Rosen, 1990;
There is no published research suggesting that Rekers & Lovaas, 1974). However, the relevance of such work to
this topic is limited, as none of these children reported experiencing
children are distressed about their sexual orientation
same-sex sexual attractions or were followed into adulthood. Gender
per se. Parental concern or distress about a child’s nonconformity differs from gender identity disorder, and children
behavior, mental health, and possible sexual orientation with gender identity disorder are not necessarily representative of
the larger population of those children who will experience same-sex
plays a central role in referrals for psychotherapy sexual attractions in adulthood (Bailey & Zucker, 1995; Bradley &
(Perrin, 2002; Ryan & Futterman, 1997). Parents Zucker, 1998; Zucker, 2008).
2008), there is no research evidence that childhood The absence of evidence for adolescent sexual
gender nonconformity and adult homosexuality are orientation distress that results in requests for SOCE
identical or are necessarily sequential developmental and the few studies in the literature on religious
phenomena (Bradley & Zucker, 1998; Zucker, 2008). adolescents seeking psychotherapy related to sexual
Theories that certain patterns of family relationships orientation suggest that such distress is most likely
cause same-sex sexual orientation have been discredited to occur among adolescents in families for whom
(Bell et al., 1981; Freund & Blanchard, 1983; R. R. a religion that views homosexuality as sinful and
Green, 1987; D. K. Peters & Cantrell, 1991). undesirable is important. Yarhouse (1998b) and
The research that has been attempted to determine colleagues (Yarhouse & Tan, 2005a; Yarhouse, Brooke,
whether interventions in childhood affect adult sexual Pisano, & Tan, 2005) discussed clinical examples of
orientation exists only within the specific population distress caused by conflicts between faith and sexual
of children with gender identity disorder (GID). R. orientation surrounding the incompatibility between
Green (1986, 1987) and Zucker and Bradley (1995) religious beliefs and LGB identities. For instance, a
(to a limited degree) examined prospectively whether female adolescent client struggled with guilt and shame
psychotherapy in children with GID influenced adult and fears that God would not love her, and a male
or adolescent sexual orientation and concluded that adolescent experienced a conflict between believing
it did not (for a review of the issues for children with God created him with same-sex feelings and believing
GID, see APA, 2009, Report of the Task Force on Gender that God prohibited their expression (Yarhouse &
Identity and Gender Variance). Thus, we concluded that Tan, 2005a). Cates (2007) described three cases of
there is no existing research to support the hypothesis Caucasian males who were referred by schools, courts,
that psychotherapy in children alters adult sexual or parents for concerns that included their sexual
orientation. orientation. All three youths perceived that within
their faith community and family, an LGB identity was
unacceptable and would probably result in exclusion
Literature on Adolescents and rejection (Cates, 2007). Because of the primacy
We found no empirical research on adolescents who of religious beliefs, the adolescents or their families
request SOCE, but there were a few clinical articles requested religiously based therapy or SOCE. For
reporting cases of psychotherapy with religious instance, Cates described the treatment of an adolescent
adolescents (Cates, 2007; Yarhouse, 1998b; Yarhouse who belonged to the Old Amish Community and who
& Tan, 2005a; Yarhouse et al., 2005) who expressed requested SOCE. The young man perceived that there
confusion regarding their sexual orientation and was no place for him in his faith community as a gay
conflicts between religious values and sexual man and did not want to leave that community.
orientation. In some of these cases, the adolescents or
their families sought SOCE or considered SOCE (Cates,
2007; Yarhouse Research on Parents’ Concerns
The general body of research & Tan, 2005a; About Their Children’s Sexual Orientation
on adolescents who identify Yarhouse et al., We did not find specific research on the characteristics
themselves as same-sex 2005). The general of parents who bring their children to SOCE. Thus,
oriented does not suggest that body of research we do not know whether this population is similar
the normal development of a on adolescents who to or different from the more general population
same-sex sexual orientation identify themselves of parents who may have concerns or questions
in adolescence is typically as same-sex oriented regarding their children’s sexual orientation or future
characterized by distress that does not suggest sexual orientation. We cannot conclude that parents
that the normal
results in requests for sexual who present to LMHP with a request for SOCE are
development of a motivated by factors that cause distress in other parents
orientation change.
same-sex sexual of adolescents with emerging LGB identities.
orientation in adolescence is typically characterized by In the small samples represented by articles on case
distress that results in requests for sexual orientation studies and clinical papers, parents’ religious beliefs
change (e.g., D’Augelli, 2002; Garofalo & Harper, 2003; appear to be factors in their request of SOCE for their
Savin-Williams & Cohen, 2004). children. For instance, in clinical case discussions and

psychotherapy articles, Cates (2007), Yarhouse (1998b), approaches that stress conformity to traditional gender
Yarhouse and Tan (2005a), and Yarhouse et al. (2005) roles and behaviors.
identified a population of parents who have strong Concerns have arisen over the conduct of some
conservative religious beliefs that reject LGB identities private psychiatric hospitals that use alternative
and perceive homosexuality as sinful. diagnoses—such as GID, conduct disorders, oppositional
Other reports suggest that parents of adolescents with defiant disorders, or behaviors identified as self-
emerging same-sex sexual orientation and conservative defeating or self-destructive—to justify hospitalization
religious beliefs that perceive homosexuality negatively of LGB and questioning youth and expose adolescents
appear to be influenced by religious authorities and to SOCE (Arriola, 1998; Morey, 2006). Data on these
LMHP who promote SOCE. For instance, Burack and issues are incomplete, as each state has different
Josephson (2005) and Cianciotto and Cahill (2006) reporting requirements for public and private hospitals,
reported that fear and stereotypes appeared to be and laws regarding confidentiality understandably
contributing factors in parents who resort to residential protect client information.
SOCE or other related coercive treatment on youth.
Cianciotto and Cahill found that some advocacy groups Adolescents’ Rights to Consent
do outreach to parents that encourages commitment to Treatment
to SOCE residential programs even if the children do
In researching involuntary treatment, we reviewed the
not assent. These programs also appear to provide
recent literature on the growing movement to increase
information to parents that stresses that sexual
adolescents’ rights to
orientation can be changed (Burack & Josephson, 2005; It is now recognized that consent to outpatient
Cianciotto & Cahill, 2006), despite the very limited adolescents are cognitively and inpatient mental
empirical evidence for that assertion.
able to participate in health treatment so as
some health care treatment to reduce involuntary
Residential and Inpatient Services decisions, and such hospitalization
(Mutcherson, 2006;
We were asked to report on “the presence of adolescent participation is helpful.
Redding, 1993). It
inpatient facilities that offer coercive treatment
is now recognized that adolescents are cognitively
designed to change sexual orientation or the behavioral
able to participate in some health care treatment
expression of sexual orientation.” We performed a
decisions, and such participation is helpful (Hartman,
thorough review of the literature on these programs.
2000, 2002; Mutcherson, 2006; Redding, 1993). The
Upon completion of this review, we decided that the
APA Guidelines for Psychotherapy for Lesbian, Gay,
best way to address this task was to evaluate issues of
and Bisexual Clients (2000) and the APA Ethics Code
the appropriateness of these programs for adolescents
(2002b) encourage professionals to seek the assent
in light of issues of harm and benefit based on the
of minor clients for treatment. Within the field of
literature on adolescent development, standards for
adolescent mental health and psychiatry, there are
inpatient and residential treatment, and ethical issues
developmental assessment models to determine an
such as informed consent.
adolescent’s competence to assent or consent to and
There are several accounts of inpatient and
potentially refuse treatment (Forehand & Ciccone, 2004;
residential treatment, sometimes involuntary or
Redding, 1993; Rosner, 2004a, 2004b). Some states now
coerced, for adolescents who were LGB-identified,
permit adolescents some rights regarding choosing or
confused or questioning their sexual orientation, gender
refusing inpatient treatment, participating in certain
nonconforming, or transgender (Arriola, 1998; Burack &
interventions, and control over disclosure of records
Josephson, 2005; Goishi, 1997; Molnar, 1997; Weithorn,
(Koocher, 2003).
1988). These incidents mostly occurred because the
parent or guardian was distressed regarding the child’s
actual sexual orientation or potential and perceived Inpatient Treatment
sexual orientation. An account of an adolescent boy who The use of inpatient and residential treatments for
was placed in a program sponsored by Love in Action, SOCE is inconsistent with the recommendations of the
a religious-based program, was reported widely in the field. For instance, the American Academy of Child
press (Williams, 2005). This program was reported and Adolescent Psychiatry (1989) recommended that
to focus on religious approaches to SOCE as well as inpatient treatment, when it does occur, be of the
shortest possible duration and reserved for the most To provide an overview of the issues with residential
serious psychiatric illnesses, such as those of a psychotic programs for youth, we reviewed information gathered
nature or where there is an acute danger to self or by the APA (2002a) Committee on Children, Youth, and
others. For less serious mental health conditions, the Families in collaboration with the APA State Advocacy
Academy recommended that inpatient hospitalization Office and the testimony and subsequent published
occur only after less restrictive alternatives (i.e., report by members of the U.S. General Accounting
outpatient and community resources) are shown to Office before the Committee on Education and Labor of
be ineffective. In Best Practice Guidelines: Serving the U.S. House of Representatives (Kutz & O’Connell,
LGBT Youth in Out-of-Home Care (Wilber, Ryan, & 2007). These reports and testimony evaluated some
Marksamer, 2006), the Child Welfare League of America current problems in adolescent residential mental
recommended that, if necessary, hospitalization or health care. There are a large number of unlicensed and
residential substance abuse treatment for adolescents unregulated programs marketed to parents struggling
be in a setting that provides mental health treatments to find behavioral or mental health programs for their
that are affirmative of LGB people and for which the adolescent children. Although many of these programs
staff is competent to provide such services. Further, in avoid regulation by not identifying themselves as
a review of the psychiatric literature, Weithorn (1988) mental health programs, they do advertise mental
concluded that the deprivation of normal social contacts health, behavioral, and/or educational goals, especially
and prevention of attendance at school and other normal for those youth perceived as troubled by their parents.
social settings can be harmful as well as punitive. Many of these programs are involuntary and coercive
and use seclusion or isolation and escort services to
Programs with Religious Affiliations transport unwilling youth to program locations (Kutz &
Programs sponsored by religious groups, such as Love O’Connell, 2007). The testimony and report described
in Action’s program, Refuge,58 provide religiously the negative mental health impacts of these programs
based interventions that claim to change sexual and expressed grave concerns about them, including
orientation, control sexual behavior, or prevent the questions about quality of care and harm caused by
development of same-sex sexual orientation. The coercive or involuntary measures (Kutz & O’Connell,
interventions have been marketed to parents in this 2007).
way (Burack & Josephson, 2005; Sanchez, 2007; Thus, residential and outpatient programs that
Williams, 2005). Because they are religious in nature are involuntary and coercive and provide inaccurate
and are not explicitly mental health facilities,59 many scientific information about sexual orientation or are
of these programs are not licensed or regulated by excessively fear-
Although religious doctrines based pose both
state authorities. Burack and Josephson reported
that there was effort by religious organizations and
themselves are not the purview clinical and ethical
sponsors of these programs to communicate to parents of psychologists, how religious concerns, whether
that homosexuality is abnormal and sinful and could doctrine is inculcated through or not they are
be changed.60 Such religious organizations, according educational and socialization based on religious
doctrine. Although
to the authors of the report, encouraged parents to practices is a psychological
seek treatment for their children. Based on anecdotal religious doctrines
issue and an appropriate themselves are
accounts of current and past residents, these programs,
subject of psychological not the purview of
to influence adolescents’ life decisions, allegedly used
examination, especially if psychologists, how
fear and even threats about negative spiritual, health,
and life consequences and thus are viewed as coercive there are concerns regarding religious doctrine
(Burack & Josephson, 2005; Sanchez, 2007). substantiation of benefit or harm, is inculcated
unlicensed and unregulated through educational
and socialization
58
The program “Refuge,” directed at adolescents, was closed in 2007 facilities, and coercive and
practices is a
and is no longer advertised. However, Love in Action still sponsors involuntary treatment.
residential programs for adults. psychological issue
59
These programs advertise helping with addiction, “negative self-
and an appropriate subject of psychological examination,
talk and irrational belief systems,” and behavior change (see www. especially if there are concerns regarding substantiation
loveinaction.org/default.aspx?pid=91). of benefit or harm, unlicensed and unregulated facilities,
60
See www.loveinaction.org/default.aspx?pid=122 and coercive and involuntary treatment.

As noted earlier, we define coercive treatments as 2004, 2007; Yarhouse & Tan, 2005a).61 This literature
practices that compel or manipulate an individual recommends that LMHP learn about the law and
to submit to treatment through the use of threats, scholarship on developmental factors in informed
intimidation, manipulation, trickery, or some other consent and take steps to ensure that minor clients
form of pressure, including threats of future harm. have a developmentally appropriate understanding
Harm can be physical or psychological. Harmful of treatment, are afforded complete information
psychological consequences include disapproval; loss of about their rights, and are provided treatment in the
love; rejection or abandonment by family, community, or least restrictive environment. LMHP can review the
peer group; feelings of guilt/obligation; and exploitation recommendations for assent to treatment recommended
of physical, emotional, or spiritual dependence. in the Guidelines for Psychotherapy for Lesbian,
Coercive and involuntary treatment present ethical Gay, and Bisexual Clients (APA, 2000) and can seek
dilemmas for providers working with many clients an adolescent’s consent consistent with evolving
(APA, 2002b; Beauchamp & Childress, 2008; Davis, considerations of developmental factors (Forehand &
2002); however, with children and adolescents, such Ciccone, 2004; Redding, 1993; Rosner, 2004a, 2004b).
concerns are heightened (Molnar, 1997; Weithorn, APA policies (APA, 1993, 2000) and the vast majority
1988). Children and adolescents are more vulnerable to of current publications on therapy for LGB and
such treatments because of the lack of legal rights and questioning adolescents who are concerned about their
cognitive and emotional maturity and emotional and sexual orientation recommend that LMHP support
physical dependence on parents, guardians, and LMHP adolescents’ exploration of identity by
(Molnar, 1997; Weithorn, 1988). The involuntary nature
• accepting homosexuality and bisexuality as normal
of particular programs raises issues similar to those
and positive variants of human sexual orientation,
of other involuntary mental health settings; however,
because they are religious programs, not mental health • accepting and supporting youths as they address the
programs, they pose complex issues for licensure and stigma and isolation of being a sexual minority,
regulation (Williams, 2005). Given ethical imperatives
• using person-centered approaches as youths
that stress maximizing autonomous decision making
explore their identities and experience important
and self-determination (APA, 2002b; Beauchamp &
developmental milestones (e.g., exploring sexual
Childress, 2008), LMHP should strive to maximize
values, dating, and socializing openly),
autonomous decision making and self-determination
and avoid coercive and involuntary treatments. • ameliorating family and peer concerns (e.g., APA,
2000, 2002a; D’Augelli & Patterson, 2001; Floyd &
Appropriate Application of Stein, 2002; Fontaine & Hammond, 1996; Hart &
Heimberg, 2001; Hetrick & Martin, 1987; Lemoire
Affirmative Intervention With & Chen, 2005; Mallon, 2001; Martin, 1982; Perrin,
Children and Adolescents 2002; Radkowsky & Siegel, 1997; Ryan, 2001; Ryan
et al., 2009; Ryan & Diaz, 2005; Ryan & Futterman,
1997; Schneider, 1991; Slater, 1988; Wilber, Ryan &
Multicultural and Client-Centered Marksamer, 2006; Savin-Williams & Cohen, 2004;
Approaches for Adolescents Yarhouse & Tan, 2005a).
A number of researchers and practitioners have
advised LMHP that when working with children or When sexual minority and questioning youth require
adolescents and their families, they should address residential or inpatient treatment for mental health,
concerns regarding sexual orientation and base their behavioral, or family issues, it has been recommended
interventions on the current developmental literature that such treatment be safe from discrimination and
on children and adolescents and the scholarly literature prejudice and affirming of sexual orientation diversity
on parents’ responses to their child’s sexual orientation 61
Due to the limited research on children, adolescents, and families
(e.g., Ben-Ari, 1995; Bernstein, 1990; Holtzen & who seek SOCE, our recommendations for affirmative therapy
Agriesti, 1990; Mattison & McWhirter, 1995; Perrin, for children, youth, and their families distressed about sexual
orientation are based on general research and clinical articles
2002; Ryan, Huebner, Diaz, & Sanchez, 2009; Salzburg, addressing these and other issues, not on research specific to those
who specifically request SOCE. We acknowledge that limitation in
our recommendations.
by staff who are knowledgeable about LGB identities age-appropriate exploration with children, adolescents,
and life choices (Mallon, 2001; Wilber et al., 2006). and parents regarding these issues.
Other aspects of human diversity, such as age,
gender, gender identity, race, ethnicity, culture,
national origin, religion, disability, language, and
Multicultural and Client-Centered
socioeconomic status, may be relevant to an adolescent’s Approaches for Parents and Families
identity development, and these differences may Parental attitudes and behaviors play a significant role
intersect with sexual orientation identity (Diamond in children’s and adolescents’ adjustment (Radkowsky
& Savin-Williams, 2000; Rosario, Rotheram-Borus, & Siegel, 1997; Ryan & Diaz, 2005; Ryan et al., 2009;
& Reid, 1996; Rosario, Scrimshaw, & Hunter, 2004; Savin-Williams,
Rosario, Schrimshaw, Hunter, & Braun, 2006). Some Reducing parental rejection, 1989b, 1998;
adolescents are more comfortable with fluid or flexible hostility, and violence (verbal Wilber et al., 2006;
identities due to gender differences and generational or or physical) may contribute to Yarhouse, 1998b).
developmental concerns, and their sexual orientation the mental health and safety One retrospective
identities may not be exclusive or dichotomous research study of
of the adolescent.
(Diamond, 2006; Morgan & Thompson, 2006; Savin- adults indicated
Williams, 2005). that LGB children are more likely to be abused by
Only a few articles addressed the specific conflicts their families than by nonrelated individuals (Corliss,
between religious identities and sexual orientation Cochran, & Mays, 2002). Another found that family
identities among youth (Cates, 2007; Yarhouse, 1998b; rejection is a key predictor of negative health outcomes
Yarhouse & Tan, 2005a). For instance, Yarhouse and in White and Latino LGB young adults (Ryan,
Tan proposed solutions that respect religious beliefs Huebner, Diaz, & Sanchez, 2009). Reducing parental
and emphasized nondirective exploration of religious rejection, hostility, and violence (verbal or physical)
and sexual orientation identity that do not advocate may contribute to the mental health and safety of the
a particular sexual orientation identity outcome. As adolescent (Remafedi et al., 1991; Ryan et al., 2009;
adolescents may experience a crisis of faith and distress Savin-Williams, 1994; Wilber et al., 2006). Further, to
linked to religious and spiritual beliefs, the authors improve parents’ responses, LMHP need to find ways
explored interventions that integrate the psychology to ameliorate parents’ distress about their children’s
of religion into interventions that stress improving the sexual orientation. Exploring parental attributions
client’s positive religious coping and relationship with and values regarding same-sex sexual orientation is
the sacred (e.g., Exline, 2002; Pargament & Mahoney, especially important in order to facilitate engagement in
2005; Pargament et al., 1998, 2005). Cates (2007), from treatment, resolution of ethical dilemmas, and increase
a more secular frame, emphasized a client-centered of potential benefits of psychotherapy (Morrisey-Kane &
approach that stresses the LMHP’s unconditional Prinz, 1999; Sobocinski, 1990).
acceptance of the client and client choices even if the Family therapy for families who are distressed
client cannot accept his or her own sexual orientation. by their child’s sexual orientation may be helpful
The ethical issues outlined in Chapter 7 are also in facilitating dialogues, increasing acceptance
relevant to children and adolescents; however, working and support, reducing rejection, and improving
with adolescents presents unique ethical dilemmas to management of conflicts or misinformation that
LMHP (Koocher, 2003). Children and adolescents are may exacerbate an adolescent’s distress (Mattison &
often unable to anticipate the future consequences of McWhirter, 1995; Ryan et al., 2009; Salzburg, 2004,
a course of action and are emotionally and financially 2007). Such therapy can include family psychoeducation
dependent on adults. Further, they are in the midst of to provide accurate information and teach coping
developmental processes in which the ultimate outcome skills and problem-solving strategies for dealing more
is unknown. Efforts to alter that developmental path effectively with the challenges sexual minority youth
may have unanticipated consequences (Perrin, 2002). may face and the concerns the families and caretakers
LMHP should strive to be mindful of these issues, may have (Ben-Ari, 1995; Perrin, 2002; Ryan & Diaz,
particularly as these concerns affect assent and consent 2005; Ryan & Futterman, 1997; Ryan et al., 2009;
to treatment and goals of treatment (Koocher, 2003; Salzburg, 2004, 2007; Yarhouse, 1998b). Ryan and
Rosner, 2004a, 2004b; Sobocinski, 1990). Possible Futterman (1997) termed this anticipatory guidance:
approaches include open-ended and scientifically based

the LMHP provides family members with accurate isolation that many parents experience (Menveille &
information regarding same-sex sexual orientation Tuerk, 2002).
and dispels myths regarding the lives, health, and
psychological well-being of LGB individuals.
Perrin (2002) recommended that when working
Community Approaches for Children,
with families of preadolescent children, LMHP Adolescents, and Families
counsel parents who are concerned that their young Research has illuminated the potential that school-
children may grow up to be lesbian or gay to tolerate based and community interventions have for increasing
the ambiguity inherent in the limited knowledge of safety and tolerance of sexual minorities, preventing
development. In addition, Perrin suggested a two- distress and negative mental health consequences,
prong approach: (a) Provide information to reduce and increasing the psychological well-being and health
heterosexism within the family and increase the of sexual minority youth (APA, 1993; D’Augelli &
family’s capacity to provide support and (b) introduce Patterson, 2001; Goodenow, Szalacha, & Westheimer,
information about LGB issues into family discussions to 2006; Harper, Jamil, & Wilson, 2007; Kosciw & Diaz,
aid the child’s own self-awareness and self-acceptance 2006; A. J. Peters, 2003; Roffman, 2000; Safren &
and to counter stigma. For adolescents, Ryan et al. Heimberg, 1999; Schneider, 1991; Treadway & Yoakum,
(2009) recommended that LMHP assess family reactions 1992). For instance, sexual minority adolescents in
to LGB youth, specifically the presence of family schools with support groups for LGB students reported
rejection. Further, the authors advocated attempting lower rates of suicide attempts and victimization
to modify highly rejecting behaviors, providing than those without such groups (Goodenow et al.,
anticipatory guidance to families that includes 2006; Kosciw & Diaz, 2006; Szalacha, 2003). Kosciw
recommendations for support on the part of the family, and Diaz (2006) found that such support groups were
and explaining the link between family rejection and related to improved academic performance and college
negative health problems in children and adolescents. attendance. The support groups that were examined in
Families with strong religious beliefs that condemn the research provided accurate affirmative information
homosexuality may struggle with a child’s same-sex and social support, and the groups’ presence was also
sexual orientation (Cates, 2007; Yarhouse, 1998b; related to increased school tolerance and safety for LGB
Yarhouse & Tan, 2005a). Yarhouse and Tan (2005a) youth (Goodenow et al., 2006; Kosciw & Diaz, 2006;
suggested that family therapy reframe the religious Szalacha, 2003). School policies that increased staff
beliefs to focus on aspects of faith that encourage love support and positive school climate have been found
and acceptance of their child rather than on a religion’s to moderate suicidality and to positively affect sexual
prohibitions. The authors stressed that these positive minority youth school achievement and mental health
elements of faith can lay a constructive foundation for (Goodenow et al., 2006).
communication and problem solving and reduce family School and community interventions have the
discord and rejection (Yarhouse & Tan, 2005a, p. 534). potential for introducing other sources of peer and adult
Providing anticipatory guidance to parents to address support that may buffer children and adolescents from
their unique personal concerns can be helpful (Ryan rejection that may occur in certain family, community,
& Futterman, 1997). The LMHP can help the parents and religious contexts. These school and community
plan in an affirmative way for the unique life challenges interventions may provide alternative sources of
that they may face as parents of a sexual minority child. information regarding LGB identities and lives.
Parents must deal with their own unique choices and However, such school and community interventions are
process of “coming out” and resolve fears of enacted unlikely to directly affect the core attitudes and beliefs
stigma if they risk disclosure within their communities, of the religious institutions and communities in which
at work, and to other family members (Bernstein, 1990). sexual orientation distress and family rejection might
Further, the LMHP can address other stresses, such as occur. These programs may have an indirect effect on
managing life celebrations and transitions and coping communities and religious institutions because of their
with feelings of loss, and aid parents in advocating for potential to change the general social context in which
their children in school situations—for example, when families deal with conflicts between their children’s
they face bullying or harassment. Multiple family emerging sexual orientations and identities. We hope
groups led by LMHP might be helpful to counter the that such change will reduce the level of psychological
distress that such conflicts between religion and that LMHP avoid
sexuality create and reduce the level of hostility and Some advocates of these such efforts and
punitiveness to which some children and adolescents treatments see homosexuality as provide instead
are exposed as a result of their sexual orientation. a mental disorder, a concept multicultural,
For families, groups such as Parents, Families, that has been rejected by the client-centered,
and Friends of Lesbians and Gays (PFLAG) and the mental health professions for and affirmative
Straight Spouse Network may also provide a safe, treatments
more than 35 years.
nonjudgmental space in which to discuss their concerns, that are
receive accurate information, reduce isolation, and developmentally appropriate (Perrin, 2002).
reduce feelings of perceived stigma (Goldfried & Second, we were asked to comment on the presence
Goldfried, 2001). PFLAG offers extensive literature for of adolescent inpatient facilities that offer coercive
parents based on affirmative approaches to same-sex treatment designed to change sexual orientation or
sexual attractions as well as a nationwide network of the behavioral expression of sexual orientation. We
support groups. Such groups, by providing alternative found that serious questions are raised by involuntary
sources of information, could reduce the distress for and coercive interventions and residential centers
parents and increase family support of their sexual for adolescents due to their advocacy of treatments
minority children, thus positively affecting sexual that have no scientific basis and potential for harm
minority youth and children whose families are due to coercion, stigmatization, inappropriateness of
concerned about their future sexual orientation. treatment level and type, and restriction of liberty.
Parents who are religious may benefit from finding Although the prevalence of these treatment centers is
support through religious organizations and groups. unknown, we recommend that some form of oversight
One concern is that some groups may provide parents be established for such youth facilities, such as
with information that presents same-sex sexual licensure and monitoring, especially as a means of
orientation in a negative light (e.g., defective, “broken”), reporting abuse or neglect.
which could increase stigma and rejection of children States have different requirements and standards
and adolescents; thus, such groups should rarely for obtaining informed consent to treatment for
be considered. Alternatively, some groups provide adolescents; however, it is recognized that adolescents
resources that are both LGB affirming and religious.62 are cognitively able to participate in some health care
treatment decisions and that such participation is
helpful. We recommend that when it comes to treatment
Conclusion that purports to have an impact on sexual orientation,
We were asked to report on three issues for children LMHP assess the adolescent’s ability to understand
and adolescents. First, we were asked to provide treatment options, provide developmentally appropriate
recommendations regarding treatment protocols that informed consent to treatment that is consistent with
attempt to prevent homosexuality in adulthood by the adolescent’s level of understanding, and, at a
promoting stereotyped gender-normative behavior in minimum, obtain the youth’s assent to treatment. SOCE
children to mitigate behaviors that are perceived to that focus on negative representations of homosexuality
be indicators that a child will develop a homosexual and lack a theoretical or evidence base provide no
orientation in adolescence and adulthood. We found documented benefits and can pose harm through
no empirical evidence that providing any type of increasing sexual stigma and providing inaccurate
therapy in childhood can alter adult same-sex sexual information. We further concluded that involuntary or
orientation. Some advocates of these treatments see coercive residential or inpatient programs that provide
homosexuality as a mental disorder, a concept that has SOCE to children and adolescents may pose serious
been rejected by the mental health professions for more risk of harm, are potentially in conflict with ethical
than 35 years. Further, the theories that such efforts imperatives to maximize autonomous decision making
are based on have not been corroborated by scientific and client self-determination, and have no documented
evidence or evaluated for harm. Thus, we recommend benefits. Thus, we recommend that parents, guardians,
or youth not consider such treatments.
62
See, e.g., “Family Fellowship” (www.ldsfamilyfellowship.org/) for Finally, we were asked to report on the appropriate
parents who belong to the Church of Jesus Christ of Latter-Day
application of affirmative therapeutic interventions
Saints. The Institute of for Sexual Orientation and Judaism also lists
resources: www.huc.edu/ijso/. for children and adolescents who present a desire to

change their sexual orientation or their behavioral
expression of their sexual orientation, or both, or whose
guardian expresses a desire for the minor to change.
We recommend
We recommend that LMHP that LMHP provide
provide multiculturally competent multiculturally
and client-centered therapies to competent and
children, adolescents, and their client-centered
therapies
families rather than SOCE.
to children,
adolescents, and their families rather than SOCE. Such
approaches include an awareness of the interrelatedness
of multiple identities in individual development as
well an understanding of cultural, ethnic, and religious
variation in families. Specific approaches can include (a)
supporting children and youth in their developmental
processes and milestones, (b) reducing internalized
stigma in children and sexual stigma in parents, and
(c) providing affirmative information and education
on LGB identities and lives. These approaches would
support children and youth in identity exploration and
development without seeking predetermined outcomes.
Interventions that incorporate knowledge from the
psychology of religion and that increase acceptance,
love, and understanding among individuals, families,
and communities are recommended for populations
for whom religion is important. Family therapy that
provides anticipatory guidance to parents to increase
their support and reduce rejection of children and
youth addressing these issues is essential. School and
community interventions are also recommended to
reduce societal-level stigma and provide information
and social support to children and youth.
9. Summary and Conclusions
A
PA’s charge to the task force included three major Third, the task force was asked to inform APA’s
tasks that this report addresses. First, the task response to groups that promote treatments to change
force was asked to review and update the 1997 sexual orientation or its behavioral expression and
resolution on Appropriate Therapeutic Responses to to support public policy that furthers affirmative
Sexual Orientation (APA, 1998). Second, the task force therapeutic interventions.
was asked to report on the following: The substance of the second task has been achieved
in the preceding chapters of this report. In Chapters 3
• The appropriate application of affirmative therapeutic
and 4, we reviewed the body of research on the efficacy
interventions for children and adolescents who
and safety of sexual orientation change effort (SOCE).
present a desire to change either their sexual
In Chapter 5 we addressed the nature of distress and
orientation or their behavioral expression of their
identified conflicts in adults that provide the basis of
sexual orientation, or both, or whose guardian
our recommendations for affirmative approaches for
expresses a desire for the minor to change.
psychotherapy practice that are described in Chapter 6.
• The appropriate application of affirmative therapeutic Chapter 7 discusses ethical issues in SOCE for adults.
interventions for adults who present a desire to In Chapter 8, we considered the more limited body of
change their sexual orientation or their behavioral research on children and adolescents, including a review
expression of their sexual orientation, or both. of SOCE with children and adolescents and affirmative
approaches for psychotherapy.
• The presence of adolescent inpatient facilities
In this final chapter, we summarize the report and
address those two tasks—one and three—that have not
been addressed in the report so far. With regard to the
sexual orientation.
policy, we recommend that the 1997 policy be retained
• Education, training, and research issues as they and that a new policy be adopted to complement it. The
pertain to such therapeutic interventions. new policy that we propose is presented in Appendix A.
With regard to APA’s response to groups that advocate
• Recommendations regarding treatment protocols that for SOCE, we provide those recommendations at the
promote stereotyped gender-normative behavior to end of this chapter in the section on policy.
mitigate behaviors that are perceived to be indicators To achieve the charge given by APA, we decided to
that a child will develop a homosexual orientation in conduct a systematic review of the empirical literature
adolescence and adulthood. on SOCE. This review covered the peer-reviewed
Summary and Conclusions 81

journal articles in English from 1960 to 2007.63 The profoundly different methodological and philosophical
review is reported in Chapters 3 and 4: Chapter 3 viewpoints. The APA has affirmed that proven methods
addresses methodological issues in the research and of scientific inquiry are the best methods to explore
Chapter 4 addresses the outcomes, such as safety, and understand human behavior and are the basis
efficacy, benefit, and harm of the SOCE. for the association’s policies (APA, 2007a, 2008a). The
We also reviewed the recent literature on the APA affirms that discrimination directed at religions
psychology of sexual orientation. There is a growing and their adherents or derived from religious beliefs
body of literature that concludes that social stigma, is unacceptable and that religious faith should be
known specifically as sexual stigma, manifested as respected as an aspect of human diversity (APA, 2008a).
prejudice and discrimination directed at same-sex
sexual orientations and identities, is a major source
of stress for sexual minorities. This stress, known as Summary of the Systematic
minority stress, is a major cause of the mental health Review of the Literature
disparities of sexual minorities. On the basis of this
literature, we recommend that all interventions and To fulfill the charge given by APA, we undertook a
policy for these populations include efforts to mitigate systematic review to address the key questions: What
minority stress and reduce stigma. are the outcomes of SOCE and their potential benefits
Further, we found that religious individuals with and harms? What is the evidence on whether SOCE
beliefs that homosexuality is sinful and morally is effective or safe? The first step was to evaluate the
unacceptable are prominent in the population that research to determine if such conclusions could be
currently undergoes SOCE. These individuals seek drawn from the research—in other words, was the
SOCE because the disapproving stance of their faiths research performed with the appropriate degree of
toward homosexuality produces conflicts among their methodological rigor to provide such answers? The next
beliefs and values and their sexual orientation. These question was to determine, if such research existed,
conflicts result in significant distress due to clients’ what answers it provided.
perceptions that they are unable to integrate their faith
and sexual orientation. To respond as well as possible to Efficacy and Safety
this population, we included in our review some of the
We found few scientifically rigorous studies that could
empirical and theoretical literature from the psychology
be used to answer the questions regarding safety,
of religion, recently adopted APA policies on religion
efficacy, benefit, and harm (e.g., Birk et al., 1971; S.
and science, and specific interventions that have been
James, 1978; McConaghy, 1969, 1976; McConaghy et
proposed in the literature for religious populations.
al., 1972; Tanner, 1974, 1975). Few studies could be
SOCE has been quite controversial, and the
considered true experiments or quasi-experiments that
controversy has
APA has affirmed that proven would isolate and control the factors that might effect
at times become
change (see the list of studies in Appendix B). These
methods of scientific inquiry are polemical because
studies were all conducted in the period from 1969 to
the best methods to explore of clashes between
1978 and used aversive or other behavioral methods.
and understand human behavior differing political Recent SOCE differ from those interventions
and are the basis for the viewpoints
explored in the early research studies. The recent
about LGB
association’s policies. nonreligious interventions are based on the assumption
individuals and
that homosexuality and bisexuality are mental
communities and the differing values between some
disorders or deficits and are based on older discredited
faith-based organizations and scientific and professional
psychoanalytic theories (e.g., Socarides, 1968; see
organizations (Drescher, 2003; Zucker, 2008).
American Psychoanalytic Association, 1991, 1992, 2000;
Psychology, as a science, and various faith traditions, as
Drescher, 1998a; Mitchell, 1978, 1981). Some focus on
theological systems, can acknowledge and respect their
increasing behavioral consistency with gender norms
63
The articles in English include material on populations outside and stereotypes (e.g., Nicolosi, 1991). None of these
the United States, including Canada, Mexico, Western Europe, and
approaches is based on a credible scientific theory,
some material on Middle Eastern, South Asian, and East Asian
populations. No articles based on new research have been published as these ideas have been directly discredited through
since 2007. One article published in 2008 is a restatement of Schaeffer evidence or rendered obsolete. There is longstanding
et al. (2000).
scientific evidence that homosexuality per se is not a sexual attractions. Thus, we concluded the following
mental disorder (American Psychiatric Association, about SOCE: The results of scientifically valid research
1973; Bell & Weinberg, 1978; Bell et al., 1981; Conger, indicate that it is unlikely that individuals will be able
1975; Gonsiorek, 1991; Hooker, 1957), and there are to reduce same-sex sexual attractions or increase other-
a number of alternate theories of sexual orientation sex attractions through SOCE.
and gender consistent with this evidence (Bem, 1996; The few early research investigations that were
Butler, 2004; Chivers et al., 2007; Corbett, 1996, 1998, conducted with scientific rigor raise concerns about
2001; Diamond, 1998, 2006; Drescher, 1998a; Enns, the safety of SOCE, as some participants suffered
2008; Heppner & Heppner, 2008; Levant & Silverstein, unintended harmful side effects from the interventions.
2006; Mustanksi et al., 2002; O’Neil, 2008; Peplau & These negative side effects included loss of sexual
Garnets, 2000; Pleck, 1995; Rahman & Wilson, 2005; feeling, depression, suicidality, and anxiety. The high
Wester, 2008). dropout rate in these studies may indicate that some
Other forms of recent SOCE are religious, are not research participants may have experienced these
based on theories that can be scientifically evaluated, treatments as harmful and discontinued treatment
and have not been subjected to rigorous examination (Lilienfeld, 2007). There are no scientifically rigorous
of efficacy and safety. These approaches are based studies of recent SOCE that would enable us to make a
on religious beliefs that homosexuality is sinful and definitive statement about whether recent SOCE is safe
immoral and, consequently, that identities and life or harmful and for whom.
paths based on same-sex sexual orientation are not
religiously acceptable. The few high-quality studies of
SOCE conducted from 1999 to 2004 are qualitative (e.g.,
Individuals Who Seek SOCE
Beckstead & Morrow, 2004; Ponticelli, 1999; Wolkomir, and Their Experiences
2001) and these, due to the research questions explored, Although scientific evidence shows that SOCE is not
aid in understanding the population that seeks sexual likely to produce its intended outcomes and can produce
orientation change but do not provide the kind of harm for some of its participants, there is a population
information needed for definitive answers to questions of consumers who present to LMHP seeking SOCE.
of the safety and efficacy of SOCE. To address the questions of appropriate application of
Thus, we concluded that the early evidence, though affirmative interventions for this population, which was
extremely limited, is the best basis for predicting what a major aspect of APA’s charge to the task force, we
would be the outcome of psychological interventions. returned to the research literature on SOCE, expanding
Scientifically rigorous older work in this area (e.g., Birk beyond the scope of the systematic review to include
et al., 1971; S. James, 1978; McConaghy, 1969, 1976; other literature in order to develop an understanding of
McConaghy et al., 1973; Tanner, 1974, 1975) shows that the current population that seeks SOCE. The research
enduring change to an individual’s sexual orientation does reveal something about those individuals who
is uncommon and seek SOCE, how they evaluate their experiences,
The results of scientifically valid that a very small and why they undergo SOCE, even if the research
research indicate that it is number of people does not indicate whether SOCE has anything to do
unlikely that individuals will be in these studies with the changes some clients perceive themselves
able to reduce same-sex sexual show any credible to have experienced. We sought this information
attractions or increase other-sex evidence of reduced to be as comprehensive as possible and to develop
same-sex sexual an information base that would serve as a basis for
attractions through SOCE.
attraction, though considering affirmative interventions.
some show lessened physiological arousal to all sexual SOCE research identifies a population of individuals
stimuli. Compelling evidence of decreased same-sex who experience conflicts and distress related to same-
sexual behavior and increased sexual attraction to sex sexual attractions. The population of adults
and engagement in sexual behavior with the other included in recent SOCE research is highly religious,
sex was rare. Few studies provided strong evidence participating in faiths that many would consider
that any changes produced in laboratory conditions traditional or conservative (e.g., the Church of Jesus
translated to daily life. Many individuals continued to Christ of Latter-Day Saints [Mormon], evangelical
experience same-sex sexual attractions following SOCE Christian, or Orthodox Jewish). Most of the participants
and seldom reported significant change to other-sex

in recent studies are White men who report that their commonly attributed to sexual orientation (e.g., sexual
religion is extremely important to them (Nicolosi et behavior with men and/or women; sexual values,
al., 2000; Schaeffer et al., 2000; Shidlo & Schroeder, norms, and motivations; social affiliations with LGB or
2002; Spitzer, 2003). These recent studies include a heterosexual individuals and communities; emotional
small number of participants who identify as members attachment preferences for men or women; gender role
of ethnic minority groups. Recent studies include more and identity; lifestyle choices) are potential correlates
women than in early studies, and two qualitative of sexual orientation rather than principal dimensions
studies are exclusively female (i.e., Moran, 2007; of the construct. Sexual orientation identity refers to
Ponticelli, 1999). Most of the individuals studied tried recognition and internalization of sexual orientation
a variety of methods to change their sexual orientation, and reflects self-awareness, self-recognition, self-
including psychotherapy, support groups, and religious labeling, group membership and affiliation, culture,
efforts. Many of the individuals studied were recruited and self-stigma. Sexual orientation identity is a key
from groups endorsing SOCE. The body of literature element in determining relational and interpersonal
overall is based on convenience samples; thus, the decisions, as it creates a foundation for the formation of
relationship between the characteristics of these community, social support, role models, friendship, and
individuals compared with to the entire population of partnering (APA, 2003; Jordan & Deluty, 1998; McCarn
people who seek SOCE is unknown. & Fassinger, 1996; Morris, 1997).
Comparisons of the early and recent research indicate Recent studies of SOCE participants frequently
changes in the demographics of those who seek SOCE. do not distinguish between sexual orientation and
The individuals who participated in early research sexual orientation
on SOCE were also predominantly White males, but The available evidence, from identity. We
those studies included men who were court-referred to both early and recent studies, concluded that
treatment, men who were referred to treatment for a suggests that although sexual the failure to
range of psychiatric and sexual concerns, and men who orientation is unlikely to change, distinguish
were fearful of criminal or legal sanctions, in addition these aspects of
some individuals modified their
to men who were distressed by their sexual attractions. human sexuality
There are no data on the religious faith beliefs of sexual orientation identity (i.e., has led SOCE
those in the early studies. As noted previously, the individual or group membership research to obscure
individuals in recent studies indicated that religion is and affiliation, self-labeling) and understanding of
very important to them. other aspects of sexuality (i.e., what aspects of
We concluded that some of the controversy human sexuality
values and behavior).
surrounding SOCE can be explained by different might and might
understandings of the nature of sexual orientation not change through intervention. The available
and sexual orientation identity. Recent research in evidence, from both early and recent studies, suggests
the field of sexual orientation indicates a range of that although sexual orientation is unlikely to change,
sexual attractions and desires, sexual orientations, some individuals modified their sexual orientation
and multiple ways of self-labeling and self-identifying identity (i.e., individual or group membership and
(e.g., Carrillo, 2002; Diamond, 1998, 2006, 2008; Fox, affiliation, self-labeling) and other aspects of sexuality
1995; Hoburg et al., 2004; Savin-Williams, 2005). (i.e., values and behavior). They did so in a variety of
Some researchers have found that distinguishing the ways and with varied and unpredictable outcomes, some
constructs of sexual orientation and sexual orientation of which were temporary (Beckstead, 2003; Beckstead &
identity adds clarity to an understanding of the Morrow, 2004; Shidlo & Schroeder, 2002). For instance,
variability inherent in reports of these two variables (R. in recent research, many individuals claim that through
L. Worthington & Reynolds, 2009). Sexual orientation participating in SOCE, they became skilled in ignoring
refers to an individual’s patterns of sexual, romantic, or tolerating their attractions or limiting the impact of
and affectional arousal and desire for other persons their attractions on their sexual behavior (Beckstead &
based on those persons’ gender and sex characteristics. Morrow, 2004; McConaghy, 1976; Shidlo & Schroeder,
Sexual orientation is tied to physiological drives and 2002). Early nonexperimental case studies described
biological systems that are beyond conscious choice and individuals who reported that they went on to lead
involve profound emotional feelings such as “falling outwardly heterosexual lives, including, for some,
in love” and emotional attachment. Other dimensions developing a sexual relationship with another-sex
partner and adopting a heterosexual identity (Birk, & Schroeder, 2002; Spitzer, 2003; Wolkomir, 2001,
1974; Larson, 1970). Some of these individuals reported 2006). Some reported that SOCE helped them view
heterosexual experience prior to treatment. People their sexual orientation in a different light that
whose sexual attractions were initially limited to people permitted them to live in a manner consistent with
of the same sex report much lower increases (if any) their faith, which they perceived as positive (Nicolosi et
in other-sex attractions compared to those who report al., 2000). Some individuals described finding a sense
initial attractions to both men and women (Barlow et of support and community through SOCE and valued
al., 1975). However, the low degree of scientific rigor in having others with whom they could identify (Beckstead
these studies makes any conclusion tentative. & Morrow, 2004; Ponticelli, 1999; Wolkomir, 2001).
Recent research indicates that former participants in These effects mirror those provided by mutual support
SOCE report diverse evaluations of their experiences. groups for a range of problems. And the positive benefits
Some individuals perceive that they have benefited from reported by participants in SOCE, such as reduction
SOCE, while other individuals perceive that they have of isolation, change of meaning, and stress reduction,
been harmed by SOCE (Beckstead & Morrow, 2004; are consistent with the findings of social support
Nicolosi et al., 2000; Schroeder & Shidlo, 2001; Shidlo literature (Levine et al., 2004). Given the findings
& Schroeder, 2002). Across studies, it is unclear what of limited efficacy of change of sexual orientation, it
specific individual characteristics and diagnostic criteria is unlikely that SOCE provides any unique benefits
would prospectively distinguish those individuals other than those documented for the social support
who will later perceive that they have succeeded and mechanisms of mutual help groups (Levine et al., 2004).
benefited from SOCE from those who will later perceive For those in psychotherapy, the positive perceptions
that they have failed or been harmed. described appear to reflect the documented effects of
Some individuals who participated in the early the supportive function of psychotherapy relationships
research reported negative side effects such as loss of (e.g., Norcross, 2002). For instance, providing emotional
sexual arousal, impotence, depression, anxiety, and support, empathy, support, and compassion can reduce
relationship dysfunction. Individuals who participated distress.
in recent research and who failed to change sexual
orientation, while believing they should have changed
with such efforts, described their experiences as a
Literature on Children and Adolescents
significant cause of emotional distress and negative The task force was asked to report on the following: (a)
self-image (Beckstead & Morrow, 2004; Shidlo & the appropriate application of affirmative therapeutic
Schroeder, 2002). Overall, those in this recent research interventions for children and adolescents who present
who indicated that they were harmed reported feelings a desire to change either their sexual orientation or
of distress, anxiety, depression, suicidal ideation, self- their behavioral expression of their sexual orientation,
blame, guilt, and loss of hope among other negative or both, or whose guardian expresses a desire for the
feelings. Those who experienced religious interventions minor to change; (b) the presence of adolescent inpatient
and perceived them negatively said that they felt facilities that offer coercive treatment designed to
disillusioned with faith and a sense of failure in the change sexual orientation or the behavioral expression
eye of divine being (Beckstead & Morrow, 2004; Shidlo of sexual orientation; and (c) recommendations
& Schroeder, 2002). Indirect harm from the associated regarding treatment protocols that promote stereotyped
costs (time, energy, effort, money, disillusionment gender-normative behavior to mitigate behaviors that
with psychotherapy) spent in ineffective treatment is are perceived to be indicators that a child will develop a
significant. Both the early and recent research provide homosexual orientation in adolescence and adulthood.
little clarity on the associations between claims to We reviewed the limited research on child and
modify sexual orientation from same-sex to other-sex adolescent issues and drew the following conclusions:
and subsequent improvements or harm to mental There is no research demonstrating that providing
health. SOCE to children or adolescents has an impact on
Other individuals reported that they perceived adult sexual orientation. The few studies of children
SOCE to be helpful by providing a place to discuss with gender identity disorder found no evidence that
their conflicts, reduce isolation, and receive support psychotherapy provided to those children had an
(Beckstead & Morrow, 2004; Jones & Yarhouse, 2007; impact on adult sexual orientation (R. Green, 1986,
Nicolosi et al., 2000; Ponticelli, 1999; Shidlo 1987; Zucker, 2008; Zucker & Bradley, 1995). There

is currently no evidence that teaching or reinforcing • Acceptance and support
stereotyped gender-normative behavior in childhood
• Comprehensive assessment
or adolescence can alter sexual orientation (Mathy
& Drescher, 2008). We are concerned that such • Active coping
interventions may increase the self-stigma, minority
• Social support
stress, and ultimately the distress of children and
adolescents. We have serious concerns that the coercive • Identity exploration and development
or involuntary treatment of children or adolescents has
the potential to be harmful and may potentially violate Acceptance and support include (a) unconditional
current clinical and practice guidelines, standards for positive regard for and empathy with the client, (b)
ethical practice, and human rights. openness to the client’s perspective as a means to
understanding their concerns, and (c) encouragement of
Recommendations the client’s positive self-concept.

A comprehensive assessment considers sexual
and Future Directions orientation uniquely individual and inseparable from an
individual’s personality and sense of self. This includes
Affirmative Psychotherapy With Adults (a) being aware of the client’s unique personal, social,
and historical context and (b) exploring and countering
The appropriate application of affirmative therapeutic
the harmful impact of stigma and stereotypes on the
interventions with adults is built on three key
client’s self-concept (including the prejudice related to
findings in the research: (a) an enduring change to an
age, gender, gender identity, race, ethnicity, culture,
individual’s sexual orientation as a result of SOCE is
national origin, religion, sexual orientation, disability,
unlikely, and some participants were harmed by the
language, and socioeconomic status).
interventions; (b) sexual orientation identity, not sexual
Active coping strategies are efforts that include
orientation, appears to change via psychotherapy,
cognitive, behavioral, or emotional responses designed
support groups, or life events; and (c) clients benefit
to change the nature of the stressor itself or how an
from approaches that emphasize acceptance, support,
individual perceives it and include both cognitive and
and recognition of important values and concerns.
emotional strategies. These may include cognitive
On the basis of these findings and the clinical
strategies to reframe conflicts and emotional strategies
literature on this population, we suggest client-
to manage potential losses.
centered, multiculturally competent approaches
Psychotherapy, self-help groups, or welcoming
grounded in the following scientific facts: (a) same-
communities (ethnic communities, social groups,
sex sexual attractions, behavior, and orientations
religious denominations) provide social support that
per se are normal and positive variants of human
can mitigate distress caused by isolation, rejection, and
sexuality—in other words, they are not indicators
lack of role models. Conflicts among disparate elements
of mental or developmental disorders; (b) same-sex
of identity play a major role in the conflicts and mental
sexual attractions and behavior can occur in the
health concerns of those seeking SOCE.
context of a variety of sexual orientations and sexual
Identity exploration is an active process of exploring
orientation identities; (c) gay men, lesbians, and
and assessing one’s identity and establishing a
bisexual individuals can live satisfying lives and form
commitment to an integrated identity that addresses
stable, committed relationships and families that are
identity conflicts without an a priori treatment goal for
equivalent to those of heterosexual individuals in
how clients identify or live out their sexual orientation.
essential respects; and (d) no empirical studies or peer-
The process may include a developmental process that
reviewed research supports theories attributing same-
includes periods of crisis, mourning, reevaluation,
sex sexual orientation to family dysfunction or trauma.
identity deconstruction, and growth.
Based on these findings summarized above and
Treatments that are based on assumptions that
our comprehensive review of the research and
homosexuality or same-sex sexual attractions are, a
clinical literature, we developed a framework for the
priori, a mental disorder or psychopathology or based on
appropriate application of affirmative therapeutic
inaccurate stereotypes regarding LGB people are to be
interventions for adults that has the following central
avoided because they run counter to empirical data and
elements:
because reports of harm suggest that such treatments Special Concerns of
can reinforce restricting stereotypes, increase
internalized stigma, and limit a client’s development
Religious Individuals and Families
(Beckstead & Morrow, 2004; Haldeman, 2001; Shidlo & Many religious sexual minorities experience significant
Schroeder, 2002; Smith et al., 2004; see Lilienfeld, 2007, psychological distress and conflict due to the divergence
for information on psychotherapy harms). between their sexual orientation and religious beliefs.
To support clients who have these concerns, LMHP
can provide
Psychotherapy With Children psychological
The goal of treatment is for the
and Adolescents client to explore possible life
acceptance,
We were asked to report on the appropriate application support, and
paths that address the reality recognition of the
of affirmative therapeutic interventions for children
and adolescents who present a desire to change either
of their sexual orientation while importance of faith
their sexual orientation or the behavioral expression considering the possibilities to individuals
of their sexual orientation, or both, or whose guardian for a religiously and spiritually and communities
expresses a desire for the minor to change. Consistent meaningful and rewarding life. while recognizing
with the current scientific evidence, those working the science of
with children and adolescents should strive to have a sexual orientation. LMHP working with religious
developmentally appropriate perspective that includes individuals and families can incorporate research
a client-centered multicultural perspective to reduce from the psychology of religion into the client-centered
self-stigma and mitigate minority stress. This includes multicultural framework summarized above. The
interventions that (a) reduce stigma and isolation, (b) goal of treatment is for the client to explore possible
support the exploration and development of identity, life paths that address the reality of their sexual
(c) facilitate achievement of developmental milestones, orientation while considering the possibilities for a
and (d) respect age-appropriate issues regarding self- religiously and spiritually meaningful and rewarding
determination. Such services are ideally provided in the life. Such psychotherapy can enhance clients’ search
least restrictive setting and with, at a minimum, the for meaning, significance, and a relationship with the
assent of the youth. However, LMHP are encouraged to sacred in their lives (e.g., Pargament & Maloney, 2005).
acquire developmentally appropriate informed consent Such an approach would focus on increasing positive
to treatment. religious coping, understanding religious motivations,
Affirmative approaches encourage families to reduce integrating religious and sexual orientation identities,
rejection and increase acceptance of their child and and reframing sexual orientation identities to reduce or
adolescent (Perrin, 2002; Ryan et al., 2009). Parents eliminate self-stigma.
who are concerned or distressed by their children’s
sexual orientation can be provided accurate information Ethical Considerations
about sexual orientation and sexual orientation identity
LMHP strive to provide interventions that benefit
and offered anticipatory guidance and psychotherapy
clients and avoid harm, consistent with current
that supports family reconciliation (e.g., communication,
professional ethics. Psychologists aspire to provide
understanding, and empathy) and maintenance of their
treatment that is consistent with the APA Ethical
child’s total health and well-being. Interventions that
Principles of Psychologists and Code of Conduct (APA,
increase family, school, and community acceptance and
2002b) and relevant APA guidelines and resolutions
safety of sexual minority children and youth appear
(e.g., APA, 2000, 2002c, 2004, 2005a, 2007b) with a
particularly helpful. Such interventions are offered in
special focus on ethical principles such as Benefit and
ways that are consistent with aspects of diversity such
Harm; Justice; and Respect for People’s Rights and
as age, gender, gender identity, race, ethnicity, culture,
Dignity (including self-determination). LMHP reduce
national origin, religion, sexual orientation, disability,
potential harms and increase potential benefits by
language, and socioeconomic status.
basing their professional judgments and actions on the
most current and valid scientific evidence, such as that
provided in this report (see APA, 2002b, Standard 2.04,
Bases for Scientific and Professional Judgments).

LMHP enhance principles of social justice when they LMHP may have been educated during the period when
strive to understand and mitigate the effects of sexual homosexuality was pathologized (cf. Bartlett, King,
stigma, prejudice, and discrimination on the lives of & Phillips, 2001; Beutler, 2000; M. King et al., 2004;
individuals, families, and communities. Further, LMHP Liszcz & Yarhouse, 2005). We recommend that LMHP
aspire to respect diversity in all aspects of their work, increase their awareness of their own assumptions and
including age, gender, gender identity, race, ethnicity, attitudes toward sexual minorities (APA, 2000; R. L.
culture, national origin, religion, sexual orientation, Worthington et al., 2005). This occurs by increasing
disability, and socioeconomic status. knowledge about the diversity of sexual minorities
Self-determination is the process by which a (e.g., age, gender, gender identity, race, ethnicity,
person controls or determines the course of her or his culture, national origin, religion, sexual orientation,
own life (Oxford American Dictionary, n.d.). LMHP disability, language, and socioeconomic status), as
maximize self-determination by (a) providing effective well as the management of the LMHP’s own biases
psychotherapy that explores the client’s assumptions in order to avoid colluding with clients’ internalized
and goals, without preconditions on the outcome; (b) stigma and with the negating environments in which
providing resources to manage and reduce distress; and clients and LMHP live (APA, 2000; Dillon et al., 2004;
(c) permitting the client herself or himself to decide Israel & Hackett, 2004; R. L. Worthington et al., 2005).
the ultimate goal of how to self-identify and live out We recommend that training in affirmative, evidence-
her or his sexual orientation. We were not persuaded based, and multiculturally informed interventions for
by some accounts that suggest that providing SOCE sexual minorities be offered at all graduate schools and
increases self-determination, because these suggestions postgraduate training programs.
encourage LMHP An important resource for LMHP is the APA (2000)
...therapy that increases to offer treatment Guidelines for Psychotherapy With Lesbian, Gay,
the client’s ability to cope, that (a) has not and Bisexual Clients,64 which advises LMHP to be
understand, acknowledge, and provided evidence competent in a variety of domains, including knowledge
integrate sexual orientation of efficacy; (b) has of the impact of stigma on mental health, the unique
concerns into a self-chosen life the potential to be issues facing same-sex relationships and families, and
harmful; and (c) the range of diversity concerns for sexual minority
is the measured approach.
delegates important individuals. We recommend that several areas in which
professional decisions that should be based on qualified LMHP working with clients seeking SOCE obtain
expertise and training—such as diagnosis and the type additional knowledge and skills include: (a) sexuality,
of intervention. Rather, therapy that increases the sexual orientation, and sexual identity development;
client’s ability to cope, understand, acknowledge, and (b) the psychology of religion and spirituality, including
integrate sexual orientation concerns into a self-chosen models of faith development, religious coping, and the
life is the measured approach. positive psychology of religion; (c) identity development
models, including those that integrate multiple
identities and facilitate identity conflict resolution; and
Education, Training, and Research (d) adaptive ways to manage stigma, minority stress,
We were asked to provide recommendations for and multiple aspects of identity. We also recommend
education, training, and research as they pertain to that practitioners review publications that explicate
such affirmative interventions. We examine these the above-mentioned topics and evidence-based,
areas separately. LGB-affirmative, and multicultural approaches to
psychological interventions (APA, 2000, 2002a, 2002c,
Education and Training 2004, 2005b, 2006, 2007b, 2008a; Bartoli & Gillem,
2008; Brown, 2006; Fowers & Davidov, 2006; Schneider
Professional education and training
et al., 2002).
Training of LMHP to provide affirmative, evidence- Those less familiar with religious perspectives can
based, and multicultural interventions with individuals broaden their views on religion and religious individuals
distressed by their same-sex sexual attractions is and reduce their potential biases by seeking relevant
critical. Research on LMHP behaviors indicates a range information on religious faith and the psychology of
of interventions, some of which are based on attitudes
64
These guidelines are being revised, and a new version will be
and beliefs rather than evidence, especially as some
available in 2010.
religion (e.g., Ano & Vasconcelles, 2005; Exline, 2002; of this report and other relevant material on LGBT
Emmons, 1999; Emmons & Paloutzian, 2003; Fowler, issues into graduate school training programs and
2001; Goldstein, 2007; Pargament & Mahoney, 2005; internship sites.
Pargament et al., 1998, 2005). Training programs for
2. Disseminate information to faculty in psychology
practitioners can increase competencies in these areas
departments in community colleges, colleges, and
by including comprehensive material on religion and
university programs as information and for use in
spirituality (Bartoli, 2007; Hage, 2006; Hathaway et al.,
curriculum development.
2004; Yarhouse & Fisher, 2002; Yarhouse & VanOrman,
1999) and on ways to incorporate religious approaches 3. Maintain the currently high standards for APA
into psychotherapy (see, e.g., Richards & Bergin, approval of continuing professional education
2000, 2004; Sperry & Shafranske, 2004). Additionally, providers and programs.
publications that illustrate affirmative integration and
resolution of religious and sexual minority identity are
4. Offer symposia and continuing professional education
workshops at APA’s annual convention that focus on
helpful (Astramovich, 2003; Beckstead & Israel, 2007;
treatment of individuals distressed by their same-sex
Glassgold, 2008; Haldeman, 2004; Ritter & O’Neil,
sexual attractions, especially those who struggle to
1989, 1995).
integrate religious and spiritual beliefs with sexual
Conservative religious practitioners can increase
orientation identity.
their compassionate and understanding responses to
sexual minorities. For instance, recent publications 5. Pursue the publication of a version of this report in
provide insight into techniques that address negative an appropriate journal or other publication.
attitudes toward sexual minorities by focusing
on increasing compassionate responses toward or Public education
positive attitudes of sexual minorities by conservative The information available to the public about SOCE
religious students or individuals (Bassett et al., 2005; and sexual orientation is highly variable and can
Benoit, 2005; Fischer & DeBord, 2007; McMinn, 2005; be confusing. In those information sources that
Yarhouse, Burkett, & Kreeft, 2001; Zahniser & Boyd, encourage SOCE, the portrayals of homosexuality and
2008; Zahniser & Cagle, 2007). This research includes sexual minorities tend to be negative and at times
exploring the evolution of positive attitudes toward to emphasize inaccurate and misleading stereotypes
sexual minorities of LMHP who hold conservative (Kennedy & Cianciotto, 2006; SPLC, 2005). Sexual
religious values (E. Adams, Longoria, Hitter, & Savage, minorities, individuals aware of same-sex sexual
2009). These perspectives are based on established attractions, families, parents, caregivers, policymakers,
social psychology research, such as the contact religious leaders, and society at large can benefit from
hypothesis, where increasing personal contact with accurate scientific information about sexual orientation
members of minority groups of equal status reduces and about appropriate interventions for individuals
bias, including attitudes toward sexual minorities (e.g., distressed by their same-sex sexual attractions both in
Herek & Capitanio, 1996; Herek & Glunt, 1993; Pew the United States and internationally. We recommend
Forum on Religion and Public Life, 2003). that APA:
Finally, although this report has limited information
regarding sexual minorities in other countries, the 1. Create informational materials for sexual minority
research review and practice recommendations may be individuals, families, parents, and other stakeholders
helpful to professionals. We recommend dissemination of on appropriate multiculturally competent and client-
this report to international mental health organizations centered interventions for those distressed by their
and LGBT advocacy groups. sexual orientation and who may seek SOCE.
We recommend the following steps be taken by the 2. Create informational materials on sexual orientation,
APA to educate LMHP and support training programs sexual orientation identity, and religion for all
in providing education: stakeholders, including the public and institutions
1. Disseminate this report to accredited doctoral of faith.
programs, internships, and other postdoctoral 3. Create informational materials focused on the
programs in psychology both in the United States integration of ethnic, racial, national origin and
and other countries to encourage the incorporation

cultural issues, and sexual orientation and sexual conclusions about cause and effect to be confidently
orientation identity. drawn, and employ sampling methods that allow
proper generalization.65 Future research should also
4. Integrate the conclusions of this report into existing
include appropriate measures in terms of specificity
APA public information resources, including print,
of measurement of sexual orientation, sexual
media, and the Internet.
orientation identity and outcomes, and psychometric
5. Collaborate with other relevant organizations, adequacy. Mixed-method research, in which
especially religious organizations, to disseminate methods and measures with offsetting weaknesses
this information. are simultaneously employed, may be especially
advantageous. Alternative physiological means of
Research measuring sexual orientation objectively may also be
helpful. Recent research has used alternatives to genital
Our systematic review of research has highlighted the
gauges for the assessment of sexual orientation in men
methodological problems pervasive in recent research
and women, such as functional magnetic resonance
on SOCE. This raises two issues: (a) the publication of
imaging (Ponseti et al., 2006). Physiological measures
poorly designed research and (b) whether more research
often use visual portrayals of nude individuals
on SOCE should be conducted to pursue questions
that some religious individuals may find morally
of benefit, harm, and safety. These two issues are
unacceptable. Jlang, Costello, Fang, Huang, and He
addressed separately.
(2006) have explored the use of invisible images and
Much of the recent research on SOCE has had serious
have measured selective inattention/attention as an
methodological problems. Although this research
alternative to assess sexual arousal. Such methods
area presents serious challenges (e.g., obtaining a
or the development of methods that are less intrusive
representative sample, finding appropriate measures,
and are more consistent with religious values would be
and using evidence-based constructs), many of the
helpful to develop for this population.
problems were avoidable. Many of the problems
Additionally, preexisting and co-occurring conditions,
in published SOCE research indicate the need for
mental health problems, participants’ need for
improvement in the journal review process, for instance.
monitoring self-impression, other interventions, and
Problems included: (a) violations of statistical measures,
life histories would have to be given appropriate
(b) measures that were not evaluated prior to use, and
consideration so that research can better account
(c) inappropriate conclusions drawn from data.
for and test competing explanations for any changes
Hunt and Carlson (2007) have argued that studies
observed in study participants over time. Specific
with immediate social relevance that have an impact on
conceptual and methodological challenges exist in
social policy or social issues should be held to a higher
research related to sexual minority populations, such
standard because this literature has the potential to
as the conceptualization of sexual orientation and
influence policymakers and the public, and incomplete
sexual orientation identity and obtaining representative
or misleading information has serious costs. Whether
samples. Researchers would be advised to consider
a higher standard is necessary is not clear; however,
and compensate for the unique conceptual and
research published on SOCE needs to meet current
best-practice research standards. It is recommended 65
A published study that appeared in the grey literature in 2007
that professional and scientific journals retain reviewers (Jones & Yarhouse, 2007) has been described by SOCE advocates
and its authors as having successfully addressed many of the
and editors with expertise in this area to maintain the methodological problems that affect other recent studies, specifically
standards of published research. the lack of prospective research. The study is a convenience sample of
We concluded that research on SOCE (psychotherapy, self-referred populations from religious self-help groups. The authors
claim to have found a positive effect for some study respondents
mutual self-help groups, religious techniques) has in different goals such as decreasing same-sex sexual attractions,
not answered basic questions of whether it is safe or increasing other-sex attractions, and maintaining celibacy. However,
effective and for whom. Any future research should upon close examination, the methodological problems described in
Chapter 3 (our critique of recent studies) are characteristic of this
conform to best-practice standards for the design of work, most notably the absence of a control or comparison group and
efficacy research. Additionally, research into harm the threats to internal, external, construct, and statistical validity.
and safety is essential. Certain key issues are worth Best-practice analytical techniques were not performed in the study,
and there are significant deficiencies in the analysis of longitudinal
highlighting. Future research must use methods data, use of statistical measures, and choice of assessment measures.
that are prospective and longitudinal, allow for The authors’ claim of finding change in sexual orientation is
unpersuasive due to their study’s methodological problems.
methodological challenges in this area (Meyer & Wilson, of children, adolescents, and families around sexual
2009; Moradi, Mohr, Worthington, Fassinger, 2009). orientation and identity concerns (D’Augelli, 2002,
Safety issues continue to be important areas of 2003; Goodenow et al., 2006; Perrin, 2002; Ryan et
study. As noted previously, early research indicates al., 2009). However, sexual minority adolescents
that aversive techniques have been found to have very are underrepresented in research on evidence-based
limited benefits as well as potentially harmful effects. approaches, and sexual orientation issues in children
These documented harms were serious. An additional are virtually unexamined (APA, 2008d). Specific
finding is that these treatments had extremely high research on sexual minority adolescents and children
dropout rates, which has been linked to adverse effects. has identified that stigma can be reduced through
Some individuals report harm from recent nonaversive community interventions, supportive client-centered
techniques, and some individuals report benefits. approaches, and family reconciliation techniques
Indeed, some have raised the concern about both that focus on strengthening the emotional ties of
research and practice in this area due to the limited family members to each other, reducing rejection, and
examination of safety (Davison, 1976, 1991; Herek, increasing acceptance (D’Augelli, 2003; Goodenow et al.,
2003), as it is still unclear which techniques or methods 2006; Ryan et al., 2009).
may or may not be harmful. Assessing the safety Finally, we presented a framework for therapy
of recent practices is a high priority given that this with this population. Although this model is based on
research is the least rigorous. Given that types of harm accepted principles of psychotherapy and is consistent
can be multiple (Lilienfeld, 2007), outcome studies with evidence-based approaches to psychotherapy, it
with measures capable of assessing deterioration has not been evaluated for safety and efficacy. Such
in mental health, appearance of new symptoms, studies would have to be conducted in the same manner
heightened concern regarding existing symptoms, as research on SOCE and in ways that are consistent
excessive dependency on the LMHP, and reluctance with current standards (see, e.g., Flay et al., 2005).
to seek out new treatment are important to include in
future research (Lilienfeld, 2007). Other areas to assess Recommendations for basic research
are types of harm to others (e.g., some individuals To advance knowledge in the field and improve the lives
have noted that advocating other-sex marriage or of individuals distressed by same-sex sexual attractions
promising sexual orientation change may negatively who seek SOCE, it is recommended that researchers,
affect spouses, potential spouses, and children) research-funding organizations, and other stakeholders,
(Buxton, 1994, 2007; Wolkomir, 2006). Finally, LMHP including those who establish funding priorities, work
must be mindful of the indirect harms of SOCE, such together to improve our knowledge of sexuality, sexual
as the “opportunity costs” (Lilienfeld, 2007) and the orientation, and sexual orientation identity in the
time, energy, effort, and expense of interventions that following areas:
offer limited benefit and have the potential to cause
disillusionment in psychotherapy. However, as concerns 1. The nature and development of sexuality, sexual
regarding harm have been raised, addressing risks to orientation, sexual orientation identity across the
research participants and concerns regarding voluntary life span and the correlates to these variables,
participation (see Standard 8.02 in APA, 2002b) must incorporating differences brought about by age,
be carefully considered in any future research. gender, gender identity, race, ethnicity, culture,
Research that meets these scientific standards and national origin, religion, sexual orientation, disability,
addresses efficacy and safety might help to clarify the language, and socioeconomic status.
issues. Even so, scientific research may not help to 2. Religious identity and faith development (inclusive of
resolve the issues unless it can better account for the all world religions) and their intersection with other
complexity of the concerns of the current population. aspects of human life and identity, such as sexual
The results of current research are complicated by the orientation, sexual orientation identity, and the
belief system of many of the participants whose religious multiple social identity statuses related to privilege
faith and beliefs may be intricately tied to the possibility and stigma.
of change. Future research will have to better account
for the motivations and beliefs of participants in SOCE. 3. Identity integration, reduction in distress, and
Emerging research reveals that affirmative positive mental health for populations of religious
interventions show promise for alleviating the distress sexual minorities and ethnic minority populations.

4. Culture, gender, religion, and race/ethnicity in the sexual minorities (APA, 2003, 2005, 2006, 2008b). We
experience and construction of sexual orientation and encourage collaborative activities in pursuit of shared
sexual orientation identity. prosocial goals between psychologists and religious
communities when such collaboration can be done in
5. Mental health outcomes of those who choose not to
a mutually respectful manner that is consistent with
act on their sexual orientation by living celibately or
psychologists’ professional and scientific roles. These
in relationships with other-sex partners.
collaborative relationships can be designed to integrate
humanitarian perspectives and professional expertise
Recommendations for research in psychotherapy
(Tyler, Pargament, & Gatz, 1983).
We recommend that researchers and practitioners Thus, the task force urges APA to:
rigorously investigate multiculturally competent and
affirmative evidence-based treatments for sexual 1. Actively oppose the distortion and selective use of
minorities and those distressed by their sexual scientific data about homosexuality by individuals
orientation that do not aim to alter sexual orientation and organizations seeking to influence public policy
but rather focus on sexual orientation identity and public opinion and take a leadership role in
exploration, development, and integration without responding to such distortions.
prioritizing one outcome over another, for the following
2. Support the dissemination of accurate scientific and
populations:
professional information about sexual orientation
1. Sexual minorities who have traditional religious in order to counteract bias that is based on lack of
beliefs scientific knowledge about sexual orientation.
2. Sexual minorities who are members of ethnic 3. Encourage advocacy groups, elected officials,
minority and culturally diverse communities both in policymakers, religious leaders, and other
the United States and internationally organizations to seek accurate information and
avoid promulgating inaccurate information about
3. Children and adolescents who are sexual minorities sexual minorities.
or questioning their sexual orientation
4. Seek areas where collaborationwith religious leaders,
4. Parents who are distressed by their children’s institutions, and organizations can promote the well-
perceived future sexual orientation being of sexual minorities through the use of accurate
5. Populations with any combination of the above scientific data regarding sexual orientation and
demographics sexual orientation identity.
5. Encourage the Committee onLesbian, Gay, Bisexual,

Policy and Transgender Concerns to prioritize initiatives
that address religious and spiritual concerns and the
We were asked to make recommendations to APA
concerns of sexual minorities from conservative faiths.
to inform the association’s response to groups that
promote treatments to change sexual orientation or its 6. Adopt a new resolution: the Resolution on
behavioral expression and to support public policy that Appropriate Affirmative Responses to Sexual
furthers affirmative therapeutic interventions. Orientation Distress and Change Efforts (see
The debate surrounding SOCE has become mired Appendix A).
in ideological disputes and competing political
agendas (Drescher, 2003; Drescher & Zucker, 2006).
Some organizations opposing civil rights for LGBT
individuals advocate SOCE (SPLC, 2005). Other policy
concerns involve religious or socially conservative
agendas where issues of religious morality conflict with
scientific-based conceptions of positive and healthy
development. We encourage APA to continue its
advocacy for lesbian, gay, bisexual, and transgender
individuals and families and to oppose prejudice against
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Appendix A: Resolution on Appropriate

Affirmative Responses to Sexual
Orientation Distress and Change Efforts
Research Summary Some individuals and groups have promoted the idea
of homosexuality as symptomatic of developmental
T
he longstanding consensus of the behavioral defects or spiritual and moral failings and have argued
and social sciences and the health and mental that SOCE, including psychotherapy and religious
health professions is that homosexuality per se efforts, could alter homosexual feelings and behaviors
is a normal and positive variation of human sexual (Drescher & Zucker, 2006; Morrow & Beckstead, 2004).
orientation (Bell, Weinberg & Hammersmith, 1981; Many of these individuals and groups appeared to be
Bullough, 1976; Ford & Beach 1951; Kinsey, Pomeroy, embedded within the larger context of conservative
& Martin, 1948; Kinsey, Pomeroy, Martin, & Gebhard, religious political movements that have supported the
1953). Homosexuality per se is not a mental disorder stigmatization of homosexuality on political or religious
(APA, 1975). Since 1974, the American Psychological grounds (Drescher, 2003; Drescher & Zucker, 2006;
Association (APA) has opposed stigma, prejudice, Southern Poverty Law Center, 2005). Psychology, as
discrimination, and violence on the basis of sexual a science, and various faith traditions, as theological
orientation and has taken a leadership role in systems, can acknowledge and respect their profoundly
supporting the equal rights of lesbian, gay, and bisexual different methodological and philosophical viewpoints.
individuals (APA, 2005). The APA concludes that psychology must rely on proven
APA is concerned about ongoing efforts to methods of scientific inquiry based on empirical data,
mischaracterize homosexuality and promote the on which hypotheses and propositions are confirmed or
notion that sexual orientation can be changed and disconfirmed, as the basis to explore and understand
about the resurgence of sexual orientation change human behavior (APA, 2008a; 2008c).
efforts (SOCE).A1 SOCE has been controversial due In response to these concerns, APA appointed the
to tensions between the values held by some faith- Task Force on Appropriate Therapeutic Responses to
based organizations, on the one hand, and those held Sexual Orientation to review the available research
by lesbian, gay, and bisexual rights organizations on SOCE and to provide recommendations to the
and professional and scientific organizations, on the association. The task force reached the following
other (Drescher, 2003; Drescher & Zucker, 2006). findings.
Recent studies of participants in SOCE identify
A1
APA uses the term sexual orientation change efforts to describe a population of individuals who experience serious
all means to change sexual orientation (e.g., behavioral techniques, distress related to same sex sexual attractions. Most
psychoanalytic techniques, medical approaches, religious and
spiritual approaches). This includes those efforts by mental health of these participants are Caucasian males who report
professionals, lay individuals, including religious professionals, that their religion is extremely important to them
religious leaders, social groups, and other lay networks such as self- (Beckstead & Morrow, 2004; Nicolosi, Byrd, & Potts,
help groups.
Appendix A 119
2000; Schaeffer, Hyde, Kroencke, McCormick, & Garnets, 2007)A2 and balance ethical principles of
Nottebaum, 2000; Shidlo & Schroeder, 2002, Spitzer, beneficence and nonmaleficence, justice, and respect for
2003). These individuals report having pursued a people’s rights and dignity (APA, 1998, 2002; Davison,
variety of religious and secular efforts intended to help 1976; Haldeman, 2002; Schneider, Brown, & Glassgold,
them change their sexual orientation. To date, the 2002).
research has not fully addressed age, gender, gender
identity, race, ethnicity, culture, national origin,
disability, language, and socioeconomic status in the Resolution
population of distressed individuals. WHEREAS, The American Psychological Association
There are no studies of adequate scientific rigor to expressly opposes prejudice (defined broadly)
conclude whether or not recent SOCE do or do not work and discrimination based on age, gender, gender
to change a person’s sexual orientation. Scientifically identity, race, ethnicity, culture, national origin,
rigorous older work in this area (e.g., Birk, Huddleston, religion, sexual orientation, disability, language, or
Miller, & Cohler, 1971; James, 1978; McConaghy, 1969, socioeconomic status (APA, 1998, 2000, 2002, 2003,
1976; McConaghy, Proctor, & Barr, 1972; Tanner, 2005, 2006, 2008c);
1974, 1975) found that sexual orientation (i.e., erotic
attractions and sexual arousal oriented to one sex or WHEREAS, The American Psychological Association
the other, or both) was unlikely to change due to efforts takes a leadership role in opposing prejudice and
designed for this purpose. Some individuals appeared to discrimination (APA, 2008b, 2008c), including
learn how to ignore or limit their attractions. However, prejudice based on or derived from religion or
this was much less likely to be true for people whose spirituality, and encourages commensurate
sexual attractions were initially limited to people of the consideration of religion and spirituality as diversity
same sex. variables (APA, 2008c);
Although sound data on the safety of SOCE are WHEREAS, Psychologists respect human diversity
extremely limited, some individuals reported being including age, gender, gender identity, race, ethnicity,
harmed by SOCE. Distress and depression were culture, national origin, religion, sexual orientation,
exacerbated. Belief in the hope of sexual orientation disability, language, and socioeconomic status (APA,
change followed by the failure of the treatment was 2002) and psychologists strive to prevent bias from
identified as a significant cause of distress and negative their own spiritual, religious, or non-religious beliefs
self-image (Beckstead & Morrow, 2004; Shidlo & from taking precedence over professional practice
Schroeder, 2002). and standards or scientific findings in their work as
Although there is insufficient evidence to support psychologists (APA, 2008c);
the use of psychological interventions to change sexual
orientation, some individuals modified their sexual WHEREAS, Psychologists are encouraged to recognize that
orientation identity (i.e., group membership and it is outside the role and expertise of psychologists,
affiliation), behavior, and values (Nicolosi et al., 2000). as psychologists, to adjudicate religious or spiritual
They did so in a variety of ways and with varied and tenets, while also recognizing that psychologists
unpredictable outcomes, some of which were temporary can appropriately speak to the psychological
(Beckstead & Morrow, 2004; Shidlo & Schroeder, implications of religious/spiritual beliefs or practices
2002). Based on the available data, additional claims when relevant psychological findings about those
about the meaning of those outcomes are scientifically implications exist (APA, 2008c);
unsupported. WHEREAS, Those operating from religious/spiritual
On the basis of the task force’s findings, the APA traditions are encouraged to recognize that it
encourages mental health professionals to provide is outside their role and expertise to adjudicate
assistance to those who seek sexual orientation change empirical scientific issues in psychology, while
by utilizing affirmative multiculturally competent
A2
We use the term sexual minority (cf. Blumenfeld, 1992; McCarn &
(Bartoli & Gillem, 2008; Brown, 2006) and client-
Fassinger, 1996; Ullerstam, 1966) to designate the entire group of
centered approaches (e.g., Beckstead & Israel, 2007; individuals who experience significant erotic and romantic attractions
Glassgold, 2008; Haldeman, 2004; Lasser & Gottlieb, to adult members of their own sex, including those who experience
attractions to members of both their own and the other sex. This term
2004) that recognize the negative impact of social
is used because we recognize that not all sexual minority individuals
stigma on sexual minorities (Herek, 2009; Herek & adopt an LGB bisexual identity.
also recognizing they can appropriately speak to BE IT FURTHER RESOLVED, That the American
theological implications of psychological science (APA, Psychological Association reaffirms its position that
2008c); homosexuality per se is not a mental disorder and
opposes portrayals of sexual minority youths and
WHEREAS, The American Psychological Association
adults as mentally ill due to their sexual orientation;
encourages collaborative activities in pursuit of
shared prosocial goals between psychologists and BE IT FURTHER RESOLVED, That the American
religious communities when such collaboration Psychological Association concludes that there
can be done in a mutually respectful manner that is insufficient evidence to support the use of
is consistent with psychologists’ professional and psychological interventions to change sexual
scientific roles (APA, 2008c); orientation;
WHEREAS, Societal ignorance and prejudice about a BE IT FURTHER RESOLVED, That the American
same-sex sexual orientation places some sexual Psychological Association encourages mental health
minorities at risk for seeking sexual orientation professionals to avoid misrepresenting the efficacy
change due to personal, family, or religious conflicts, of sexual orientation change efforts by promoting
or lack of information (Beckstead & Morrow, or promising change in sexual orientation when
2004; Haldeman, 1994; Ponticelli, 1999; Shidlo & providing assistance to individuals distressed by their
Schroeder, 2002; Wolkomir, 2001); own or others’ sexual orientation;
WHEREAS, Some mental health professionals advocate BE IT FURTHER RESOLVED, That the American
treatments based on the premise that homosexuality Psychological Association concludes that the benefits
is a mental disorder (e.g., Nicolosi, 1991; Socarides, reported by participants in sexual orientation change
1968); efforts can be gained through approaches that do not
attempt to change sexual orientation;
WHEREAS, Sexual minority children and youth are
especially vulnerable populations with unique BE IT FURTHER RESOLVED, That the American
developmental tasks (Perrin, 2002; Ryan & Psychological Association concludes that the
Futterman, 1997) who lack adequate legal protection emerging knowledge on affirmative multiculturally
from involuntary or coercive treatment (Arriola, 1998; competent treatment provides a foundation for an
Burack & Josephson, 2005; Molnar, 1997) and whose appropriate evidence-based practice with children,
parents and guardians need accurate information to adolescents and adults who are distressed by or seek
make informed decisions regarding their development to change their sexual orientation (Bartoli & Gillem,
and well-being (Cianciotto & Cahill, 2006; Ryan & 2008; Brown, 2006; Martell, Safren & Prince, 2004;
Futterman, 1997); and Norcross, 2002; Ryan & Futterman, 1997);
WHEREAS, Research has shown that family rejection BE IT FURTHER RESOLVED, That the American
is a predictor of negative outcomes (Remafedi, Psychological Association advises parents, guardians,
Farrow, & Deisher, 1991; Ryan, Huebner, Diaz, & young people, and their families to avoid sexual
Sanchez, 2009; Savin-Williams, 1994; Wilber, Ryan, orientation change efforts that portray homosexuality
& Marksamer, 2006) and that parental acceptance as a mental illness or developmental disorder and to
and school support are protective factors (D’Augelli, seek psychotherapy, social support and educational
2003; D’Augelli, Hershberger, & Pilkington, 1998; services that provide accurate information on sexual
Goodenow, Szalacha, & Westheimer, 2006; Savin- orientation and sexuality, increase family and school
Williams, 1989) for sexual minority youth; support, and reduce rejection of sexual minority
youth;
THEREFORE, BE IT RESOLVED, That the American
Psychological Association affirms that same-sex BE IT FURTHER RESOLVED, That the American
sexual and romantic attractions, feelings, and Psychological Association encourages practitioners
behaviors are normal and positive variations of to consider the ethical concerns outlined in the 1997
human sexuality regardless of sexual orientation APA Resolution on Appropriate Therapeutic Response
identity; to Sexual Orientation (APA, 1998), in particular the
following standards and principles: scientific bases
Appendix A 121
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Appendix B: Studies Reviewed

(N = 83) in This Report
Appendix B 125
126
Retention
%
Study N Sample & treatment Research design Treatment Outcome measure
Males withdrawals
Experimental studies
Immediate and
Clinical delayed aversion
4 treatment group
McConaghy, 1969 40 100 (6 by court order; 18 3 withdrawals apomorphine therapy Penile circumference
randomized experiment
with arrest history) and aversion relief
therapy
Aversive apomorphine
therapy or aversion-
relief; aversive therapy
4 experimental substudies
or apomorphine
(ns = 40, 40, 46, 31, Sexual feelings; sexual
or avoidance
Clinical respectively) with random behavior; penile
McConaghy, 1976 157 100 None reported conditioning;
(21 by court order) assignment to one of circumference; sexual
classical, or avoidance,
two or three treatment orientation
or backward
alternatives
conditioning; classical
aversive therapy or
positive conditioning
26 had incomplete
Classical conditioning,
treatment exposure; Heart rate; penile
McConaghy & Barr, 3 treatment group avoidance
46 100 Clinical 2 of 20 with complete circumference; galvanic
Case3:09-cv-02292-VRW Document204-5
1973 randomized experiment conditioning, backward

exposure lost to follow- skin response
conditioning
up
Immediate and
delayed aversive
Clinical 16 with incomplete
McConaghy, Proctor, 4 treatment group apomorphine therapy;
40 100 (police and follow-up data and 2 Penile circumference
& Barr, 1972 randomized experiment immediate and delayed
psychiatric referrals) withdrawals
anticipatory avoidance
learning
Random assignment Penile circumference;
Tanner, 1974 16 100 Clinical None reported experiment with wait list Aversive shock therapy sexual behavior;
control personality
Penile circumference;
Aversive shock therapy
2 treatment group self-reported arousal;
Tanner, 1975 10 100 Clinical None reported with/without booster
randomized experiment sexual behavior;
sessions
personality
Filed09/23/09 Page135 of 139
Report of the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation
Retention
%
Males withdrawals
Appendix B
Quasi-experimental studies
Aversive shock Sexual behavior;
Birk, Huddleston, 2 withdrew Nonequivalent 2 treatment
18 100 Clinical therapy vs. associative clinical judgment;
Miller, & Cohler, 1971 participation group comparison design
conditioning personality
Anticipatory
avoidance,
Nonequivalent 2 treatment Sexual orientation;
James, 1978 40 100 Court-referred None reported desensitization,
group comparison design personality
hypnosis, anticipatory
avoidance
McConaghy,
Nonequivalent 2 treatment Aversive therapy;
Armstrong, & 20 100 Clinical None reported Sexual feelings
group comparison design covert sensitization
Blaszczynski, 1981
Nonexperimental studies
6 withdrew
participation prior
Bancroft, 1969 16 100 Clinical Case study Aversive shock therapy Sexual behavior
to treatment and 1
during treatment
Penile circumference;
Barlow & Agras, 1973 3 100 Clinical None reported Case study Fading sexual urges; sexual
fantasies
Barlow, Agrus, Abel,
Single case pre–post
Blanchard, & Young, 3 100 Clinical None reported Biofeeback Penile circumference
within-subject
1975
Subjective experiences
Conversion therapy, of treatment; subjective
Beckstead & Morrow, Qualitative retrospective,
50 80 Purposive None ex-gay ministries, and/ appraisal of sexual
2004 grounded theory
or support groups orientation identity,
attraction, & behavior
13 withdrew
Birk, 1974 66 100 Clinical Pre–post within-subject Psychotherapy Sexual orientation
participation
Relaxation therapy
Blitch & Haynes,
1 0 Clinical None reported Case study and masturbation Sexual behavior
1972
reconditioning
9 men withdrew
Aversion shock
Filed09/23/09 Page136 of 139
Callahan & Clinical with 2 by participation and 8

23 100 Pre–post within-subject therapy and covert Penile circumference
Leitenberg, 1973 court order excluded from data
sensitization
analyses
Olfactory aversion
Colson, 1972 1 100 Clinical None reported Case study Sexual behavior
therapy
127
Retention
128
%
Males withdrawals
Sexual behavior;
Conrad & Wincze, Orgasmic
4 100 Clinical None reported Case study sexual fantasies; penile
1976 reconditioning
circumference
Curtis & Presly, 1972 1 100 Clinical None reported Case study Covert sensitization Sexual orientation
Feldman &
43 100 Clinical 7 withdrawals Pre–post within-subject Anticipatory avoidance Sexual orientation
MacCulloch, 1964
Clinical (7
exhibitionists, Aversion shock
Fookes, 1960 27 100 5 fetishists, and None reported Pre–post within-subject therapy and calorie Clinical judgment
15 bisexual and deprivation
homosexual men)
Aversion shock therapy
Freeman & Meyer, Sexual behavior; sexual
9 100 Clinical None reported Pre–post within-subject and masturbation
1975 orientation
reconditioning
Aversion apomorphine
Freund, 1960 67 100 Clinical 20 withdrawals Pre–post within-subject Clinical judgment
therapy
Desensitization
Gray, 1970 1 100 Clinical None reported Case study and masturbation Sexual behavior
reconditioning
Clinical (2 pedophiles,
Hallam & Rachman, 1 fetishist, 3 bisexual Aversion shock Heart rate; galvanic
7 100 None reported Pre–post within-subject

1972 and homosexual men, therapy skin response
and 1 voyeur)
Desensitization and
Hanson & Adesso,
1 100 Clinical None reported Case study aversive counter- Sexual behavior
1972
conditioning
Herman, Barlow, & Penile circumference;
4 100 Clinical None reported Case study Counter-conditioning
Agras, 1974 self-reported arousal
Herman & Prewett,
1 100 Clinical None reported Case study Biofeedback Penile circumference
1974
Sexual behavior;
Huff, 1970 1 100 Clinical None reported Case study Desensitization
personality
Treatment stopped due Aversion apomorphine Sexual fantasies;
James, 1962, 1963 1 100 Clinical Case study
to adverse reaction therapy sexual behavior
Kendrick & Sexual fantasies;
1 100 Clinical None reported Case study Covert sensitization
McCullough, 1972 sexual behavior
Filed09/23/09 Page137 of 139
Sexual fantasies;
Larson, 1970 3 100 Clinical None reported Case study Anticipatory avoidance
sexual behavior
Levin, Hirsch,
Desensitization,
Shugar, & Kapche, 1 100 Clinical None reported Case study Personality
avoidance conditioning
1968
Retention
%
Males withdrawals
Appendix B
LoPiccolo, 1971 1 100 Clinical None reported Case study Desensitization Masturbation fantasies
LoPiccolo, Stewart, & Orgasmic
1 100 Clinical None reported Case study Sexual behavior
Watkins, 1972 reconditioning
Clinical (18 by Anticipatory avoidance
MacCulloch & Sexual orientation;
43 ? court order and 4 7 withdrawals Pre–post within-subject with aversion shock
Feldman, 1967 sexual behavior
psychiatric referrals) therapy
Anticipatory avoidance
MacCulloch, Feldman, Clinical (3 by court
4 100 1 withdrawal Case study with aversion shock Attractions; pulse rate
& Pinshoff, 1965 order)
therapy
Orgasmic
Marquis, 1970 14 79 Clinical None reported Case study Clinical judgment
reconditioning
Sexual preference,
McCrady, 1973 1 100 Clinical None reported Case study Forward fading
sexual behavior
Mintz, 1966 10 100 Clinical 5 withdrawals Case study Therapy Clinical judgment
Convenience
Nicolosi, Byrd, & Sexual orientation;
882 78 (NARTH and ex-gay None reported Retrospective pretest Conversion therapy
Potts, 2000 sexual behavior
ministry members)
Pattison, & Pattison, Convenience None reported; 19 Qualitative retrospective
11 100 Religious folk therapy Subjective experience
1980 declines to participate case study
Purposive (ex-gay
Ponticelli, 1999 15 0 None reported Ethnography Ex-gay ministry None

ministry)
Quinn, Harbison, Desensitization and
1 100 Clinical None reported Case study Penile circumference
McAllister, 1970 hydration deprivation
Rehm & Rozensky, Therapy and orgasmic
1 100 Clinical None reported Case study Sexual behavior
1974 reconditioning
Differential
Sandford, Tustin, &
2 100% Clinical 1 withdrawal reported Case study reinforcement and Penile circumference
Priest, 1975
punishment
Schaeffer, Hyde, Sexual behavior;
Convenience
Kroencke, Varied counseling and sexual feelings;
248 74 (Exodus International None reported Retrospective pretest
McCormick, & conversion therapies sexual orientation
conference attendees)
Nottebaum, 2000 identity
Varied, including
behavior therapy;
psychoanalysis;
Filed09/23/09 Page138 of 139
aversive therapies;
Schroeder & Shidlo, Qualitative retrospective Perceived harmfulness
150 91 Convenience None reported hypnosis; spiritual
2001 case study or helpfulness of SOCE
counseling;
psychotropic
medication; in-patient
treatment.
129
Retention
130
%
Males withdrawals
Self-report of continued
Segal & Sims, 1972 1 100 Clinical None reported Case study Covert sensitization
need for treatment
Varied including
behavior therapy;
psychoanalysis;
aversive therapies; Sexual orientation;
Shidlo & Schroeder, Qualitative retrospective
202 90 Convenience None reported hypnosis; spiritual sexual orientation
2002 case study
counseling; identity
psychotropic
medication; in-patient
treatment.
Galvanic skin
Solyom & Miller, 1965 6 100 Clinical None reported Case study Aversive shock therapy responses;
penile circumference
Varied including Sexual attraction;
Convenience
None reported; 74 not ex-gay and religious sexual orientation
Spitzer, 2003 200 71 (Ex-gay ministry Retrospective pretest
eligible support groups and identity; sexual
members)
therapy. behavior;
Sexual fantasy; ability
Thorpe, Schmidt, &
1 100 Clinical None reported Case study Classical conditioning to orgasm in response
Castell, 1963
to female stimuli
Thorpe, Schmidt, Clinical (referred

Brown, & Castell, 8 75 for variety of mental 2 withdrawals Case study Aversion relief Anxiety; personality
1964 health concerns)
2 Bible study support Subjective experience
Wolkomir, 2001 n/a Purposive None reported Ethnography
groups
Filed09/23/09 Page139 of 139
Exhibit F



13
17 KRISTIN M. PERRY, SANDRA B. STIER, CASE NO. 09-CV-2292 VRW

18 ZARRILLO,
Plaintiffs, PLAINTIFFS’ RESPONSES TO
19 DEFENDANT-INTERVENORS
v. PROPOSITION 8 PROPONENTS’ FIRST
20 SET OF REQUESTS FOR ADMISSION
capacity as Governor of California; EDMUND
21 G. BROWN, JR., in his official capacity as
Attorney General of California; MARK B.
22 HORTON, in his official capacity as Director of
the California Department of Public Health and
23 State Registrar of Vital Statistics; LINETTE
SCOTT, in her official capacity as Deputy
24 Director of Health Information & Strategic
Planning for the California Department of Public
25 Health; PATRICK O’CONNELL, in his official
capacity as Clerk-Recorder for the County of
26 Alameda; and DEAN C. LOGAN, in his official
capacity as Registrar-Recorder/County Clerk for
27 the County of Los Angeles,
28 Defendants.
Gibson, Dunn &

Crutcher LLP
09-CV-2292 VRW PLAINTIFFS’ RESPONSES TO FIRST SET OF REQUESTS FOR ADMISSION TO
DEFENDANT-INTERVENOR PROPOSITION 8 PROPONENTS
1 Plaintiffs hereby respond to these Requests for Admission based on their own present state of
2 recollection, knowledge and belief and information and writings presently available to and located by
3 Plaintiffs upon reasonable investigation of their records and the public sources identified in the
4 Requests for Admission (to the extent Plaintiffs can confirm the accuracy and authenticity of the
5 information contained in such sources). Plaintiffs make these responses and objections without
6 waiving or intending to waive (1) the right to object on the grounds of competence, relevance,
7 materiality, privilege or admissibility as evidence for any purpose, to the use of these responses in
8 any subsequent proceedings or at trial, (2) the right to object on any other ground to any other
9 discovery concerning the subject matter of these requests for admission, or (3) the right to
10 supplement or amend these responses. Plaintiffs are continuing the development of facts and legal
11 issues relating to this case and discovery is now commencing. Plaintiffs reserve the right to modify,
12 amend, or enlarge their Responses herein with such additional knowledge as is subsequently
13 discovered or developed.
14 GENERAL OBJECTIONS
15 1. Plaintiffs object to each Request for Admission to the extent it purports to impose any
16 requirement or discovery obligation other than those set forth in the Federal Rules of Civil Procedure,
17 including Federal Rules of Civil Procedure 36(a) and 26(b)(1), the Civil Local Rules of the Northern
18 District of California, or any applicable Orders of this Court.
19 2. Plaintiffs object to each Request for Admission to the extent that it seeks information
20 that is protected by the attorney-client privilege, the work product doctrine, and/or any other
21 applicable privilege. Such information will not be disclosed. Any inadvertent disclosure of such
22 information shall not be deemed a waiver of the attorney-client privilege, the attorney work product
23 doctrine, or any other applicable privilege or immunity.
24 3. Plaintiffs object to each Request for Admission to the extent it is vague, compound, or
25 unintelligible or otherwise not properly capable of soliciting an affirmative admission.
26 4. Plaintiffs object to each Request for Admission to the extent that it may not be
27 relevant to any party’s claim or defense in this action or seeks information that is not reasonably
28 calculated to lead to the discovery of admissible evidence.
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1 5. These Responses are made by Plaintiffs without prejudice to their using or relying at
2 trial on subsequently discovered information or on information omitted from these responses as a
3 result of good faith oversight, error, or mistake.
4 6. Plaintiffs’ Responses to these Requests for Admission shall neither be deemed to
5 constitute an admission that any Request is relevant, nor deemed a waiver of any right to object to the
6 admissibility of any such Request for Admission or Response at any proceeding in this case.
7 OBJECTIONS AND RESPONSES TO SPECIFIC REQUESTS
9 Admit that gays and lesbians are not politically powerless in the sense that they have no
10 ability to attract the attention of lawmakers.
11 RESPONSE TO REQUEST FOR ADMISSION NO. 1:
12 Plaintiffs incorporate their General Objections as if set forth fully herein. Plaintiffs further
13 object to this Request on the grounds that it is vague, ambiguous and compound. Subject to the
14 foregoing objections, Plaintiffs deny this Request for Admission.
16 Admit that gays and lesbians exercise political power far in excess of their numbers in the
17 population.
19 Plaintiffs incorporate their General Objections as if set forth fully herein. Plaintiffs object to
20 this Request on the grounds that it is vague, ambiguous and calls for expert testimony, which is not
21 yet subject to discovery. Subject to the foregoing objections, Plaintiffs deny this Request for
22 Admission.
24 Admit that in California in recent years, the gay and lesbian community has been successful
25 in obtaining the enactment of virtually every legislative policy it has desired, including obtaining
26 domestic partnerships offering essentially the same benefits as marriage.
27
28
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3 this Request on the grounds that it is vague, ambiguous and compound. Subject to the foregoing
4 objections, Plaintiffs deny this Request for Admission.
6 Admit that the only significant policy supported by many gays and lesbians that has not been
7 adopted by California is the extension of the official status of marriage to include same sex couples.
10 this Request on the grounds that it is vague and ambiguous. Subject to the foregoing objections,
11 Plaintiffs deny this Request for Admission.
13 Admit that President Barack Obama proclaimed June 2009 to be “Lesbian, Gay, Bisexual, and
14 Transgender Pride Month.” (http://www.whitehouse.gov/the_press_office/Presidential-Proclamation-
15 LGBT-Pride-Month/)
17 Plaintiffs incorporate their General Objections as if set forth fully herein. Subject to the
18 foregoing objections, Plaintiffs admit that the web page cited in Defendant-Intervenors’ Request for
19 Admission No. 5 contains information published by the White House press office and text stating that
20 President Barack Obama proclaimed June 2009 to be “Lesbian, Gay, Bisexual, and Transgender
21 Pride Month.”
23 Admit that President Obama awarded the 2009 Presidential Medal of Freedom to former San
24 Francisco Supervisor Harvey Milk and Billie Jean King, “one of the first openly lesbian major sports
25 figure in America.” ( http://www.whitehouse.gov/the_press_office/President-Obama-Names-Medal-
26 of-Freedom-Recipients/)
27
28
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4 Admission No. 6 contains information published by the White House press office and text stating that
5 President Obama awarded the 2009 Presidential Medal of Freedom to sixteen honorees, including
6 former San Francisco Supervisor Harvey Milk and Billie Jean King. Plaintiffs further admit that the
7 web page cited in Request for Admission No. 6 states that Billie Jean “King became one of the first
8 openly lesbian major sports figures in America when she came out in 1981.”
10 Admit that the 2008 national platform of the Democratic Party contained the following
11 statements on gay rights: “We support the repeal of ‘Don’t Ask Don’t Tell’ and the implementation
12 of policies to allow qualified men and women to serve openly regardless of sexual orientation. . . .
13 We support the full inclusion of all families, including same-sex couples, in the life of our nation, and
14 support equal responsibility, benefits, and protections. We will enact a comprehensive bipartisan
15 employment non-discrimination act. We oppose the Defense of Marriage Act and all attempts to use
16 this issue to divide us. . . . Democrats will fight to end discrimination based on race, sex, ethnicity,
17 national origin, language, religion, sexual orientation, gender identity, age, and disability in every
18 corner of our country, because that’s the America we believe in.”
19 (http://www.presidency.ucsb.edu/ws/index.php?pid=78283)
22 respond that they lack knowledge or information sufficient to admit or deny the authenticity or
23 accuracy of the information contained on the web page cited in Request No. 7. Subject to the
24 foregoing objections, Plaintiffs admit that the web page cited in Request No. 7 contains many pages
25 of text entitled “2008 Democratic Party Platform.” Plaintiffs further admit that the web page contains
26 text discussing a wide variety of issues, including ongoing and systemic discrimination against a
27 variety of groups. Except as otherwise admitted, Plaintiffs lack knowledge sufficient to admit or
28 deny Request No. 7.
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3 statements on gay rights: “We support full inclusion of gay and lesbian families in the life of our
4 nation and seek equal responsibilities, benefits, and protections for these families. In our country,
5 marriage has been defined at the state level for 200 years, and we believe it should continue to be
6 defined there. We repudiate President Bush’s divisive effort to politicize the Constitution by
7 pursuing a ‘Federal Marriage Amendment.’ Our goal is to bring Americans together, not drive them
8 apart. . . . We will enact the bipartisan legislation barring workplace discrimination based on sexual
9 orientation. We are committed to equal treatment of all service members and believe all patriotic
10 Americans should be allowed to serve our country without discrimination, persecution, or violence.”
17 of text titled “2004 Democratic Party Platform.” Plaintiffs further admit that the web page contains
19 variety of groups. Except as expressly admitted, Plaintiffs lack knowledge sufficient to admit or deny
20 Request No. 8.
23 statements on gay rights: “We will enact the bipartisan legislation barring workplace discrimination
24 based on sexual orientation. We are committed to equal treatment of all service members and believe
25 all patriotic Americans should be allowed to serve our country without discrimination, persecution, or
26 violence. . . . We continue to lead the fight to end discrimination on the basis of race, gender,
27 religion, age, ethnicity, disability, and sexual orientation. . . . We support continued efforts, like the
28 Employment Non-Discrimination Act, to end workplace discrimination against gay men and lesbians.
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1 We support the full inclusion of gay and lesbian families in the life of the nation. This would include
2 an equitable alignment of benefits.” (http://www.presidency.ucsb.edu/ws/index.php?pid=29612)
11 Request No. 9.
14 statements on gay rights: “We continue to lead the fight to end discrimination on the basis of race,
15 gender, religion, age, ethnicity, disability, and sexual orientation. . . . We support continued efforts,
16 like the Employment Non-Discrimination Act, to end discrimination against gay men and lesbians
17 and further their full inclusion in the life of the nation.”
27 Request No. 10.
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3 statements on gay rights: “Democrats will continue to lead the fight to ensure that no Americans
4 suffer discrimination or deprivation of rights on the basis of race, gender, language, national origin,
5 religion, age, disability, sexual orientation, or other characteristics irrelevant to ability. . . . We
6 will . . . provide civil rights protection for gay men and lesbians and an end to Defense Department
7 discrimination” (http://www.presidency.ucsb.edu/ws/index.php?pid=29610)
16 Request No. 11.
19 statement on gay rights: “WE BELIEVE that we honor our multicultural heritage by assuring equal
20 access to government services, employment, housing, business enterprise and education to every
21 citizen regardless of race, sex, national origin, religion, age, handicapping condition or sexual
22 orientation” (http://www.presidency.ucsb.edu/ws/index.php?pid=29609)
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3 Request No. 12.
6 statement on gay rights: “Government has a special responsibility to those whom society has
7 historically prevented from enjoying the benefits of full citizenship for reasons of race, religion, sex,
8 age, national origin and ethnic heritage, sexual orientation, or disability.”
18 Request No. 13.
21 statement on gay rights: “All groups must be protected from discrimination based on race, color,
22 religion, national origin, language, age, sex or sexual orientation.”
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4 Request No. 14.
6 Admit that Democratic Party rules for selecting delegates to the national party convention
7 mandate that state parties “develop and submit Party outreach programs, including recruitment,
8 education and training, in order to achieve full participation” of “groups historically under-
9 represented in the Democratic Party’s affairs, by virtue of race, ethnicity, age, sexual orientation or
10 disability” (Rule 5(c)), and obligate state parties to “adopt and implement Inclusion Programs in
11 order to achieve the full participation” of LGBT individuals in “the delegate selection process and in
12 all party affairs, as indicated by their presence in the Democratic electorate.” (Rule 7).
13 (http://s3.amazonaws.com/apache.3cdn.net/de68e7b6dfa0743217 hwm6bhyc4.pdf)
16 object to this Request on the grounds that it is vague and ambiguous, in particular the use of the terms
17 “obligate” and “mandate.” Plaintiffs also object to this Request to the extent that it may not be
18 relevant to any party’s claim or defense in this action or reasonably calculated to lead to the discovery
19 of admissible evidence. Plaintiffs further respond that they lack knowledge or information sufficient
20 to admit or deny the authenticity or accuracy of the information contained on the web page cited in
21 Request No. 15. Subject to the foregoing objections, Plaintiffs admit that the web page cited in
22 Request No. 15 contains a twenty-seven page document, including the text selectively quoted in
23 Request No. 15. Except as expressly admitted, Plaintiffs lack knowledge sufficient to admit or deny
24 Request No. 15.
26 Admit that the Employee Nondiscrimination Act of 2007, which would have prohibited
27 employment discrimination on the basis of sexual orientation, passed the House by a 235 to 184 vote,
28
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1 with 200 Democrats and 35 Republicans voting in favor. (House Roll Call Vote No. 1057, 110th
2 Cong., Nov. 7, 2007).
5 object to this Request to the extent that it may not be relevant to any party’s claim or defense in this
6 action or reasonably calculated to lead to the discovery of admissible evidence. Subject to the
7 foregoing objections, Plaintiffs lack knowledge or information sufficient to admit or deny Request
8 No. 16.
10 Admit that more than half the U.S. population lived in jurisdictions covered by laws banning
11 discrimination on the basis of sexual orientation. (http://www.thetaskforce.org/reports and
12 research/fact sheets/family nondiscrimination 05 07)
18 No. 17.
20 Admit that 31 senators and 128 congressmen were awarded a 90% or better rating for the
21 110th Congress (2007 to 2008) by the Human Rights Campaign. HRC Congressional Scorecard,
22 http://www.hrc.org/documents/Congress Scorecard-110th.pdf
28 No. 18.
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2 Admit that in its 2008 platform, the California Democratic Party stated that it “support[s]
3 nondiscrimination and equality for Lesbian, Gay, Bisexual, and Transgender people in all aspects of
4 their lives” and “support[s] the LGBT Community in its quest for the right to legal marriage.”
5 (http://www.cadem.org/atf/cf/{BF9D7366-E5A7-41C3-8E3F-
6 E06FB835FCCE}/2008%20Platform%20Combined%20Final.pdf)
11 foregoing objections, Plaintiffs admit that the web page cited in Request No. 19 contains fourteen
12 pages of text discussing a wide variety of issues, including ongoing and systemic discrimination
13 against a variety of groups. Except as expressly admitted, Plaintiffs lack knowledge sufficient to
14 admit or deny Request No. 19.
16 Admit that in its 2008 platform, the Green Party of California stated that “We support the
17 freedom to marry, and all the rights, benefits, and responsibilities thereof, without discrimination
18 based on sex, gender, or sexual orientation” and that “We support state and federal legislation
19 (including constitutional amendments) to ban discrimination based on sex, gender, and sexual
20 orientation. We oppose measures that restrict rights or create unequal treatment based on sex,
21 gender, or sexual orientation.” (http://www.cagreens.org/platform/platform_justice.shtml#sogige).
26 foregoing objections, Plaintiffs admit that the web page cited in Request No. 20 contains text
27 discussing a wide variety of issues, including ongoing and systemic discrimination against a variety
28
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1 of groups. Except as expressly admitted, Plaintiffs lack knowledge sufficient to admit or deny
2 Request No. 20.
4 Admit that California Governor Arnold Schwarzenegger, Lt. Governor John Garamendi,
5 Senator Barbara Boxer, Senator Dianne Feinstein, Attorney General Edmund G. Brown, Secretary of
6 State Debra Bowen, State Treasure Bill Lockyer, State Controller John Chiang, State Superintendent
7 of Public Instruction Jack O’Connell all sent official greeting messages to California’s 2009 Lesbian,
8 Gay, Bisexual and Transgender Pride Celebrations. (http://www.capride.org/proc__all.htm).
14 No. 21.
16 Admit that four openly gay or lesbian individuals serve in the California legislature: State
17 Sen. Mark Leno (D, San Francisco), State Sen. Christine Kehoe (D, San Diego), State Assemblyman
18 Tom Ammiano (D, San Francisco), and State Assemblyman John Perez (D, Los Angeles).
20 Plaintiffs incorporate their General Objections as if set forth fully herein. Plaintiffs also
21 object to this Request on the grounds that it is compound. Subject to the foregoing objections,
22 Plaintiffs admit that to the best of their knowledge, four openly gay or lesbian individuals serve in the
23 California legislature.
25 Admit that California’s political branches passed the state’s first domestic partnership statute
26 in 1999, and expanded domestic partnerships’ rights and benefits in 2001, 2002, 2003, 2004, 2005,
27 2006, and 2007. See 2007 Cal. Stat. ch. 567; 2006 Cal. Stat. ch. 802; 2005 Cal. Stat. ch. 416; 2004
28
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1 Cal. Stat. ch. 488; 2003 Cal. Stat. ch. 421; 2002 Cal. Stat. ch. 447; 2001 Cal. Stat. ch. 893; 1999 Cal.
2 Stat. ch. 588.
5 this Request on the grounds that it is vague and ambiguous, in particular in its reference to “domestic
6 partnership” and “expanded.” Subject to the foregoing objections, Plaintiffs admit that California
7 passed the cited laws. Except as expressly admitted, Plaintiffs lack knowledge sufficient to admit or
10 Admit that in 1978, California voters rejected Proposition 6, also known as the “Briggs
11 Initiative,” which would have allowed school systems to fire any teacher found to be “advocating,
12 imposing, encouraging or promoting” homosexual activity by a 58% to 41% margin.
14 Plaintiffs incorporate their General Objections as if fully set forth herein. Plaintiffs also
15 object to this Request on the grounds that it is vague, ambiguous and compound. Subject to the
16 foregoing objections, Plaintiffs lack knowledge sufficient to admit or deny Request No. 24.
18 Admit that in the 2008 election cycle, the “No on 8: Equality for All “ campaign committee
19 raised and spent more than $43.0 million to defeat Proposition 8.
24 Admit that in the 2008 election cycle, the “Win Marriage Back” campaign committee raised
25 and spent more than $12.5 million to defeat Proposition 8.
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2 Admit that in the 2008 election cycle, the “Human Rights Campaign California Marriage
3 PAC “ campaign committee raised and spent more than $3.6 million to defeat Proposition 8.
8 Admit that in the 2008 election cycle, the “No on Proposition 8, Campaign for Marriage
9 Equality” campaign committee raised and spent more than $2.0 million to defeat Proposition 8.
14 Admit that in the 2008 election cycle, the “Californians Against Eliminating Basic Rights”
15 campaign committee raised and spent more than $1.1 million to defeat Proposition 8.
20 Admit that California universities host 22 gay and lesbian student centers, the most of any
21 state in the nation. 2008 Annual Report, Consortium of Higher Education LGBT Resource
22 Professionals, available at http://www.lgbtcampus.org/about/files/2009AnnualReport.pdf
28 Admission No. 30 contains a sixteen page document purporting to be the “Consortium of Higher
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1 Education LGBT Resource Professionals Annual Report 2008.” Except as expressly admitted,
2 Plaintiffs lack knowledge or information sufficient to admit or deny the remainder of Request No. 30.
4 Admit that on average, same-sex couples in California are more affluent than heterosexual
5 married couples; and that the median income of same-sex couples in California is $103,030 for male
6 couples and $86,000 for female couples, significantly higher than the median household income of
7 opposite-sex married couples in California, $76,500. Census Snapshot: California Lesbian, Gay.
8 And Bisexual Population, The Williams Institute at UCLA Law School,
9 (http://www.law.ucla.edu/williamsinstitute/publications/CA%20Snapshot%202008.pdf)
12 object to this Request on the grounds that it is vague and ambiguous, in particular with respect to its
13 use of the terms “average,” “more affluent,” “same-sex couples” and “significantly higher.”
14 Plaintiffs also object to this Request on the grounds and to the extent that it may not be relevant to
15 any party’s claim or defense in this action or reasonably calculated to lead to the discovery of
16 admissible evidence. Plaintiffs further respond that they lack knowledge or information sufficient to
17 admit or deny the authenticity or accuracy of the information contained on the web page cited in
18 Request No. 31. Subject to the foregoing objections, Plaintiffs admit that the web page cited in
19 Defendant-Intervenors’ Request for Admission No. 31 contains a seven page document entitled
20 “Census Snapshot” and purportedly published by the “Williams Institute.” Except as expressly
21 admitted, Plaintiffs lack knowledge or information sufficient to admit or deny Request No. 31.
23 Admit that the Los Angeles Gay and Lesbian Center received $11.1 million in government
24 grants in 2008 (http://www.lagaycenter.org/site/DocServer/AR08_r1.pdf?docID=6921) and $10.5
25 million in government grants in 2006. (2006 IRS Form 990, available at www.guidestar.org).
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1 use of the phrase “government grants.” Plaintiffs also object to this Request on the grounds and to
2 the extent that it may not be relevant to any party’s claim or defense in this action or reasonably
3 calculated to lead to the discovery of admissible evidence. Plaintiffs further respond that the web
4 page www.guidestar.org cited in Defendant-Intervenors’ Request for Admission No. 32 does not
5 provide a 2006 IRS Form 990. Additionally, Plaintiffs respond that they lack knowledge or
6 information sufficient to admit or deny the authenticity or accuracy of any information contained on
7 the web pages cited in Request No. 32. Subject to the foregoing objections, Plaintiffs admit that the
8 web page cited first in Defendant-Intervenors’ Request for Admission No. 32.
9 (http://www.lagaycenter.org/site/DocServer/AR08_r1.pdf?docID=6921) contains a fourteen page
10 document entitled “L.A. Gay & Lesbian Center Annual Report 2008.” Except as expressly admitted,
11 Plaintiffs lack knowledge or information sufficient to admit or deny Request No. 32.
13 Admit that the San Diego LGBT Community Center received $1.8 million in government
14 grants in 2007 (2007 IRS Form 990, available at www.guidestar.org).
20 calculated to lead to the discovery of admissible evidence. Plaintiffs further respond that because the
21 web page www.guidestar.org cited in Defendant-Intervenors’ Request for Admission No. 33 does not
22 provide a 2007 IRS Form 990. Except as expressly admitted, Plaintiffs lack knowledge or
23 information sufficient to admit or deny Request No. 33.
25 Admit that the San Francisco LGBT Community Center received $986,722 in government
26 grants in 2008. (http://www.scribd.com/doc/13974216/San-Francisco-LGBT-Community-Center-
27 Annual-Report-200708)
28
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6 calculated to lead to the discovery of admissible evidence. Plaintiffs further respond that they lack
7 knowledge or information sufficient to admit or deny the authenticity or accuracy of the information
8 contained on the web page cited in Request No. 34. Subject to the foregoing objections, Plaintiffs
9 admit that the web page cited in Defendant-Intervenors’ Request for Admission No. 34 contains a 28
10 page document entitled “San Francisco LGBT Community Center 2007/2008 Annual Report.”
11 Except as expressly admitted, Plaintiffs lack knowledge or information sufficient to admit or deny
12 Request No. 34.
14 Admit that the Gay and Lesbian Community Services Center of Orange County received
15 $344,404 in government grants in 2007 (2007 IRS Form 990, available at www.guidestar.org).
23 provide a 2007 IRS Form 990. Plaintiffs further respond that they lack knowledge or information
24 sufficient to admit or deny the authenticity or accuracy of any information contained in the web page
25 cited in the Request. Except as expressly admitted, Plaintiffs respond that they lack knowledge or
27
28
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2 Admit that the One National Gay and Lesbian Archives in Los Angeles received $90,728 in
3 government grants in 2007 (2007 IRS Form 990, available at www.guidestar.org).
16 Admit that the San Francisco LGBT Parade Committee received $77,200 in government
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2 Admit that the GLBT Historical Society of California in San Francisco received $234,781 in
16 Admit that the Queer Cultural Center in San Francisco received $263,646 in government
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2 Admit that Gay and Lesbian Adolescent Social Services of Burbank received $10.4 million in
16 Admit that the Lavender Youth Recreation and Information Center in San Francisco received
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2 Admit that the group Community United Against Violence of San Francisco received
16 Admit that the Pacific Pride Foundation in Santa Barbara received $1.2 million in government
21 use of the phrase “government grants”. Plaintiffs also object to this Request on the grounds and to
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2 Admit that the Our Family Coalition organization of San Francisco received $471,757 in
14 information sufficient to admit or deny Request No. No. 44.
16 Admit that the Stepping Stone of San Diego organization received $1.5 million in government
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2 Admit that, at present, discrimination against individuals practicing a homosexual lifestyle is
3 increasingly rare.
6 this Request on the grounds that it is vague and ambiguous, in particular with respect to the phrase
7 “increasingly rare.” Plaintiffs further object to this Request on the grounds that the phrase
8 “homosexual lifestyle” is unintelligible. Subject to the foregoing objections, Plaintiffs deny this
9 Request for Admission.
11 Admit that, apart from access to civil marriage, public discrimination against gays and
12 lesbians by state and local governments in California is virtually non-existent.
16 Plaintiffs admit that the denial of access to civil marriage is a form of public (as well as private)
17 discrimination. Except as expressly admitted, Plaintiffs deny this Request for Admission.
19 Admit that homosexual lifestyles are widely accepted in California.
22 this Request on the grounds that it is vague and ambiguous. Plaintiffs further object to this Request
23 on the grounds that the term “homosexual lifestyles” is unintelligible. Subject to the foregoing
24 objections, Plaintiffs deny this Request for Admission.
26 Admit that private discrimination against gay and lesbians in California is increasingly rare.
27
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6 Admit that many openly gay and lesbian individuals have served in California politics and
7 government, including: former San Francisco Board of Supervisors Member Roberta Achtenberg;
8 California Assemblyman Tom Ammiano; West Sacramento Mayor Christopher Cabaldon; former
9 U. S. Ambassador to Luxembourg James Hormel; California State Senator Christine Kehoe; Susan
10 Kennedy, chief of staff to Gov. Arnold Schwarzenegger; State Senator Mark Leno; former State
11 Senator Carole Migden; former San Francisco Board of Supervisors Member Harvey Milk; Daniel
12 Zingale, chief of staff for Maria Shriver.
16 on the grounds that it is compound. Subject to the foregoing objections, Plaintiffs admit that to the
17 best of their knowledge, openly gay and lesbian individuals have served in California politics and
18 government, including: former San Francisco Board of Supervisors Member Roberta Achtenberg;
19 California Assemblyman Tom Ammiano; West Sacramento Mayor Christopher Cabaldon; former
20 U. S. Ambassador to Luxembourg James Hormel; California State Senator Christine Kehoe; Susan
21 Kennedy, chief of staff to Gov. Arnold Schwarzenegger; State Senator Mark Leno; former State
22 Senator Carole Migden; former San Francisco Board of Supervisors Member Harvey Milk; Daniel
23 Zingale, former chief of staff for Maria Shriver. Except as expressly admitted, Plaintiffs deny
24 Request No. 50.
26 Admit that many openly gay and lesbian individuals have been active in California’s arts and
27 cultural community.
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4 Plaintiffs admit that openly gay and lesbian individuals have contributed to the state of California in
5 many respects, including by contributing to California’s arts and cultural community, athletics
6 community, faith and spiritual communities, medical community, media organizations, entertainment
7 industry, business community, labor force, academic community, nonprofit organizations,
8 government institutions and its legal profession. Except as expressly admitted, Plaintiffs deny
9 Request No. 51.
11 Admit that many openly gay and lesbian individuals have been active in California athletics.
20 Request No. 52.
22 Admit that many openly gay and lesbian individuals have worked at California media
23 organizations.
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4 Request No. 53.
6 Admit that many openly gay and lesbian individuals have worked in California’s
7 entertainment industry.
16 Request No. 54.
18 Admit that many openly gay and lesbian individuals have been leaders in California’s
19 business community.
28 Request No. 55.
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2 Admit that many openly gay and lesbian individuals have been leaders at California
3 universities.
12 Request No. 56.
14 Admit that many openly gay and lesbian individuals have been leaders in California’s legal
15 profession.
24 Request No. 57.
26 Admit that, with the exception of the denomination “marriage,” under California law “same-
27 sex couples retain the same substantive protections embodied in the state constitutional rights of
28 privacy and due process as those accorded to opposite-sex couples and the same broad protections
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1 under the state equal protection clause that are set forth in the majority opinion in the Marriage
2 Cases.” Strauss v. Horton, 46 Cal. 4th 364, 412 (Cal. 2009).
4 Plaintiffs incorporate their General Objections as if set forth fully herein. Plaintiffs also
5 object to this Request to the extent it calls for a legal conclusion. Plaintiffs further object to this
6 Request on the grounds that it is vague, ambiguous, and compound. Subject to the foregoing
7 objections, Plaintiffs admit only that Strauss v. Horton, 46 Cal. 4th 364, 412 (Cal. 2009) states,
8 among other things: “In sum, although Proposition 8 changes the state Constitution, as interpreted in
9 the majority opinion in the Marriage Cases, supra, 43 Cal.4th 757, 76 Cal.Rptr.3d 683, 183 P.3d
10 384, to provide that restricting the family designation of ‘marriage’ to opposite-sex couples only, and
11 withholding that designation from same-sex couples, no longer violates the state Constitution, in all
12 other respects same-sex couples retain the same substantive protections embodied in the state
13 constitutional rights of privacy and due process as those accorded to opposite-sex couples and the
14 same broad protections under the state equal protection clause that are set forth in the majority
15 opinion in the Marriage Cases, including the general principle that sexual orientation constitutes a
16 suspect classification and that statutes according differential treatment on the basis of sexual
17 orientation are constitutionally permissible only if they satisfy the strict scrutiny standard of review.”
18 To the extent that this Request states or implies that such rights have been implemented by the State,
19 Plaintiffs deny that the State has altered its laws and policies to implement this, and further responds
20 that there are still differences in the ways that registered domestic partners and spouses are treated,
21 such as access to long term health care benefits for state employees. To the extent that this Request
22 states or implies that a separate system of domestic partnerships could ever be equal to marriage,
23 Plaintiffs specifically deny that Request.
25 Admit that the California Registered Domestic Partner Rights and Responsibilities Act of
26 2003, Stats. 2003, ch. 421, gives to domestic partners “the full range of legal rights, protections and
27 benefits, as well as all of the responsibilities, obligations, and duties to each other, to their children, to
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1 third parties and to the state, as the laws of California extend to and impose upon spouses.” Stats.
2 2003, ch. 421, § 15.
4 Plaintiffs incorporate their General Objections as if stated fully herein. Plaintiffs also object
5 to this Request on the grounds and to the extent that it may not be relevant to any party’s claim or
6 defense in this action or reasonably calculated to lead to the discovery of admissible evidence.
7 Plaintiffs further object to the extent the Request calls for a legal conclusion. Subject to the
8 foregoing objections, Plaintiffs admit that Stats. 203, ch. 421, § 15 added section 297.5 to the
9 California Family Code. Except as expressly admitted, Plaintiffs deny Request No. 59.
11 Admit that California law puts domestic partners on an equal footing with married spouses
12 with respect to inheritance and intestacy, id. sec. 297.5(c).
15 this Request on the grounds that it is vague and ambiguous, in particular in its use of the phrase
16 “equal footing,” Plaintiffs further object to the extent the Request calls for a legal conclusion.
17 Subject to the foregoing objections, Plaintiffs admit that Cal. Family Code § 297.5(c) is part of the
18 law of California. Except as expressly admitted, Plaintiffs deny Request No. 60.
21 with respect to property, id. sec. 297.5(k)(1).
25 “equal footing.” Plaintiffs further object to the extent the Request calls for a legal conclusion.
26 Subject to the foregoing objections, Plaintiffs admit that Cal. Family Code § 297.5(k)(1) is part of the
28
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3 with respect to insurance coverage, Cal. Ins. Code sec. 381.5.
8 Subject to the foregoing objections, Plaintiffs admit that Cal. Insurance Code § 381.5 is part of the
12 with respect to state tax treatment, Cal. Rev. & Tax Code secs. 17024.5(h)(2)(B), 18521(d).
17 Subject to the foregoing objections, Plaintiffs admit that Cal. Revenue & Tax Code § 17024.5(h) is
18 part of the law of California. Except as expressly admitted, Plaintiffs deny Request No. 63.
20 Admit that California is one of “[t]wenty states and the District of Columbia [with] laws that
21 explicitly prohibit sexual orientation discrimination in private employment.” Preventing Sexual
22 Orientation Discrimination in the Workplace, Nolo,
23 http://www.nolo.com/article.cfm/objectID/E76BEBE6-E 1 94-46C 1-
24 983629F17557E86D/111/259/283/ART/ (listing California, Colorado, Connecticut, Hawaii, Illinois,
25 Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New
26 Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin).
27
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6 Admission No. 64 contains a document entitled “Preventing Sexual Orientation Discrimination in the
7 Workplace.” Plaintiffs lack knowledge or information sufficient to admit or deny the remainder of
8 the Request.
10 Admit that California’s elected legislature has passed laws prohibiting discrimination on the
11 basis of sexual orientation in businesses’ provision of services, Cal. Civil Code § 51.5.
14 this Request on the grounds that it is vague and ambiguous, in particular in its reference to “laws” in
15 the plural form and “businesses’ provision of services.” Plaintiffs further object to the Request on the
16 grounds and to the extent that it calls for a legal conclusion and thus does not require an answer.
17 Subject to the foregoing objections, Plaintiffs admit that Cal. Civil Code § 51.5 is part of the law of
18 California.
21 basis of sexual orientation in the peremptory challenges of jurors, Cal. Code of Civil Procedure
22 § 231.5.
26 the plural form. Plaintiffs further object to the Request on the grounds and to the extent that it calls
27 for a legal conclusion and thus does not require an answer. Subject to the foregoing objections,
28 Plaintiffs admit that Cal. Code of Civil Procedure § 231.5 is part of the law of California.
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3 basis of sexual orientation in public education, Cal. Ed. Code § 200.
7 the plural form and “public education.” Plaintiffs further object to the Request on the grounds and to
8 the extent that it calls for a legal conclusion and thus does not require an answer. Subject to the
9 foregoing objections, Plaintiffs admit that Cal. Education Code § 200 is part of the law of California.
10 Except as expressly admitted, Plaintiffs deny this Request for Admission.
13 basis of sexual orientation in state-funded educational programs, id. § 220, Cal. Wel. & Inst. Code
14 § 14504.1(c).
17 this Request on the grounds that it is vague and ambiguous, in particular in its reference to
18 “educational programs.” Plaintiffs further object to the Request on the grounds and to the extent that
19 it calls for a legal conclusion and thus does not require an answer. Subject to the foregoing
20 objections, Plaintiffs admit that Cal. Education Code § 220 and Cal. Wel. & Inst. Code § 14504.1(c)
21 are part of the law of California. Except as expressly admitted, Plaintiffs deny this Request for
22 Admission.
25 basis of sexual orientation in secondary education, Cal. Ed. Code § 66251.
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1 the plural form and its use of the phrase “secondary education.” Plaintiffs further object to the
2 Request on the grounds and to the extent that it calls for a legal conclusion and thus does not require
3 an answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Education Code § 66251 is
4 part of the law of California. Except as expressly admitted, Plaintiffs deny this Request for
5 Admission.
8 basis of sexual orientation in post-secondary education, id. § 66270.
12 the plural form and the phrase “post-secondary education.” Plaintiffs further object to the Request on
13 the grounds and to the extent that it calls for a legal conclusion and thus does not require an answer.
14 Subject to the foregoing objections, Plaintiffs admit that Cal. Education Code § 66270 is part of the
15 law of California. Except as expressly admitted, Plaintiffs deny this Request for Admission.
18 basis of sexual orientation in any state-funded program or activity, Cal. Gov. Code § 11135(a).
21 this Request on the grounds that it is vague and ambiguous, in particular in its reference to ”laws” in
22 the plural form, as well as the terms “any”, “state-funded”, “program” and “activity.” Plaintiffs
23 further object to the Request on the grounds and to the extent that it calls for a legal conclusion and
24 thus does not require an answer. Subject to the foregoing objections, Plaintiffs admit that Cal.
25 Government Code § 11135(a) is part of the law of California. Except as expressly admitted,
27
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3 basis of sexual orientation in employment, id. §§ 12920, 12921, 12940.
6 this Request on the grounds and to the extent that it may not be relevant to any party’s claim or
8 Plaintiffs further object to the Request on the grounds and to the extent that it calls for a legal
9 conclusion and thus does not require an answer. Subject to the foregoing objections, Plaintiffs admit
10 that Cal. Government Code §§ 12920, 12921, and 12940 are part of the law of California. Except as
11 expressly admitted, Plaintiffs deny this Request for Admission.
14 basis of sexual orientation in housing, id. §§ 12921, 12955, 12955.8.
17 this Request on the grounds and to the extent that it may not be relevant to any party’s claim or
21 that Cal. Government Code §§ 12921, 12955, and 12955.8 are part of the law of California. Except
22 as expressly admitted, Plaintiffs deny this Request for Admission.
25 basis of sexual orientation in labor organizations, id. § 12940(b).
28 this Request on the grounds that it is vague and ambiguous, in particular with respect to the use of the
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1 plural form “laws” and the term “labor organizations.” Plaintiffs further object to the Request on the
3 Subject to the foregoing objections, Plaintiffs admit that Cal. Government Code § 12940(b) is part of
4 the law of California. Except as expressly admitted, Plaintiffs deny this Request for Admission.
7 basis of sexual orientation in apprenticeships, id. § 12940(c).
11 plural form “laws” and the term “apprenticeships.” Plaintiffs further object to the Request on the
13 Subject to the foregoing objections, Plaintiffs admit that Cal. Government Code § 12940(c) is part of
17 basis of sexual orientation in licensing boards, id. § 12944.
21 plural form “laws” and the term “licensing boards.” Plaintiffs further object to the Request on the
23 Subject to the foregoing objections, Plaintiffs admit that Cal. Government Code § 12944 is part of the
27 basis of sexual orientation in civil service, id. § 18500.
28
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4 plural form “laws” and the term “civil service.” Plaintiffs further object to the Request on the
6 Subject to the foregoing objections, Plaintiffs admit that Cal. Government Code § 18500 is part of the
10 basis of sexual orientation in health insurance, Cal. Health & Saf. Code § 1365.5.
14 plural form “laws” and the term “health insurance.” Plaintiffs further object to the Request on the
16 Subject to the foregoing objections, Plaintiffs admit that Cal. Health & Safety Code § 1365.5 is part
17 of the law of California. Except as expressly admitted, Plaintiffs deny this Request for Admission.
20 basis of sexual orientation in certification of administrators of group home facilities, id. § 1522.41.
24 plural form “laws” and the terms “administrators” and “group health facilities.” Plaintiffs further
25 object to the Request on the grounds and to the extent that it calls for a legal conclusion and thus does
26 not require an answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Health & Safety
27 Code § 1522.41 is part of the law of California. Except as expressly admitted, Plaintiffs deny this
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3 basis of sexual orientation in adult day health care centers, id. § 1586.7.
7 plural form “laws” and the term “adult day health care centers.” Plaintiffs further object to the
9 an answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Cal. Health & Safety Code
10 § 1586.7 is part of the law of California. Except as expressly admitted, Plaintiffs deny this Request
11 for Admission.
14 basis of sexual orientation in community redevelopment projects, id. § 33050(a).
18 term “community redevelopment projects.” Plaintiffs further object to the Request on the grounds
19 and to the extent that it calls for a legal conclusion and thus does not require an answer. Subject to
20 the foregoing objections, Plaintiffs admit that Cal. Health & Safety Code § 33050(a) is part of the law
21 of California. Except as expressly admitted, Plaintiffs deny this Request for Admission.
24 basis of sexual orientation in court-ordered HIV-status disclosure of criminal defendants, id.
25 § 120292.
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1 plural form “laws” and the term “HIV-status disclosure.” Plaintiffs further object to the Request on
3 Subject to the foregoing objections, Plaintiffs admit that Cal. Health & Safety Code § 120292 is part
7 basis of sexual orientation in sexual health education programs, id. § 151002(a)(6).
11 plural form “laws” and the term “sexual health education programs.” Plaintiffs further object to the
13 an answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Health & Safety Code
14 § 151002(a)(6) is part of the law of California. Except as expressly admitted, Plaintiffs deny this
18 basis of sexual orientation in insurance, Cal. Ins. Code §§ 10140(a), (e), 10141.
22 term “licensing boards.” Plaintiffs further object to the Request on the grounds and to the extent that
23 it calls for a legal conclusion and thus does not require an answer. Subject to the foregoing
24 objections, Plaintiffs admit that Cal. Ins. Code §§ 10140(a), (e), 10141 are part of the law of
25 California. Except as expressly admitted, Plaintiffs deny this Request for Admission.
28 basis of sexual orientation in children’s public health insurance, id. § 12693.28.
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4 plural form “laws” and the term “children’s public health insurance.” Plaintiffs further object to the
6 an answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Insurance Code § 12693.28
7 is part of the law of California. Except as expressly admitted, Plaintiffs deny this Request for
8 Admission.
11 basis of sexual orientation in health care organizations, Cal. Lab Code § 4600.6(g)(3).
15 plural form “laws” and the term “health care organizations.” Plaintiffs further object to the Request
16 on the grounds and to the extent that it calls for a legal conclusion and thus does not require an
17 answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Labor Code § 4600.6(g)(3) is
19 Admission.
22 basis of sexual orientation in public contractors, Cal. Pub. Contract Code § 6108(g)(9).
26 plural form “laws” and the term “public contractors.” Plaintiffs further object to the Request on the
28
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1 Subject to the foregoing objections, Plaintiffs admit that Cal. Pub. Contract Code § 6108(g)(9) is part
5 basis of sexual orientation in juvenile detention, Cal. Wel. & Inst. Code § 224.73.
9 plural form “laws” and the term “juvenile detention.” Plaintiffs further object to the Request on the
11 Subject to the foregoing objections, Plaintiffs admit that Cal. Wel. & Inst. Code § 224.73 is part of
15 basis of sexual orientation in access to elder services, Cal. Wel. & Inst. Code § 9103.1(a), (c), (d).
19 plural form “laws” and the term “elder services.” Plaintiffs further object to the Request on the
21 Subject to the foregoing objections, Plaintiffs admit that Cal. Wel. & Inst. Code § 9103.1(a), (c), and
22 (d) are part of the law of California. Except as expressly admitted, Plaintiffs deny this Request for
23 Admission.
25 Admit that California has acted to protect and advance gay and lesbian rights by combating
26 bias on the basis of sexual orientation in public schools, Cal. Ed. Code § 32228.
27
28
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4 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “combating,” “bias” and “public
5 schools.” Plaintiffs further object to the Request on the grounds and to the extent that it calls for a
6 legal conclusion and thus does not require an answer. Subject to the foregoing objections, Plaintiffs
7 admit that Cal. Ed. Code § 32228 is part of the law of California. Except as expressly admitted,
10 Admit that California has acted to protect and advance gay and lesbian rights by providing
11 sexual orientation-sensitive sex education materials, id. § 51933(b)(4).
15 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “providing,” “sexual-orientation-
16 sensitive” and “sex education materials.” Plaintiffs further object to the Request on the grounds and
17 to the extent that it calls for a legal conclusion and thus does not require an answer. Subject to the
18 foregoing objections, Plaintiffs admit that Cal. Ed. Code § 51933(b)(4) is part of the law of
21 Admit that California has acted to protect and advance gay and lesbian rights by protecting
22 privacy interests in sexual orientation for teachers. id. § 49091.24.
26 terms “acted,” “protect,” or “protecting,” “advance,” “gay and lesbian rights,” and “teachers.”
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1 that Cal. Ed. Code § 49091.24 is part of the law of California. Except as expressly admitted,
5 training for domestic abuse evaluators in the relationship of sexual orientation to domestic violence,
6 Cal. Fam. Code § 1816.
10 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “providing,” “training,” “domestic
11 abuse evaluators,” “relationship” and “domestic violence.” Plaintiffs further object to the Request on
13 Subject to the foregoing objections, Plaintiffs admit that Cal. Fam. Code § 1816 is part of the law of
16 Admit that California has acted to protect and advance gay and lesbian rights by facilitating
17 communication on sexual orientation in disability communities, Cal. Gov. Code § 8299.01(b)(2)(F).
21 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “facilitating,” “communication” and
22 “disability communities.” Plaintiffs further object to the Request on the grounds and to the extent
23 that it calls for a legal conclusion and thus does not require an answer. Subject to the foregoing
24 objections, Plaintiffs admit that Cal. Government Code § 8299.01(b)(2)(F) is part of the law of
27 Admit that California has acted to protect and advance gay and lesbian rights by issuing
28 publications to minimize housing discrimination on the basis of sexual orientation, id. § 12930(i).
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4 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “issuing,” “publications,” “minimize”
5 and “housing discrimination.” Plaintiffs further object to the Request on the grounds and to the
6 extent that it calls for a legal conclusion and thus does not require an answer. Subject to the
7 foregoing objections, Plaintiffs admit that Cal. Government Code § 12930(i) is part of the law of
11 assistance in resolving disputes relating to discrimination on the basis of sexual orientation, id.
12 § 12931.
16 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “providing,” “assistance,” “resolving,”
17 and “disputes.” Plaintiffs further object to the Request on the grounds and to the extent that it calls
18 for a legal conclusion and thus does not require an answer. Subject to the foregoing objections,
19 Plaintiffs admit that Cal. Government Code § 12931 is part of California law. Except as expressly
20 admitted, Plaintiffs deny this Request for Admission.
22 Admit that California has acted to protect and advance gay and lesbian rights by funding
23 advisory and conciliation councils to study sexual orientation discrimination generally and in housing
24 and employment, id. § 12935(g).
28 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “funding,” “advisory,” “conciliation,”
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1 “councils,” “study” and “generally.” Plaintiffs further object to the Request on the grounds and to the
2 extent that it calls for a legal conclusion and thus does not require an answer. Subject to the
3 foregoing objections, Plaintiffs admit that Cal. Government Code § 12935(g) is part of the law of
6 Admit that California has acted to protect and advance gay and lesbian rights by empowering
7 local commissions on human relations to study and resolve tensions between people subject to
8 prejudice on the basis of sexual orientation, id. §§ 50264(c), 50265(a).
12 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “empowering,” “local commissions,”
13 “on,” “human relations,” “study,” “resolve,” “tensions,” “people,” “subject” and “prejudice.”
16 that Cal. Government Code § 50264(c) is part of the law of California. Except as expressly admitted,
19 Admit that California has acted to protect and advance gay and lesbian rights by training
20 medical personnel in sexual orientation discrimination prevention, Cal. Health & Saf. Code § 1257.5.
24 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “training,” “medical personnel” and
25 “discrimination prevention.” Plaintiffs further object to the Request on the grounds and to the extent
27 objections, Plaintiffs admit that Cal. Health & Saf. Code § 1257.5 is part of the law of California.
28 Except as expressly admitted, Plaintiffs deny this Request for Admission.
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2 Admit that California has acted to protect and advance gay and lesbian rights by training
3 foster parents and group home and foster family agency licensing personnel in sexual orientation
4 discrimination and harassment prevention, id. §§ 1522.41(b)(3)(F), (b)(4)(E), § 1563(c)(5), Cal. Wel.
5 & Inst. Code § 16003(a)(1).
9 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “training,” “foster parents,” “group
10 home,” “foster family licensing personnel,” “sexual discrimination” and “harassment.” Plaintiffs
11 further object to the Request on the grounds and to the extent that it calls for a legal conclusion and
12 thus does not require an answer. Subject to the foregoing objections, Plaintiffs admit that Cal.
13 Government Code §§ 1522.41(b)(3)(F), (b)(4)(E), § 1563(c)(5) and Cal. Wel. & Inst. Code
14 § 16003(a)(1) are part of the law of California. Except as expressly admitted, Plaintiffs deny this
17 Admit that California has acted to protect and advance gay and lesbian rights by training law
18 enforcement personnel about crimes committed on the basis of the sexual orientation of the victim,
19 Cal. Pen Code §§ 13023, 13519.6.
23 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “training,” “law enforcement
24 personnel,” “about,” “crimes,” “basis” and “victim.” Plaintiffs further object to the Request on the
26 Subject to the foregoing objections, Plaintiffs admit that Cal. Pen. Code § 13023 and Cal. Pen. Code
27 § 13519.6 are part of the law of California. Except as expressly admitted, Plaintiffs deny this
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2 Admit that California has acted to protect and advance gay and lesbian rights by training law
3 enforcement personnel about sensitivity to sexual orientation, id. §§ 13023, 13519.4.
7 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “training,” “law enforcement
8 personnel” and “sensitivity.” Plaintiffs further object to the Request on the grounds and to the extent
10 objections, Plaintiffs admit that Cal. Pen. Code § 13023 is part of the law of California. Except as
13 Admit that California has acted to protect and advance gay and lesbian rights by recognizing
14 the right of children to be free from sexual orientation discrimination, Cal. Wel. & Inst. Code
15 § 224.71
19 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “recognizing,” “rights,” and “free.”
22 that Cal. Wel. & Inst. Code § 224.71 is part of the law of California. Except as expressly admitted,
25 Admit that California has acted to protect and advance gay and lesbian rights by codifying
26 protections against hate crimes committed on the basis of sexual orientation, Cal. Pen Code
27 §§ 422.55(a)(6), 422.6, 422.7, 422.75, 422.7, 422.85, 422.865, § 3053.4, Cal. Ed. Code §§ 66301,
28 67380, 94367, Cal. Wel. & Inst. Code § 707(d)(2)(C)(iii).
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4 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “codifying,” “protections,” “hate
5 crimes” and “committed.” Plaintiffs further object to the Request on the grounds and to the extent
7 objections, Plaintiffs admit that Cal. Cal. Pen Code §§ 422.55(a)(6), 422.6, 422.7, 422.75, 422.7,
8 422.85, 422.865, § 3053.4, Cal. Ed. Code §§ 66301, 67380, 94367, and Cal. Wel. & Inst. Code
9 § 707(d)(2)(C)(iii) are part of the law of California. Except as expressly admitted, Plaintiffs deny this
12 Admit that California has acted to protect and advance gay and lesbian rights by protecting
13 against harmful insurance premium adjustment following hate crime-related claims, Cal. Ins. Code
14 § 676.10.
18 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “protecting,” “harmful,” “insurance
19 premium adjustment” and “hate crime-related claims.” Plaintiffs further object to the Request on the
21 Subject to the foregoing objections, Plaintiffs admit that Cal. Ins. Code § 676.10 is part of the law of
24 Admit that California has acted to protect and advance gay and lesbian rights by recognizing
25 the right of persons of any sexual orientation to be free from fear and harm by gangs, Cal. Pen Code
26 §§ 186.21, 11410.
27
28
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4 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “recognizing,” “rights,” “free,” “fear,”
5 “harm” and “gangs.” Plaintiffs further object to the Request on the grounds and to the extent that it
6 calls for a legal conclusion and thus does not require an answer. Subject to the foregoing objections,
7 Plaintiffs admit that Cal. Pen. Code § 186.21 and § 11410 are part of the law of California. Except as
10 Admit that California has acted to protect and advance gay and lesbian rights by providing for
11 jury instructions prohibiting bias on the basis of sexual orientation, Cal. Pen Code § 1127h.
15 terms “acted,” “protect,” “advance,” “gay and lesbian rights,” “providing,” “jury instructions,”
16 “prohibiting,” and “bias.” Plaintiffs further object to the Request on the grounds and to the extent
18 objections, Plaintiffs admit that Cal. Pen. Code § 1127h is part of the law of California. Except as
21 Admit that California municipalities provide additional protections and benefits to same-sex
22 partners.
24 Plaintiffs incorporate their General Objections as if fully set forth herein. Plaintiffs object to
26 Plaintiffs lack knowledge sufficient to admit or deny whether California municipalities provide
27 additional protections and benefits to same-sex partners.
28
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2 Admit that California employers are required by law to grant healthcare benefits to same-sex
3 domestic partners on equal footing with employees’ spouses. Cal. Ins. Code sec. 381.5.
6 this Request on the grounds that it is vague, ambiguous and unintelligible, in particular with respect
7 to the use of the terms “required,” “healthcare benefits,” and “equal footing.” Plaintiffs further object
8 to the Request on the grounds and to the extent that it calls for a legal conclusion and thus does not
9 require an answer. Subject to the foregoing objections, Plaintiffs admit that Cal. Ins. Code § 381.5 is
11 Admission.
13 Admit that California is one of sixteen states that mandate health insurance coverage for
14 domestic partners. Council for Affordable Health Insurance, Health Insurance Mandates in the States
15 2009 at 7, 19, http://www.cahi.org/cahi_contents/resources/pdf/HealthInsuranceMandates2009.pdf.
19 use of the term “mandate” and the phrase “health insurance.” Plaintiffs also object to this Request on
20 the grounds and to the extent that it may not be relevant to any party’s claim or defense in this action
21 or reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs further respond
22 that they lack knowledge or information sufficient to admit or deny the authenticity or accuracy of
23 the information contained on the web page cited in Request No. 110. Subject to the foregoing
24 objections, Plaintiffs admit that the web page cited in Defendant-Intervenors’ Request for Admission
25 No. 110 contains a 27 page document entitled “Health Insurance Mandates in the States 2009.”
26 Plaintiffs lack knowledge or information sufficient to admit or deny the remainder of the Request.
27
28
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49
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2 Admit that even before they were legally obligated to do so, many major California employers
3 granted benefits to same-sex partners and registered domestic partners.
7 Plaintiffs lack knowledge or information sufficient to admit or deny this Request.
9 Admit that a majority of Fortune 500 companies offer same-sex domestic partner benefits.
15 Admit that the only type of relationship that is capable of producing biological offspring is
16 that between a man and a woman.
19 this Request on the grounds that it is vague and ambiguous, particularly with respect to the phrase
20 “biological offspring.” Subject to the foregoing objections, Plaintiffs deny this Request for
21 Admission.
23 Admit that less than 40% of same-sex couples in the United States aged 22-55 have children
24 under 18 in the home. R. Bradley Sears, et al., Same-Sex Couples and Same-Sex Couples Raising
25 Children in the United States: Data from Census 2000 at 11.
26
27
28
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50
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6 Admit that Sixty-eight percent of married couples aged 22-55 have children under 18 in the
7 home. Id.
13 Admit that children of same-sex couples are never biologically related to both of their parents.
19 Admit that children of same-sex couples are less likely to be biologically related to any of
20 their parents than are the children of opposite-sex couples.
26 Admit that there is a strong natural bond between biological parents and their children.
27
28
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51
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6 Admit that children have a natural desire to know and have a relationship with their biological
7 parents.
11 yet subject to discovery. Subject to the foregoing objections, Plaintiffs deny this Request for
12 Admission.
14 Admit that international law recognizes that “as far as possible, [a child has the] right to know
15 and be cared for by his or her parents.” United Nations Convention on the Rights of the Child, Art. 7,
16 Nov. 20, 1989, 28 I. L. M. 1448, 1460.
20 use of the terms “international law” and “recognizes” Plaintiffs also object to this Request on the
21 grounds and to the extent that it may not be relevant to any party’s claim or defense in this action or
22 reasonably calculated to lead to the discovery of admissible evidence. Subject to the foregoing
23 objections, Plaintiffs admit that the United Nations Convention on the Rights of the Child, Art. 7(1)
24 states, in part, “The child shall be registered immediately after birth and shall have the right from
25 birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be
26 cared for by his or her parents.” Except as expressly admitted, Plaintiffs deny this Request for
27 Admission.
28
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52
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2 Admit that many gays and lesbians desire to have biological children.
5 this Request on the grounds that it is vague and ambiguous, particularly with respect to the word
6 “many.” Subject to the foregoing objections, Plaintiffs admit that, like heterosexual individuals,
7 some gay and lesbian individuals desire to have biological children and some do not. Except as
10 Admit that by taking advantage of technological advancements and through other means,
11 many gay and lesbian individuals are fulfilling their desires to have biological children.
14 this Request on the grounds that it is vague and ambiguous, particularly with respect to the word
15 “many.” Subject to the foregoing objections, Plaintiffs admit that, like some heterosexual
16 individuals, some gay and lesbian individuals are taking advantage of technological advancements
17 and other means to have biological children. Except as expressly admitted, Plaintiffs deny this
20 Admit that from the beginning of California’s statehood, the legal institution of civil marriage
21 has been understood to refer to a relationship between a man and a woman, excepting the brief period
22 of time between the California Supreme Court’s decision in the Marriage Cases and the passage of
23 Proposition 8.
27 yet subject to discovery. Plaintiffs further object to this Request on the grounds that it is compound.
28 Subject to the foregoing objections, Plaintiffs deny the Request for Admission.
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53
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2 Admit that civil marriage has been a remarkably static institution; that it has rarely changed
3 throughout history, and then only in minor ways; and that despite any changes in its precise contours,
4 it always has been and nearly always still is limited to the union of a man and a woman.
8 “remarkably static,” “rarely” and “minor.” Plaintiffs further object to this Request on the grounds
9 that it is compound and calls for expert testimony, which is not yet subject to discovery. Subject to
10 the foregoing objections, Plaintiffs deny the Request for Admission.
12 Admit that the framers and ratifiers of the 14th Amendment did not intend to require states to
13 extend the institution of marriage to same-sex relationships, nor did they understand the 14th
14 Amendment to do so.
18 on the grounds that it is compound and calls for expert testimony, which is not yet subject to
19 discovery. Subject to the foregoing objections, Plaintiffs deny Request No. 125.
21 Admit that at the time of the framing and ratification of the Fourteenth Amendment, civil
22 marriage was uniformly defined in law and understood by the public to encompass only opposite-sex
23 relationships.
27 “civil marriage” and as to scope. Plaintiffs further object to this Request on the grounds that it is
28 compound and calls for expert testimony, which is not yet subject to discovery. Subject to the
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54
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1 foregoing objections, Plaintiffs lack knowledge or information sufficient to admit or deny the
4 Admit that dictionaries from the time of the framing and ratification of the 14th Amendment
5 uniformly defined marriage as the union of a man and a woman; and that no dictionary definition of
6 marriage from that time included same-sex relationships.
11 Subject to the foregoing objections, Plaintiffs lack knowledge or information sufficient to admit or
14 Admit that at the time of the framing and ratification of the 14th Amendment, not a single
15 State recognized same-sex relationships as marriages.
20 Subject to the foregoing objections, Subject to the foregoing objections, Plaintiffs lack knowledge or
23 Admit that the debates accompanying the framing and ratification of the 14th Amendment
24 contain no discussion of extending marriage to include same-sex relationships.
28
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1 on the grounds that it is compound. Subject to the foregoing objections, Plaintiffs lack knowledge or
4 Admit that the proponents of Proposition 8 submitted 1,120,801 signatures to the Secretary of
5 State on April 24, 2008 to qualify the initiative for the fall general election ballot.
7 Plaintiffs incorporate their General Objections as if fully set forth herein. Subject to the
9 No. 130.
11 Admit that Proposition 8 restored the traditional definition of marriage.
14 this Request on the grounds that it is vague and ambiguous, particularly with respect to the words
15 “traditional” and “restored.” Plaintiffs further object to this Request on the grounds that it is
16 compound. Subject to the foregoing objections, Plaintiffs deny this Request for Admission.
18 Admit that Proposition 8 was intended to restore the traditional definition of marriage.
21 this Request on the grounds that it is vague and ambiguous, particularly with respect to the words
22 “traditional” and “restored.” Plaintiffs further object to this Request on the grounds that it is
23 compound. Subject to the foregoing objections, Plaintiffs deny this Request for Admission.
25 Admit that on May 15, 2008, the California Supreme Court decided In re Marriage Cases,
26 183 P.3d 384 (Cal. 2008).
27
28
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56
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3 foregoing objections, Plaintiffs admit that the California Supreme Court issued its decision in In re
4 Marriage Cases, 183 P.3d 384 (Cal. 2008) on May 15, 2008.
6 Admit that the California Secretary of State certified Proposition 8 for the November 4, 2008
7 general election ballot on June 2, 2008.
9 Plaintiffs incorporate their General Objections as if fully set forth herein. Subject to the
10 foregoing objections, Plaintiffs admit that Proposition 8 was certified for the November 4, 2008
11 general election ballot on June 2, 2008.
12 DATED: September 16, 2009 GIBSON, DUNN & CRUTCHER LLP

13
14 By: /s/Ethan D. Dettmer

Ethan D. Dettmer
15
and
16
BOIES, SCHILLER & FLEXNER LLP
17
David Boies
18
Attorneys for Plaintiffs KRISTIN M. PERRY,
19 SANDRA B. STIER, PAUL T. KATAMI, and
JEFFREY J. ZARRILLO
20
21
22
23
24
25
26
27
28
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57
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Exhibit G
ECONOMIC SCENE: Is population growth a Ponzi scheme? | csmonitor.comhttp://features.csmonitor.com/economyrebuild/2009/08/17/economic-sce...
The Christian Science Monitor
ECONOMIC SCENE: Is
population growth a Ponzi
scheme?
The profits go to the few, and everyone else picks up the tab.
By David R. Francis | Staff Writer/ August 17, 2009 edition
Forty-five nations face a population “bust” that has some leaders wringing
their hands. They worry about the costs of supporting an aging society and
the loss of national and economic power.
When US Vice President Joe Biden spoke of Russia’s “withering” population

last month, Russian leaders bristled.
But notions that population growth is a boon for prosperity – or that national
political success depends on it – are “Ponzi demography,” says Joseph
Chamie, former director of the population division of the United Nations.
The profits of growth go to the few, and everyone else picks up the tab.
Here’s a look at the numbers: By 2050, countries as diverse as Cuba,

Georgia, Germany, Hungary, Japan, South Korea, and Russia will lose at
least 10 percent of their people, UN estimates suggest.
This trend toward fewer births is accelerating.
In the rich, developed nations, the average age is rising at the fastest pace
ever, UN demographers note. Today they have 264 million aged 60 or over.
9/23/2009 10:22 AM
By 2050, that number is expected to rise to 416 million.
By that time, the world’s population should stabilize, if UN predictions are

correct. The population surge in poor countries in Africa, Asia, and the
Middle East would be offset by declines in much of the developed world.
Some nations facing decline are fighting back with incentives for families to
have more children. The United States is bucking the trend with its relatively
high immigration rate.
Growth, whether through immigration or natural increase, is a plus for some

groups. For business, it means a boost in the demand for products. It also
means a surge in low- and high-skilled workers, which can keep a lid on
wage pressures. Religious and ethnic groups want more immigrants of their
own faith and ethnicity to raise their political and social clout. The military
regards young immigrants as potential recruits.
But the public pays a cost for a bigger population.
Mr. Chamie speaks of more congestion on highways, more farmland turned

into housing developments, more environmental damage, including the
output of pollutants associated with climate change.
In the current healthcare debate in the US, one costly question is whether
the insurance covers some 11 million illegal immigrants.
Of course, there are also costs for countries with stable or declining
populations.
They will need to spend more looking after older citizens and, yes, some
industries like housing will shrink. But governments won’t have to spend as
much on children. And any labor shortage would fade if increasingly healthy
older people worked an extra year or two before retiring to maintain their
standard of living.
9/23/2009 10:22 AM
Raising the average retirement age does far more to increase the working
population than increasing immigration levels, says Steven Camarota,
research director of the Center for Immigration Studies, a Washington think
tank opposed to high immigration. Industrial nations with large service
industries have plenty of employment opportunities for seniors, as opposed
to poor countries where many jobs – say, planting rice or other crops – are
hard work.
The goal should be gradual population stabilization, Chamie says. The costs
of an aging but stable population would be more manageable than those of a
population boom.
He asks: Does America really need more than its current 309 million people?
With immigration at present levels, it will have 439 million by 2050.
A stable or falling population, he says, “is not a disaster. It is a success.”
www.csmonitor.com | Copyright © 2008 The Christian Science Monitor. All rights reserved.
9/23/2009 10:22 AM
Exhibit H
Gay/Lesbian/Bisexuals
What is Sexual Orientation?
“Sexual orientation” is a term frequently used to describe a person’s romantic, emotional or sexual attraction to another person. A person
attracted to another person of the same sex is said to have a homosexual orientation and may be called gay (both men and women) or
lesbian. Individuals attracted to persons of the other sex are said to have a heterosexual orientation. Sexual orientation falls along a
continuum and individuals who are attracted to both men and women are said to be bisexual. Sexual orientation is different from gender
identity, which refers to the internal sense of whether one is male or female. Sexual orientation is a relatively new concept. In fact, although
same sex behavior has always existed, the idea of a homosexual identity or a homosexual person is only about 100 years old.
The concept of sexual orientation refers to more than sexual behavior. It includes feelings as well as identity. Some individuals may identify
themselves as gay lesbian or bisexual without engaging in any sexual activity. Some people believe that sexual orientation is innate and fixe
however, sexual orientation develops across a person’s lifetime. Individuals maybe become aware at different points in their lives that they a
heterosexual, gay, lesbian, or bisexual.
Is Homosexuality A Mental Disorder?
No. All major professional mental health organizations have gone on record to affirm that homosexuality is not a mental disorder. In 1973 t
American Psychiatric Association’s Board of Trustees removed homosexuality from its official diagnostic manual, The Diagnostic and Statistica
Manual of Mental Disorders, Second Edition (DSM II). The action was taken following a review of the scientific literature and consultation wit
experts in the field. The experts found that homosexuality does not meet the criteria to be considered a mental illness.
What causes Homosexuality/Heterosexuality/Bisexuality?
No one knows what causes heterosexuality, homosexuality, or bisexuality. Homosexuality was once thought to be the result of troubled fami
dynamics or faulty psychological development. Those assumptions are now understood to have been based on misinformation and prejudice.
Currently there is a renewed interest in searching for biological etiologies for homosexuality. However, to date there are no replicated scient
studies supporting any specific biological etiology for homosexuality. Similarly, no specific psychosocial or family dynamic cause for
homosexuality has been identified, including histories of childhood sexual abuse. Sexual abuse does not appear to be more prevalent in
children who grow up to identify as gay, lesbian, or bisexual, than in children who identify as heterosexual.
What is “Coming Out”?
“Coming out” is the term used to describe the experience in which a person identifies himself or herself as gay, lesbian or bisexual. Coming
out is not a one-time event, but a lifelong process of identifying as gay, lesbian or bisexual to family friends and other significant members
one’s social world. Each person’s experience in coming out is unique and the process always stimulates anxiety as well as provides challengi
possibilities for personal empowerment and emotional growth. There are many resources available to people coming out. See below for som
of these resources.
Does Stigma Still Exist About Homosexuality?

Yes. Fears and misunderstandings about homosexuality are wide spread. They present daunting challenges to the development and
maintenance of a positive self-image in gay, lesbian and bisexual persons and often to their families as well. “Homophobia” is a term that
refers to the irrational fear and prejudice against homosexual persons. Public opinion polls in the United States show that in the past twenty
years, feelings toward gay men, lesbians and bisexuals have moved in a significantly positive direction. Nevertheless, when compared to oth
social groups homosexuals are still among the most stigmatized groups in the nation. Hate crimes are prevalent. Gay men and lesbians are
still banned from serving openly in the US military service. Child custody decisions still frequently view gay and lesbian people as unfit
parents. Gay and lesbian adolescents are often taunted and humiliated in their school settings. Many professional persons and employees in
occupations are still fearful of identifying as gay or lesbians in their work settings. Gay relationships are not widely recognized in any legal
way.
What Position Has the American Psychiatric Association Taken Regarding This Stigma?
In 1992, the American Psychiatric Association, recognizing the power of the stigma against homosexuality, issued the following statement:
“Whereas homosexuality per se implies no impairment in judgement, stability, reliability, or general social or vocational capabilities, the
American Psychiatric Association calls on all international health organizations and individual psychiatrists in other countries, to urge the repe
in their own country of legislation that penalized homosexual acts by consenting adults in private. And further the APA calls on these
organizations and individuals to do all that is possible to decrease the stigma related to homosexuality wherever and whenever it may occur
Such organizational recognition of homophobia has been important in changing attitudes about homosexuality.
Is It Possible To Change One’s Sexual Orientation (“Reparative Therapy”)?
There is no published scientific evidence supporting the efficacy of “reparative therapy” as a treatment to change one’s sexual orientation, n
is it included in the APA’s Task Force Report, Treatments of Psychiatric Disorders. More importantly, altering sexual orientation is not an
appropriate goal of psychiatric treatment. Some may seek conversion to heterosexuality because of the difficulties that they encounter as a
member of a stigmatized group. Clinical experience indicates that those who have integrated their sexual orientation into a positive sense of
self-function at a healthier psychological level than those who have not. “Gay affirmative psychotherapy” may be helpful in the coming out
process, fostering a positive psychological development and overcoming the effects of stigmatization. A position statement adopted by the
Board in December 1998 said:
"The American Psychiatric Association opposes any psychiatric treatment, such as “reparative” or “conversion” therapy, which is based upon
http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx?css=print[9/23/2009 10:27:02 AM]

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.”
What Do the Parents of Gay Men/Lesbian/Bisexuals experience?

When a person “comes out “ to their parents, it can be a very emotionally trying experience for all involved. Most parents are concerned for
the welfare of their children, recognizing the difficulties posed by being a member of a stigmatized group. Often parents also fear rejection b
their own family, friends, religious, or social groups. Fortunately, support exists for parents who are struggling to come to terms with their
child’s homosexuality. PFLAG (Parents and Friends of Lesbians and Gays) is an organization comprised of the families of gay men, lesbians,
and bisexuals that provides information and assistance to parents and families. Family or individual psychotherapy can be very helpful in
dealing with questions and concerns about a gay child.
How Do the Children of Gay/Lesbians Parents Fare?
Many gay men and women are parents and some conceived their children in prior heterosexual marriages. Recently an increasing number o
gay parents have conceived children and raised them from birth either as single parents or in committed relationships. Often this is done
through alternative insemination, adoption or through foster parenting. Numerous studies have shown that the children of gay parents are a
likely to be healthy and well adjusted as children raised in heterosexual households. Children raised in gay or lesbian households do not sho
any greater incidence of homosexuality or gender identity issues than other children. Children raised in nontraditional homes with gay/lesbia
parents can encounter some special challenges related to the ongoing stigma against homosexuality, but most children surmount these
problems.
© 2009 American Psychiatric Association. All Rights Reserved.

All information on HealthyMinds.org is © of the American Psychiatric Association
The information contained on the HealthyMinds.org Web site is not intended as, and is not, a substitute for professional medical advice. All
decisions about clinical care should be made in consultation with your treating physician.
quantcast | Newsroom | Contact
http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx?css=print[9/23/2009 10:27:02 AM]

Exhibit I
RESEARCH BRIEF 4301 Connecticut Avenue, NW, Suite 100, Washington, DC 20008
Phone 202-362-5580 Fax 202-362-5533 www.childtrends.org
Marriage from a Child’s Perspective: How Does Family Structure

Affect Children, and What Can We Do about It?
By Kristin Anderson Moore, Ph.D., Susan M. Jekielek, M.A., and Carol Emig, M.P.P. June 2002
verview Policies and proposals to promote marriage have been in the public eye for several years,
O driven by concern over the large percentages of American children growing up with just one parent.
The Bush Administration has proposed improving children’s well-being as the overarching purpose of
welfare reform, and its marriage initiative is one of its chief strategies for doing so. In this context,
what does research tell us about the effects of family structure – and especially of growing up with two
married parents – on children?
This brief reviews the research evidence on the effects of family structure on children, as well as key
trends in family structure over the last few decades. An extensive body of research tells us that children
do best when they grow up with both biological parents in a low-conflict marriage. At the same time,
research on how to promote strong, low-conflict marriages is thin at best. This brief also discusses
promising strategies for reducing births outside of marriage and promoting strong, stable marriages.
This brief is one of a series prepared by Children born to unmarried mothers are more
researchers at Child Trends to help inform likely to be poor, to grow up in a single-parent
the public debate surrounding this year’s family, and to experience multiple living
reauthorization of the Temporary Assistance arrangements during childhood. These factors,
for Needy Families (TANF) block grant, the in turn, are associated with lower educational
centerpiece of the 1996 welfare law. attainment and a higher risk of teen and
nonmarital childbearing.2
Family Structure and
Child Well-Being Divorce is linked to academic and behavior
problems among children, including depression,
Research findings linking family structure and
antisocial behavior, impulsive/hyperactive
parents’ marital status with children’s well-being
behavior, and school behavior problems.3 Men-
are very consistent. The majority of children who
tal health problems linked to marital disruption
are not raised by both biological parents manage to
have also been identified among young adults.4
grow up without serious problems, especially after
a period of adjustment for children whose parents Children growing up with stepparents also have
divorce.1 Yet, on average, children in single-parent lower levels of well-being than children growing
families are more likely to have problems than are up with biological parents. 5 Thus, it is
children who live in intact families headed by two not simply the presence of two parents, as
biological parents. some have assumed, but the presence of
two biological parents that seems to support rising rates of divorce, nonmarital childbearing,
children’s development. and cohabitation.
Of course, the quality of a marriage also affects Rising divorce rates accounted for the
children. Specifically, children benefit from a initial increase in single parenthood dur-
low-conflict marriage. Children who grow up in ing the latter half of the twentieth century.
an intact but high-conflict marriage have worse Single-parent families formed by widowhood
emotional well-being than children whose par- were the initial impetus for providing welfare
ents are in a low-conflict marriage. 6 Indeed, and Social Security benefits for children in the
domestic violence can be very destructive to 1930s. In the 1970s, however, divorce began to
children’s development.7 supplant widowhood as the primary cause of sin-
gle-parent families.11 Divorce rates continued
Although research is limited, when researchers
to increase into the 1970s and early 1980s, before
have compared marriage to cohabitation, they
stabilizing and then declining in the late 1980s
have found that marriage is associated with bet-
and 1990s.12
ter outcomes for children. One reason is that
cohabiting unions are generally more fragile Births to unmarried women increased
than marriage. This fragility means that chil- steadily during the post-war decades,
dren born to unmarried, cohabiting parents are accelerating in the 1980s. This trend also
likely to experience instability in their living contributed to an increase in single parenthood.
arrangements, and research shows that multiple Over the last 40 years, an historic shift occurred
changes in family structure or living arrange- in the percentage of children living with a parent
ments8 can undermine children’s development.9 who has never married. In the early 1960s, less
than 1 percent of children lived with a parent
Thus research clearly finds that different family
who had never married. By 2000, nearly one in
structures can increase or decrease children’s
ten children lived with a never-married parent.13
risk of poor outcomes, for a variety of reasons.
In addition, today nearly one-third of all births
For example, families are more likely to be poor
occur to unmarried women (including never-
or low-income if they are headed by a single par-
married, divorced, and widowed women),
ent. Beyond this heightened risk of economic
accounting for more than a million births
deprivation, the children in these families have
annually.14
poorer relationships with their parents, particu-
larly with their biological father, and receive Contrary to popular perceptions, teenagers
lower levels of parental supervision and monitor- account for less than three in ten nonmarital
ing.10 In addition, the conflict surrounding the births, with women in their twenties accounting
demise and breakup of a marriage or relationship for more than half. 15 Moreover, nonmarital
can be harmful to children. births are not all first births. Only about half of
all nonmarital births in 1998 were first births,16
Trends in Family Structure and more than one-third of unmarried mothers
and Children’s Living already have children by an earlier partner.17
Arrangements Recent data indicate that the nonmarital birth
Given these consequences for children, it is a rate stabilized during the late 1990s. While this
source of concern that an increasing percentage development has been hailed as good news, a
of children have been growing up with just one closer examination of the data reveals a more
parent over recent decades. This circumstance complex picture. The overall decline in the non-
has occurred for a variety of reasons, including marital birth rate has been driven by declining
2
FIGURE 1
Birth Rates for Unmarried Women by Age of Mother,
Women 15-29 Years Old
80 74.5
c
Births per 1,000 unmarried women

70 62.2
b
60
50
a
39.6
40
30
20
10
0
1990 1992 1994 1996 1998 2000
Age in Years 15-19 20-24 25-29

Source: Martin, J.A., Hamilton, B.E, Ventura, S.J., Menacker F., & Park M.M. Births: Final Data for 2000, Table18.
National Vital Statistics Reports; Vol. 50, no. 5. Hyattsville, Maryland: National Center for Health Statistics. 2000.
birth rates among teens. Among women in their The proportion of children living with two
twenties, the nonmarital birth rate continued to parents declined for several decades but
increase in the late 1990s18 (see Figure 1). has recently increased slightly. The per-
centage of children in the United States living
Cohabitation has increased markedly over
with two parents decreased from about 88
the last several decades. An unmarried par-
percent in 1960 to 68 percent in 1996 20
ent is not necessarily a parent without a partner.
(see Figure 2). There is some indication that
The increase in families headed by a never-married
this trend might be reversing, as the percentage
parent has been driven by a dramatic increase in
of children living with two parents increased
cohabiting couples – men and women who, while
slightly to 69.1 percent by the year 2000, and the
not legally married, nevertheless live together in a
percentage of children living with just one par-
marriage-like relationship. And many of these
ent decreased from 27.9 percent in 1996 to 26.7
couples have children. The percentage of adults
percent in the year 2000.21
who have ever cohabited jumped from 33 percent
in 1987 to 45 percent in 1995, for example.19
FIGURE 2
Percent of Children under 18 Years Old Living in Two-Parent
and One-Parent Families
100
87.7%(1960)
90
80
69.1%(2000)
70
68.0%(1996)
60
50
40 27.9%(1996)
30
26.7%(2000)
20
9.1%(1960)
10
0
1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005
Living with two parents Living with one parent

Source: Living Arrangements of Children Under 18 Years Old: 1960 to Present. U.S. Bureau of the Census, online.
Available: http://www.census.gov/population/socdemo/hh-fam/tabCH-1.xls; accessed 01/28/02.
3
Trend data are less available on whether or not Approximately eight in ten pregnancies to teens
children in two-parent families are living with and never-married adults are unintended at the
both biological parents or in a stepfamily. time of conception,24 and 63 percent of pregnan-
Recent data indicate that slightly less than two- cies to formerly-married adults are unintend-
thirds of all children live with both biological ed.25 Helping couples avoid unintended pregnan-
parents (63.6 percent in 1999, according to data cies is therefore one logical strategy for
from the National Survey of America’s Families). 22 increasing the likelihood that children are born
to two married parents who are ready to assume
Welfare reform is only one factor
the responsibilities of parenthood. However,
that might explain the slight decrease in
while there is a growing knowledge base about
the percent of children living with only
how to discourage teen childbearing, there is
one parent. The teen birth rate has been
not yet an equivalent body of research about
declining since 1991, when it was at its peak, and
how to reduce births outside of marriage by
the nonmarital birth rate has been relatively sta-
adult partners.
ble since 1994. Also, low levels of unemployment
and the generally strong economy that charac- Preventing Teen Pregnancy. Several preg-
terized much of the late 1990s probably made nancy prevention programs targeted at teens
many men more attractive marriage partners. have been shown to be effective.26 While purely
These same factors may have increased women’s informational sex education does not seem to
economic independence, however, lessening their change sexual behavior, education about preg-
financial “need” to marry. Also, changes in the nancy, contraception, and sexually transmitted
Earned Income Tax Credit have increased family diseases is more effective when it meets certain
incomes, but the marriage penalty may discour- criteria: it is focused on specific behaviors; it is
age marriage. Rising male incarceration rates based on theory; it gives a clear message; it pro-
have also been cited as contributing to a dimin- vides basic, accurate information; it includes activ-
ished pool of “marriageable” men.23 ities, participant involvement models, and prac-
tice; it uses a variety of teaching methods; it helps
Thus welfare reform is one of many factors that teens develop communication skills; it uses trained
may be contributing to changes in family struc- staff; and it uses approaches appropriate for the
ture, but it is not the only or even the most age, culture, and experience of its students.27
important factor. Also, researchers will need to
In addition, programs that combine youth devel-
follow this trend over time to determine whether
opment and sexuality education, and service
this recent, slight decline of children living in
learning approaches that provide a sense of con-
single-parent families will continue.
nectedness and positive alternatives – such as
the Children’s Aid Society program in New York
Promoting Healthy Marriages
City – have reduced adolescent sexual activity or
and Reducing Nonmarital
childbearing in a number of sites. A similar
Childbearing
result is associated with two high-quality early
While research clearly indicates that children childhood intervention programs, notably the
benefit from growing up with both biological par- Abecedarian program, which operated in North
ents in a low-conflict marriage, there has been Carolina, and the High/Scope Perry Preschool
very little rigorous research on how to promote Project of Ypsilanti, Michigan.28 In light of this
and sustain healthy marriages. This is particu- evidence and strong public consensus for reduc-
larly the case for disadvantaged populations, ing teen childbearing, policy attention to such
such as parents likely to be affected by approaches for preventing teen pregnancy are
welfare reform. likely to be fruitful.29
4
Preventing Nonmarital Childbearing Successful efforts to increase employment and

among Adults. The majority of births outside education among disadvantaged adults may also
of marriage are to adults ages 20 and over, not indirectly promote marriage. Non-experimental
teens. At this point, though, other than provid- analyses of data from the Fragile Families and
ing contraceptive services, little is known about Child Wellbeing Study suggest that the ability of
how to reduce nonmarital pregnancy among either the mother or the father to get and keep a
adults. Accordingly, it seems prudent to conduct job (as indicated by levels of education and
studies of varied approaches to reduce sexual recent work experience) increases the likelihood
risk-taking, build relationships, and increase that an unmarried couple with a child will
contraceptive use among couples older than marry. These same analyses also suggest that
twenty, as well as among teens. the likelihood that a couple will marry decreases
if the mother has a child by a previous partner36
Helping Unmarried Parents to Marry.
– another reason to discourage teen childbearing.
Nearly half of all the births that take place out-
Eliminating or reversing the tax penalty for
side of marriage occur to cohabiting couples,30
married couples on the Earned Income Tax
making them a likely target of opportunity for
Credit and in the income tax code may also
marriage promotion efforts. Although many
remove a disincentive to marriage.37
cohabiting couples have one or more children,
the families they form are often fragile, with less Strengthening Existing Marriages and
than half of these relationships lasting five years Relationships. The research consensus is that
or more.31 Another kind of fragile family struc- a “healthy marriage” – and not just any
ture is what social scientists call a “visiting rela- marriage – is optimal for child well-being. Mar-
tionship.”32 This refers to an unmarried mother riages that are violent or high conflict are cer-
and father who, while not living together, are tainly “unhealthy,” for both children and
romantically involved and have frequent contact. adults.38 Research provides some guidance on
marital practices that are highly predictive of
Analyses of data from the Fragile Families and
divorce, including negative communication pat-
Child Wellbeing Study provide insights into both
terns such as criticism, defensiveness, contempt,
types of unions.33 The study follows a group of
stonewalling, and rejection of a wife’s
approximately 5,000 children born to mostly
influence.39
unwed parents in urban areas at the turn of the
21st century. Of these children, half were born At this point, though, researchers are only begin-
to unmarried mothers who were living with the ning to understand how to promote strong, sta-
father at the time of the birth, while another ble marriages. The knowledge gap is particular-
third were in visiting relationships. In both situ- ly acute for highly disadvantaged couples, many
ations, most fathers were highly involved during of whom have economic and social as well as
the pregnancy and around the time of the birth, relationship problems. The Becoming a Family
and a majority of the couples were optimistic Project is a rare instance of a marriage promo-
about a future together.34 Moreover, the study tion effort that has been rigorously evaluated
found that many unmarried mothers and fathers (though not for disadvantaged couples). Couples
hold pro-marriage attitudes and want to marry were recruited for this project from the San
the other parent of their newborn children. 35 Francisco Bay Area. Results suggest that a pre-
These insights suggest that unmarried parents ventive intervention can both enhance marital
may be most receptive to marriage promotion stability and promote child well-being. 40 The
efforts immediately around the time of birth. program was designed to support communication
5
between partners as they make the transition to groups, however, rate lower on agreement than
becoming parents (a period during which marital married couples. However, couples with plans to
satisfaction often declines). marry are similar to married couples when it comes
to incidents of abuse and levels of supportiveness.45
Results of an experimental investigation revealed
Relationship counseling might help couples decide
that couples who took part in the program reported
whether to marry and also help them to strengthen
less decline in marital satisfaction in the first two
their relationship. Finally, evidence that unmarried
years of parenthood than couples with no interven-
couples who marry have higher levels of acquired
tion. There were no separations or divorces among
skills and education suggests that efforts to provide
the parents participating in the couples groups until
job training and education for fathers, as well as
the children were three, whereas 15 percent of the
mothers, may enhance their marriage prospects.
couples without the intervention had already sepa-
rated or divorced.41 The longer-term evaluation was Implications for Public Policy
mixed. By the time the children completed kinder-
Marriage, divorce, and childbearing (particularly
garten, there was no difference in divorce rate
childbearing by teens and unmarried women) are
between the experimental and control groups, but
highly controversial social issues in the nation
the intervention participants who had stayed
today. They are also intensely personal and
together maintained their marital satisfaction over
profound individual decisions, with the potential to
the whole period, while satisfaction of couples in the
alter – for better or worse – the life trajectories of
control group continued to decline. These results
adults and children. Not surprisingly, then, there is
suggest that the potential positive effects of an early
relatively little societal consensus on the role of
intervention for partners becoming parents might
public policy – the role of government – in
be maintained longer with periodic “booster
this arena.
shots.”42
At least three conclusions drawn from research may
The Prevention and Relationship Enhancement Pro-
help shape a productive public dialogue on
gram (PREP) has received considerable attention in
these issues.
policy circles, in part because it is at the heart of
Oklahoma’s much-publicized marriage promotion First, research clearly demonstrates that family
efforts. PREP is an educational approach available structure matters for children, and the family struc-
both to married and unmarried couples that empha- ture that helps children the most is a family headed
sizes strategies that help marriages succeed. Non- by two biological parents in a low-conflict marriage.
experimental studies of PREP suggest that couples Children in single-parent families, children born to
who plan to marry can be recruited to participate in unmarried mothers, and children in stepfamilies or
the program43 and that such couples who complete cohabiting relationships face higher risks of poor
the program can improve their relationship outcomes than do children in intact families headed
skills. 44 The National Institute of Mental Health is by two biological parents. Parental divorce is also
currently funding a rigorous, large-scale evaluation linked to a range of poorer academic and behavioral
to test the program’s effectiveness. outcomes among children. There is thus value for
children in promoting strong, stable marriages
Providing Premarital Counseling. Unmarried
between biological parents.
couples with plans to marry may be stronger targets
for strengthening relationships than those without Second, while there may not be societal consensus
plans to marry. Compared to unmarried parents on nonmarital childbearing, there is consensus that
with low expectations of marrying, unmarried par- childbearing by teens is undesirable – for the teen,
ents with a greater likelihood of marrying have for her baby, and for the larger society. There is
higher levels of agreement in their relationships, also mounting evidence that a variety of programs
regardless of their living arrangements. Both and interventions are effective at discouraging teen
6
pregnancy. While specific interventions (such Sandefur, G. (1994). Growing up with a single parent: What hurts,
what helps. Cambridge: Harvard University Press.
as sex education, abstinence education, and 3Peterson, J.L., & Zill, N. (1986). Marital disruption, parent-child
the provision of contraceptives) may be con- relationships, and behavior problems in children. Journal of Mar-
riage and the Family, 48, 295-307. Amato, P. R. (2000). The con-
troversial, the knowledge that a variety of sequences of divorce for adults and children. Journal of Marriage
and the Family, 62(4), 1269-1287.
effective approaches exist to prevent teen 4Cherlin, A., Chase-Lansdale, P. L., & McRae, C. (1998). Effect of
childbearing should help parents, communi- parental divorce on mental health. American Sociological Review,
63(2), 239-249.
ties, and government make progress on this 5Coleman, M., Ganong, L., & Fine, M. (2000). Reinvestigating
remarriage: Another decade of progress. Journal of Marriage
front. In particular, programs that combine and the Family, 62(4), 1288-1307.
youth development and sexuality education, 6Amato, P.R. (2000).
and community service approaches are effec- 7Domestic violence and children. The Future of Children, Winter
1999, 9(3). Los Altos, CA: The David and Lucile Packard Founda-
tive.46 Further, evidence indicates that high- tion.
quality early childhood programs can prevent 8Graefe,

D.R. & D.T. Lichter. (1999). Life course transitions of
American children: Parental cohabitation, marriage and single
adolescent childbearing a decade or more motherhood. Demography, 36(2), 205-217.
9Wu,
later. L. L. & Martinson, B.C. (1993). Family structure and the
risk of a premarital birth. American Sociological Review, 58, 210-
232; Wu, L.L. (1996). Effects of family instability, income, and
Finally, there is not yet a proven approach for income instability on the risk of premarital birth. American Socio-
logical Review, 61(3), 386-406; Moore, K.A., Morrison, D.R., &
building strong marriages, particularly for dis- Glei, Dana A. (1995). Welfare and adolescent sex: The effects of
advantaged unmarried couples – only promis- family history, benefit levels, and community context. Journal of
Family and Economic Issues, 16(2/3), 207-238.
ing insights from research studies and exist- 10Amato, Paul P.R. (2000).
ing programs. This is an area in which 11Cherlin,
A.J. (1992) Marriage, divorce, remarriage. Cambridge:
Harvard University Press.
carefully designed and rigorously evaluated
12U.S. Census Bureau (2000). Statistical Abstract of the United
demonstration programs could inform both States. The National Data Book. Table Number 77;
http://www.cdc.gov/nchs/fastats/divorce.htm
private decisions and public policies.
13U.S. Department of Health and Human Services. (2001). Indi-
cators of welfare dependence. Annual report to Congress 2001.
Table Birth 4. Washington, D.C.
Child Trends, founded in 1979, is an independ- 14Ventura, S., Backrach, C., Hill, L., Kaye, K., Holcomb, P., &
ent, nonpartisan research center dedicated to Koff, E. (1995). The demography of out-of-wedlock childbearing.
Report to Congress on out-of-wedlock childbearing. Hyattsville,
improving the lives of children and families by Maryland: Public Health Service.
conducting research and providing science- 15Ventura S.J. & Bachrach, C.A. (2000). Nonmarital childbearing
in the United States, 1940-1999. National Vital Statistics Reports;
based information to the public and Vol. 48, no. 16. Hyattsville, Maryland: National Center for
Health Statistics.
decision-makers. 16Terry-Humen, E., Manlove, J., & Moore, K. A. (2001, April).
Births outside of marriage: Perceptions vs. reality. Research Brief.
Child Trends gratefully acknowledges the John Washington, DC: Child Trends.
D. and Catherine T. MacArthur Foundation for 17Mincy R. & Huang, C. C. (2001). Just get me to the church:
Assessing policies to promote marriage among fragile families.
support of our Research Brief series, and the Paper prepared for the MacArthur Network Meeting.
William and Flora Hewlett Foundation and the 18Martin J.A., Hamilton B. E., Ventura S. J., Menacker F., & Park
M. M. (2000) Births: Final data for 2000, Table 18. National
David and Lucile Packard Foundation for support Vital Statistics Reports; Vol. 50, no. 5. Hyattsville, Maryland:
National Center for Health Statistics.
of this brief. Additional support for Child Trends’
19Bumpass, L. & Lu, H. H. (2000). Trends in cohabitation and
communications efforts is generously provided implications for children’s family contexts in the United States.
Population Studies, 45, 29-41.
by Annie E. Casey Foundation.
20Source: Living arrangements of children under 18 years old:
Editor: Harriet J. Scarupa 1960 to present. U.S. Bureau of the Census, online. Available:
http://www.census.gov/population/socdemo/hh-fam/tabCH-1.xls;
accessed 01/28/02.
Research Assistant: Kristy Webber 21Ibid. See also Dupree, A. & Primus, W. (2001). Declining share
of children lived with single mothers in the late 1990s. Washing-
ton, DC: Center on Budget and Policy Priorities. Acs, G. & Nel-
son, S. (2001) Honey, I’m home: Changes in living arrangements
in the late 1990’s. Assessing the New Federalism Policy Brief, B-
38. Washington, DC: The Urban Institute. Cherlin, A. & Fomby,
Endnotes P. (2002). A closer look at changes in living arrangements in low-
1Hetherington M.E. & Kelly, J. (2002). For better or for worse: income families. Welfare, children, and families: A three-city
Divorce reconsidered. New York: W.W. Norton & Company. study. Working paper 02-01. Bavier, R. (2002). Recent increases
in the share of young children living with married mothers.
2Seltzer, J. (2000). Families formed outside of marriage. Journal (Unpublished manuscript). Washington, DC: Office of Manage-
of Marriage and the Family, 62(4), 1247-1268; McLanahan, S. & ment and Budget.
7
22Vandivere, S., Moore, K.A., & Zaslow, M. (2000). Children’s family envi- 36Mincy, R. & Huang, C. C. (2001)
ronment. Snapshots of America’s families II: A view from the nation and 37Horn,
13 states. Washington, DC: The Urban W. & Sawhill, I. (2001). Fathers, marriage, and welfare reform. In
Institute and Child Trends. Blank, R. & Haskins, R. (Eds.), The new world of welfare. Washington,
DC: Brookings Institution Press.
23U.S.Census Bureau (2000). Statistical Abstract of the United States. 38See, Domestic violence and children. The Future of Children, Winter
The National Data Book. Table Number 268.
1999, 9(3). Los Altos, CA: The David and Lucile Packard Foundation.
24Henshaw, S. (1998). Unintended pregnancy in the United States. Fami- 39Gottman, J. M. (1994). What predicts divorce: The relationship between
ly Planning Perspectives, 30(1), 24-29.
marital processes and marital outcomes. Hillsdale, New Jersey: Lawrence
25Henshaw, S. (1998). Erlbaum and Associates. Gottman, J. M., Coan, J., Carrere, S., & Swan-
son, C. (1998). Predicting marital happiness and stability from newlywed
26Kirby,
D. (2001a). Emerging answers. Washington, D.C.: National interactions. Journal of Marriage and the Family, 60(1), 5-22.
Campaign to Prevent Teen Pregnancy. 40Cowan, C. and Cowan, P. (2000). When partners become parents: The big
27Kirby, D. (2001a). life change for couples. Mahwah, New Jersey: Lawrence Erlbaum and
Associates.
28 Kirby, D. (2001b). Understanding what works and what doesn’t in
41Schultz, M.S., & Cowan, C. P. (2001). Promoting healthy beginnings:
reducing adolescent sexual risk-taking. Family Planning Perspectives,
33(6), 276-281. Marital quality during the transition to parenthood. Paper presented at
the Society for Research in Child Development, Minneapolis, MN.
29 Sawhill,I. (2002). Testimony before the Subcommittee on Human
42Schultz, M.S., & Cowan, C. P. (2001).
Resources, Committee on Ways and Means. April 11, 2002.
43Halweg, K., Markman, H. Thurmaier, F., Engl, J., & Eckert, V. (1998).
30Bumpass & Lu (2000).
Prevention of marital distress: Results of a German prospective longitudi-
31Bumpass & Lu (2000). nal study. Journal of Family Psychology, 12(4), 543-556.
32McLanahan, 44Markman, H., Floyd, F., Stanley, S., & Storaasli, R. (1988). Prevention
S., Garfinkel, I., & Mincy, R.B. (2001). Fragile families,
welfare reform, and marriage. Welfare Reform and Beyond Policy Brief of marital distress: A longitudinal investigation. Journal of Consulting and
#10, Washington, D.C.: The Brookings Institute. Clinical Psychology, 56(2), 210-217.
33This 45Osborne, C. (2002).
study is at the Center for Research on Child Wellbeing at Princeton
University and Columbia University. 46Child Trends (2002, May). Preventing teenage pregnancy, childbearing,
34McLanahan, S., Garfinkel, I., & Mincy, R.B. (2001). and sexually transmitted diseases: What the research shows. Research
Brief. Washington, DC: Child Trends.
35Osborne, C. (2002). A new look at unmarried families: Diversity in
human capital, attitudes, and relationship quality. Center for Research on
Child Wellbeing working paper. © 2002 Child Trends
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Exhibit J
The Well-Being of Adolescents in Households with No Biological Parents

Author(s): Yongmin Sun
Source: Journal of Marriage and Family, Vol. 65, No. 4 (Nov., 2003), pp. 894-909
Published by: National Council on Family Relations
Stable URL: http://www.jstor.org/stable/3599898
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http://www.jstor.org
YONGMINSUN Ohio State University-Mansfield
TheWell-Beingof Adolescentsin Households

WithNo BiologicalParents
On the basis of a large, nationallyrepresentative with neitherbiological parentpresent (hereafter

sample of 19,071 Americanmiddle-schoolstu- referredto as non-biological-parent households)
dents,the currentstudycomparesadolescentsliv- providea uniqueopportunityfor social scientists
ing withneitherbiologicalparentwiththeirpeers to examinethe crucialroles of biologicalparents
in five otherfamily structureson a wide range of in children'ssocializationprocess.Practically,ap-
outcomemeasures.The resultsrevealsome over- proximately2.7 million(or 3.7%of all) American
all disadvantagesof living withneitherparent,al- childrenunder 18 lived in non-biological-parent
thoughthe disadvantagesrelativeto nontradition- householdsin 1996 (U.S. CensusBureau,1996).
al families are limited. Differences in family The well-beingof such a large subgroupof chil-
resources either partially or completelyaccount drenmeritsclose investigation.
for outcomedifferencesbetweennon-biological- Using the firstwave of the NationalEducation
parent and otherfamily structures.Further,boys LongitudinalStudy of 1988 (NELS), the current
and girls in non-biological-parentfamiliesappear studysystematicallyexaminesvariousdomainsof
to fare similarly.Finally, measurementproblems adolescents'lives in non-biological-parent fami-
and their implicationsare discussed. lies. Specifically,this study rigorouslycompares
the levels of academicperformance, psychological
In the past few decades,Americanfamilieshave well-being, behavior problems, and deviance
among adolescentsin non-biological-parent fam-
experienceddramaticstructuralchanges. Conse- ilies with those in two-biological-parent,
quently,a largenumberof Americanchildrenare single-
mother,single-father,stepmother,and stepfather
living in variousformsof nontraditional families.
families. A special effort is made to cross-check
Althougha substantialamountof family research
has carefullyexaminedchildren'slives in single- and verify students'family structurewith infor-
mationdrawnfrom both studentand parentsur-
parentand stepparenthouseholds,much less re-
searchattentionhas been given to childrenliving veys of the NELS. The currentstudy also exam-
in householdsin whichbothbiologicalparentsare ines whethervariationin child outcomes exists
absent.Lack of attentionto this special groupof betweenkin andnonkinhouseholds.Furthermore,
childrenis problematicfrom both theoreticaland the studycomparesthe levels of financial,human,
practicalperspectives.Theoretically,households cultural,and social resourcesin varioustypes of
households.In such comparisons,effortsare also
Department of Sociology, The Ohio State University- madeto enhancemeasuresof familyresourcesby
Mansfield, 1680 University Drive, Mansfield, OH 44906 using only the informationprovidedby the parent
(sun.84@osu.edu). or guardianwho actually lives with the adoles-
Key Words: child well-being, family structure, measure- cent. More importantly,the study examines the
ment error, non-biological-parentfamilies. extentto whichdifferencesin familyresourcesac-
894 Journalof Marriageand Family65 (November2003): 894-909

Life in Households With No Biological Parents 895
countfor possibledifferencesin variouschildout- good school or stay away temporarilywhen the

comes between non-biological-parentand other parentsstarta new marriage(Swingle).Although
families.Finally,the studyalso elucidateswhether it remainsunclearhow these differentcauses are
boys and girls fare differentlyin differentfamily distributedamongnon-biological-parenthomes,it
structures. appearsthatthe firsttwo, maltreatment
anddeath/
imprisonmentof biological parents,occur with
BACKGROUND greaterfrequency.
Characteristicsof Childrenin PreviousStudiesof Life in

Non-Biological-Parent Families
Non-Biological-ParentFamilies
The U.S. Census Bureau periodicallyestimates
the percentageof childrenliving in non-biologi- Althoughfew studieshave systematicallystudied
childrenin non-biological-parent families in gen-
cal-parenthouseholdswith its two nationallyrep-
resentativesurveys, CurrentPopulationSurvey eral, a fair volume of social work researchsheds
(CPS) and Surveyof IncomeandProgramPartic- light on life in one kind of non-biological-parent
household: nonrelativefoster families. Overall,
ipation(SIPP).On the basis of the latestSIPPes- these studies have producedconsistentfindings:
timates, approximately 3.7% (2,645,000) of
Americanchildrenunderage 18 lived in non-bi- Comparedwith peersnot in fostercareprograms,
childrenin foster care appearedto exhibit more
ological-parenthouseholdsin 1996. Racialvaria-
tion is large, rangingfrom 2.1% to 2.6%, 4.3%, physicalhealth(e.g., Simms, 1991);mentalhealth
and7.9%for Asian,White,Hispanic,andAfrican (e.g., Fanshel & Shinn, 1978); academic (e.g.,
American children, respectively.In addition to Fanshel & Shinn, 1978); behavior;and drug-re-
race, children'sage also appearsto be relatedto lated (Hulsey & White, 1989; Jackson, 1994)
the likelihood of living in non-biological-parent problems.Moreover,longitudinalstudieshave re-
households, with children between 15 and 17 portedthat foster youth were more likely to ex-
years of age more than twice as likely to live in perience educationaldisruptionas a result of
such households as children under 5 years old changingschools, were less likely to be in a col-
(6.0%vs. 2.6%).In general,most childrenin non- lege preparatorytrack, and were less likely to
biological-parent households live either with graduatefrom high school (e.g., Blome, 1997).
grandparents or otherrelativesor with nonrelative Despite their contributionsto family research,
foster guardians.Among all childrenliving with however,these foster-carestudiesofferonly a lim-
neitherparentin 1996, approximately 47.9%lived ited view of non-biological-parent households,be-
eitherwith theirgrandparents only with grand-
or cause they leave out children in kinship care,
parents and other relatives,27.6% lived with rel- about75% of all childrenliving with neitherpar-
atives other than grandparents, 21.9% lived with ent.
nonrelativeguardians,and 2.7% had otherliving To addressthis limitation,severalrecentstud-
arrangements (U.S. CensusBureau,1996). ies have examinedchildrenin kinship families.
The existing studiesof fosterchildrenhave of- Using a sample of 524 such children,Dubowitz
fered severalpossiblereasonswhy childrenmight et al. (1994) reportedthat, comparedwith either
live in non-biological-parent households.In ad- nationalnormsor peers from parent-present fam-
dition to the two commonly cited reasons,mal- ilies, children in kinship care appeared to show
treatment(e.g., abuse, neglect) and death or im- poorerphysical health, mental health (measured
prisonmentof biologicalparents,Swingle (2000) by the level of behaviorproblems),and school
suggestedtwo less commonones:economichard- achievement(Dubowitzet al.). In a recentstudy,
ship and voluntaryfostering.Historically,sending Jeynes (1999) also reportedthat children from
childrento live with other relatives has been a non-biological-parent householdsseemedto score
common strategyfor poor parentsin responseto lower in academicachievementthan peers from
financialcrises (Hacsi, 1995). In modernAmeri- both single-parentand two-biological-parent fam-
can society, the strategyis used to a lesser extent ilies. Finally,using a pool of CPS data, Swingle
and is restrictedlargely to African Americans (2000) foundthatkinshiphouseholdsrankedlow-
(Stack, 1974). Further,a small percentageof par- er than single-father,two-biological-parent,and
ents voluntarilysend their childrento live with nonrelativefamilies in economicresources(mea-
relatives so that the childrencan either attenda suredby medianhouseholdincome)andin human
896 Journal of Marriage and Family
resources(measuredby percentof headsof house- is crucialto the cognitiveand social development

holds with a high school degree). of childrenbecauseit ensuresa sufficientsupply
Despitetheirapparentcontributions,almostall of these importantfunctionsand resources.Ac-
previousstudiesof childrenin non-biological-par- cording to this argument,single-parentfamilies,
ent familiessufferedfromvariousmethodological includingthosein whichthe parenthas neverbeen
limitations.Because of the difficultyin sampling married,are understaffedwhen comparedwith
non-biological-parentfamilies, most previous two-biological-parent homes, because the custo-
studies(with the exceptionsof Jeynes, 1999, and dial parentis the only providerof such parental
Swingle, 2000) used clinical or other nonrepre- resources and functions. Thus children in such
sentativesamples,makingit difficultto generalize homesmay fareless well thanpeersin intactfam-
findings to non-biological-parent families in the ilies because the noncustodialparentwho is ab-
generalpopulation. Furthermore, the comparison sent in the householdtypicallyoffers less social
groupswere inadequatelychosenin severalcases. contact,support,and supervision.By the samear-
For instance, children in non-biological-parent gument, stepparentfamilies also have disadvan-
families were comparedwith either a combined tages over two-biological-parent families,because
groupof peersfrom a varietyof family structures stepparentsmight have responsibilitiesto former
(as in Dubowitzet al., 1994) or with peersin sin- households,which may diverttheirsocial andhu-
gle-parentand two-biological-parent homes (as in man resourcesfrom the stepchildren,and conse-
Swingle). These investigationsdid not rigorously quentlydecreasetheirstepchildren'swell-being.
assess child well-being in non-biological-parent Alternatively,the economic hardshipperspec-
families because they did not include children tive (e.g., McLanahan,1985) arguesthat a short-
fromeverytype of family structureas comparison age of economicresourcesin nontraditional fam-
groups.In addition,althoughsome previousstud- ilies (particularlyin single-motherhouseholds)is
ies investigatedpossible differences within the the primarycause for an elevatedlevel of various
non-biological-parent family structureby compar- problems in such households. Comparedwith
ing the demographicand financialsituationsbe- two-biological-parenthouseholds, nontraditional
tween kinship and nonrelativehouseholds,few families (especially single-mother homes) are
have rigorouslyexaminedvariouschild outcomes likely to have a lower householdincome (Pong,
between these two non-biological-parent house- 1997); fewer educational goods and services
holds. Finally,given thatmost previousstudiesin (Downey, 1995); and higherchancesof living in
this area were conductedby practitioners,few an economically deprived neighborhood(Mc-
studieshave offered any theoreticalexplanations Lanahan& Booth, 1989). The economic disad-
for the observeddifferencesbetweennon-biolog- vantages associated with nontraditionalfamilies
ical-parentand other families. In short, given may be adverselyrelatedto children'seducational
these limitations,it is still unclearwhetherchil- outcomes, psychological well-being, and social
drenin non-biological-parent families fare differ- behavior.
ently in multipledomainsof their lives than do A largenumberof previousstudiesproviderel-
peersin all otherfamilystructures,andif so, what ativelyconsistentevidencefor differencesin child
factorsmay explainthe differences. well-being among various family structuresand
offer supportfor both parentalabsenceand eco-
nomic hardshiphypotheses.Comparedwith their
Studiesof Childrenin Single-Parentand
peers in two-biological-parent families, children
StepparentFamilies from single-parentand stepparentfamilies were
The currentstudyis guidedby two theoreticalper- likely to do less well on standardizedtests, ex-
spectives on childrenraised in single-parentand press lower educationalaspirations,have lower
stepparentfamilies. The parentalabsence argu- ratesof high schoolgraduation,reporta lowerlev-
ment(Amato,1993)maintainsthatbothbiological el of self-esteem,and exhibit more behaviorand
parents are importantsocialization agents who drug problems (e.g., Amato & Keith, 1991;
providetheirchildrenwith uniquesocialfunctions Astone& McLanahan,1991;Downey, 1995;Sun,
(e.g., emotionalsupport,genderrole models,gen- 2001; Sun & Li, 2002). Further,the levels of eco-
eral supervision)and humanresources(e.g., pa- nomic,human,cultural,andsocial resourceswere
rentalknowledgeand expertiseused for tutoring lower in single-parentand stepparenthouseholds
and intellectual guidance). Thus, the physical thanin intactfamilies,as measuredby lower lev-
presenceof bothbiologicalparentsin a household els of income, parentaleducationalattainment,
child participationin highbrowculturalactivities, resources.In short,to rigorouslytest both the pa-

parentalsupervision,and parent-childcommuni- rentalabsenceandeconomichardshiphypotheses,
cation (e.g., Downey; Harrist& Ainslie, 1998; it is crucialto reducemeasurementerrorsby ver-
Sun). The shortagesin these family resourcesap- ifying family structureinformationfrom multiple
peared to either partiallyor completely account sources and by assessing the resourcesprovided
for the elevatedlevels of educational,psycholog- by parents/guardians who actuallylive with chil-
ical, andbehaviorproblemsobservedamongchil- dren.
dren in various nontraditionalfamily structures Finally, previous studies in the area are also
(e.g., Astone & McLanahan;Downey; Harrist& inconclusiveabout gender differencesin nontra-
Ainslie; Sun; Thomson,Hanson,& McLanahan, ditional families. Whereas some studies (e.g.,
1994). Block, Block, & Gherde, 1986; Cherlin et al.,
Despite previous evidence, several implica- 1991) have suggested that girls fare betterthan
tions of the parentalabsenceand economichard- boys in nontraditional families,othershave failed
ship argumentsremainto be thoroughlyinvesti- to find such gender differences(e.g., Allison &
gated.In particular, most previousstudiesof child Furstenberg,1989; Sun, 2001). Because none of
well-being in nontraditionalfamilieshave exclud- these previousstudies includedchildrenin non-
ed non-biological-parentfamilies, althoughthis biological-parenthouseholds, it is still unclear
family structureprovidesa uniqueopportunityto whetherboys and girls fare differentlyin such
evaluatebothhypotheses.Drawingon the parental families relative to peers in other family struc-
absenceargument,such families may have a low tures.
level of social resourcesbecauseneitherparentis
presentas a provider.Althoughother guardians PRESENTSTUDY
may subsidize some such losses, the extent of
such subsidizationmay be limited. Furthermore, The presentstudyaddressesseverallimitationsof
about half of non-biological-parent families are the previousresearch.First,using a large,nation-
headedby grandparents, who typicallyhave a low ally representativesample of Americanmiddle-
level of educationalattainmentandincome(Swin- school students,this study comparesthe well-be-
gle, 2000). Thus, it is plausiblethatnon-biologi- ing of childrenin non-biological-parent families
cal-parentfamilies have a shortageof economic with that of their peers in single-mother,single-
andhumanresources.Becausefew studiesto date father,stepmother,stepfather,and two-biological-
have systematicallyexaminedthe levels of a wide parenthouseholds.With indicatorsthat measure
rangeof familyresourcesin non-biological-parent four domainsof adolescents'lives, I am able to
families, it is still unclearhow variousfamilyre- examinethe prevalenceand the magnitudeof po-
sources are distributedin such householdsand, tentialdifferencesin these areasbetweennon-bi-
more importantly,how such family featuresmay ological-parentfamiliesand each of the five com-
be relatedto child outcomes. parisongroups.
Anotherdrawbackof previousresearchlies in Second, the presentstudy also examinespos-
measurement.Previous studies often measured sible variationsin child well-beingwithinthe non-
family structurewith informationfrom a single biological-parentfamily structure.Althoughit is
source per household,often from children.This conceptuallysound to treatnon-biological-parent
could cause measurementerrorsin this key vari- families as one type of family structure,it is pos-
able because even childrenof middle-schoolage sible that childrenliving with relatives may re-
might not fully understandthe complex marital spondto theirliving environmentdifferentlythan
statusof theirparents(e.g., separation,joint cus- childrenin nonrelativefostercare.By furtherclas-
tody), and accordinglymight provideinaccurate sifying children into kinship and nonrelative
information.Although some studies measured households,I am able to examine whetherthere
familystructurewithparentsurveydata,few care- is variationin child outcomesbetweenthese two
fully verifiedwhetherthe respondentto the parent non-biological-parent homes. If the analysisfinds
survey was indeed the child's parent.Thus the no such variations,it furtherendorsesthe concep-
parent survey might be filled out by visiting tualizationof non-biological-parent homes as one
grandparentsreportingfor parentsor by visiting of
type family structure.
parentsreportingfor guardians.In both cases, er- Third,the studyalso tests the parentalabsence
rorsarelikely to be introducedin reportinghouse- and economic hardshiphypothesesby assessing
hold structureand economic, human,and social whether non-biological-parenthouseholds have
the same level of family resourcesas do other ple comprisedover 24,000 eighth-gradestudents
typesof households,andwhethersuchdifferences studyingin over 1,000 publicandprivateschools.
in familyresourcesaccountfor differencesin out- I chose to use the base-year(1988) databecause
comes amongvariousfamilyforms.In contrastto only this wave of the NELScontainedinformation
the studyby Jeynes(1999), which used socioeco- aboutfamily structurefrombothstudentsandpar-
nomic status(SES) as the only mediatingfactor, ents.
I am able to incorporatea wide rangeof measures To enhancethe measureof family structure,I
of financial,human,cultural,and social resources used a set of samplingfilters to select the final
in the analyses.Given that non-biological-parent sample. On the basis of the studentsurvey, the
familiesmay indeedhave the lowest level of var- NELS constructeda family structuremeasure
ious family resources, this analysis provides a (two-biological-parent,single-mother,single-fa-
unique opportunityto elucidate the extent to ther, stepmother,stepfather,and non-biological-
which variousresourcesmay be responsiblefor parent). I cross-checked this student-reported
outcomedifferences. measure with four parent-surveyvariables:re-
Fourth,drawingon previousfindingsregarding spondent's relationship with the student, the
gender differencesin nontraditionalfamilies, the spouse or partner'srelationshipwith the student,
currentstudy also investigateswhetherboys and respondent'smarital status, and the amount of
girls responddifferentlyto the non-biological-par- time the respondentlived with the student.The
ent family structure.Because boys and girls may final sampleincludedall studentsin the base-year
differin theiradjustmentto changesin familyen- pool who (a) had no missingvalueson any of the
vironment(Zaslow & Hayes, 1986), and because five variablesmentionedabove, (b) had a valid
the non-biological-parent environmentis different value on at least one dependentvariable,and (c)
fromtraditionalliving arrangements, it is possible had a parentor guardianwhose responsesto the
thatpotentialgenderdifferencesin variousfamily fourparent-surveyquestionsmatchedthe student-
forms may be clarifiedwhen non-biological-par- reportedfamily structure,as specifiedin Table 1.
ent householdsarecomparedwith each of the oth- For example, althougha studentreportedliving
er five family forms. with two biologicalparents,the case was only in-
Finally,this study is also able to reducemea- cluded and coded as two-biological-parent when
surementerrorby includingonly cases in which one biologicalparent(a) self-identifiedas the par-
parents/guardians and studentsagree on family ent, (b) reportedto be married,(c) had a spouse
structureand by includingcases in whichrespon- who was the otherbiologicalparent,and(d) lived
dentsto the parentsurvey actuallylived with the with the studentmorethanhalf or all of the time
student. (see Table 1). Similarly, non-biological-parent
In later statisticalanalyses that answerthese families were identifiedand included when the
researchquestions,I controlfor the student'sgen- studentreportedliving only with a non-biological-
der,race/ethnicity,school affiliation,and residen- parentguardian(s)andwhen a non-biological-par-
tial location.Each of these variableshas been re- ent guardian(a) respondedto the parentsurvey,
portedin previousresearchas being relatedto the (b) reportedhaving either none or anothernon-
likelihoodof living in nontraditional families,lev- biologicalparentas spouse or partner,and (c) re-
els of parentalresources,andchildoutcomes(e.g., portedliving with the studentmore than half or
Astone & McLanahan, 1991; Downey, 1995; all of the time. Studentsfromthe otherfourfamily
White, 1990). structureswere screenedandincludedin a similar
manner.After screeningthroughthese filters,the
METHOD
final samplecontained19,071 studentswho lived
in six types of households:two-biological-parent
(n = 13,376); single-motherwith no cohabiting
Sample male partner(n = 2,788); biologicalmotherand
Data for this study came from the base year of stepfatheror male partner(n = 1,805); single-
the NELS, a nationallyrepresentativesample of father with no cohabitingfemale partner(n =
eighthgraderscollectedby the NationalCenterfor 335); biological fatherand stepmotheror female
EducationStatistics.The NELSused a two-staged partner (n = 413); and non-biological-parent
probabilitysampling procedure,which first se- households(n = 354). Among the 354 non-bio-
lected a sampleof schools, and then, withineach logical-parent cases, 265 (74.9%) lived with
school, a subsampleof students.The originalsam- grandparentsor relatives, whereas 89 (25.1%)
TABLE 1. CRITERIA USED TO SELECT FINAL SAMPLE
Final Sample
With All
Matching Student
CriteriaUsed for Verificationon the Basis of Parent Survey Items and Parent
Information
Respondent's Spouse/Partner's Amount of
Student-Reported Relationship Relationship Respondent's Time Living Weighted
Family Structure With Student With Student MaritalStatus With Student N %
Two biological par- Mother or father Fatheror mother Married More than half 13,376 68.46
ents or all the time
Single mother Mother No spouse/part- Divorced, single, More than half 2,788 15.05
ner widowed, or or all the time
never married
Mother and stepfa- Mother or stepfa- Stepfather/male Any value More than half 1,805 10.32
ther/malepartner ther/malepart- partneror or all the time
ner mother
Single father Father No spouse/part- Divorced, single, More than half 335 1.80
ner widowed, or or all the time
never married
Fatherand stepmoth- Fatheror step- Stepmother/fe- Any value More than half 413 2.39
er/female partner mother/female male partneror or all the time
partner father
Nonbiological parent Nonparentguard- Nonparentguard- Any value More than half 354 1.98
ian ian or all the time
Total 19,071 100.0
Note: From the National EducationLongitudinalStudy (1988).
lived with nonrelativeguardians.Exceptfor non- discrepancies,I also excluded 660 cases (under
relativehouseholds,it is possible for other adult the unableto decide categoryin Table2) because
relatives to live in all households. Sampling the parentsurvey informationwas insufficientto
weights providedin the NELS were used in all verify the student'sfamily structure,particularly
later statisticalanalysesin orderto adjustfor un- in the single-mothercategory. For instance,the
equalprobabilitiesamongthe selectedschoolsand parent-surveyinformationprovidedby a relative
overrepresentationof minority students in the who did not live with the studentdid not allow a
sample. crosscheckof any student'sliving arrangement.
As illustratedin Table2, 2,367 cases (11% of Among these cases, there were 44 families in
the original pool) were excluded from the final which all measures from students and parents
sample because studentand parentdata did not matchexcept that the biologicalparentswere co-
match.The majority(1,707 students,or 72.1%)of habiting.Althoughthese familieshad two biolog-
these cases were excludedas a resultof obvious ical parentspresentat the time of the survey,the
measurementerrors.Table 2 illustratesthe three possibilitythattheseparentsmighthavecohabited
most commonmeasurement errorsfor eachfamily only intermittentlythroughoutthe eighthgrader's
structure.For instance,although226 studentsre- life (for about 14 years) cannot be entirely ex-
ported living with both biological parents,their cluded.Furthermore, it is possible that these par-
mothersreportedthat they were marriedto the ents differfromtheirpeersin the traditionalintact
student'sstepfather(ErrorType A in two-biolog- families in family values and levels of commit-
ical-parentfamilies). Similarly, the information ment to the relationship.To avoid possible con-
providedby 12 fatherswho reportedbeing mar- foundingeffects, these specialcases were exclud-
ried to the student'smotherand living with the ed from the currentstudy.
studentmore than half or all of the time contra-
dicted the student'sreportof living in a single- Measures
motherhousehold(ErrorType C in this group). Outcomevariables.To reducethe numberof out-
In non-biological-parenthouseholds, all three come variables included, I conducted a factor
common errorswere spottedwhen the student's analysisof a large numberof outcomemeasures
motherclaimedto live with the studentmorethan from the student survey. On the basis of such
half or all of the time. Otherthan these obvious analysis,six single- andmulti-itemmeasureswere
TABLE 2. INFORMATION
ON EXCLUDEDCASES AND EXAMPLESOF MEASUREMENT
ERRORS
Cases Excluded Because

of Discrepancy Between Examples of Three Most Common Measurement
Student and ParentSurveys Errorson the Basis of ParentSurvey Informationa
Unable to Measure Respondent's Partner's Respondent's
Student-Reported Judge Errors Error Relationship Relationship Marital
Family Structure Total N (%) N (%) Type With Student With Student Status N
Two biological par- 814 114 700 (a) Mother Stepfather Married 226
ents (14.0) (86.0) (b) Mother No spouse Single 71
(c) Mother No spouse Divorced 52
Single mother 493 323 170 (a) Mother Father Married 83
(65.5) (34.5) (b) Mother Stepfather Married 60
(c) Father Mother Married 12
Mother and stepfa- 494 68 426 (a) Mother No spouse Divorced 143
ther/malepartner (13.8) (86.2) (b) Mother Father Married 133
(c) Mother No spouse Single 53
Single father 192 79 113 (a) Mother Father Married 48
(41.1) (58.9) (b) Father Mother Married 26
(c) Mother Stepfather Married 10
Fatherand stepmoth- 95 30 65 (a) Father No spouse Divorced 16
er/female partner (31.6) (68.4) (b) Mother Father Married 15
(c) Father Mother Married 14
Nonbiological parent 279 46 233 (a) Mother Father Married 76
(16.5) (83.5) (b) Mother No spouse Divorced 44
(c) Mother Stepfather Married 25
Total 2367 660 1,707
(27.9) (72.1)
Note: From the National EducationLongitudinalStudy (1988).
aln all examples, parentsreportedliving with students more than half or all of the time.
constructedto gauge students'well-beingin four the seven self-esteemitems and six locus of con-
life domains.For academicperformanceand as- trol measures,respectively.
piration,I firstconstructeda four-itemcomposite To measure students' behavior problems at
of academicperformance(ot = .91) by takingthe school, the survey asked studentshow often any
averageof the four standardcognitivetest scores of the followinghad happenedto themduringthe
in mathematics,reading,science, and social stud- first semesterof the currentschool year: (a) stu-
ies. Students' educationalaspiration was mea- dent sent to office for misbehaving,(b) parentre-
suredby asking students,"As things standnow, ceived warningsfor student'sattendance,(c) par-
how far in school do you thinkyou will get?" (1 ent receivedwarningaboutstudent'sbehavior,and
= less thanhigh school graduation,6 = graduate (d) studentgot into a physicalfight with another
school). student.All four items were coded as 0 = never,
For students' psychological well-being, the 1 = once or twice,and2 - morethantwice.With
NELS asked studentsto respondto seven state- these variables,I createda compositeof behavior
mentsregardingtheirself-esteem(e.g., I feel good problems(o = .71) by averagingthe four items.
about myself; I am able to do things as well as Finally, I included the number of cigarettes
most otherpeople). Anothersix statementsmea- smokedper day (0 = none, 4 = two packs or
suredthe levels of students'generalizedlocus of moreper day) as a proxy measureof deviantbe-
control(e.g., I don't have controlover the direc- havior.
tion my life is taking;In my life, good luck is
moreimportantthanhardworkfor success).In all Predictor variables. The key predictorvariable
these psychologicalitems, responseswere coded was family structure.As mentionedearlier,I cre-
from 1 to 4 where 1 = stronglydisagree and 4 atedthe measureby cross-checkingdatafromstu-
= stronglyagree. Withthese items, I constructed dents and parents.Five dummy variableswere
two composites,self-esteem(a = .79) and locus createdto code the statusesof two-biological-par-
of control (o = .68), by taking the averagesof ent, single-mother,single-father,stepmother,and
stepfatherhouseholds,with non-biological-parent or partnertalkedwith the studentabout(a) school

householdsservingas the referencegroup.To al- experiences,(b) plans for high school, and (c)
low a separateinvestigationof possible variation plansafterhigh school (0 = not at all, 1 = rarely,
within non-biological-parentfamily structure,I 2 = occasionally,3 = regularly).The responses
furthercreateda dummyvariable,kinshiphouse- to these three items were averagedto createthe
hold (1 = studentsliving with grandparentsor compositeof parent-childdiscussion (o = .72).
relatives,0 = studentsliving in nonrelativefam- Drawing on Coleman'snotion of social capital
ilies). Because the data set does not contain in- (Coleman,1988),I also used numberof otherpar-
formationabout adoption,the currentstudy was ents knownby the parentor guardianand school
unableto separateadoptedchildrenfromotherad- involvement,both gauging the social investment
olescentsin the sample. of a parentor guardianin relationshipwith other
parentsandschoolpersonnel.Schoolinvolvement
Interveningvariables.To examine the mediating was a five-itemcomposite(ac = .73), averaging
effects of family resources,I includedmeasures parents'or guardians'reportson whetherthey (a)
of economic,human,cultural,and social resourc- belonged to parent-teacherorganizations(PTO),
es, all takenfrom the parentsurvey.Becausethe (b) attendedPTOmeetings,(c) participated in oth-
NELSdataset does not providea reliablemeasure er PTO activities,(d) volunteeredin school, and
of family size, particularlyfor non-biological-par- (e) belongedto otherorganizationswith otherpar-
ent households,I used grossfamilyannualincome ents (0 = no, 1 = yes).
(rather than per capita income) reportedby the
parentor guardianto assess the economic situa- Controlvariables.Controlvariablesincludedthe
tion in which the studentlived. Incomewas mea- student'ssex; race or ethnicity(Asian, Hispanic,
sured in 15 intervalsand the variablewas con- AfricanAmerican,AmericanIndian,andnon-His-
verted into a continuous measure in units of panic White);school affiliation(public,Catholic,
$10,000 by takingthe midpointof each interval. otherreligious,andnonreligiousprivate);andres-
To measurehumanresources,I includedthe par- identiallocation(urban,suburban,and rural).
ent's or guardian'seducationalattainment(1 =
less thaneighthgrade, 13 - doctoraldegree)and
Missing ValueStrategies
occupationalprestige (gaugedby the index in the
data). The latter was used because occupations Given the samplingprocedureused in this study,
with high prestigetypicallyrequirehigh levels of no studentshad missing values on family struc-
human skills and knowledge. Different coding ture.Exceptfor race or ethnicity,the controlvar-
was used for variousfamily structuresto assess iables also containedno missing values. To save
such resourcesaccurately.For single-motherand the cases with missing values on race (less than
single-fatherhouseholds,I used the educational l1%of the total sample),I coded a separatevalue
attainmentand occupationalprestigeof the cus- on this variable.Thus, the tests of outcome dif-
todial parent.For the otherfour family types, at- ferencesby family structureused all cases in the
tainment and prestige of the parent or of the sample. In later analyses of mediating effects,
spouse or partner,whicheverwere higher,were however,missingvalueswereobservableon eight
used. resourcevariables.Preliminaryanalysesindicated
For culturalresources,the survey asked the that3,337 cases (17.5%)had missingvalueson at
parent whether the eighthgrader had ever gone to least one resourcevariable,and thereforewould
(a) a musical concert, (b) an art museum,(c) a be droppedby list-wisedeletionwhenall resource
science museum,and (d) a historymuseum(0 = variableswere includedin a regressionanalysis.
no, 1 = yes). I createda composite of cultural To avoid such loss of cases, I used Rubin'smul-
activities(ot = .74) by averagingthesefouritems. tiple imputationtechnique(MI) in this study (for
For social resources,I firstused the parent'sor a detailed discussion of MI, see Rubin, 1987;
guardian'seducationalexpectationfor the student Schafer & Olsen, 1998). The MI procedurere-
(1 = less thanhigh school, 12 = doctoraldegree) placed each missing value on a given variable
as a proxy measure,becausethe measurereflects with a set of m > 1 maximum-likelihoodesti-
the extent to which parents or guardianscare matesdrawnfromtheirpredictivedistributionson
about,and thuspressure,the adolescentfor future the basis of nonmissingvalues of all relatedvar-
educational success. A parent was also asked iables. Specifically,I includedall the dependent,
abouthow frequentlythe parentand/orthe spouse independent,intervening,and controlvariablesin
the imputationmodel, althoughonly missingval- ther,CPS estimatedthat, among those who lived
ues on the eight resourcemeasureswere imputed. with neitherparentin 1988, 79.5% lived in kin-
Given that each resourcevariablehad less than ship householdsand 20.5%in nonrelativehomes.
10%missing values, I chose to impute 10 ( = The percentagesfor the same living arrangements
10) estimatesfor each missing value, because 10 in the currentsample were 74.9% and 25.1%.
estimatesgave at least 99% of efficiencyof esti- These discrepancieswere likely to be caused by
mation(see Schafer& Olsen).In lateranalysesof samplingerrorsin both CPS and the NELS and/
interveningeffects, I estimatedeach coefficient or by age differencesin the two studies.Because
and its standarderror 10 times with 10 different CPS does not containage-specificdistributions of
imputeddata sets and reporteda summarycoef- family structure,I assumethat the currentNELS
ficient and standarderror (presentedin tests of samplewas nationallyrepresentative of all eighth
significance)using Rubin'sformulae. gradersin the 1987-1988 school year.
Testof Significance Differencesin AdolescentWell-Being

In this study,I compareddifferencesin adolescent I beganthe investigationby answeringthe follow-
outcomesand family resourcesbetweennon-bio- ing question:Do adolescentsin non-biological-
logical-parentfamilies and those in two-biologi- parentfamilies fare differentlyin the four out-
cal-parentfamilies and each of the four nontra- come areas than their peers in other types of
ditionalfamilies.Becausethe numbersof cases in families?Amongseveralstatisticalmethodsavail-
non-biological-parent andeach of the fournontra- able to addressthis question,seeminglyunrelated
ditionalfamiliesweremoderate(rangingfrom335 regression(SUR) techniquemight be preferred
in single-fatherto 2,788 in single-motherhomes), becauseit takesinto accountthaterrorsare likely
p < .05 was appropriate for determiningstatistical to be correlatedwhen analyzingcorrelateddepen-
significance. When I turned to comparisonswith dent variables.In the currentanalysis, however,
two-biological-parent families, however,the num- SUR does not offer this advantagebecause the
ber of cases used exceeded 13,000. Such a large independentvariablesused for all six dependent
sample was likely to result in statisticalsignifi- variableswere identical in each model. Thus I
cance for substantivelysmall effects. Thus, for used the multipleregressiontechniqueinsteadand
comparisonsof non-biological-parent and two-bi- regressedeach of the six well-beingindicatorson
ological-parent homes and for regressioncoeffi- the five dummyfamily structuremeasuresandthe
cients of family resources,I reportedthe coeffi- four controlvariables.Because the NELS used a
cients as significantat the p < .01 level. two-stagecluster samplingdesign, with students
nested within schools, the SURVEYREGproce-
durewith the clusteroptionin SAS (SAS Institute
RESULTS
Inc., Cary,NC) was used to correctthe standard
errorsassociatedwith clusterdesign and sample
DescriptiveAnalysesof SampleRepresentation
weights. Table 3 illustratesthe results of these
Before answeringthe researchquestionsraisedin analyses.
this study,I firstcomparedthe distributionof the The resultssummarizedin Table3 clearlyre-
non-biological-parent households in the sample vealed a moderatedisadvantageof living in non-
with that estimatedby CPS in 1988 (SIPP data biological-parentfamilies. When comparedwith
were unavailablefor this particularyear). On the peers from the other five types of families in the
basis of the CPS estimates, the percentagesof six outcome measures,adolescentsfrom non-bi-
childrenunder 18 in non-biological-parent fami- ological-parentfamilies fared less well in 24 of
lies were 3.0, 2.2, 7.4, and 3.6 for all children, 30 comparisons,even after demographicfactors
non-HispanicWhites, African Americans, and were held constant.Although some of these 24
Hispanics,respectively,whereasthe weightedper- effects might be significantby chance as a result
centagesfor the correspondinggroupsin the cur- of a largenumberof tests havingbeen conducted,
rent sample were 2.0, 1.3, 6.4, and 2.0, respec- the fact that80%of these effects were significant
tively. Thus, by a relatively small margin, the suggested an overall lower level of well-being
currentsamplehad a lower estimatethanCPS for amongadolescentsliving with neitherparent.The
each category, rangingfrom 0.9% for non-His- prevalenceand magnitudeof these non-biologi-
panic Whitesto 1.6%for Hispanicchildren.Fur- cal-parenteffects, however,appearedto vary by
Life in Households WithNo Biological Parents 903
TABLE 3. UNSTANDARDIZED REGRESSION COEFFICIENTS (STANDARD ERRORS) FROM REGRESSIONS OF WELL-BEING

INDICATORS ON FAMILY STRUCTURE AND CONTROLS
Adolescent Well-Being
No. of
Academic Educational Locus of Self- Behavior Cigarettes
IndependentVariables Performance Aspiration Control Esteem Problems Per Day
Two biological parents 3.43*** .43*** .14*** .15*** -.18*** -.15**
(.43) (.08) (.03) (.03) (.03) (.04)
Single mother 1.89*** .21* .08* .10*** -.08** -.07*
(.45) (.09) (.03) (.03) (.03) (.04)
Stepfather/malepartner 1.77*** .27** .08* .08* -.07** -.07*
(.48) (.09) (.03) (.03) (.03) (.04)
Single father 1.81** .24* .10* .07 -.05 -.06
(.69) (.11) (.04) (.04) (.04) (.05)
Stepmother/female 1.38* .21* .08* .04 -.05 -.03
partner (.59) (.10) (.04) (.04) (.04) (.05)
Nonbiological parent .00 .00 .00 .00 .00 .00
N 18,530 18,983 18,994 18,998 18,874 18,768
R2 .12 .04 .02 .05 .11 .02
Note: Control variables used in the analyses included student's gender, race, geographic location of the residence, and
school affiliation.From the National EducationalLongitudinalStudy (1988).
*p < .05. **p < .01. ***p < .001 (two-tailed tests).
family type. When compared with their peers non-biological-parent families and regressedeach
fromtwo-biological-parent families,studentsfrom outcomevariableon the dummyvariableof kin-
non-biological-parent families fared less well in ship household and the demographiccontrols
all six outcomes:They scoredlower in academic (nonrelativefamily structurewas the reference
performance,educationalaspiration,locus of con- group).Of the six pairsof adjustedgroupmeans
trol,and self-esteem,andexhibitedmorebehavior compared,none was statisticallysignificant,sug-
and devianceproblems.Judgingby the standard gesting thattherewas little variationin outcomes
deviation (SD) of each outcome variable (not betweenchildrenin kinshipandfostercare.Given
shown, availableuponrequest),these non-biolog- this finding,I continuedto treatall non-biological-
ical-parenteffects were moderate,rangingfrom parentfamilies as one groupin later analysesof
.29 to .46 SD. By contrast,althoughthe non-bi- interveningeffects.
ological-parenteffects relative to single-mother In summary,the analysesin this section sug-
and to stepfatherfamilies were observablein all gested thatoverall,adolescentsin non-biological-
six well-being indicators,the magnitudeswere parentfamilies appearedto fare less well than
small, rangingfrom .16 to .21 SD. These effects peers in other types of families. In general,dif-
were abouthalf as large as those relativeto two- ferences between non-biological-parent and two-
biological-parentfamilies.Finally,the differences biological-parenthomes were moderatein size,
in adolescentoutcomes between non-biological- and those betweennon-biological-parent and oth-
parentfamilies and single-fatherand stepmother er nontraditional familieswere small(all below .3
families were limited both in numberand mag- SD). Interestingly,adolescentsliving with neither
nitude.Whencomparedwithpeersin single-father parentwere similarin self-esteem,behavior,and
and stepmotherhouseholds,studentsliving with smoking problems to studentsin two types of
neitherparentscored at the same level in self- families with no biologicalmothers(single-father
esteem, behaviorproblems,and cigarettesmok- and stepmotherfamilies). Finally,thereappeared
ing, whereasthey averagedonly slightlylower(by to be no variationin child outcomesbetweenkin-
about .15-.20 SD) in academicperformance,ed- ship and nonrelativehouseholds.
ucationalaspiration,and locus of control.
If adolescentsin non-biological-parentfamilies
fareless well in mostoutcomemeasuresthanmost InterveningEffectsof FamilyResources
comparisongroups,were there variationsin out- Given outcomedifferencesbetweennon-biologi-
comes betweenkinshipand nonrelativefamilies? cal-parentand other families, I proceededto the
To answerthis question,I used the subsampleof next question:Do non-biological-parent families
TABLE 4. UNSTANDARDIZED REGRESSION COEFFICIENTS (STANDARD ERRORS) FROM REGRESSIONS OF FAMILY RESOURCE
INDICATORS ON FAMILY STRUCTURE AND CONTROLS
Family Resources
Parent's Parent's
Annual Income Educational Occupation Cultural Parent-Child
IndependentVariables ($10,000) Attainment Prestige Activities Discussion
Two biological parents 1.68*** 2.05*** 9.66*** .13*** .19**

(.15) (.21) (1.36) (.02) (.04)
Single mother -.80** .58** 3.89** .08** .12**
(.14) (.22) (1.42) (.02) (.04)
Stepfather/malepartner 1.00*** 1.63*** 6.80*** .09*** .17***
(.16) (.22) (1.45) (.03) (.04)
Single father .59* 1.57*** -1.00 .06* <.01
(.24) (.30) (1.83) (.03) (.05)
Stepmother/female 1.52*** 1.77*** 8.19*** .03 .01
partner (.23) (.28) (1.87) (.03) (.05)
Nonbiological parent .00 .00 .00 .00 .00
N 18,300 19,046 18,445 18,561 19,053
R2 .19 .13 .10 .04 .02
Note: Control variables used in the analyses included student's gender, race, geographic location of the residence, and
school affiliation. From the National EducationLongitudinalStudy (1988).
have the same levels of family resourcesas other ment, and occupationalprestige(all three differ-
types of families?To this end, I regressedall fam- ences were above .3 SD), but at the same level as
ily resourcemeasureson family structureand de- non-biological-parent homesin all culturalandso-
mographiccontrols.Table 4 summarizesthe re- cial resources.Similarly,single-fatherhouseholds
sults of these analyses. rankedhigherin income, parent'seducationalat-
As illustratedin Table4, non-biological-parent tainment,parent'sexpectations,and culturalre-
families were clearly disadvantagedin all family sources,but scoredat the same level as non-bio-
resources when compared with two-biological- logical-parent homes in parent's occupational
parenthouseholds.Forinstance,the annualhouse- prestige,parent-childdiscussion,school involve-
hold incomein non-biological-parent familieswas ment, and numberof otherparentsknown.Com-
lower by about $16,800 (.39 SD), whereaspar- paredwith the two types of mother-absent homes,
ents' educational attainmentand occupational non-biological-parent families scoredat the same
prestigewere lower by two attainmentlevels (.59 level in three social resourceindicators(parent-
SD) and9.66 points(.47 SD). Similarly,compared child discussion,school involvement,andnumber
with counterparts in two-biological-parenthomes, of parentsknown),all of which are typicallypro-
in
guardians non-biological-parent familiestalked vided by a mother.
less to students,had lowerexpectations,were less Given that both child well-being and family
involved in school-relatedactivities,knew fewer resourceswere associatedwith family structure,
other parents,and reporteda lower level of stu- wouldthe differencesin familyresourcesmediate
dent participationin culturalactivities(the differ- the differencesin outcomesbetweennon-biolog-
ences rangedfrom .35 to .42 SD). Also, non-bi- ical-parentand othercontrolgroups?To address
ological-parentfamilies scored lower in all eight this, I regressedall well-beingmeasureson family
resource items when comparedwith stepfather structure,demographiccontrols,and all resource
householdsand in six items when comparedwith measures.Table5 illustratesthe results.
single-mother families, with these differences Overall,family resourcesappearedto be very
rangingfrom small to moderate(from .13 to .47 effective mediators:They completely accounted
SD). By contrast,resource differencesbetween for 20 of 24 (83.3%)significantgroupdifferences
non-biological-parent homes and the two types of betweennon-biological-parent and othertypes of
mother-absent (single-father and stepmother) families in variousoutcomesand reducedthe re-
homes were limited in scope. Specifically,step- mainingfour effects by a range of 20% to 40%.
mother households scored somewhat higher in In particular,differencesin resourcemeasuresap-
household income, parent's educationalattain- pearedto be completelyresponsiblefor the dif-
Life in Households WithNo Biological Parents 905
TABLE 4. EXTENDED with neitherparenthad a lower locus of control

than boys when comparedwith their respective
Family Resources peers in single-motherfamilies. Given the large
numberof interactioneffectstested,the single sig-
Parent's School No. of nificantinteractioneffect might be significantby
Expectation Involvement ParentsKnown chance.In short,the interactionanalysissuggested
thatboys andgirlsin non-biological-parent house-
1.16*** .13***.63**
holds had approximatelythe same levels of well-
(.19) (.02) (.11)
.76*** .02 .38*** being relativeto theircounterpartsin othertypes
(.19) (.02) (.11) of families.
.76*** .04* .25*
(.20) (.02) (.11)
.79** -.03 -.02 DISCUSSION
(.26) (.02) (.15)
.18- .01- .18 Althougha substantialamountof family research
(.24) (.02) (.14) has examinedlives in single-parentandstepparent
.00 .00 .00
households,childrenliving with neitherbiological
18,995 18,656 16,856
.05 .12 .08
parentremainan understudiedgroup.This study
contributesto the existingliteratureby examining
the educational,psychological, and behavioral
outcomes of children in non-biological-parent
ferencesin outcomesbetweennon-biological-par- homesandby elucidatingthe extentto whichfam-
ent andeach of the followingthreefamilygroups: ily resourcesin varioustypes of familiesmediate
single-father,stepmother,andstepfather. Similarly, outcomedifferences.
family resourcescompletelyexplainedfive of six My analyseshave clearly demonstratedsome
outcome differencesbetween non-biological-par- overall disadvantagesof living with neitherpar-
ent and single-motherfamilies and reducedthe ent. Amongadolescentsfromall six familytypes,
differencein self-esteemfrom .10 to .07, a reduc- those in non-biological-parent families appearto
tion of 30.0%. Finally, differencesin resources rankthe lowest in academicperformance,educa-
also completelyaccountedfor the differencesbe- tional aspiration,and locus of control. Further,
tween non-biological-parent and two-biological- they appearto fare less well in the remainingout-
parentfamilies in academicperformance,educa- come areas (self-esteem,behaviorproblems,and
tionalaspiration,andlocus of control,andreduced cigarettesmoking)thanchildrenfromtwo-biolog-
the differencesin self-esteem,behaviorproblems, ical-parent,single-mother,and stepfatherfamilies.
and cigarettesmoking. In general, these findings seem to suggest that
In summary,the analysesin this section sug- non-biological-parent householdsprovidea some-
gested that differences in outcomes between non- what less favorablefamily environmentfor chil-
biological-parent students and their peers in other dren to live in.
family structureswere either completelyor par- Despitetheseoveralldisadvantagesof living in
tially attributableto differencesin variousfamily non-biological-parent homes, two related trends
resourcesamongfamily forms. regardingthe magnitudeand prevalenceof these
disadvantagesdeserve more discussion.First,the
non-biological-parent effectsrelativeto othernon-
InteractionEffectsof FamilyStructure
traditionalfamiliesare only abouthalf of the size
and Gender
of those relativeto two-biological-parentfamilies.
Finally,I testedwhetherboys and girls fare at the This finding seems to suggest that the effect of
samelevel in the non-biological-parent homesrel- parentalabsenceis additive,with each additional
ative to theirpeers in otherfamilies.To this end, biological parentabsent in the householdbeing
I regressedeach outcomevariableon familystruc- related to a limited decline in child well-being.
ture,resources,controls,andfive interactionterms Given that children in non-biological-parent
(genderX each of the five family structuredum- homes may have indeed experiencedmore trau-
my measures).Therefore, a total of 30 (5 x 6) matic events thanchildrenin othernontraditional
interactiontermswere testedin six separateruns. families,this findingof smalloutcomedifferences
Of the 30 interactionstested, one (3%) was between non-biological-parent and other nontra-
statisticallysignificant. Specifically, girls living ditional families is notable. Second, in self-es-
TABLE 5. UNSTANDARDIZED REGRESSION COEFFICIENTS (STANDARD ERRORS) FROM REGRESSIONS OF WELL-BEING INDICATORS O
AND FAMILY RESOURCES
Adolescent Well-Being
Academic Educational Locus of Self- Behavior

IndependentVariables Performance Aspiration Control Esteem Problems
Two biological parents .79 -.01 .06 .09** -.13***

(.42) (.08) (.03) (.03) (.03)
Single mother .85 .01 .04 .07* -.05
(.43) (.08) (.03) (.03) (.03)
Stepfather/malepartner -.03 -.03 .03 .04 -.05
(.46) (.08) (.03) (.03) (.03)
Single father .14 -.01 .07 .04 -.02
(.63) (.10) (.04) (.04) (.04)
Stepmother/femalepartner .01 .04 .06 .03 -.03
(.58) (.10) (.04) (.04) (.04)
Annual income .15** .02*** .01** .01 <.01
(.02) (<.01) (<.01) (<.01) (<.01)
Parent'seducational attainment .45*** .05*** <.01 <.01 -.01**
(.03) (<.01) (<.01) (<.01) (<.01)
Parent'soccupationalprestige .02*** <.01*** <.01 <.01 -.01
(<.01) (<.01) (<.01) (<.01) (<.01)
Cultural activities 1.72*** .15*** .06 .06*** -.03**
(.19) (.03) (.01) (.01) (<.01)
Parent-childdiscussion -73*** .10*** .05*** .06*** .01
(.12) (.02) (.01) (.01) (.01)
Parent'sexpectation .93*** .19*** .03*** .02*** -.02***
(.03) (<.01) (<.01) (<.01) (<.01)
School involvement .07 .03 .02 .04** -.02
(.24) (.03) (.01) (.01) (.01)
No. of parentsknown .07 .01 .01*** .01** <.01
(.05) (.01) (<.01) (<.01) (<.01)
N 18,530 18,983 18,994 18,998 18,874
R2 .32 .33 .08 .08 .14
Note: Control variables used in the analyses included student's gender, race, geographic location of the residence, and school affiliation
Study (1988).
teem, behavior,and cigarettesmoking,studentsin have a lower level of family income and educa-
non-biological-parent homesfareat the samelevel tional attainment,but score at the same level as
as peers in the two kindsof mother-absent house- these familiesin most social resources.These dif-
holds. One possible explanationis that mothers ferences in variousfamily resourcesaccountfor
and fathersplay differentparentingroles in chil- 20 of 24 non-biological-parent effects on various
dren's socializationprocesses. Whereasmothers outcomemeasuresand reducea moderateportion
are more likely to fill daily care to childrenand of the remainingeffects. These findingssuggest
be involvedin school-relatedactivities,fathersare that the observed non-biological-parenteffects
more likely to fill the roles of playmateand ad- relativeto othertypes of families are eithercom-
visor (for a review, see Thompson & Walker, pletely or partiallyattributableto resourcediffer-
1989). Consistentwith this argument,the present ences among these family structures.Overall,
study finds that non-biological-parent households these findingsare highly consistentwith previous
score as low as single-fatherand stepmother studieson single-parentandstepparenthouseholds
householdsin most social resourcemeasures(e.g., and provide strongsupportfor both parentalab-
parent-childdiscussion, involvement in school) sence and economichardshiparguments.
typicallyprovidedby mothers.Thusit is possible Finally,the currentstudy also finds that boys
thatthe shortageof these andothermaternalroles andgirls seem to fareat the samelevel in the non-
and functionsin these three types of mother-ab-
biological-parentenvironment.This finding ap-
sent families decreaseschildren'sself-esteemand
pearsto contradictseveralpreviousdivorcestud-
increases their behaviorproblems.In short, al- ies (e.g., Block et al., 1986) that report fewer
thoughthe presentfindingsclearlyunderscorethe adjustmentproblemsfor girls thanfor boys. One
importanceof the physicalpresenceof biological possible explanationfor such differentfindings
parentsin the household,the overalldisadvantag- may lie in family structure.As mentionedearlier,
es of living in non-biological-parent over nontra- childrenin non-biological-parent householdshave
ditionalhouseholdsare limited.
presumablyexperiencedmore unpleasantevents
Interestingly,the currentstudyfindsno differ-
ences in studentoutcomesbetween kinshipcare priorto and duringplacementthan theirpeers in
other types of nontraditionalfamilies. Thus,
and nonrelativecare. The parentalabsenceargu-
whereasgirls in othertypes of nontraditional fam-
ment offers one possible explanationfor this lack
ilies mightbe moreresilientto life events such as
of variation.It is possible that certain parental
roles and functionsare crucialto children.Thus parentaldivorce than boys, such resilience may
fade as girls in non-biological-parentfamiliesface
the absenceof such roles shouldlead to approxi-
the challengeof adjustingto an uncommonfamily
mately the same levels of outcomesamongchil-
drenin variousformsof non-biological-parent en- arrangement.
vironments.A relatedpossibilityis that children Severallimitationsof the presentstudyarenot-
in both kinship and foster care are likely to be ed. The NELS data do not allow an examination
of importantmediatingfactorsotherthanresourc-
exposedto similartraumaticeventspriorto place-
ment. Therefore,it is not surprisingto find that es. For instance, non-biological-parent children
are likely to exhibit a high level of stressassoci-
they exhibit relativelysimilarresponsesto these
crises. ated with their experiencesof traumaticevents
The currentstudyalso identifiesvariousfamily andchangesin familyarrangements. Unfortunate-
resourcesas importantmechanismsthat explain ly, the NELS data contain no such information.
outcome differencesbetween non-biological-par- Also, the measurementof financialresourceshas
ent and othercontrolgroups.Comparedwith two- limitations.Althoughthe currentstrategyto mea-
biological-parent and stepfatherfamilies,non-bio- sure the financialsituationof the care provider
logical-parenthouseholdsareclearlydisadvantaged attemptsto assess the actualamountof resources
in each of the eight resourcemeasures.With the to which childrenhave access in most non-bio-
exceptionof family income and school involve- logical-parentfamilies, some parentswho send
ment,non-biological-parent familiesalso possessa their childrento live with relativesmight make
lowerlevel of otherfamilyresourcesas compared special financialarrangementswith the care pro-
with single-motherhouseholds.When compared vider.Thus, futurestudies may use surveys spe-
with two kinds of families with no biological cially designedfor non-biological-parent families
mothers (single-fatherand stepmotherfamilies), to assess financialand otherresourcesaccurately
however,non-biological-parent families appearto and to explore how factorsotherthan family re-
sources might contributeto children'smaladjust- out variousdisadvantagesof living in non-biolog-

ment in such homes. ical-parenthouseholds, identify the shortageof
Although the currentstudy carefully verifies parentalfunctionsandresourcesas a majormech-
the measureof family structure,the dataset does anismassociatedwith a lower level of well-being
not containinformationaboutcausesof placement in such homes, and provideempiricalsupportto
and the durationof stay in non-biological-parent parentalabsence and economic hardshiphypoth-
households.Lack of informationaboutthese two eses. Throughthese findings,the studyhighlights
characteristicsmay confoundthe currentfindings the importanceof includingthis specialgroupof
to some extent. For instance, some adolescents childrenin futurefamily research.
who have just moved into their currentnon-bio- Methodologically,the current study demon-
logical-parentenvironmentmay exhibit initial stratesthe importanceof verifyingfamily struc-
negative effects, whereasothers who have lived ture informationfrom more than one source.In-
in such an environmentfor a long period may deed, the level of disagreementin this key
have adjusted.Furthermore,some parentsmight measurebetweenparentsandstudentsis relatively
deliberatelysend their childrento live with rela- high. Whicheverthe source of error,the overall
tives so that childrencan live in a betterschool implication for family researchersremains the
districtor economicenvironment.In these special same: Relying on one respondentper household
cases, living in non-biological-parenthomes for this key measuremay producemisleadingre-
might actuallyimprovechildren'swell-being.To sults in analyses of data among differentfamily
sort out these confoundingeffects, it would be structures.
ideal to use longitudinaldata that measurechild
outcomesbothbeforeandaftera child moves into NOTE
a non-biological-parent householdand to control
for various reasons for this living arrangement. I thank Dr. Lynn K. White for her valuable and con-
structive suggestions on earlier drafts of the manuscript.
Wheneverdatapermit,futurestudiescan investi- I also thank Dr. Paul von Hippel for his advice on sta-
gate how placementintonon-biological-parent en- tistical analyses.
vironmentand length of stay in such households
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Exhibit K
88 CALR 2017 Page 1

88 Cal. L. Rev. 2017
California Law Review

December, 2000
Symposium of the Law in the Twentieth Century
*2017 FROM THE SECOND SEX TO THE JOINT VENTURE: AN OVERVIEW OF WOMEN'S RIGHTS AND FAM-
ILY LAW IN THE UNITED STATES DURING THE TWENTIETH CENTURY
Herma Hill Kay [FNd1]
Copyright (c) 2000 California Law Review, Inc.; Herma Hill Kay [FNa1]
Table of Contents
Introduction 2019
I. Family Law in the Nineteenth Cen- 2021

tury
A. Marriage Defines Women's 2021

Status
B. Women Begin to Define Them- 2022

selves
C. Beyond Indissolubility: Divorce 2024

Laws in the New Nation
1. The Debate Over the “Marriage 2026

Question”
2. The Conservative Attack on 2028

“Easy Divorce”
D. The Nineteenth-Century Wo- 2032

men's Movement: Focus on the Ballot
II. Family Law Reform and Women's 2034

Rights in the Twentieth Century
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.

88 CALR 2017 Case3:09-cv-02292-VRW Document204-11 Filed09/23/09 Page3 of 73
Page 2
88 Cal. L. Rev. 2017
A. The Early Twentieth-Century 2034

Women's Movement:Winning the Bal-
lot; Splitting over the ERA
B. Marriage Law Reform 2035
1. The Rise and Fall of Miscegena- 2035

tion Laws
2. The Decline of Common Law 2037

Marriage
C. Pre-World War I Divorce Re- 2038

form
1. The Failure to End “Easy” Di- 2038

vorce
2. The Rise of Migratory Divorce 2039
D. Women at Work During the War 2040

Years
E. Post-World-War II Divorce Re- 2040

form
1. The Impact of the Rising Divorce 2040

Rate
2. The Tension Between the “Law 2046

in Action Versus theLaw of the Books”
F. The Reemergence of the Wo- 2048

men's Movement in the 1960s:Focus on
Civil Rights, the Birth Control Pill, and
N.O.W.
G. The Triumph of No-Fault Di- 2050

vorce
1. California Leads the Way 2050

Page 3
88 Cal. L. Rev. 2017
2. The Uniform Marriage and Di- 2055

vorce Act
H. The Women's Movement in the 2057

1970s: Focus on Abortionand the ERA
I. Constitutional Campaigns for 2062

Women's Equality and Self-
Determination
1. Ruth Bader Ginsburg and the 2062

Equal Protection Clause
2. The Due Process Clause: Abor- 2064

tion as Privacy
J. The Critique of No-Fault Divorce 2066
1. Lenore Weitzman and the Exag- 2066

gerated “Gender Gap”
2. The Conservative Call for a Re- 2068

turn to “Family Values”
K. Fixing No-Fault: The ALI's 2069

“Principles of Family Dissolution”
L. The Women's Movement After 2073

the Defeat of the ERA:Focus on Access
to Abortion and Sexual Harassment
M. Marriage Law Reform at the 2076

Century's End: Same-SexMarriage and
DOMA
N. The Renewed Debate Over 2080

“Easy” Divorce
1. The Call For a Return to Fault 2081
2. Covenant Marriage 2083

Page 4
88 Cal. L. Rev. 2017
O. The Women's Movement at the ” 2086

Century's End: Focus onWomen's
Sports, an ERA Reprise, and an Abor-
tion Pill
III. Challenges for the Twenty-First 2088

Century
*2019 From the beginning of colonial history, the family has defined U.S. women's identity and life circum-
stances, while the market has defined men's role and opportunities. Over the past two centuries women's struggle
for political independence and socio-economic equality has been intertwined with family law reform, and more re-
cently with the emerging law of employment discrimination. While the most dramatic changes in family law oc-
curred in the latter half of the twentieth century, many of these changes were foreshadowed by events during the
nineteenth century. As we look forward to the twenty-first century, much of the intellectual challenge for those
concerned about women's rights will necessarily focus on securing, interpreting, and building on the advances won
during the twentieth century.
Introduction
The movement of twentieth century family law in the United States has been away from a patriarchical model and to-
ward a more egalitarian one. Formerly, the husband was the legal head of the household, responsible for its support and
its links to the external society, while the wife was the mistress of the home, responsible for the day-to-day management
of its internal affairs and the care and education of children. More recently, these roles have tended to converge and the
family is sometimes characterized as a partnership or a family firm. This trend did not, of course, begin in the twentieth
century. Its origins can be traced to the greater independence enjoyed by married women in the American colonies and
on the frontier than by their British sisters. [FN1] Dating the clear emergence of the modern American family to the
1830s, [FN2] Carl Degler argues that its history over the *2020 next 150 years was closely entwined with and influenced
by the American woman's “push for autonomy and individuality.” [FN3]
Beginning at roughly the same period and continuing through the end of the 1990s, a similar influence has been at
work in shaping the contours of American family law. As we look forward to the twenty-first century, the sea change in
the nation's economy and culture that has become evident in the last decade of the twentieth century, represented by the
information revolution and the emergence of the Internet, may offer the potential for resolving what Degler saw as the in-
tense dilemma between “the values of family and the realization of women's individuality.” Degler maintained that this
dilemma had put “the future of the family and the fulfillment of women as persons” at odds with each other. [FN4] The
playing out of this trend suggests that, rather than a partnership, marriage in the twenty-first century may become more
like a joint venture, formed for a specific transaction, and renewable at the pleasure of the venturers. In the closing years
of the present century, however, a nascent counter-trend has emerged, rooted in nostalgia for “the way things were,” that
offers couples the choice of a “covenant marriage” requiring a greater formal commitment and the ideal of a lifelong re-
lationship. [FN5] As the Millennium approaches, the question remains open whether one of these two trends will prevail
or whether both will co-exist in ideological, if not functional, opposition.
Part I of this Essay briefly describes the major changes in American family law during the nineteenth century that
help explain the legal reforms that dominated the twentieth century, drawing on historical and sociological accounts of
related developments affecting the American family and the status of women during the same period. Part II examines in

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more detail the twentieth-century family law reform movements and their aftermath, as well as contemporaneous wo-
men's issues and advancements. Finally, Part III offers a few modest speculations about how family law may evolve in
the twenty-first century.
*2021 I Family Law in the Nineteenth Century
A. Marriage Defines Women's Status
At the time colonial America was settled, marriage was the primary occupation for women. [FN6] By the mid-
eighteenth century, in both common understanding and legal definition, marriage was an institution created by the state
for the purpose of regulating and carrying on family life. Rejecting the idea that marriage was a “civil contract” like other
private contracts, Joseph Madden observed: “Individuals have free choice as to whether they will marry or not, but if
they do marry, the state immediately becomes a party vitally interested in the new status which their marriage created,
and will not permit them to vitally modify, or rescind the terms which the law attaches to their relation, without the
state's consent.” [FN7]
The marital status thus created was one that conferred virtually all legal rights upon the husband, who became the
head of the newly established household. Blackstone's mid-eighteenth century description of the English law of marriage
[FN8] as subsuming the legal personality of the wife into that of the husband so that the two became one was considered
to be the defining characteristic of the American common law of marriage as well. [FN9] The nineteenth-century family
was organized into “separate spheres,” in which husbands and wives had well-recognized and different functions, the one
public, the other private, and in which wives were considered to be in charge of the moral and spiritual needs of the fam-
ily. [FN10]
Nineteenth-century American feminists, however, rejected Blackstone's concept of marriage. Less than a century
after his treatise appeared, both the 1848 Seneca Falls Declaration of Sentiments [FN11] and the *2022 1855 Marriage
Protest signed by Lucy Stone and Henry B. Blackwell on their wedding day [FN12] included an indictment of the very
provisions that Blackstone had seen as “for the most part intended for [the wife's] protection and benefit.” [FN13] In the
1840s, state legislatures began to enact the Married Women's Property Acts designed to eliminate or modify the harsh
common law doctrines affecting the legal status of married women. [FN14] By the 1850s, state legislatures had turned
their attention to “earnings statutes” that gave married women property rights in their labor outside the home. [FN15]
The more radical demand of nineteenth-century feminists for joint property rights in their household labor [FN16] posed
a fundamental assault on the husband's right to the wife's services during marriage and was not successful. [FN17]
B. Women Begin to Define Themselves
This legal shift in the status of married women in the nineteenth century was preceded by the gradual emergence of
women, both married and single, from their confinement in the private sphere of family life into the public sphere of
community, regional, and ultimately national affairs. The milestones along this momentous path mark women's acquisi-
tion of the essential preconditions for social, economic and political independence: education, paid employment, and a
measure of self-determination over their lives. At the time of the American Revolution, only 40% of *2023 American
women were literate, compared to 80% of men. Private girls' schools began to open in the 1780s and 1790s, and girls
were included in the public schools so that by the mid-nineteenth century, the literacy rate for women reached that of
men. [FN18] By 1900, 5000 women and 22,000 men were college graduates. [FN19]

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Industrialization instituted factories as the means of production, and by 1822 about 65% of the 100,000 textile work-
ers in the United States were girls and women. [FN20] The well-known textile mills of Lowell, Massachusetts, set an ex-
ample for good working conditions, [FN21] and events there demonstrated how women workers could employ strikes to
obtain better wages. [FN22] Later in the century, the Civil War provided an impetus for women's employment as many
women left the domestic sphere and were pressed into service as nurses and teachers. [FN23]
The availability of transportation made possible a wider distribution of goods and services, lightening the married
woman's childcare and housekeeping duties and creating the opportunity for social and political activities. [FN24] To-
wards the end of the nineteenth century, women's social and professional organizations grew, giving women new forums
in which to learn administrative and political skills. [FN25]
Because women lacked the right to vote, however, they were excluded from full participation in the political life of
the republic. In addition to its repudiation of the treatment of women by the English law of marriage, the Seneca Falls
Convention of 1848 demanded the vote for women, [FN26] thus energizing the nineteenth-century women's movement
and setting off a *2024 seventy-two year struggle that culminated in the adoption of the Nineteenth Amendment to the
United States Constitution in 1920. [FN27]
While winning the franchise may have “made little difference to the feminine condition,” [FN28] suffrage provided
the essential cornerstone upon which women's participation in twentieth-century politics was built. It took sixty-four
years after ratification for a woman to be nominated in 1984 as vice president on the ticket of one of the two major na-
tional parties, [FN29] but only fifteen more before the first woman to qualify as a serious candidate announced her run
for the presidency on the ticket of the other major national party in 1999. [FN30] In the nineteenth century, however, the
vote, along with other marks of full citizenship for women, including jury service, [FN31] elective and appointive office,
and military service remained unattainable.
C. Beyond Indissolubility: Divorce Laws in the New Nation
While the colonies adopted the English common law of marriage, they resisted the ecclesiastical law of marriage and
divorce. Canon law, which held sway in England until the time of Henry VIII, regarded marriage as a sacrament and
therefore indissoluble. [FN32] The ecclesiastical courts *2025 exercised jurisdiction over marriage and allowed only ju-
dicial separation between lawfully married spouses. [FN33] Since there were no ecclesiastical courts in the colonies, and
no clear provision for civil divorce, marriage dissolution was handled on an ad hoc basis in the New England colonies.
[FN34] Under these circumstances, divorce laws emerged that have been characterized as “the easiest in Christendom at
a time when the eloquence of a Milton was unable to loosen the bonds of matrimony in England.” [FN35] Bolder experi-
ments, however, were not always successful. Thus the Pennsylvania Assembly's approval in 1772 of a private bill of di-
vorce to a husband who charged his wife with adultery was disallowed by the British authorities, who issued an instruc-
tion to all royal governors on November 24, 1773, ordering them to refrain from giving their assent to any private bills
“for the divorce of persons joined together in Holy Marriage.” [FN36] After the colonies won their independence in
1776, Pennsylvania, among others, was quick to assert its new authority over marriage dissolution, granting eleven
private bills of divorce between 1776 and 1785. This practice lasted until the Pennsylvania General Assembly passed a
civil divorce statute on September 19, 1785 conferring jurisdiction on the supreme court to dissolve marriages on the
grounds of impotence, bigamy, adultery, or willful desertion for four years. [FN37]
Like Pennsylvania, the other states had to determine how and whether divorce could be obtained. Since the post-
Revolutionary courts of equity did not regard themselves as having inherent power over marriage and divorce, it was left
to the legislatures either to grant special Acts of divorce, as the English Parliament had sometimes done, [FN38] or to

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confer divorce *2026 jurisdiction upon the civil courts. [FN39] Thus, unlike England, which did not permit absolute di-
vorce until 1857, [FN40] state legislatures acted to grant such jurisdiction to the civil courts much earlier. By 1799,
twelve states and the Northwest Territory had adopted divorce statutes, [FN41] and by 1860, only South Carolina refused
to permit absolute divorce. [FN42] The southern states, along with a few bordering neighbors, clung to legislative di-
vorce longer than most: Virginia and Maryland finally abolished private Acts in 1851, while the last hold-out, Delaware,
ended the practice at the century's close in 1897. [FN43]
1. The Debate Over the “Marriage Question”
Divorce was and is a legal proceeding, which usually takes place in a public forum. As such, it sometimes has be-
come a public spectacle. [FN44] By the mid-nineteenth century, divorce proceedings had attracted a wide audience.
Norma Basch provides an account of the fascination among the citizens of Boston with the Dunham divorce trial of 1842,
[FN45] and documents the existence of divorce trial pamphlets, “a large and lurid body of popular works that began to
emerge in the 1830s as publishers learned to capitalize fully on the public thirst for sensationalism.” [FN46] The growing
awareness of divorce stimulated public debate. Horace Greeley, editor of The New York Tribune and a vigorous defender
of the indissolubility of marriage, debated the “marriage question” against proponents of liberal divorce--and of “free
love”--both in the early 1850s and in 1860. [FN47]
*2027 In addition to press coverage of the “marriage question,” the wider availability of divorce stimulated debate
between conservatives and liberals both before and after the Civil War. During the 1850s and early 1860s, leaders of the
nineteenth-century women's movement took up the matter as well. Both Susan B. Anthony and Elizabeth Cady Stanton
supported liberalized divorce, [FN48] Stanton on the ground that it was necessary for the liberation of women. [FN49]
The Reverend Antoinette Brown Blackwell, however, defended the indissolubility of marriage. [FN50] After the Civil
War, the debate resurfaced with renewed fervor. In 1868, with the financial support of George Francis Train, Stanton and
Anthony began publishing a weekly paper titled The Revolution, [FN51] in which they advocated both women's suffrage
and reform of the divorce laws. [FN52] Stanton's uncompromising support of liberalized divorce was one factor that con-
tributed to a split among nineteenth-century feminists over the most effective strategy for achieving suffrage. [FN53] Her
public condemnation of the 1870 acquittal of Daniel McFarland for shooting and killing his wife's lover, Albert D.
Richardson, added fuel to the fervor over divorce. In 1867, Abby McFarland had left her husband, described as a man
who “drank too much and was unable to earn a steady income,” [FN54] and accepted the protection of Richardson. Lack-
ing grounds for divorce in her home state of New York, she travelled to Indiana, lived there for sixteen months, and ob-
tained a divorce in 1869. [FN55] The couple planned to marry upon her return to New York, but their plans were
thwarted when McFarland shot his rival: Richardson nonetheless managed to marry Abby on his deathbed. [FN56] The
trial, combining as it did the drama of a failed marriage, adultery, intrigue, migratory divorce, and *2028 violent death
involving socially prominent New Yorkers, immediately became the centerpiece of the debate over divorce. [FN57] Mc-
Farland's acquittal in May 1870 was denounced in public lectures by Elizabeth Cady Stanton, who saw the verdict as a
vindication of the husband's domination over the wife, and indissoluble marriage as the equivalent of slavery. [FN58]
2. The Conservative Attack on “Easy Divorce”
The last decades of the nineteenth century witnessed an organized effort by conservatives to repudiate what they saw
as easy divorce. The movement began in Connecticut in the late 1860s, where President Theodore Woolsey of Yale Uni-
versity, following in the footsteps of his predecessor, President Timothy Dwight, published a series of articles on divorce
in the New Englander in 1867, which were collected in a book published in 1869. [FN59] Beginning with the Hebrews,
Greeks, and Romans, described as “nations, to one or another of which we owe our religion and most of the leading ele-

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ments of our civilization,” [FN60] he traced the history of divorce to his own time and place. He was quick to condemn
what he saw:
[W]e perceive that the number of causes for which divorce may be obtained has been very considerably in-
creased in modern times. There is an increasing desire to be free from the marriage bond on grounds which were,
of old, regarded as insufficient; and an increasing willingness on the part of law-makers to gratify such a desire, as
well as an increasing tendency to legislate on marriage as being a mere contract, to the neglect of its moral aspect.
. . . Moral indignation, it is thought, no longer visits the adulterer or adulteress; the more vulgar newspapers joke
about the crime, and divorced persons are no longer under that frown which met them formerly, even when di-
vorced for causes below the greatest. [FN61]
Turning to an examination of the admittedly “scanty” divorce statistics available to him, Woolsey proceeded to show
that the divorce rate had been climbing since 1860 in Vermont, Massachusetts, Ohio, and Connecticut, and that Connecti-
cut was “at the bottom of the list altogether” so that “[t]he ratio of divorces to marriages is here double what it is in Ver-
mont, nearly four-fold that in Massachusetts . . . [and] in 1866, more than half as many as in Ohio, a State with almost
five times the population.” [FN62] He placed the blame for this increase in the divorce rate *2029 squarely on the di-
vorce laws, thus laying the foundation for a conservative attack on liberal divorce legislation that endures to this day:
A somewhat similar train of thought [to that expressed by the Ohio Commisioner of Statistics] has occurred to
us in regard to Connecticut, where, for several years, one divorce has taken place to about ten marriages. Deduct
now the Catholics, deduct also the better class of society, than whom a class more observant of the family tie ex-
ists nowhere on earth, and we shall conclude that out of every seven couples that call themselves Protestants one
will be divorced, while according to Mr. Loomis's tables in the New Englander, July, 1866, two-thirds of the di-
vorces will occur in less than six years after marriage. And we believe that the present law must bear the burden of
this social immorality. [FN63]
In a concluding chapter on “Principles of Divorce Legislation,” Woolsey set out nine principles, paraphrased below,
which he believed should go into the formation of a good divorce law:
(1) The husband or wife found guilty of adultery ought never to be allowed to marry the partner of his or her
crime; (2) Adultery ought to be made a criminal offense, and the penalty should follow the granting of a divorce
without any other trial; (3) A waiting period should be imposed before a blameworthy partner is allowed to marry
again; (4) Legal separation may be utilized in some cases and as a temporary measure prior to the granting of an
absolute divorce; (5) Property disposition following divorce should be such as to ensure that the injured party shall
sustain as little pecuniary loss as possible, and the culpable party shall be deprived of the benefits which may have
been provided in a marriage settlement; (6) Custody of the children, if any, should be given to the injured party;
[FN64] (7) The law ought to be drafted in specific terms and seek to leave little discretion in the hands of judges;
(8) The divorce laws of the several states ought to be brought into substantial uniformity; and (9) In cases where
adultery is not the ground for divorce, attempts should be made by the magistrates to reconcile the parties. [FN65]
Woolsey's discussion of these principles makes clear that he accepted the different moral standards traditionally ap-
plied to the sexes. In considering differential treatement of the sexes under his second principle, the criminalization of
adultery, he remarked:
*2030 The question here arises whether adultery ought to have the same definition for the man and for the wo-
man, and the same penalty, whichever sex is guilty. According to all the ancient codes and many of the modern
there is a distinction made between the sexes, and the distinction affects the law of divorce. The crime is the same,
except that it is justly regarded as a greater advance in wickedness for women as a class to be unfaithful in the
marriage relation than for men. The harm done to society by such unfaithfulness is far greater for the woman,

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when her guilt is, so to speak, inside of the family, than when the father of the family commits the crime. [FN66]
Woolsey's seventh and eighth principles became, in effect, the working agenda for conservative reformers. The
seventh principle was aimed at Connecticut's “omnibus” ground for divorce, which had been enacted in 1849 and
which permitted divorce for “any such misconduct as permanently destroys the happiness of the petitioner and de-
feats the purpose of the marriage relation.” [FN67] Responding to pressure exerted by conservative reformers, the
Connecticut legislature commissioned a study of divorce, which resulted in statistics showing an increase in the
number of divorces granted in the state from 544 during the period 1849-1852 to 1253 during 1861-1864. [FN68]
In 1878, Connecticut repealed the offending omnibus clause, [FN69] and on January 24, 1881, the victorious con-
servatives formed the New England Divorce Reform League with Woolsey as president to carry the struggle into
other states. [FN70] By 1885, the regional organization had expanded, becoming The National Divorce Reform
League; [FN71] twelve years later, in a move that foreshadowed events occurring at the end of the twentieth cen-
tury, the group had broadened its agenda and renamed itself The National League for the Protection of the Family.
[FN72]
Woolsey expanded upon his eighth principle, which sought, in part, to end migratory divorce, taking aim at the prac-
tices of Indiana. [FN73] If it had not been clear earlier, the McFarland-Richardson affair had made it obvious that no
state had effective control over its own divorce policies as long as another state, one with less rigid divorce laws and a
flexible attitude *2031 toward which persons might call themselves residents, was willing to entertain the interstate
traffic. [FN74] Early on, Indiana made itself available to unhappy spouses from other states with its capital, Indianapolis,
easily accessible to New Yorkers by railroad. [FN75] Woolsey and his fellow conservatives had two strategies to close
these avenues of easy divorce: a federal divorce law and the enactment of uniform laws by individual states. To achieve
the first goal, they turned to Congress, sending the Secretary of the National League, Reverend Samuel W. Dike, to
Washington in 1884 to lobby for a national study of divorce statistics. [FN76] This mission bore fruit three years later,
when Congress authorized the first national report of statistics on marriage and divorce under the supervision of the
Commissioner of Labor, Carroll D. Wright. [FN77] The report, submitted to Congress in 1889, showed that the number
of divorces had risen by 157% between 1867 and 1886, [FN78] but it did not conclude that migratory divorce was a sig-
nificant part of the increase. [FN79] Somewhat disappointed, the conservatives turned their efforts toward their second
strategy: the enactment of similar divorce provisions by the various states. [FN80]
Perhaps the most significant, and certainly the most enduring, by-product of this second strategy was the creation in
New York in 1890 of an organization to address the issue of uniform state laws. [FN81] This organization ultimately be-
came known as the National Conference of Commissioners on Uniform State Laws (NCCUSL), one of the country's two
premier institutions devoted to law reform. [FN82] Although NCCUSL ultimately promulgated a Uniform Marriage and
Divorce Act in 1970, its initial efforts in the direction of marriage and divorce reform failed and were soon abandoned in
favor of more successful ventures in the commercial law field. [FN83] While the conservative initiatives toward strength-
ening the divorce laws carried *2032 over into the early decades of the twentieth century, [FN84] they ultimately
foundered. [FN85]
D. The Nineteenth-Century Women's Movement: Focus on the Ballot
Meanwhile, the nineteenth-century women's movement had refocused its attention on suffrage. Once it became clear
that the Fifteenth Amendment, which had granted formal suffrage to African-American males in 1870, would not include
women, [FN86] efforts were made to unite the rival factions and to go forward under a common banner. [FN87] In 1890,
Elizabeth Cady Stanton became president of the newly-created National American Woman Suffrage Association. [FN88]
While her interest in divorce reform continued, Stanton's chief projects became the suffrage and a critique of the role of
organized religion in the subordination of women. [FN89]

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As the nineteenth century closed, the laws governing marriage and divorce had been entrusted by the state legis-
latures to the civil courts, subject to minimal constitutional control. [FN90] While Blackstone's doctrine of coverture had
not yet been entirely repudiated, it had surely been weakened by the statutory recognition of the married woman's right to
control her property and her right to sue for divorce. As Norma Basch observed, the post-Revolutionary divorce statutes
that began to be enacted at the end of the eighteenth century represented “a conceptual reconfiguration of the marriage
contract” because “[t]he old common law fiction that husband and wife were one and the husband was the one could no
longer hold quite the same authority once divorce challenged the male-dominated corporatism of marriage.” [FN91]
Still, at the beginning of the twentieth century, most middle-and upper-class women married, and domestic respons-
ibilites continued to be their primary occupation. Writing in 1964, Esther Peterson, [FN92] the Director of the Women's
Bureau, described the situation in terms reminiscent of the nineteenth-century notion of the “Cult of True Womanhood”:
*2033 Married or single, a woman's course through life at the turn of the century was almost as sure as death
and taxes, and marriage was the determining factor. Working women were, in general, single women or those who
were widowed, divorced, or separated from their husbands, and who had to support themselves and, in all probab-
ility, their families. Married women devoted their time to home and children and “good works” in the church or
community, if there was time. The young woman who entered the work force seldom had any intention of remain-
ing long. As soon as “Mr. Right” came along she handed in her resignation, put the finishing touches on her hope
chest and made plans for the wedding. After the honeymoon she settled down to devote her life to the physical, in-
tellectual and spiritual needs of her family. Only the tragedy of penniless widow-hood or a broken marriage could
drive her back into the labor market. [FN93]
Peterson's portrait did not apply to African-American women. While the African-American family showed great
strength and durability even during slavery, [FN94] and the freed slaves were permitted to marry after Emancipation,
their families did not have the financial security to permit wives the option of remaining at home. [FN95] In 1880, 50%
of African-American women were in the work force, compared to less than 15% of white women. [FN96] Overall, wo-
men workers were concentrated in four occupational categories: teachers, servants and laundresses, clerks and salesper-
sons, and dressmakers, seamstresses, and milliners. [FN97]
*2034 II Family Law Reform and Women's Rights in the Twentieth Century
A. The Early Twentieth-Century Women's Movement: Winning the Ballot; Splitting over the ERA
During the first two decades of the twentieth century, while the conservative attack on “easy divorce” noted above
was playing itself out, family law reform was not a priority for the women's movement. Instead, the movement concen-
trated its energies on the struggle for the vote. [FN98] Once the Nineteenth Amendment was adopted, however, it soon
became apparent that what had been won was the vote for women rather than a woman's vote. [FN99] In 1923, three
years after ratification, Alice Paul, founder of the National Women's Party, began lobbying for another amendment--an
Equal Rights Amendment--that might do for women what she and other radical suffragists had hoped for from the Nine-
teenth. [FN100] Then, as later, the ERA divided feminists. Florence Kelley, of the Consumer's League, opposed the ERA
in part because it would rule out the possibility of protective legislation for working women. [FN101] The dispute came
to a head in the United States Supreme Court, where equal rights versus special rights for women appeared on the Court's
docket in 1923. Paul and Kelley supported opposite sides of the matter in Adkins v. Children's Hospital, [FN102] a case
that divided the women's movement. [FN103]

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*2035 These differences probably spelled the end of the nineteenth-century women's movement. For all practical pur-
poses, the movement had spent itself in the drive for the ballot. The non-partisan League of Women Voters, founded by
Carrie Chapman Catt, [FN104] is the sole organizational survivor of the period. Although much remained to be done in
restructuring marriage and divorce to put women and men on a more equal footing, the family law reforms that began in
the mid-twentieth century were conceived, and largely drafted, without the active participation of an organized women's
movement.
B. Marriage Law Reform
Two major changes in the law of marriage that began in the first half of the twentieth century also passed largely un-
noticed by the women's movement. One was the attack on laws prohibiting interracial marriage; the other was the decline
of common law marriage. Yet both developments had an impact on the emancipation of women. Miscegenation laws had
sought to preserve white women as marriage partners for white men, while preventing African-American women, who
not infrequently bore children fathered by white men, from making legal claims based on the relationship. [FN105] Their
demise enlarged the pool of marriage partners for both sexes and all races. [FN106] Common law marriage had enabled
pioneer and frontier women to enter into formal unions, but towards mid-century had come to be seen as anachronistic.
[FN107]
1. The Rise and Fall of Miscegenation Laws
The first widely adopted change in marriage law to occur in the late nineteenth and early twentieth centuries was one
that was declared unconstitutional in the late 1960s. While prohibitions against interracial *2036 fornication and inter-
marriage can be traced to colonial times, [FN108] the impetus for the enactment of miscegenation laws prohibiting racial
intermarriage between whites and African-Americans, and in some states, between whites and Indians or Asians as well,
apparently accompanied Emancipation and persisted beyond World War I. [FN109] Like the plethora of other enactments
that sprang up in the late 1890s to maintain the social separation of whites and African-Americans, [FN110] the misce-
genation laws were designed to stigmatize the former slaves and their descendents by preventing the mixing of their
blood with that of their white fellow countrymen. [FN111] By the late 1920s, twenty-nine states had enacted such pro-
hibitions. [FN112]
In the last two decades of the nineteenth century, the United States Supreme Court upheld the segregation laws by de-
ciding that they did not offend the newly-adopted Equal Protection Clause of the Fourteenth Amendment, [FN113] estab-
lishing a precedent that created a “separate but equal” gloss on the interpretation of the Clause. This decision left the
southern caste system undisturbed until 1954, when Chief Justice Earl Warren, writing for a unanimous Court, handed
down Brown v. Board of Education. [FN114] Ten years after Brown, the Court struck down a Florida statute punishing
interracial cohabitation. [FN115] While there was scholarly disagreement about whether the Fourteenth Amendment had
been intended to *2037 apply to miscegenation laws, [FN116] the Court invalidated the Virginia enactment three years
later in Loving v. Virginia. [FN117] In Loving, Chief Justice Warren acknowledged that “[t]he fact that Virginia prohib-
its only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own
justification, as measures designed to maintain White Supremacy.” [FN118] So characterized, they could not be sus-
tained.
2. The Decline of Common Law Marriage

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The second major change in marriage law was the decline of common law marriage in the first half of the twentieth
century. Joseph Madden characterized common law marriage [FN119] as a natural outgrowth of the pioneer settlements
in the United States, where “access to priests, ministers and magistrates was by no means easy, yet the natural desire to
mate and have offspring was present, and was socially desirable.” [FN120] By the early 1930s, more than half the states
recognized common law marriage. [FN121] By the end of the century, however, most of these states had abolished com-
mon law marriage as no longer necessary, as facilitating hasty and ill-conceived unions, or as inconsistent with the trend
to require blood tests of marriage license applicants. By 1999 the number continuing to recognize common law marriage
had been reduced to eleven states and the District of *2038 Columbia. [FN122] A recent feminist appraisal of common
law marriage challenges Madden's “frontier” explanation as “stereotypical,” [FN123] pointing out that the doctrine exis-
ted in some non-frontier states like New York and was rejected by some frontier states like Wyoming. [FN124] Cynthia
Grant Bowman urges that states reenact comon law marriage in order to extend the financial protections of marriage,
such as inheritance, divorce remedies, and status-based benefits including social security and worker's compensation, to
women who live in non-marital cohabitation. [FN125] She acknowledges, however, that these protections could be made
available, albeit with less convenience, through appropriate statutory amendments and equitable doctrines extending eli-
gibility to cohabitants or dependants. [FN126]
C. Pre-World War I Divorce Reform
1. The Failure to End “Easy” Divorce
As we have seen, the debate over divorce that began in the late nineteenth century ended in the first decade of the
twentieth century as a stand-off rather than as a clear victory for either side. [FN127] Far from a rational discussion over
opposing policy choices, the debate became polarized early on around issues of public and private morality: as Connecti-
cut clergyman Henry Loomis, Jr., put it in 1866, it was a conflict between “infidels” and “Christians.” [FN128] By 1905,
when Governor Samuel W. Pennypacker of Pennsylvania convened a National Congress on Uniform Divorce Laws, the
states were divided along a spectrum that placed South Carolina, with no provision whatsoever for absolute divorce, and
New York, with adultery as the sole ground for divorce, at the most rigid extreme, while other states allowed a longer list
of grounds such as bigamy, extreme or *2039 intolerable cruelty, conviction of a felony, habitual drunkenness, and will-
ful desertion for a period of time. [FN129] When the National Congress held its first meeting in February 1906, it in-
cluded representatives of forty of the forty-five then-existing states, but it was unable to achieve meaningful compromise
on a uniform list of grounds for divorce. New York was unwilling to go beyond its sole ground for divorce, while South
Carolina did not attend. [FN130] Although a compromise of sorts was reached, including a provision refusing to extend
recognition to a migratory divorce granted on a ground not recognized by the parties' home state, a model divorce statute
based on the compromise approved in November 1906 by the National Congress was adopted in only three states (not in-
cluding Pennsylvania). [FN131]
Commenting on this history in 1984, Lawrence M. Friedman observed:
Because divorce was so deeply mired in ethical controversy, change did not take the route it might have taken;
it did not move in the direction of clarity, simplicity, and efficiency. Instead, divorce law stagnated. Trapped in
controversy, the divorce laws froze into peculiar shapes. The law of divorce took on a form radically different
from the forms in the rest of family law. [FN132]
2. The Rise of Migratory Divorce

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Divorce law reform, which was to become the twentieth century's most significant contribution to family law, was
not seriously addressed at the national level again until after World War II. Meanwhile, Nevada solidified its position as
the nation's leading capital of migratory divorce, shortening its residence requirements and expanding its grounds for di-
vorce. [FN133] The United States Supreme Court provided a constitutional foundation for Nevada's interstate divorce
business in the 1940s with a series of decisions that required sister states to give Full Faith and Credit to migratory di-
vorces granted on a jurisdictional finding that plaintiff was domiciled in the forum state. [FN134]
*2040 D. Women at Work During the War Years
In the early decades of the twentieth century, women continued to enter the labor market in gradually increasing
numbers. In June, 1900, women constituted 18.1% of all workers; by January 1920, the figure had increased to 20.4%;
and by April, 1930, to 21.9%. [FN135] During World War I, as during the Civil War, women entered the labor market to
take up the positions left vacant by men who served in the war effort. But in both cases, after the hostilities were over,
most women returned home. This pattern did not repeat itself after World War II. An estimated 6.5 million women, more
than half of them homemakers, took jobs between 1941 and 1944; when the war in Europe ended in May 1945, women
constituted 57% of the workforce. [FN136] Predictably, large numbers of these women workers either resigned from
their jobs or were laid off after the war ended. But contrary to the expectations of some observers, other women took
their places. [FN137]
E. Post-World-War II Divorce Reform
1. The Impact of the Rising Divorce Rate
The United States divorce rate, which had been rising steadily since the 1860s, increased dramatically following the
end of both World War I and II: in 1867, the number of divorces per 100 marriages occurring in the same year was estim-
ated to be 2.8; in 1890, 5.8; in 1910, 8.8; in 1930, 17.4; and in 1949, 25.1. [FN138] A national preoccupation with di-
vorce emerged after World War II, fueled by the rising divorce statistics and a renewed *2041 interest in the “problem”
of American families on the part of social scientists and psychiatrists. [FN139]
The organized Bar was concerned about the divorce “problem” as well. In May 1948, the American Bar Association
(ABA) joined with 125 private organizations and five Federal Government Agencies in sponsoring a National Confer-
ence on Family Life, convened by President Harry S. Truman at the White House. [FN140] Before the Conference, Re-
ginald Heber Smith, who chaired the ABA's delegation, condemned the existing divorce laws in “strong terms,” stating
that “[i]n the whole administration of justice, there is nothing that even remotely can compare in terms of rottenness with
divorce proceedings.” [FN141] Smith proposed a “fresh start” in the legal approach to divorce, one that would eliminate
the adversary system marred by perjured testimony and substitute an effort to prevent divorce through reconciliation un-
der the auspices of the court. [FN142] If reconciliation failed, the law should treat marriage as a contract, not as a sacra-
ment, and grant a divorce through the following procedure:
Persons seeking a divorce would petition the court where they reside. Their petition would recite, not legal
“causes,” but the vital facts about themselves and their children. The judge would then talk to the man and woman,
together or singly, or both. He would talk with each as long and as many times as he considered beneficial. The
case would then stand over for six months. During this period the judge would have his social investigations made.
At the end of the six-month period, the judge would again talk with husband and wife. If, having used all the power

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and influence and persuasiveness at his disposal, he failed to effect a reconciliation, or a reconsideration, or even a post-
ponement, he would grant the divorce. Except in very rare instances, there would be no fight in open court about
“causes.”
The judge would then take firm control of the welfare of the children and determine their custody and provision for
their support. This control he would keep throughout the children's minority.
The contract theory will not only let fresh air into an atmosphere that is now suffocating: it will substitute honesty for
hypocrisy, and it will end up with decrees that are enforceable. [FN143] *2042 This proposal of marriage as a contract
was well-received, [FN144] and stimulated the Legal Section of the Conference to recommend the appointment of a pres-
idential commission to “re-examine our laws regulating both marriage and divorce, and our legal proceedings in divorce
cases.” [FN145] The ABA responded to this recommendation in 1948 by creating a Special Committee on Divorce and
Marriage Laws to assist in carrying out the National Conference's proposals, [FN146] and again in 1950 (after it had be-
come clear that no Presidential Commission would be appointed) by creating the Interprofessional Commission on Mar-
riage and Divorce, to study and improve marriage and divorce laws and procedures, [FN147] both under the leadership of
Judge Paul Alexander of the Family Court of Toledo, Ohio. [FN148]
Judge Alexander's concept of how to approach the problem of divorce was uncomplicated. As a judge of the Juvenile
Court, he had championed its non-adversary, therapeutic approach. As a judge in the divorce courts, he believed the same
approach would be equally effective. In a much-quoted passage, he argued:
Why not rescue the embattled spouses as well as their battered children (battered emotionally and economic-
ally if not physically), why not rescue the ailing families of America from their almost certain doom under “the
self-help theory in trials” ? Why not elevate the resolution of their conflicts from the “competitive, adversary
concept of litigation,” from the “private fight concept,” to the affirmatively helpful, noncompetitive, therapeutic
concept that motivated the establishment of the juvenile court? Why should the child have the benefit of this treat-
ment and not his parents? Delinquency and divorce both result from intra-family conflict. Commonly the treatment
that solves one problem is efficacious for the other. [FN149] *2043 Judge Alexander's proposals may have en-
joyed widespread support in the organized Bar, but they were challenged by contemporary critics. At the Confer-
ence on Divorce held at the University of Chicago Law School on February 29, 1952, a psychiatrist questioned
“whether a specifically therapeutic approach is best associated with compulsory agencies such as the courts,”
[FN150] while a sociologist doubted whether the largely middle class marriage counselors envisioned by the plan
were capable, without special training, of understanding the different cultural perspectives of lower class clients.
[FN151] A social worker was more positive, stating that Judge Alexander's plan represented “a step well in ad-
vance of the current legal situation” and affirming that “the social worker and marriage counselor can make a valu-
able contribution to it.” [FN152]
The Juvenile Court, however, ultimately proved to be an unreliable model for the proposed Family Court. For one
thing, at the time juvenile courts were established, the state's authority over minors was thought to be greater than its au-
thority over adults. [FN153] For another, the “therapeutic” practices of the juvenile court were subject to due process ob-
jections, [FN154] which were sustained by the United States Supreme Court in 1967. [FN155] At the time the Interpro-
fessional Commission was established, however, these legal objections were not anticipated, and the time appeared ripe
for a study of the family court proposal.
In 1951, the Interprofessional Commission approved three assumptions for study: “[b]asing divorce on guilt and pun-
ishment has proven harmful to family stability,” “[t]he use of adversary procedures in divorce cases should be displaced”
and “[t]he approach to the subject of divorce should be therapeutic with the interest of the family as the motivating

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factor.” [FN156] Hampered by lack of funds, the Interprofessional Commission decided to focus on its third assumption.
[FN157] It secured the donated services *2044 of Maxine Boord Virtue to act as Executive Secretary and to conduct
studies of procedures used in several family courts. She focused on the courts in San Francisco, Chicago, Indianapolis,
and Toledo, with comparative material drawn from Milwaukee, Cincinnati, and Ann Arbor. Her study, which appeared in
1956, [FN158] functioned as the Commission's Report. Not surprisingly, the study came out in favor of the family court
concept, both as to structure [FN159] and therapeutic mission. [FN160] Nelson Blake reported that, “Mrs.Virtue's find-
ings strongly support the contention that the starting point for divorce law reform should be the establishment of unified
family courts to put an end to the splintering of jurisdiction under which separate courts deal with divorce, custody of
children, adoptions, bastardy, and juvenile delinquency.” [FN161] Ten years later, the Report of the California Gov-
ernor's Commission on the Family made a similar structural recommendation for a family court with a unified jurisdic-
tion, [FN162] but unlike the emphasis placed on reconciliation by Virtue and Alexander, the California approach stressed
divorce counseling, [FN163] a difference sometimes overlooked by commentators. [FN164]
Virtue's overall assessment of existing divorce procedure was stark. She found that “[t]here is something very wrong
with the handling of divorce cases.” [FN165] Her study of the Chicago court had found that “[a] distaste for handling di-
vorce cases appears to be universal among judges,” [FN166] and her reproduction of the “universally applicable for-
mula,” that is, the standard questions and answers used by Chicago divorce *2045 lawyers and their clients in 1953 to
prove the most common ground for divorce, “extreme and repeated physical or mental cruelty,” [FN167] gave ample
reason for their distaste:
Q. [Lawyer] Calling your attention to such and such a date, what happened?
***
A. [Client] He (she) struck me.
Q Did it leave visible marks?
A. Yes.
Q. Where did he (she) strike you?
A. In the face.
Q. Did it cause you great pain and suffering?
A. Yes.
***
Q. What happened next?
A. He (she) hit me again.
Q. Where?
A. In the face.
Q. Cause pain and suffering?

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A. Yes.
Q. Did you give him (her) any cause?
A. No.
Q. How did you conduct yourself during your marriage?
A. As a good wife (husband) should.
Q. How did he (she) treat you?
A. (The answer to this question permits more leeway: “Cruel,” “Bad,” “Real Mean,” “With a kind of an indifferent
attitude, sort of,” are all acceptable. The preferred response, however, is: “Terrible.”) [FN168]
Although the Interprofessional Commission had determined to stay away from recommendations about the grounds
for divorce, [FN169] Virtue permitted herself the following sarcastic observation after setting forth the above formula:
The number of cruel spouses in Chicago, both male and female, who strike their marriage partners in the face
exactly twice, without provocation, leaving visible marks, is remarkable. It appears to be the generally accepted
single conjugal rejection among widely variegated cultural, educational, and economic groups. [FN170]
*2046 2. The Tension Between the “Law in Action Versus the Law of the Books”
Law professor Max Rheinstein, a member of the Interprofessional Commission, had no compunctions about drawing
his own conclusions concerning the grounds for divorce. Rheinstein discerned a tension between what he termed “the law
in action versus the law of the books,” [FN171] a widely influential phrase used as a title to one of his articles on the
subject. Stanford law professor Lawrence Friedman later attributed the “peculiar shape” of divorce law to this tension.
[FN172] As Rheinstein described this conflict, the law of the books was very strict: the various state statutes listed spe-
cified acts of marital misconduct that constituted grounds for divorce, one of which must be proved in court. Moreover, if
the plaintiff had also committed one of these acts of misconduct, there could be no divorce, for divorce was a remedy
granted only to an innocent spouse against a guilty spouse. Finally, the court was empowered to investigate what had
really happened in the marriage; the testimony of corroborating witnesses was necessary. Since the state was a party to
every divorce proceeding, if the judge was not satisfied that the law had been observed, the divorce must be denied.
[FN173] The law in action, as Rheinstein portrayed it, was quite different:
The practice as we all know looks considerably different. Where parties are really in agreement, they can get a
divorce for the asking. The wife appears before the court with two witnesses, her sister and her mother or her
friend, or two friends, and they swear that they saw the husband slap his wife twice. Then the divorce is granted,
and it is a quick and painless procedure except for the payment of the lawyer's fee.
In New York, as you know, there is the famous practice of hotel evidence. It is arranged that at a certain hour the
husband will be found in a hotel room together with a woman not his wife, and then the court draws the necessary con-
clusions. [FN174]
For parties who could afford it, Rheinstein explained, migratory divorce was available:
One thing must not be forgotten: There are people in New York who cannot afford the social expense of being
found guilty of adultery. In Chicago it is not to everybody's taste to be officially certified to have beaten up his

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wife twice. So, in that case, they go to Reno or the Virgin Islands. Of course, anybody who seeks a divorce in the
Virgin Islands or in Nevada, and who does not *2047 happen to belong to the select but small group of real resid-
ents of these states, has to perjure himself. He has to swear that he has come to that state or to those islands with
the intention of staying there indefinitely. Well, the truthfulness of that oath is a little doubtful when one already
has his return ticket in his pocket. [FN175]
Rheinstein warned that the situation he had described was “fraught with dangers,” and went on to specify what those
dangers were: “The most dangerous possibility is that these practices will cause disrespect for the law in general, dis-
respect for the priests of the law, and a very real danger of corruption of the bar.” [FN176]
Lawrence Friedman, later describing the same dual system of divorce in greater detail, stated uncompromisingly that
its “main element was simply collusion, between husband and wife, and among husband, wife, lawyers, and judges.”
[FN177] Friedman went on to expand on Rheinstein's earlier warning:
Why did judges, and the whole legal system, put up with a regime of massive lying and deceit? In almost
every state, perjury or something close to it was a way of life in divorce court. . . .
Here was a system that nobody could honestly defend in its entirety. It was, in the first instance, collusive and under-
handed; it was also irrational and unfair. It was costly for people who wanted divorce; for the people who opposed di-
vorce, it contained far too many loopholes. Yet the system persisted. It persisted because there was no acceptable altern-
ative. Divorce law was a compromise between two irreconcilable social demands. On the one hand, there was a genuine
demand for divorce--a demand for ways to regularize legal status inside the family, and thus ensure rights of property, in-
heritance, and the smooth operation of the land market. Such a status was available, legitimately, only through divorce.
This demand interacted with, and fed upon, a demand for moral legitimacy in relationships of family and sex. Once a
marriage broke up, divorce was, for all its stigma, the sole route to this kind of legitimacy. There were also competing
demands for strict divorce laws, to protect family structure, to strengthen the home, and to prevent immorality and sin.
[FN178]
Friedman's analysis is perceptive and trenchant. Yet the system he described was more vulnerable than it appeared.
At the bottom, it rested on a tacit societal agreement to condemn experimentation with sexuality, while condoning suffi-
cient flexibility in practice to accommodate necessary access to remarriage. But the exceptions made for those unhappy
spouses willing to misrepresent either their conduct or their domicilliary *2048 intent in a court of law ultimately became
too numerous, and too prominent, [FN179] to be tolerated.
F. The Reemergence of the Women's Movement in the 1960s: Focus on Civil Rights, the Birth Control Pill, and N.O.W.
The period of the 1960s was one of extraordinary social and political ferment in the United States. In 1960, the Fed-
eral Drug Administration approved the first birth control pill for contraceptive use, thus for the first time providing wo-
men with a reliable method of controlling their fertility. [FN180] African-American students began their lunch counter
sit-ins in Greensboro, North Carolina in February 1960, adding a new element to the civil rights movement. [FN181] The
first President of the United States to be born in the twentieth century, John Fitzgerald Kennedy, was elected that
November. He kindled a mood of optimism and energy in the country, particularly among young people. [FN182] In
1961 he established the Presidential Commission on Women, and named Eleanor Roosevelt its Chair. [FN183] As an ad-
vocate for the emancipation of women, the Commission had a somewhat mixed record: it opposed the perennial Equal
Rights Amendment as unnecessary, but it recommended the adoption of a federal statute guaranteeing that working wo-
men would be paid the same as men for performing the same work. [FN184] The resulting Equal Pay Act was enacted in
1963. [FN185]

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*2049 Responding to the efforts of liberals and African Americans under the leadership of the Reverend Martin Luth-
er King, Jr., and pressured by the Birmingham riots in April and May of 1963, President Kennedy sent a civil rights bill
to Congress on June 19, 1963. [FN186] It was enacted in 1964 after his assassination made Lyndon Johnson President.
[FN187] The Civil Rights Act of 1964, [FN188] meant to redress the situation of African Americans, contained an unex-
pected bonus for women. Title VII of the Act, as originally drafted, forbade discrimination in employment based on
“race, color, religion, or national origin.” [FN189] As enacted, however, it also applied to discrimination based on “sex.”
[FN190] These favorable federal laws and comparable state laws [FN191] may have facilitated the entry of women into
the labor force in dramatically increased numbers: between 1960 and 1980, the number of women workers almost
doubled, from 23 million in 1960 to 45.5 million in 1980. [FN192] In 1963, Betty Friedan, a Smith College graduate and
a full-time housewife, published The Feminine Mystique, [FN193] a book credited with helping to reawaken the twenti-
eth-century women's movement. [FN194] Three years later, on June 29, 1966, a small group of women, convinced that
Title VII would never be enforced to benefit women unless an advocacy group for women equivalent to the National As-
sociation for the *2050 Advancement of Colored People existed, founded the National Organization for Women (NOW).
[FN195]
G. The Triumph of No-Fault Divorce
1. California Leads the Way
In 1963, the same year that Friedan's book was published, the groundwork was being laid in California that culmin-
ated six years later in the enactment of the country's first “pure” no-fault divorce law. [FN196] The California Assembly
established an Interim Committee on the Judiciary, which commenced a round of hearings to inquire into how judges ap-
plied California's divorce laws, looking to the possibility of developing guidelines for the judiciary. [FN197] The inquiry
as conceived was not much broader than the earlier courtroom studies conducted by Maxine Virtue in San Francisco and
elsewhere for the Interprofessional Commission. [FN198] At the first hearing, however, two of the witnesses invited to
testify, the author of this Essay and law professor Aidan Gough of Santa Clara University, suggested a more ambitious
inquiry, one that might include the possibility of eliminating fault as the basis for divorce and establishing a family court.
[FN199] These two ideas formed the core of the approach taken in 1966 by the Governor's Commission on the Family, a
group appointed after the legislative inquiry had run its course. [FN200]
At about the same time that the Interim Committee held its first hearing on divorce on January 8 and 9, 1964, the
Archbishop of Canterbury appointed a group of clergymen, lawyers, and laypersons to examine the divorce laws of Eng-
land. [FN201] The Report of the Archbishop's Group and that of the California Governor's Commission were remarkably
similar in their analysis and recommendations. Both concluded that divorce based on fault *2051 no longer represented
sound legal or social policy, and both recommended the adoption of a marriage breakdown standard, administered in a
non-adversary setting, as the sole basis for marital dissolution. [FN202] Both reports appeared in 1966, that of the Arch-
bishop's Group earlier by five months. [FN203] Although the members of the California Governor's Commission had ob-
tained copies of the Report of the Archbishop's Group in late summer 1966 and cited it at several points, [FN204] the
California Commission had arrived at the concept of no-fault divorce and the recommendation for a family court inde-
pendently. [FN205] Thus, the suggestion that the Governor's Commission Report merely reflected the conclusions of the
Archbishop's Group is inaccurate. [FN206]
In 1966, the New York legislature also managed to free itself from the political stalemate that had hindered earlier ef-
forts at divorce law reform [FN207] and enacted legislation expanding the grounds for divorce beyond adultery. [FN208]
While New York did not initially go as far as the California and English proposals, the confluence of these three inde-

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pendent events all *2052 occurring ten years after Maxine Virtue's book appeared in 1956, [FN209] signaled the begin-
ning of the twentieth-century breakthrough in divorce reform. Bills embodying the proposals of the Governor's Commis-
sion were introduced into the legislature in 1967, and were referred to the California State Bar Association for study.
[FN210] During the two-year period of revision and negotiation that ensued before a revised bill was introduced in 1969,
[FN211] opposition to the Family Court and to the complete removal of fault from the financial and child custody provi-
sions of the proposal had emerged in Southern California. [FN212] The opponents succeeded in obtaining major changes
in the Governor's Commission proposal. [FN213] These included the choice of language to express the standard for dis-
solution; the removal of the Family Court; the continued use of fault on the issue of child custody; and the drafting of the
financial provisions. [FN214] Each is discussed briefly below.
The standard for dissolution proposed by the Governor's Commission was drawn from Justice Roger Traynor's path-
breaking California Supreme Court opinion in De Burgh v. De Burgh, [FN215] which effectively abolished the defense
of recrimination by granting divorces to both parties when both were proved to be at fault. The Commission's proposal
read as follows:
[A]n order shall be made by the court dissolving the marriage if the court, after having read and considered
the counselor's report and any other evidence presented by the parties, makes a finding that *2053 the legitimate
objects of matrimony have been destroyed and that there is no reasonable likelihood that the marriage can be
saved. [FN216]
By comparison, the Family Law Act's standard for dissolution was phrased as follows:
Sec. 4506. A Court may decree a dissolution of the marriage or legal separation on either of the following
grounds, which shall be pleaded generally:
(1) Irreconcilable differences, which have caused the irremedial breakdown of the marriage.
(2) Incurable insanity.
Sec. 4507. Irreconcilable differences are those grounds which are determined by the court to be substantial reasons
for not continuing the marriage and which make it appear that the marriage should be dissolved. [FN217] The two drafts
differed significantly in their expression of the no-fault philosophy. The Governor's Commission proposal did not assign
blame to a “guilty” party as the fault approach had done, but rather carried the connotation that both parties share re-
sponsibility for the breakdown of their marriage. [FN218] In contrast, the Family Law Act focused on the conflict
between the parties, and its reference to “grounds,” reinforced by a related provision in section 4509 which permitted the
trial court judge to refer to “specific acts of misconduct” to establish the existence of irreconcilable differences, [FN219]
harked back to the fault approach. [FN220] Assessing the two provisions, Rheinstein was critical of the Family Law Act
version:
This text is a compromise that was worked out obviously in a hurry and in the last stage of discussions that
had extended over many years and in the course of which the most diverse ideas had been expressed. In the early
stages carefully considered plans had been suggested. The version that was ultimately adopted is poorly drafted.
Indeed, its literal application is impossible. Any court may give it almost any meaning. [FN221] *2054 The dele-
tion of the Family Court virtually guaranteed the impossibility of securing a consistent application of the no-fault
provisions throughout the state. The Family Law Act offered no context for its sketchy provisions, and judges
schooled in the fault approach were left to puzzle over how to apply the new approach.
The exception in section 4509 for admitting evidence of “specific acts of misconduct” unfortunately was not limited
to proof of irreconcilable differences. The exception also applied “where child custody is in issue and such evidence is

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relevant to establish that parental custody would be detrimental to the child.” [FN222] This provision, which allowed
battling spouses to use the custody issue as a vehicle for retaliation, remained in the law until 1994. [FN223]
Finally, the Family Law Act made two significant changes in the drafting of the property division and spousal sup-
port provisions. [FN224] The first was in the phrasing of the equal division requirement. The Commission, harking back
to a provision enacted by California's first legislature, had recommended an equal division of the community property,
but made clear that an unequal division could be ordered if the economic circumstances of the parties required it.
[FN225] The Family Law Act provided for a much narrower exception to the equal division rule, allowing the court
“where economic circumstances warrant [[to award] any asset to one party on such conditions as the court deems proper
to effect a substantially equal division of the property.” [FN226] This provision caused substantial confusion among
practitioners and judges, and had to be clarified in a subsequent Legislative Report drafted by Assemblyman James A.
Hayes, Chair of the Assembly Committee on Judiciary. [FN227]
The second change was in the spousal support provision. In addition to directing the court to take account of the cir-
cumstances of the parties and the duration of the marriage as the Governor's Commission had proposed, the Family Law
Act directed courts to consider “the ability of the *2055 supported spouse to engage in gainful employment without inter-
fering with the interests of the children in the custody of such spouse.” [FN228] The accompanying Legislative Report
referred to the increasing rate of employment of women, and went on to observe that “[women's] approaching equality
with the male should be reflected in the law governing marriage dissolution and in the decisions of courts with respect to
matters incident to dissolution.” [FN229] Some judges, who apparently took this gloss on the statute as a legislative dir-
ective to eliminate spousal support, were corrected within two years by a California appellate court and ultimately by the
California Supreme Court. [FN230]
2. The Uniform Marriage and Divorce Act
The Family Law Act became effective on January 1, 1970. Seven months later, a recommendation for no-fault di-
vorce appeared at the national level when NCCUSL promulgated the 1970 version of the Uniform Marriage and Divorce
Act (UMDA). [FN231] Under the leadership of Professors Robert J. Levy and the author, who served as Co-Reporters,
[FN232] the broad outlines of the 1970 UMDA were heavily influenced by the California experience. [FN233] The
standard for dissolution, however, more closely resembled the approach taken by the California Governor's Commission
in providing for a breakdown of marriage standard uncluttered by any requirement of a showing of irreconcilable differ-
ences. [FN234] As in California, the undiluted *2056 breakdown approach proved controversial. The American Bar As-
sociation, which traditionally approves NCCUSL's proposed statutes, backed the opposition of its Family Law Section to
the 1970 UMDA and withheld its concurrence. [FN235] The addition of a provision in 1973 requiring that irretrievable
breakdown be established either by a showing of separation for 180 days or that “there is serious marital discord ad-
versely affecting the attitude of one or both of the parties toward the marriage” [FN236] satisfied the Family Law Sec-
tion, and in 1974 the ABA approved the 1973 version of UMDA. Other changes obtained during the negotiations in-
cluded the deletion of a deferred marital property provision originally included in section 307 and the substitution of a
provision applicable to non-community property states permitting an equitable distribution of all assets. [FN237] These
changes effectively jettisoned NCCUSL's attempt to fashion what Reporter Levy called “path-breaking and imaginative
divorce-property doctrines” [FN238] in favor of continuing to confer discretion on judges to fashion equitable property
distributions on a case-by-case basis.
The endorsement of no-fault divorce at the national level by NCCUSL and the ABA, even in a watered-down ver-
sion, represented a triumph of the twentieth-century family law reform effort. [FN239] State legislatures had *2057 be-

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gun to consider the new approach even before the ABA's final concurrence was forthcoming, [FN240] and as they did,
the newly reorganized women's movement made its presence felt.
H. The Women's Movement in the 1970s: Focus on Abortion and the ERA
Divorce reform was no more a high priority on the agenda of the women's movement in the 1970s than it had been in
the 1870s. Other pressing issues, including abortion and ratification of the Equal Rights Amendment, took precedence.
[FN241] As in divorce, California was a leader in the abortion reform movement. Following the ALI's 1959 tentative
proposal in support of a therapeutic abortion law, [FN242] the California Senate Interim Committee on Judiciary held
hearings on abortion on November 30, 1960. [FN243] At that time California, [FN244] like most states, [FN245] prohib-
ited abortion subject only to an exception for procedures necessary to save the life of the mother. As in the case of di-
vorce, however, a dichotomy existed between hospital practice and the criminal law of abortion, [FN246] between the
“law in action versus the law of the books.” [FN247] A survey of a sample of California hospitals covering the period
1952-1956 disclosed that three-fourths of them were aware that some of the therapeutic abortions they performed were
not within the exception contained in the statute. [FN248] A few courageous physicians openly defied the law. [FN249]
At the time the Model *2058 Penal Code was drafted, estimates of the annual number of abortions performed in the
United States ranged from 333,000 to 2 million. [FN250] After seven years of hearings, debate, and study, California,
along with Colorado and North Carolina, [FN251] became one of the first states to enact therapeutic abortion laws based
on the Model Penal Code. [FN252]
In the 1960s, the proponents of abortion law reform were primarily the professionals who handled the cases, physi-
cians, lawyers, social workers, as well as representatives of some non-Catholic religious denominations, and their related
organizations. [FN253] By 1970, the women's movement, represented both by the more traditional NOW and the Red-
stockings, a radical group that had split off from the New York Radical Feminists, [FN254] had intervened in the debate
to argue for “repeal,” not “reform,” of the abortion laws. [FN255] Statutes enacted in 1970 first in Hawaii and then in
New York responded to these arguments. [FN256]
*2059 Not all of the proponents of abortion reform, however, were content to concentrate their attention on appeals
to state legislatures. In 1970, plaintiffs Jane Roe [FN257] and Mary Doe [FN258] began separate proceedings in federal
court to challenge the constitutionality of both the criminal abortion law of Texas and the newly-enacted therapeutic
abortion law of Georgia. [FN259] These challenges were ultimately successful in 1973, when the United States Supreme
Court, by a vote of seven to two, struck down the Texas statute in Roe v. Wade [FN260] and invalidated the Georgia
therapeutic abortion law in Doe v. Bolton. [FN261] The ALI Commentary on the Model Penal Code treated these cases
as superseding state criminal abortion laws. [FN262] As time went on, however, it became clear that the struggle over
abortion which consumed the nation in the latter decades of the twentieth century began, rather than ended, with the Su-
preme Court's 1973 decisions. [FN263]
Along with abortion law reform, the Equal Rights Amendment occupied the attention of the women's movement in
the 1970s. NOW demanded Congressional hearings on the proposed Equal Rights Amendment in 1970, [FN264] and,
after a protracted debate, Congress sent the ERA to the states for ratification on March 22, 1972. [FN265] The initial sev-
en-year period allowed for ratification of the ERA was scheduled to end in 1979, but as *2060 the deadline approached
with only 35 affirmative votes cast of the 38 needed to reach the required three-fourths of the states, Congress acted in
1978 to extend the ratification period to June 30, 1982. [FN266]
The timetable set for ratification of the ERA meant that state legislatures were considering abortion measures, pro-
posals for no-fault divorce reform, and the ERA during the same period: roughly between the late 1960s to the early

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1980s. It is not surprising that the efforts of ERA proponents to build a wall of separation between ratification and the
abortion issue were unsuccessful. [FN267] Indeed, the debates on all three matters converged, as they centered on the
role of women. Ultimately, proponents embraced the concept that the ERA would mandate equal treatment in the finan-
cial aspects of divorce, in particular the obligation of support during marriage, the award of spousal support after separa-
tion, and property division. [FN268] In doing so, they attracted opposition from conservative women led by Phyllis Sch-
lafly, the founder of an organization called STOP ERA who perceived the amendment as a threat to housewives. [FN269]
The confluence of these issues first occurred in California. The California Advisory Commission on the Status of
Women had supported no-fault divorce in 1969 on the ground that removal of fault would eliminate hypocrisy from the
legal system. [FN270] Two years earlier, at the same time that the California Therapeutic Abortion Law was enacted,
[FN271] the Commission had called for a “major legislative study” of the community property laws, in order to propose
legislation to “equalize both the rights and duties of the husband and wife in the control, management and disposition of
their community property to create a true economic partnership between the spouses.” [FN272] In 1971, after a year of
watching the courts struggle with the financial provisions of the Family Law Act, Judge Isabella Grant called attention to
these recommendations, urging that *2061 community property reform was necessary to carry out the no-fault philo-
sophy. [FN273] By the time the Legislature responded by holding hearings on community property in September and Oc-
tober 1972, [FN274] a drive to ratify the ERA was under way; it was concluded successfully in November 1972. [FN275]
As a result of the hearings, three changes were made in the community property laws, all designed to expand the finan-
cial power of wives by more nearly equalizing their managerial rights with those of their husbands consistent with the
call for equal rights. [FN276] A report filed in 1977 cited these laws as indicating that “the California situation is prob-
ably the best in the nation for married women at the present time.” [FN277]
Also notable is the Wisconsin experience with divorce reform. A small group of feminists, actively involved in the
reform effort and leaders in the successful ERA ratification effort in Wisconsin, [FN278] prevented enactment of a no-
fault provision until legislators built financial protections for women into the divorce reform package. [FN279] After the
no-fault divorce law was enacted in 1977, they continued to work for reform of Wisconsin's common law property sys-
tem. [FN280] In 1986, Wisconsin became the first, and to date the only, common law state to adopt the Uniform Marital
Property *2062 Act, [FN281] which had been promulgated in 1983 by NCCUSL to serve as a model for common law
states in adopting a community property system. [FN282]
I. Constitutional Campaigns for Women's Equality and Self-Determination
1. Ruth Bader Ginsburg and the Equal Protection Clause
During the 1970s, while the state legislatures were occupied with divorce reform, abortion reform, and ratification of
the ERA, a quiet campaign was underway in the federal courts to create a secure place for women in the United States
Constitution. This campaign was conceived, implemented, and carried out by the Women's Rights Project of the Americ-
an Civil Liberties Union, under the leadership of law professor Ruth Bader Ginsburg. [FN283] When the campaign
began, the United States Supreme Court's interpretation of the Equal Protection Clause consisted of a two-tier review
process: claims were tested either under the deferential or “rational relationship” standard, or under the “strict scrutiny”
standard. The first standard was said to be “offended only if the classification rests on grounds wholly irrelevant to the
achievement of the State's objective. . . . A statutory discrimination will not be set aside if any state of facts reasonably
may be conceived to justify it.” [FN284] The higher standard was reserved for “suspect classifications” such as race or
national origin, as well as where “fundamental interests,” such as voting, were involved. [FN285] In such cases, the gov-
ernment was required to show a much closer fit between ends and means: that it was pursuing a “compelling” state in-

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terest and that the classification was necessary to promote that interest. [FN286] Professor Gerald Gunther observed that,
during the years of the Warren Court, the two-tier standard was characterized by an upper-level “scrutiny that was ‘strict’
in theory and fatal in fact” and a lower-level test characterized by “minimal scrutiny in theory and virtually none in fact.”
[FN287]
*2063 Equal protection claims brought by women had been relegated to the lower tier of this approach and were de-
cided under the “rational relationship” standard. Not surprisingly, most of these claims were unsuccessful. [FN288] As
Ruth Bader Ginsburg later observed, the constitutional text was “an empty cupboard for people seeking to promote the
equal stature of women and men as individuals under the law.” [FN289] She and the feminist strategists of the ACLU un-
dertook the ambitious task of changing the Court's interpretation of the Equal Protection Clause to make sex, like race, a
“suspect classification.” [FN290] Their argument received its first hearing in the Supreme Court in Reed v. Reed,
[FN291] and resulted in the creation of a new tier of review, [FN292] one that came to be known as an “intermediate”
standard. [FN293] Two years later, in Frontiero v. Richardson, [FN294] the Court came within one vote of classifying
sex as a “suspect classification.” [FN295] Ginsburg later described her strategy in choosing cases to bring before the
Court as “basic education,” [FN296] explaining that
[t]he 1970s cases . . . all rested on the same fundamental premise: that the law's differential treatment of men
and women, *2064 typically rationalized as reflecting “natural” differences between the sexes, historically had
tended to contribute to women's subordination--their confined “place” in man's world--even when conceived as
protective of the fairer, but weaker and dependent-prone sex. [FN297] Ginsburg's strategy succeeded brilliantly.
When she left the academy to accept appointment to the federal bench in 1980, [FN298] the intermediate scrutiny
standard was well established and, with it, women's enhanced ability to assert constitutional claims for equality.
[FN299]
2. The Due Process Clause: Abortion as Privacy
By the mid-1980s, when President Ronald Reagan appointed Justice Sandra Day O'Connor as the first woman mem-
ber of the Supreme Court, [FN300] no-fault divorce had been adopted, in one version or another, in all fifty states,
[FN301] the ERA had failed by three votes to secure ratification, [FN302] and a determined effort to overturn Roe and
Doe was under way. The opponents of abortion were not ready to concede the power of state law to hinder, if not to pre-
vent, women from obtaining legal abortions. Although ill-conceived tactics designed to avoid the Supreme Court's con-
stitutional holding were quickly struck down, [FN303] abortion remained on the agenda of *2065 state legislatures
throughout the 1980s as opponents sought repressive measures designed to test the limits of Roe and Doe. [FN304] As
the decade wore on, it became increasingly evident that the Supreme Court's emphasis on the physician's medical
autonomy rather than the woman's right of choice, in its articulation of the Roe standard applicable during the first tri-
mester of pregnancy, [FN305] had committed the Justices to the uncomfortable and apparently unending task of parsing
the latest developments in medicine and measuring them against the newly-created right of privacy. [FN306] During this
period, the struggle over abortion became a pivotal factor in political elections and even spilled over into the process of
selection of Supreme Court Justices. In 1987, pro-choice advocates joined other liberal groups in persuading the Senate
to deny confirmation to President Reagan's anti-choice nominee, Robert H. Bork. [FN307]
It was not until 1992, when the Court reaffirmed “the essential holding of Roe v. Wade” in Planned Parenthood v.
Casey, [FN308] and Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter in their joint opinion an-
nounced their intention to abandon the trimester timetable approach of Roe, [FN309] that the Court began to shift the
legal focus of abortion analysis from the physician to the pregnant woman. The joint opinion in Casey drew the line at vi-
ability; before that point, it stated plainly, “the woman has a right to choose to terminate her pregnancy.” [FN310] The

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joint opinion also recognized, however, that “the State's profound interest in potential life” exists throughout pregnancy,
and that state regulation of abortion must meet an “undue burden” standard, defined as follows: “An undue burden exists,
and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman
*2066 seeking an abortion before the fetus attains viability.” [FN311] The Supreme Court has not revisited the question
of overruling Roe and Doe since Casey was handed down in 1992, and the “undue burden” standard proposed by the
joint opinion commanded a majority of the Court in Stenberg v. Carhart. [FN312]
J. The Critique of No-Fault Divorce
1. Lenore Weitzman and the Exaggerated “Gender Gap”
In the mid-to-late-1980s, feminist criticism of no-fault divorce began to emerge, at roughly the same time that con-
servatives were calling for a return to “family values.” [FN313] Sociologist Lenore Weitzman published her empirical
study of the California Family Law Act in 1985. [FN314] Although earlier critiques had appeared, [FN315] Weitzman's
study was the most influential. [FN316] She found both that the no-fault philosophy had been accepted by California
judges and lawyers as an improvement over the fault system, and that most divorcing couples saw it as “fair.” [FN317]
She also concluded, however, that the removal of fault from the divorce process had fundamentally altered the frame-
work for bargaining between the spouses. No-fault divorce tipped the balance of power away from the one who wanted
to preserve the marriage (whose consent, or at least non-objection to the divorce, had to be secured under the fault re-
gime) to the one who wanted to end the relationship and effectively could do so unilaterally. [FN318] This structural
change, plus the failure of judges to implement the spousal *2067 and child support laws in the way that reformers had
envisaged, led Weitzman to conclude that no-fault divorce had “radically different economic consequences for men and
women.” [FN319] In particular, Weitzman found that “[j]ust one year after legal divorce, [m]en experience a 42 percent
improvement in their postdivorce standard of living, while women experience a 73 percent decline.” [FN320]
Weitzman's startling finding of a substantial “gender gap” in the standard of living following divorce was front page
news around the country [FN321] and led to widespread demands for revision of the laws. [FN322] But her finding was
questioned by other researchers at the time it was announced. [FN323] When researchers were unable to replicate her
findings using her data, [FN324] Weitzman acknowledged in 1996 that her original figures had been incorrect. [FN325]
A more recent refinement in the methodology used to make such calculations--by using after-tax rather than gross in-
come figures, and taking account of monetary transfers between the two households in addition to the payment of court-
ordered spousal and child support awards--is said to reduce the gender gap to 10%: an 8% decline for women and a 2%
increase for men. [FN326]
*2068 Before Weitzman corrected her original findings, however, the impression that divorce reform had been an
economic disaster for women in California took hold of the public imagination [FN327] and distorted the national debate
over no-fault divorce. [FN328] Professor Mary Ann Glendon's conclusion, based on a comparative analysis of divorce re-
form provisions in the U.S. and twenty Western nations, that “[m]ore than any other country among those examined here,
the United States has accepted the idea of no-fault, no-responsibility divorce[,]” [FN329] added to the growing sense that
additional reforms were required to complement the no-fault laws. [FN330]
2. The Conservative Call for a Return to “Family Values”
Conservatives sought reform by calling for a return to more traditional values. In February 1986, Attorney General

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Edwin Meese, acting in his capacity as Chair of the White House Domestic Policy Council, appointed a Working Group
on the Family. On December 2, 1986, the Working Group submitted a Report to President Reagan that sounded familiar
themes:
It is time to reaffirm some “home truths” and to restate the obvious. Intact families are good. Families who
choose to have children are making a desirable decision. Mothers and fathers who then decide to spend a good deal
of time raising those children themselves rather than leaving it to others are demonstrably doing a good thing for
those children. Countless Americans do these things every day. *2069 They ask for no special favors--they do
these things naturally out of love, loyalty and a commitment to the future. They are the bedrock of our society.
Public policy and the culture in general must support and reaffirm these decisions--not undermine and be hostile to
them or send a message that we are neutral. [FN331]
The Working Group also implicated no-fault divorce in the weakening of traditional family values. It advised that
“we all have an interest--whether ethical or economic--in reversing the recent trend toward automatic divorce.” [FN332]
K. Fixing No-Fault: The ALI's “Principles of Family Dissolution”
In contrast to the criticism of no-fault divorce by some feminists and conservatives, the American Law Institute
sought to build on, clarify, and complete the earlier reforms. In 1989, it reopened the family law reform effort by com-
mencing a project called The Principles of the Law of Family Dissolution. [FN333] Noting that the law of family dissol-
ution had undergone fundamental revision in the previous two decades, the ALI spelled out the scope of its proposed
project:
These evolving legal developments generally have dealt incompletely with issues, have overlapped one anoth-
er, and sometimes have resulted in internal conflict in the law itself. The resulting uncertainty suggests a need to
examine the present state of legal development, to clarify underlying principles, and to suggest the future direction
for public policy. [FN334] The ALI did not plan to revisit the grounds for divorce. Instead, it accepted the nation-
wide adoption of no-fault divorce, and undertook to complete that reform by drafting provisions dealing with the
process of dissolution and the substantive standards relevant to child support, spousal support, property division,
and custody of children. [FN335] Under the current leadership of Chief Reporter Ira Mark Ellman and Co-
Reporters Grace Ganz *2070 Blumberg and Katharine T. Bartlett, the ALI project received final approval from the
Institute in May 2000. [FN336]
The Principles are both imaginative and practical. The property division sections offer a redefinition of “marital” and
“separate” property for use at dissolution that generally follows community property concepts. [FN337] They steer a
middle course between the “equitable division” and “equal division” states by calling for a presumptive equal division of
marital property subject to specified exceptions. [FN338] They also provide for the gradual recharacterization in lengthy
marriages of a portion of separate property into marital property. [FN339]
“Maintenance” is renamed “Compensatory Spousal Payments” in the Principles, and the draft draws on Professor Ira
Mark Ellman's earlier work on alimony [FN340] in seeking to allocate financial losses that arise at the dissolution of
marriage according to specified principles rather than simply basing income transfers on need and ability to pay. [FN341]
Five categories of compensable loss are recognized: (1) those arising from the loss of a higher living standard by the
spouse with less wealth or earning capacity at the end of a marriage of significant duration; [FN342] (2) those arising
from the loss of earning capacity during marriage and continuing after dissolution because of one spouse's undertaking a
disproportionate share of the care of children; [FN343] (3) those arising from the loss of earning capacity during mar-
riage and continuing after dissolution because of one spouse's caring for a sick, elderly, or disabled third party in fulfill-

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ment of a joint moral obligation; [FN344] (4) those arising from the loss incurred by either spouse when the marriage is
dissolved before that spouse “realizes a fair return from his or her investment in the other spouse's earning capacity”;
[FN345] and (5) an “unfairly disproportionate disparity between the spouses in their respective abilities to recover their
pre-marital living standard after the dissolution of a short marriage.” [FN346] Some of the policy choices reflected in the
draft have been criticized, [FN347] but they are important advances beyond present law.
*2071 The ALI child custody recommendations seek to avoid the “best interests of the child” standard, criticizing it
as too subjective to produce predictable results. Instead, the Principles rely on private ordering, requiring that each party
who seeks “a judicial allocation of custodial responsibility or decisionmaking responsibility” file a parenting plan.
[FN348] If the parents agree to one or more provisions of a parenting agreement, the court should enforce the agreement
unless it finds either that the agreement is not “knowing or voluntary” or that “the plan would be harmful to the child.”
[FN349] If the parents are unable to agree, the draft allocates custodial responsibility “so that the proportion of custodial
time the child spends with each parent approximates the proportion of time each parent spent performing caretaking
functions for the child prior to the parents' separation.” [FN350]
The context of the Principles' child support provisions is the requirement of federal law that each state seeking feder-
al funding under the Temporary Assistance to Needy Families (TANF) program must have in place nonbinding
guidelines for establishing child support obligations. [FN351] All states have established such guidelines, using one of
four models. [FN352] State officials are required to review their guidelines every four years. [FN353] *2072 The ap-
proach taken in the Principles is addressed to state officials responsible for reviewing the federally mandated state child
support guidelines. [FN354]
The draft began with the marginal expenditure formula and drew inspiration from the Massachusetts formula.
[FN355] The method set out in Chapter Three of the Principles [FN356] uses a balancing process that identifies the
“cognizable” interests of all parties, including the child, the residential parent, the nonresidential parent, and the state, as
well as the social and cultural values implicated in the formulation and execution of child support rules. [FN357] Unlike
prior child support formulas, the Principles recognize that some of these interests and values may be competing. The for-
mula and auxiliary rules set out in Chapter Three undertake to compromise and harmonize them in accordance with a set
of specified objectives. [FN358]
Chapter Six extends most of the provisions governing financial claims between spouses to domestic partners, defined
as “two persons of the same or opposite sex, not married to one another, who for a significant period of time share a
primary residence and a life together as a couple.” [FN359] Persons who maintain a common household with their com-
mon child for a specified continuous period of time are deemed to be domestic partners; [FN360] if these circumstances
are not present, the person claiming benefits must prove that the parties met the definition. [FN361] Domestic partners
may contract out of these provisions. [FN362]
Chapter Seven undertakes to reformulate and clarify the law relating to premarital agreements, marital agreements,
and separation agreements. [FN363] They are tailored to the substantive provisions of the draft.
While the Principles are still a work in progress at the century's end, it is apparent that, after nearly ten years of de-
velopment and refinement, the ALI's Family Law Project has achieved its goal of clarifying the *2073 underlying prin-
ciples relevant to family dissolution and offering a sound basis for future public policy making. Family breakdown is ac-
cepted as a given, and an appropriate, basis for dissolution, and the legal framework surrounding the Project's implement-
ation is oriented towards fair treatment that is nonpunitive, nonsexist, nonpaternalistic, and designed as far as possible to
facilitate positive outcomes for each of the individuals involved. [FN364] The means chosen to achieve these ends are

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practical and predictable. Furthermore, they avoid undue deference to the often subjective discretion of judges to a larger
extent than do the compromises imposed on both the Family Law Act and the UMDA. [FN365] Fortunately, the Americ-
an Law Institute approved the Principles without subjecting them to similar compromises. Now that the Principles have
won approval, they deserve serious and sympathetic consideration from twenty-first century lawmakers, for they have re-
sponded to the major criticisms of no-fault divorce.
L. The Women's Movement After the Defeat of the ERA: Focus on Access to Abortion and Sexual Harassment
During the first half of the 1990s, when the ALI Family Law Project was being drafted, two women's issues, abortion
and sexual harassment, took center stage. The ongoing battle over abortion focused on the tactics of anti-abortion demon-
strators who blocked the entrances to abortion clinics to “rescue” fetuses. The issue of sexual harassment captured the
nation's attention during the confirmation hearings of Justice Clarence Thomas, and the ensuing political reaction helped
boost women candidates for national public office to a record number of electoral successes.
In the late 1980s, a coalition of anti-abortion groups united under the name Operation Rescue, led by Randall A.
Terry, began performing “rescue” demonstrations at abortion clinics around the country. Women's organizations respon-
ded by filing lawsuits. [FN366] Justice Stevens, dissenting from the Supreme Court's refusal in 1993 to recognize a cause
of action against the protestors under the Ku Klux Klan Act, [FN367] thus described their tactics:
Pursuant to their overall conspiracy, petitioners have repeatedly engaged in “rescue” operations that violate
local law *2074 and harm innocent women. Petitioners trespass on clinic property and physically block access to
the clinic, preventing patients, as well as physicians and medical staff, from entering the clinic to render or receive
medical or counseling services. Uncontradicted trial testimony demonstrates that petitioners' conduct created a
“substantial risk that existing or prospective patients may suffer physical or mental harm.” Petitioners make no
claim that their conduct is a legitimate form of protected expression. [FN368]
Congress responded in 1994 by enacting the Freedom of Access to Clinic Entrances Act, (FACE), [FN369] a measure
that has been upheld uniformly against constitutional challenge. [FN370] Since that time, the radical abortion-protest
movement is said to have gone underground, though its tactics apparently have not become less violent, [FN371] and
some groups have maintained a presence on the Internet.
Public awareness of the second of these two women's issues, sexual harassment, increased substantially in the early
1990s because of the nationally televised hearings on the confirmation of Supreme Court nominee Clarence Thomas. The
legal theory that applied Title VII's prohibition against sex discrimination to cover sexual harassment on the job was de-
veloped in the late 1970s, [FN372] first recognized by the United States Supreme Court in 1986, [FN373] and extended
to same-sex harassment in 1998. [FN374] Sexual *2075 harassment did not become a household word, [FN375]
however, until the fall of 1991, when law professor Anita Hill charged that Clarence Thomas had sexually harassed her
during the time she had worked for him first at the Department of Education and later at the Equal Employment Oppor-
tunity Commission. [FN376] The Senate confirmed Justice Thomas despite Hill's testimony. [FN377] A sufficient num-
ber of voters, however, apparently agreed with the slogan, “[t]hey just don't get it,” directed at the apparently obtuse all-
male Judiciary Committee that conducted the confirmation hearings, to turn the 1992 elections into “The Year of the Wo-
man” when a record number of women were elected to Congress. [FN378] Nineteenth-century suffragists were vindic-
ated, as women's political organizations raised unprecedented amounts of money to support the record number of women
candidates who ran successfully. [FN379]
The 1992 election also brought President William Jefferson Clinton into the White House, and in 1993 he placed the
second woman, Justice Ruth Bader Ginsburg, on the Supreme Court. [FN380] In her first published opinion, a concur-

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rance in a sexual harassment case, Justice Ginsburg signalled her intention to revisit a matter left open from her days as
an advocate: the appropriate standard of review in sex-based equal protection claims. [FN381] In her 1996 opinion for
the Court in United States v. Virginia, [FN382] *2076 Justice Ginsburg brought the Court a step closer to affording
claims of constitutional sex discrimination the highest review. [FN383]
M. Marriage Law Reform at the Century's End: Same-Sex Marriage and DOMA
Marriage law reappeared on the family law reform agenda in the early 1990s in the shape of litigation designed to
force state officials to issue marriage licenses to same-sex couples. Similar efforts seeking to invoke the Due Process and
Equal Protection Clauses of the United States Constitution had failed at the national level twenty years earlier when the
United States Supreme Court dismissed an appeal from a Minnesota judgment that declined to extend the rationale of
Loving v. Virginia [FN384] to invalidate the practice of denying licenses to same-sex couples. [FN385] A challenge
based on Washington's State Equal Rights Amendment also failed. [FN386] In 1993, however, the supreme court of
Hawaii invoked the state Equal Protection Clause and used a strict scrutiny standard of review to reverse a lower court's
judgment dismissing a claim that denial of marriage licenses to same-sex couples constituted sex-based discrimination in
violation of the state constitution, and the court remanded the matter for trial. [FN387] The unprecedented Hawaii de-
cision touched off a storm of controversy. Advocates of same-sex marriage immediately began researching the obscure
corners of the Full Faith and Credit Clause [FN388] to see whether a marriage in Hawaii between residents of mainland
states would be recognized in a *2077 couple's home state. [FN389] In response to the court's decision, the Hawaii legis-
lature amended the state marriage laws in 1994 to require that “the marriage contract . . . shall be only between a man
and a woman.” [FN390] For good measure, the Hawaii legislature also proposed a constitutional amendment banning
same-sex marriage in 1997, [FN391] which was adopted by popular vote in the 1998 election. [FN392] Other states, as
well, amended their marriage laws to prohibit same-sex marriage. [FN393]
Opponents of same-sex marriage moved swiftly to protect mainland states against the threat that courts might indeed
read the Full Faith and Credit Clause to require recognition of same-sex marriages performed in Hawaii. In May 1996,
Representative Robert Barr of Georgia introduced a bill entitled “The Defense of Marriage Act” (DOMA) into the Con-
gress. [FN394] The bill moved with uncommon speed: the House of Representatives held hearings less than two weeks
after the bill's introduction, and the House Judiciary Committee approved it in mid-June by a vote of 20 to 10. [FN395] It
passed the House on July 12, 1996, by a vote of 342 to 67, and the Senate on September 10, 1996, by a vote of 85 to 14.
[FN396] President Clinton signed the measure on September 21, 1996. [FN397] A torrent of legal commentary, *2078
most of it negative, greeted DOMA's enactment. [FN398] Conflict of laws scholars viewed the measure as at best unne-
cessary and at worst unconstitutional. [FN399]
From a family law perspective, DOMA was ill-advised regardless of what one's attitudes may be toward the legaliza-
tion of same-sex marriage. The measure introduced a federal definition of “marriage” and “spouse” that displaces a uni-
form and long-standing, if voluntary, deference to state law on matters affecting the family. [FN400] Eligibility for fed-
eral entitlement programs, such as social security, medicare, and veteran's benefits, traditionally have been measured by
state, not federal law. [FN401] This long-standing practice appropriately recognizes the prerogative of state legislatures
to regulate the family as a matter of local policy, and the relatively greater experience of state court judges in implement-
ing those policies.
DOMA does not, of course, foreclose the possibility open to advocates of same-sex marriage of seeking state legisla-
tion recognizing such marriages. An appeal to the legislature, rather than to the courts, would *2079 have the advantage
of placing the issue on the public policy agenda and inviting open debate on its merits. [FN402] Such a debate took place

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in Vermont in the early months of 2000, as a result of the state Supreme Court's decision in Baker v. Vermont. [FN403]
The Vermont Court relied on the “principle of inclusion” expressed in the common benefits clause of the state constitu-
tion to hold that
. . . The legal benefits and protections flowing from a marriage license are of such significance that any stat-
utory exclusion must necessarily be grounded on public concerns of sufficient weight, cogency, and authority that
the justice of the deprivation cannot seriously be questioned. Considered in light of the extreme logical disjunction
between the classification and the stated purposes of the law--protecting children and “furthering the link between
procreation and child rearing”--the exclusion falls substantially short of this standard. The laudable governmental
goal of promoting a commitment between married couples to promote the security of their children and the com-
munity as a whole provides no reasonable basis for denying the legal benefits and protections of marriage to same-
sex couples, who are no differently situated with respect to this goal than their opposite-sex counterparts. Promot-
ing a link between procreation and childrearing similarly fails to support the exclusion. [FN404]
In deciding the remedy phase of the litigation, however, a majority of the Court stopped short of holding that the
same-sex couples were entitled to a marriage license. Instead, it deferred to the Vermont legislature to craft an appropri-
ate means of ensuring that plaintiffs “obtain the same benefits and protections afforded by Vermont law to married op-
posite-sex couples.” [FN405] It noted that a decision to grant the plaintiffs a marriage license would obviously meet this
mandate, but observed that a “domestic partnership” provision might also satisfy its mandate. [FN406]
The Court's opinion turned the national spotlight on Vermont, [FN407] and produced an outpouring of popular, if
contentious, discussion among the *2080 citizens. [FN408] In mid-March, the Vermont House of Representatives ap-
proved a bill creating a “civil union,” [FN409] defined as a relationship between two eligible persons and providing that
“parties to a civil union shall have all the same benefits, protections and responsibilities under law, whether they derive
from statute, administrative or court rule, policy, common law or any other source of civil law, as are granted to spouses
in a marriage.” [FN410]
The impact of DOMA upon Vermont's civil unions, if any, raises an interesting question. The House bill expressly
provides that a civil union is not a marriage, [FN411] so DOMA, which refers to “a relationship between persons of the
same sex that is treated as a marriage” [FN412] literally may not apply.
N. The Renewed Debate Over “Easy” Divorce
In the mid-1990s, no-fault divorce came under attack again, this time not from feminists but from the conservative
right. Their leader, Representative Newt Gingrich of Georgia, was elected Speaker of the House in January 1995 and
used that post to publicize the conservative agenda in unprecedented public media appearances and statements. [FN413]
In the 1994 mid-term federal elections, Republicans running on a “Contract with America,” designed to reduce the role
of government through such measures as a balanced budget amendment, tax relief for families, welfare reform, and term
limits, captured the House of Representatives for the first time in forty-two years. [FN414] A complementary “Contract
with the American Family” was issued by the Christian Coalition in May 1995, calling on Congress to enact its “bold
agenda . . . intended to strengthen families and restore traditional values.” [FN415] While the document did not directly
mention divorce, its focus on local control of schools, opposition to funding for organizations that promote and perform
abortions, and support for *2081 “transforming the bureaucratic welfare state into a system of private and faith-based
compassion” [FN416] suggest a preference for the traditional family form. And, buried deep in the Coalition's recom-
mendation for ending federal funding of the Legal Services Corporation (LSC), created in 1974 to provide legal services
to the poor, [FN417] was the statement that the LSC fostered rather than reduced poverty by obtaining divorces for its

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clients. This practice, the Coalition claimed, exposes children in single-parent households to greater danger of being poor
than children in intact households. [FN418]
1. The Call For a Return to Fault
In the closing years of the twentieth century, a full-scale campaign to reverse the no-fault revolution emerged, not un-
like the condemnation of “easy” divorce that had characterized the latter decades of the nineteenth century. [FN419] Like
Reverend Woolsey and his followers a century before them, the new proponents of fault-based divorce believed that lib-
eralization of the grounds for divorce had caused an increase in the divorce rate. [FN420] Several also argued that a no-
fault divorce regime harmed children since it provided no incentives for the spouses to resolve their marital problems.
[FN421] A Michigan legislator, Representative Jessie Dalman, touched off the current wave of renewed interest in fault-
based divorce by announcing on Valentine's Day, 1996, her intention to introduce a series of bills to strengthen marriage
by ending no-fault divorce. [FN422] Other states, several using the Michigan model, also began considering measures to
modify or repeal their no-fault divorce laws. [FN423]
Although academic reevaluations of the divorce reform movement appeared in the early 1990s to mark the twentieth
and twenty-fifth *2082 anniversaries of the enactment of the first no-fault divorce statutes, [FN424] few commentators
expressed interest in a return to fault-based grounds for divorce. [FN425] Not surprisingly, academic commentary was
largely critical of the effort inspired by Representative Dalman to turn back the clock on divorce reform by reinstating
fault grounds. [FN426] For example, Professor Ira Mark Ellman, the Chief Reporter for the ALI Principles, defended the
no-fault reforms. As to the rising divorce rate, Ellman pointed out that the U.S. divorce rate has been rising steadily since
the 1860s and that repeated studies have failed to show any lasting effect of the no-fault laws on divorce rates. [FN427]
On the lack of incentives to preserve marriage for the sake of children, Ellman demurs:
I am sceptical that very many people now casually destroy their happy marriages, or that the introduction of
prolonged waiting periods would be likely to preserve many unhappy ones. Its effect will rather be to increase the
number of marriages that are, at any given time, legally intact but factually dead, to keep many victims of failed
marriages from building new lives for themselves and their children, and perhaps to increase the proportion of
children born out of wedlock. [FN428] Moreover, Ellman has shown convincingly that tort law, rather than di-
vorce law, affords a more appropriate remedy for spousal violence. [FN429] To date, none of the recent proposals
to return to fault-based divorce grounds *2083 has been successful, with the exception, discussed below, of the en-
actment of “covenant marriage” laws in Louisiana and Arizona. [FN430]
2. Covenant Marriage
Louisiana's Covenant Marriage Act, in the words of its drafter, Professor Katherine Shaw Spaht, was inspired by a
larger ambition than mere reinstatement of the fault basis for divorce. Rather, her goal was to rehabilitate lifelong mar-
riage:
If a father and a mother committed to each other through lifelong marriage represents the ideal environment
for the rearing of responsible, prosperous, and well-adjusted citizens, can the law restore and strengthen the insti-
tution of marriage? Law played an indispensable role in the near-destruction of marriage, so surely it can and must
in light of its complicity, contribute to the rehabilitation of marriage--for the sake of the children. How best to re-
store the ideal of eternal, self-sacrificial love is the question. [FN431] The Covenant Marriage Act offers an altern-
ative form of marriage to what is called “regular” marriage. Covenanting spouses must undergo pre-marital coun-
seling, in which they must discuss with a counselor the seriousness of marriage, their intention to have a lifelong

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marriage, their willingness to agree that they will “seek marital counseling in times of marital difficulties,” and
their understanding that, if they choose covenant marriage, their marriage may be dissolved only for specified
fault-based grounds [FN432] or a no-fault ground of living separate and apart for two years. [FN433] If, after
counseling, the prospective husband and wife choose covenant marriage rather than regular marriage, they are re-
quired to sign and file a “Declaration of Intent,” which provides:
We do solemnly declare that marriage is a covenant between a man and a woman who agree to live together
for so long as they both may live. We have chosen each other carefully and disclosed to one another everything
which could adversely affect the decision to enter into this marriage. We have *2084 received premarital counsel-
ing on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act, and we un-
derstand that a Covenant Marriage is for life. If we experience marital difficulties, we commit ourselves to take all
reasonable efforts to preserve our marriage, including marital counseling.
With full knowledge of what this commitment means, we do hereby declare that our marriage will be bound by
Louisiana law on Covenant Marriages and we promise to love, honor, and care for one another as husband and wife for
the rest of our lives. [FN434] According to Professor Spaht, while the clause stating the couple's intention that their mar-
riage be lifelong is inspirational, [FN435] the clause stating their commitment to “take all reasonable efforts to preserve
our marriage, including marital counseling,” is a valid contractual obligation. [FN436] She argues that, as a matter of
public policy, such a contractual obligation cannot cannot be altered by the parties. [FN437] Moreover, the agreement
must be performed in good faith, [FN438] and potentially gives rise to contractual remedies for breach, including dam-
ages, [FN439] for both pecuniary and non-pecuniary losses. [FN440] If, despite the performance of this agreement, a
covenant marriage is dissolved, the Act “empowers the ‘innocent’ spouse by bestowing upon her the exclusive right to a
divorce for a two-year period.” [FN441] If the “innocent” spouse chooses not to seek dissolution of the covenant mar-
riage, the other spouse is required to wait two years to seek relief. [FN442] Spaht observes that:
The other spouse, who, by his own fault, has “broken up” the family unit, must wait two years to seek his own
divorce. While he waits, he will be paying a significantly higher sum in spousal support than he will pay after the
divorce. He also may be obligated to pay damages for breach of his contract to seek counseling. In addition if he
wants to remarry, he will be the especially vulnerable target of this shift in divorce law policy. [FN443] Spaht does
not hesitate to admit that this “shift in divorce law policy” will permit blackmail [FN444] if the “innocent” spouse
chooses to exact a high price for her willingness to file for divorce prior to the termination of the two year period.
However, she is unapologetic that punishment should be *2085 meted out to a spouse who has breached the coven-
ant marriage contract. [FN445] She calls attention to the historical significance of the Act, pointing out that “the
covenant marriage legislation represents the first time, as a general trend, in two hundred years in any Western
country that divorce has become more difficult rather than easier.” [FN446] This claim is somewhat overstated, ig-
noring as it does the success of Theodor Woolsey and his followers in securing the repeal of the Connecticut
“omnibus” ground for divorce in 1878. [FN447]
Covenant marriage got off to a slow start: in the first year of its availability, only one percent of Louisiana couples
chose it over regular marriage. [FN448] Spaht, however, appears prepared for a long campaign, recognizing that: “To
promote the selection of a stronger marital commitment, proponents of covenant marriage must convince each couple of
the desirability of covenant marriage, which requires intensive missionary work, winning converts one couple at a time.”
[FN449]
The Covenant Marriage Act has drawn opposition from a variety of groups, including the ACLU, which presented
testimony against the bill. [FN450] Academic commentary to date has been mixed, but predominently critical of the Act.
[FN451] Professor Ira Mark Ellman's opposition to the Arizona version of covenant marriage succeeded in modifying the
bill to permit the covenanting couple to end their marriage upon a showing that they “both agree to a dissolution of mar-

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riage.” [FN452] No other state has yet followed Louisiana's restrictive approach by enacting a covenant marriage bill.
[FN453]
*2086 O. The Women's Movement at the Century's End: Focus on Women's Sports, an ERA Reprise, and an Abortion
Pill
The national focus shifted from family law reform to women's rights in the summer of 1999, as two feminist initiat-
ives of the 1970s, Title IX of the Education Amendments of 1972 [FN454] and the Equal Rights Amendment, reappeared
on the agenda. At the same time, a new development in the on-going struggle over abortion reform, the availability of a
new technique for abortion, appeared as well. The victory of the U.S. Women's Soccer Team over China in the Women's
World Cup competition touched off a national celebration [FN455] and realized the promise of Title IX's guarantee of
“equal play.” [FN456] Future generations of girls will continue to be inspired by the success of these women in testing
their skills on the playing fields of team sports.
In addition, the success of Iowa and Florida in adding equal rights-like provisions to their state constitutions in 1998
[FN457] encouraged serious discussion of a renewed drive to ratify the Equal Rights Amendment. ERA proponents like
Kim Gandy, Executive Vice-President of NOW, argue that the amendment is still necessary despite the increasingly
heightened scrutiny given constitutional sex-discrimination claims by the United States Supreme Court, pointing out that
“[n]o matter how much legislation is in place, we are only one president or one Congress or one Supreme Court away
from losing what we've gained.” [FN458] Phyllis Schafley counters that “[t]his was an idea that had a 10-year debate. It
was rejected.” [FN459] Proponents have not decided whether to launch a new ERA or to reopen the 1972 ratification
drive. [FN460] Alice Paul's dream may yet be realized.
While at the time of this writing a woman's legal right to an abortion is constitutionally protected, the question of
how an abortion can be performed remains open. The development of the French abortion pill, RU-486, by Roussel-Uc-
laf in the 1980s is as significant as the earlier birth control pill in affording women an effective method of fertility con-
trol that is safe and private. But its distribution in the United States was banned until recently. In 1994, Roussel-Uclaf
donated the U.S. rights to RU-486 to the Population Council, and in 1996, the F.D.A. declared the pill “approvable.” In
the summer of 1999, it appeared that a manufacturer had *2087 been found and that plans for a release of the drug in
1999 were under way, [FN461] but the FDA delayed final approval of the drug, to be marketed as Mifeprex, until
September 28, 2000. [FN462] Pro-choice advocates believe that RU-486 will have a profound impact on the delivery of
reproductive health services in many cases by making specialized abortion clinics obsolete, and thus avoiding anti-
abortion demonstrations at clinic doors. [FN463]
In summary, as the United States enters the closing months of the twentieth century, the ALI family law reform effort
has completed a predictable legal framework designed to achieve fairness in financial settlements attendant upon family
dissolution and to provide a sensible and reliable basis for the placement and support of children. This framework is built
upon the earlier successes of the California Governor's Commission and NCCUSL in achieving a no-fault alternative to
fault-based grounds for divorce in every state. Taken together, these three initiatives provide trial court judges rule-based
standards for adjudicating the claims of the divorcing adults, as well as cohabitants who have lived together with their
children and who must now create an alternative mode of co-parenting. These initiatives do not dwell on the past by as-
signing guilt or imposing punishment for marital misconduct, but rather focus on the future by creating a foundation on
which the parties can rely as they rebuild their lives.
Two states have looked in a different direction, “for the sake of the children,” seeking to recreate “self-sacrificial
love” [FN464] through the use of findings of guilt and the imposition of punishment backed up by threats of extortion to

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compel compliance with the covenant of marriage. As the proponents of this approach recognize, its success may require
a cultural change. [FN465] The culture that they seek to change is one in which state no-fault divorce laws have removed
the stigma of divorce from both women and men and ensured fair treatment to both parties and federal laws forbidding
discrimination in employment and education and requiring equal pay for equal work have contributed to women's eco-
nomic independence. At the same time, Supreme Court decisions have supported women's right to control their repro-
ductive capacity and new technology is at hand that will enable women to exercise that right more effectively and with
greater privacy. This culture is the manifestation of a trend that has evolved over two centuries to facilitate the emer-
gence of women as autonomous individuals, able to choose the direction of their lives. That trend is now well-established
and is unlikely to be reversed by calls for a return to *2088 “self-sacrificial love” and the implicit model it invokes of a
society built on a tradition of family life in which women are the “second” sex.
III Challenges for the Twenty-First Century
Carl Degler characterized the differing attitudes of nineteenth- and early twentieth-century men and women toward
their work:
Although women have been a part of the industrial system in the United States virtually from its inception,
their relation to that system has always been different in certain fundamental ways from that of men. From the out-
set woman's employment was shaped around the family, while man's work, in a real sense, shaped the family. The
family moved, lived, and functioned as man's work decreed; woman's employment, on the other hand, ceased
when the family began, and from then on, as we have seen, it adjusted to the needs of the family, for the family
was a woman's first responsibility. [FN466] As the twenty-first century opens, this observation has lost much of its
force for a relatively small, but growing, number of career women working in the professions, politics, and busi-
ness. These women come from all racial and ethnic backgrounds and all socioeconomic classes. Unlike many of
their mothers and grandmothers, they do not expect to forego family life to take on full-time careers, nor do they
derive their identities from their husbands or companions. They are no longer the “second” sex. Their influence as
trend-setters has not yet spread to all women, but their example as role models is powerful.
Some social critics perceive these career women and their lifestyles as a threat to family life. Elisabeth S. Scott char-
acterizes the critics' position:
The trend, according to this account, is toward a society in which liberal principles of autonomy and equality
define the legal relationship of family members to the state and to each other in much the same way as those prin-
ciples define the relationship of individual citizens to the state. In the liberal state, individuals have freedom to
pursue their own self-defined ends, and relationships are voluntary and contractual. [FN467] Scott's response to
these critics, greatly oversimplified, is that liberalism permits individuals to enter into self-limiting agreements in
order to *2089 achieve their goals. She proposes a “conceptualization of marriage itself as a relationship that is in
the nature of a long-term relational contract.” [FN468]
Perhaps a more realistic analogy for marriage in the twenty-first century is the joint venture, given the unilateral
nature of no-fault divorce. [FN469] A joint venture is defined in the commercial setting as “[a] legal entity in the nature
of a partnership engaged in the joint undertaking of a particular transaction for mutual profit.” [FN470] A joint venture
differs from a partnership in that it “does not entail a continuing relationship among the parties.” [FN471] At first glance,
the joint venture may seem to be the exact antithesis of a stable relationship and therefore poorly suited as a conceptual-
ization of an enterprise that typically involves the rearing of children. But on closer inspection, the difficulties are less
daunting. A joint venture presupposes persons capable of contributing assets to the enterprise and sharing in the risks,
thus fitting the model of spouses who are self-sufficient at the outset of the undertaking. A joint venture also “requires a

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community of interest in the performance of the subject matter,” [FN472] surely the hallmark of an agreement to have
children and to rear them jointly, and one of its features is “a right to direct and govern” the undertaking as well as the
ability to alter by agreement the duty to share both in profits and losses, [FN473] thus opening the possibility of afford-
ing protection to the joint venturer who may take time out from work to provide a greater share of the child-rearing re-
sponsibilities. The most attractive aspect of the analogy, however, is the possibility of renewal. As each stage of the
project of family life is completed, the couple must decide whether the venture should be continued to the next stage.
Making this decision with the recognition that either spouse is free to terminate the undertaking will afford the opportun-
ity to reexamine and, if desired, to reconfirm the commitment of both to the enterprise. [FN474]
*2090 Of course, a concept of marriage as a joint venture is not yet an appropriate model for all couples. The trend
towards independence and self-sufficiency for women described above has made clear, however, that traditional marriage
is not well-adapted to dual-career couples. Laws governing married names, domicile, and marital property all assume a
primary breadwinner/dependent homemaker model of marriage, while the current marriage tax and anti-nepotism
policies could serve as deterrents to marriage. [FN475] If the couple has children, the assumption that a mother has
primary responsibility for their care, combined with the difficulties associated with performing that function while jug-
gling a demanding job in the absence of available and affordable child care, creates enormous pressure. It is not surpris-
ing that dual-career couples tend to marry later and postpone childbearing. [FN476]
The other side of this story--its impact on men--has as yet been only imperfectly explored. The liberal feminists who
touched off the second wave of the United States women's movement saw themselves as combatting stereotypical sex
roles that limited both men and women. [FN477] As women sought to break down barriers to their own participation in
the public sphere, some men sought expression for their nurturing capacities in the private sphere. This pattern is reflec-
ted in the early Supreme Court sex discrimination litigation, which exhibited a two-way exchange of power, with women
gaining access to job opportunities formerly limited to men, while men acquired a larger role in the family, formerly the
exclusive province of women. [FN478]
This vision of equality between men and women in the home as well as the market-place, however, has not yet been
realized. Fathers who have primary child care responsibility are unusual in our culture. The work force, especially at the
most prestigious and highly rewarded levels, continues to be organized along a male model and to feature a “glass ceil-
ing” hindering the advancement of women. Dual-career couples typically do not share the home front duties. Instead, wo-
men work a “second shift” at home, [FN479] or, if they can afford to do so, hire mother-substitutes.
*2091 As we have seen, children and the traditional family are the focal point around which conservatives rally to
implement their call for a return to “family values.” In particular, the religious conservative critique of twentieth-century
family life seems to suggest that feminists and homosexuals in search of social approval of alternative lifestyles and even
access to same-sex marriages threaten to destroy the sanctuary once provided by the father-dominated, home-centered,
mother-dependent, traditional family. [FN480] Rather than seek solutions appropriate to a changing culture, these critics
call for a return to the nineteenth-century model of family life as the most appropriate one for the new millenium.
[FN481] At the same time, as Katharine T. Bartlett has observed, feminist involvement in modern family law reform has
reawakened tensions experienced earlier by mid-nineteenth century feminists around issues that concern “the preserva-
tion or elimination, of traditional gender roles.” [FN482] The conflict between religious conservatives on the one hand
and feminists and gay and lesbian activists on the other hand that has emerged at the century's end will continue to dom-
inate the landscape of family law reform and women's rights for years to come.
Law typically follows, rather than leads, social change. The trends identified in this paper form the context within
which family law must respond to the further evolving roles of women and men over the twenty-first century. These

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trends, however, are not limited to the family and cannot be accommodated entirely within family law. Broader societal
*2092 initiatives are needed to enable the trend toward equality between men and women to flourish. Some of these initi-
atives have already begun; others were prematurely rejected. All of them, however, should be given high priority on the
agenda for the twenty-first century.
This agenda should include the following proposals. First, social support for children should become part of our na-
tional policy. As a nation we have placed great value on independence and privacy. This policy has led us to assign the
primary responsibility for childrearing and child support to parents, with few social supports that can provide a safety net
for children when parents are unwilling or unable to discharge their responsibility. Feminist analysis of no-fault divorce
and its aftermath has repeatedly suggested that our national leaders explore the child-centered policies available in other
Western industrial countries, [FN483] and consider broader changes that would positively affect family life. [FN484]
The greater representation of women in legislative and policy-making roles should facilitate such reconsideration.
Second, the government must continue vigorous enforcement of existing laws prohibiting discrimination in the work-
place. One of the major sources of different standards of living in households headed by women and those headed by
men is the continued wage gap between men and women. As Professor Stephen Sugarman has noted, “[a]lthough women
typically begin their divorces with lower standards of living than their former husbands, it is also the case that they typic-
ally enter marriage with lower personal economic prospects in the paid labor force.” [FN485] The ALI family dissolution
project has undertaken to compensate women for losses they incur during marriage as a result of child care and depend-
ent care, but employment law and policy must ensure that women are not penalized when they return to work. Third, em-
ployers must create flexible work schedules to accommodate parents with child care responsibility. Rapid advances have
already occurred in information technology, and further innovation can be expected. Today, a workstation can be on the
employer's premises, aboard an airplane or train, or at home. A workstation at home with access to the office and the In-
ternet would enable parents to be with their children while working full-time. Employers are already experimenting with
these new ways of doing business. State and federal policies should create incentives to encourage further experimenta-
tion.
In addition to these societal initiatives, family law reform might well supplement the ALI Principles by considering
two further matters. First, legislatures should enact marital property regimes that recognize the *2093 contribution of
both spouses to the income produced by either during the marriage. The Uniform Marital Property Act provides a model
for states that wish to incorporate sharing principles as part of their family law regulations. A system of deferred property
sharing at divorce, such as that proposed in the ALI Principles, is vastly preferable to the older method of allocating
property according to its title, but is not as coherent as a regime that incorporates sharing principles throughout the mar-
riage. [FN486] Only Wisconsin has adopted the UMPA. Other states should consider doing so as well. Second, a family
court should be created to improve divorce procedure. A family court, in which mental health professionals attached to
the court would provide both divorce and marriage counseling, if shorn of its original limited mission to achieve recon-
ciliation, would go far to soften the sharp edges of divorce procedure and add dignity to the marriage dissolution process.
[FN487]
These suggestions are not meant as solutions to the cultural strains and moral conflicts that have accompanied the
rapid period of change that family law has experienced over the past thirty years. They are among the necessary steps to
facilitate further development, and to recognize and consolidate the valuable reforms that have been made.
The challenges of the twenty-first century cannot be met by a return to nineteenth-century family law, which required
women to function as the “second sex.” The fundamental changes in women's opportunities highlighted in this paper
were hard-won and will not be abandoned by tomorrow's women. Young girls growing up today have very different ex-
pectations about their lives than their mothers did. Their daughters are likely to be even less constrained, either by the

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law, the marketplace, or social arrangements. Still, it is a safe prediction that family life will continue to be attractive. If
it is to continue to offer the best opportunity for happiness and fulfillment for adults and children, it must receive more
than society's blessing. Defining and facilitating family life in egalitarian terms must become a high priority on the na-
tional agenda as we approach the new millennium.
[FNd1]. Barbara Nachtrieb Armstrong Professor of Law, School of Law, University of California, Berkeley (Boalt Hall);
J.D., University of Chicago, 1959; B.A., Southern Methodist University, 1956.
[FNa1]. California Law Review, Incorporated (CLR) is a California nonprofit corporation. CLR and the authors are
solely responsible for the content of their publications.
[FN1]. See Carl N. Degler, Out of Our Past 61-63 (3d ed. 1984).
[FN2]. See Carl N. Degler, At Odds 8-9 (1980) (describing the nineteenth century American family as exhibiting four
broad characteristics that distinguished it from its Western European counterparts:(1)marriage was based on affection
and mutual respect between the partners, and the woman enjoyed an increasing autonomy within the family;(2)the mar-
ried partners lived and functioned in two separate spheres, with the wife responsible for the care of the children and the
maintenance of the home, while the husband's role was perfomed largely outside the home at work;(3)the focus of both
spouses turned largely to their children, who were seen as entitled to a special period of nurturance and rearing before
they left home to make their own way in the world; and(4)the size of the nineteenth-century family was significantly
smaller than that of the families of the eighteenth and previous centuries).
[FN3]. Id. at 450.
[FN4]. Id. at 473.
[FN5]. See Katherine Shaw Spaht, Louisiana's Covenant Marriage:Social Analysis and Legal Implications, 59 La. L.
Rev. 63 (1998). The Louisiana Covenant Marriage Act, the first of its kind to be enacted, went into effect on August 15,
1997, and is codified at La. Civ. Code Ann. arts. 102, 103 (West 1991 & Supp. 1999) and at La. Rev. Stat. Ann. §§9:234,
9:272-275; 9:307-309 (West 1999).
[FN6]. See Degler, supra note 2, at 151 (noting that the number of unmarried women in the colonial period “was usually
severely limited if only because of the paucity of economic opportunities for a woman in an overwhelmingly agricultural
society”).
[FN7]. Joseph W. Madden, Handbook of the Law of Persons and Domestic Relations 3 (1931) (footnote omitted); see
also id. at 4 & n.11 (noting that the courts had consistently held that marriage is not a “contract” within the protection of
the Contract Clause and citing Maynard v. Hill, 125 U.S. 190, 210-11 (1888)).
[FN8]. See 1 William Blackstone, Commentaries *442:

By marriage, the husband and wife are one person in law:that is, the very being or legal existence of the woman
is suspended during the marriage, or at least is incorporated and consolidated into that of the husband:under whose wing,
protection, and cover, she performs everything;...and her condition during her marriage is called her coverture.
[FN9]. See Madden, supra note 7, at 82.
[FN10]. See Degler, supra note 2, at 26 (pointing out that “[s]ome historians have called the ideology of the woman's

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sphere the ‘Cult of True Womanhood”’).
[FN11]. Seneca Falls Declaration of Sentiments:Adoption of the First Women's Rights Convention, Seneca Falls, New
York, July 19, 1848 [hereinafter Seneca Falls Declaration] (“The history of mankind is a history of repeated injuries and
usurpations on the part of man toward woman, having in direct object the establishment of an absolute tyranny over her.
To prove this, let facts be submitted to a candid world....He has made her, if married, in the eye of the law, civilly
dead.”), reprinted in The Sesquicentennial of the 1848 Seneca Falls Women's Rights Convention:American Women's Un-
finished Quest for Legal, Economic, Political, and Social Equality, 84 Ky. L.J. 713, 713 (1995-96)).
[FN12]. See Henry B. Blackwell & Lucy Stone, Protest, Worcester Spy, 1855, reprinted in Herma Hill Kay & Martha S.
West, Text, Cases and Materials on Sex-based Discrimination 246-47 (4th ed. 1996):
While we acknowledge our mutual affection by publicly assuming the relationship of husband and wife, yet in
justice to ourselves and a great principle, we deem it a duty to declare that this act on our part implies no sanction
of...such of the present laws of marriage as refuse to recognize the wife as an independent, rational being, while they
confer upon the husband an injurious and unnatural superiority, investing him with legal powers which no honorable man
would exercise and which no man should possess. We protest... [ [6.] Finally, against the whole system by which “the
legal existence of the wife is suspended during marriage” so that, in most States, she neither has a legal part in the choice
of her residence, nor can she make a will, nor sue or be sued in her own name, nor inherit property.
[FN13]. Blackstone, supra note 8, at *445 (“These are the chief legal effects of marriage during the coverture; upon
which we may observe, that even the disabilities, which the wife lies under, are for the most part intended for her protec-
tion and benefit. So great a favorite is the female sex of the laws of England.”).
[FN14]. See Madden, supra note 7, at 111 (observing that the first of these statutes was enacted in Mississippi in 1839);
see also id. at 3 & n.7.
[FN15]. See Reva Siegel, Home As Work:The First Woman's Rights Claims Concerning Wives' Household Labor,
1850-1880, 103 Yale L.J. 1073, 1082-83 (1994).
[FN16]. See id. at 1112-46 (discussing Joint Property Advocacy in the Antebellum Era).
[FN17]. See id. at 1177-89 (discussing the abandonment of the joint property claim by the postbellum advocates in the
1870s, and noting that court interpretation of the earnings statutes excluded wives' work in the household from such stat-
utory terms as “personal labor”).
[FN18]. See Degler, supra note 1, at 105.
[FN19]. See Degler, supra note 2, at 156; see also Eleanor Flexner, Century of Struggle:The Woman's Rights Movement
in the United States 23-40, 122-30 (Atheneum 1968).
[FN21]. See Degler, supra note 2, at 370-71 (pointing out that the Lowell mill owners had provided dormitories for the
convenience of the young, unmarried farm girls who provided the initial workforce for the mill).
[FN22]. See id. at 396. The “Lowell girls” formed a local women's trade union to support their strikes against wage cuts
in 1834 and 1836. Not long thereafter, the native born work force at the Lowell mills was replaced by immigrant work-
ers. While only 4% of the Lowell workers were foreign-born in 1836, by 1860 approximately 60% of them were foreign-

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born, primarily Irish. See id. at 371; see also Flexner, supra note 19, at 55 (identifying two factory strikes involving wo-
men workers that preceded the Lowell strike:women joined men in striking against a wage cut and longer hours at
Pawtucket, Rhode Island, in 1824, while women struck alone in Dover, New Hampshire, in 1828).
[FN23]. See Degler, supra note 1, at 209 (noting that in 1860 women made up about a quarter of the nation's teachers,
while that figure rose to nearly two-thirds by 1870).
[FN24]. See id. at 390-92; see also Flexner, supra note 19, at 179.
[FN25]. See Degler, supra note 1, at 392-93. Most of these organizations were formed in the 1890s. By 1901, Congress
granted a national charter to the General Federation of Women's Clubs; see also Flexner, supra note 19, at 179-92.
[FN26]. See Seneca Falls Declaration, supra note 11 (declaring that the first of the “facts submitted to a candid world” to
prove man's injuries to woman was that “[h]e has never permitted her to exercise her inalienable right to the elective
franchise”).
[FN27]. U.S. Const., amend. XIX (“The right of citizens of the United States to vote shall not be denied or abridged by
the United States or by any State on account of sex. Congress shall have power to enforce this article by appropriate le-
gislation.”).
[FN28]. William L. O'Neill, Everyone was Brave vii (1971) (observing that “[t]he ballot did not materially help women
to advance their most urgent causes; even worse, it did not help women to better themselves or improve their status”).
[FN29]. See Geraldine A. Ferraro (with Linda Bird Francke), My Story (1985). The Mondale-Ferraro Democratic ticket
lost to Republicans Reagan and Bush.
[FN30]. Elizabeth Dole announced the formation of her Presidential Exploratory Committee to seek the Republican nom-
ination on March 10, 1999. See Richard L. Berke, Dole Presents herself as Both Nonpolitical and an Insider, N.Y. Times,
Mar. 11, 1999, at A28. She withdrew on October 20, 1999, citing lack of funds. See Katherine Q. Seeley, Low on Cash,
Dole Withdraws from G.O.P. Race, N.Y. Times, Oct. 21, 1999, at A1. Both Senator Margaret Chase Smith and Repres-
entative Shirley Chisholm had made long-shot bids earlier. See Mrs. Dole Leaps Into the Gap, N.Y. Times, Mar. 11,
1999 at A30. Public financing has enabled women to enter presidential politics more freely as candidates of independent
parties. See Jacqueline Salit, Third Parties Show Us the Money, S.F. Chron., Aug. 10, 1999, at A19 (noting that Lenora
B. Fulani, the first African-American woman to qualify for the presidential ballot in all 50 states in 1988, received close
to $1 million in public primary financing).
[FN31]. See Cristina M. Rodríguez, Clearing the Smoke-Filled Room:Women Jurors and the Disruption of an Old-Boys'
Network in Nineteenth-Century America, 108 Yale L. J. 1805 (1999) (arguing that while suffrage may have been a ne-
cessary condition for jury service, the more appropriate historical analogy to the woman juror is the woman lawyer, not
the woman voter).
[FN32]. See Madden, supra note 7 at 256. Tracing the history of the attitude of the Church to civil divorce laws, the
Archbishop of Canterbury's Group noted that by the Middle Ages the Church had successfully established the primacy of
the canon law over the civil law, so that “all matrimonial law in the West was founded on the principle of the absolute in-
dissolubility of valid consummated marriage.” Report of a Group Appointed by the Archbishop of Canterbury in January
1964, Putting Asunder:A Divorce Law for Contemporary Society, app.A (1966), (footnote omitted) [hereinafter Putting
Asunder]. The Biblical authority for this doctrine is said to be a reply by Jesus to a Pharisee who asked whether it was

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lawful to divorce one's wife for any cause:“Have you not read that he who made them from the beginning made them
male and female, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two
shall become one’? So they are no longer two but one. What therefore God has joined together, let not man put asunder.”
Matthew 19:4-6, reprinted in Nelson Manfred Blake, The Road to Reno 10 (1962).
[FN33]. See Madden, supra note 7, at 256-57. The practice of canonical annulments in ecclesiatical courts in medieval
times tested the concept of “lawfully married” to the breaking point, and served as one of the major criticisms of the six-
teenth-century Protestant reformers. See Blake, supra note 32, at 14-24.
[FN34]. See Blake, supra note 32, at 34-47.
[FN35]. Degler, supra note 1, at 13. The reference to Milton may have been to John Milton, Doctrine and Discipline of
Divorce (1644).
[FN36]. Blake, supra note 32, at 46-47.
[FN37]. See id. at 49.
[FN38]. Parliamentary divorces were available only to the rich and powerful and were more easily available to men than
to women. See Blake, supra note 32, at 31-32 (noting that only five Parliamentary divorces were granted prior to 1715,
but by 1800 the procedure had been standardized to handle the larger volume of 90 cases between 1801 and 1850, and
pointing out that while a husband need show only his wife's adultery to make out a case, a wife was required to show that
her husband had aggravated the offense of adultery by extreme cruelty or other infamous conduct); see also Madden,
supra note 7, at 259 (“Only five Parliamentary divorces were granted upon the petition of aggrieved wives. In all of these
cases there were aggravating circumstances, in addition to adultery on the part of the husband, which would make future
reconciliation impossible. Thus different standards of morality were enforced between the sexes.”).
[FN39]. See Madden, supra note 7, at 260.
[FN40]. The Matrimonial Causes Act of 1857 allowed “absolute” divorce, that is, the permanent civil termination of mar-
riage rather than legal separation on the ground of adultery. See Putting Asunder, supra note 32, at 14 n.18 (observing
that the 1857 Act “revolutionized matrimonial law by introducing divorce with the right of remarriage, and at the same
time transferred matrimonial jurisdiction from the Ecclesiastical Courts to a new Court for Divorce and Matrimonial
Causes. The Judicature Act of 1873 made a further transfer of jurisdiction, this time to the High Court of Justice”).
[FN41]. See Norma Basch, Framing American Divorce 23 (1999).
[FN42]. See Blake, supra note 32, at 63. Between 1872 and 1878, South Carolina briefly permitted absolute divorce on
the grounds of adultery or abandonment for a period of two years. See Lawrence M. Friedman, Rights of Pas-
sage:Divorce Law in Historical Perspective, 63 Or. L. Rev. 649, 651 n.9 (1984). South Carolina did not authorize abso-
lute divorce again until 1948, after a cautious Legislature submitted a constitutional amendment to the voters that would
authorize divorce on the grounds of adultery, desertion, physical cruelty, or habitual drunkenness. The measure passed by
a vote of 57,000 to 42,000. See Blake, supra note 32, at 234-35.
[FN43]. See Friedman, supra note 42, at 652.
[FN44]. For the observation that King Charles II of England was in daily attendance at the House of Lords during its
consideration in 1669 of a private Act permitting Lord Roos to remarry following an Ecclesiastical separation, and that

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he declared the proceedings “better than going to a play,” see Blake, supra note 32, at 31-32 (quoting John Macqueen, A
Practical Treatise on the Appellate Jurisdiction of the House of Lords & Privy Council 554 (1842)).
[FN45]. See Basch, supra note 41, at 147.
[FN46]. Id. at 148 (adding that the trial pamphlets “were sold in corner bookstalls, at railroad depots, and by traveling
peddlers”).
[FN47]. See Basch, supra note 41, at 84-85, 91-93; Blake, supra note 32, at 82-86, 89-92.
[FN49]. Stanton argued at the 1860 Woman's Rights Convention that marriage was a civil contract that ought to be
treated like other contracts. See Kathleen Barry, Susan B. Anthony:A Biography of a Singular Feminist 137 (1988)
(suggesting that, in making this argument Stanton “intended to rescue the family from the power of privatized domina-
tion and to challenge the religious, romantic, and mystical beliefs in women's inferior nature, which had kept marriage
from being contracted on a rational basis. In one swift gesture, she demoted marriage from a sacred act to a civil function
and raised divorce from an offense against God to a civil, contractual right”). Moreover, Stanton opposed common law
marriage, in part because it might trap unwary women into contracting for marriages that they could not contractually
dissolve. See Ariela R. Dubler, Note, Governing Through Contract:Common Law Marriage in the Nineteenth Century,
107 Yale L.J. 1885, 1908-12 (1998).
[FN50]. See Blake, supra note 32, at 93.
[FN52]. See id.
[FN53]. See id. at 100. Stanton left the Equal Rights Association in 1869 to become the founding President of the Na-
tional Women Suffrage Association; the more moderate group organized the American Woman Suffrage Association un-
der the leadership of Henry Ward Beecher. See Flexner, supra note 19, at 220 (pointing out that the rift was mended in
1890, when the two organizations merged to become the National American Sufferage Association with Stanton as pres-
ident).
[FN54]. Blake, supra note 32 at 101.
[FN55]. See id.
[FN56]. See id.
[FN57]. See id. at 101-05. For a modern feminist analysis of these events, see Melissa J. Ganz, Wicked Women and
Veiled Ladies:Gendered Narratives of the McFarland-Richardson Tragedy, 9 Yale J.L. & Feminism 255 (1997).
[FN58]. See Basch, supra note 41, at 68-69.
[FN59]. Theodore D. Woolsey, Essay on Divorce and Divorce Legislation (1869).
[FN60]. Id. at 9.

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[FN61]. Id. at 216-17.
[FN62]. Id. at 223. Woolsey's comparison of the United States divorce statistics with those of Prussia is omitted.
[FN63]. Id. at 229. The reference to Loomis is to Reverend Henry Loomis Jr., Divorce Legislation in Connecticut, 25
New Englander 436 (1866). An excerpt from the article appears in an Appendix to Woolsey's book as note 5 to ch. V, at
292-94.
[FN64]. See Woolsey, supra note 59, at 267 (“The general principle here is that misconduct, which has broken up the
family state and made light of all household endearments, shows unfitness to take charge of the children.”).
[FN65]. For the full text of the nine principles as set forth by Woolsey, see id. at 258-74.
[FN66]. Id. at 260-61 (footnote omitted).
[FN67]. Id. at 269 (“It tempts parties to marry improvidently, and opens the door through which they can escape from
matrimony, for it amounts to not liking one another, and the dislike is enhanced by the prospect offered to the hopes of
one or the other of making a more advantageous connection.”).
[FN69]. See id. at 131.
[FN70]. See id. at 132.
[FN71]. See id.
[FN72]. See id.
[FN73]. See Woolsey, supra note 59, at 274:

The subject of divorce is complicated in this country by the number of jurisdictions and the ease of emigration.
Just as a good paper currency was impossible when every State licensed its own banks, so it is with divorce laws. He
who cannot get what he wants under the severe laws of New York, can become a free man by a short stay in Indiana.
[FN74]. See Blake, supra note 32, at 116-19 (describing the “divorce colonies” in Pennsylvania, Ohio, and Illinois which
preceded those of Indiana). Indeed, the publicity arising from the McFarland trial forced the Indiana legislature in 1873
to change the laws that had attracted the interstate divorce trade. See id. at 121.
[FN75]. See Basch, supra note 41, at 90-95 (discussing the 1860 Indiana divorce of Heinrich Schliemann).
[FN77]. See id. at 134.
[FN78]. See id.
[FN79]. See id. at 135-36.
[FN80]. See id. at 137.

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88 Cal. L. Rev. 2017
[FN81]. See id. The group, known as Commissioners for the Promotion of Uniformity of Legislation in the United States,
held its first annual meeting at Saratoga, New York, in August 1892.
[FN82]. The second is the American Law Institute (ALI), founded in Washington, D.C. on February 23, 1923. Its Certi-
ficate of Incorporation, filed on the same day in the District of Columbia, states in part that its purpose is “to promote the
clarification and simplification of the law and its better adaptation to social needs....” Like NCCUSL, the ALI played a
significant role in the twentieth-century family law reform movement. See infra Part II.
[FN83]. See Unif. Marriage and Divorce Act, Prefatory Note, 9A U.L.A. Part I, 159, 160 (Master ed. 1998). [Hereinafter
UMDA]. The UMDA was amended in 1971 and 1973.
[FN85]. See id. at 150.
[FN86]. See Flexner, supra note 19, at 147-49. The Fifteenth Amendment reads:“The right of citizens of the United
States to vote shall not be denied or abridged by the United States or by any State, on account of race, color, or previous
condition of servitude.” U.S. Const., amend. XV.
[FN87]. See Flexner, supra note 19, at 220. Under the influence of Anita Stone Blackwell, the daughter of Lucy Stone
and Henry Blackwell, the National Woman Suffrage Association and the American Woman Suffrage Association were
merged.
[FN88]. See id. Mrs. Stanton was replaced two years later as president by Susan B. Anthony.
[FN89]. See id. Stanton published successive volumes of The Woman's Bible between 1895 and 1898.
[FN90]. See Maynard v. Hill, 125 U.S. 190 (1888) (holding that a legislative divorce enacted by the Territory of Oregon
did not violate the Contract Clause by impairing the obligation of marriage).
[FN91]. Basch, supra note 41, at 42.
[FN93]. Esther Peterson, Working Women, 93 Daedalus 671, 673 (1964); see also Degler, supra note 2, at 375-76
(describing “[t]he economic basis of the cult of domesticity”).
[FN94]. See Degler, supra note 1, at 476 (noting that the U.S. Army chaplains who came South during the Civil War to
solemnize marriages between slaves discovered a large number of lengthy marriages:42% of the approximately 4600
marriages solemnized in Mississippi and Louisiana had been in existence from 5 to 14 years).
[FN95]. See Degler, supra note 2, at 389 (noting that “[b]lack women, whether married or single, had to work to supple-
ment the lower earnings of husbands and fathers”); see also Katherine M. Franke, Becoming a Citizen:Reconstruction
Era Regulation of African American Marriage, 11 Yale J.L. Human. 251, 274-92 (1999) (arguing that postbellum mar-
riage laws imposed a Victorian Model of marriage on African Americans, driving out informal mating practices that had
developed during slavery, in order to turn the freed slaves into “responsible” citizens).
[FN96]. See Degler, supra note 2, at 389; see also Twilla L. Perry, Race Matters:Change, Choice, and Family Law at the
Millennium, 33 Fam. L. Q. 461, 464 (1999) (noting that because of the disparity of Black men to Black women at optim-

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al marriage ages, and the “precarious economic situation of many Black men,” Black women are unlikely to find Black
marital partners, and concluding “of all the women in this country, Black women are the least likely to marry, the most
likely to divorce, and the least likely to remarry”).
[FN98]. See Flexner, supra note 19, at 248-324. In 1900, Carrie Chapman Catt replaced Susan B. Anthony as president
of the National American Woman Suffrage association, a post she relinquished in 1904 to Anna Howard Shaw. See id. at
237-38; see also O'Neill, supra note 28, at 49-76.
[FN99]. See Degler, supra note 2, at 328; Flexner, supra note 19, at 325-26; O'Neill, supra note 28, at 264-66.
[FN100]. See Degler, supra note 2, at 359-60.
[FN101]. See id. at 403. Kelley was one of the two women who had helped gather the data that Louis Brandeis used in
his brief in support of protective laws in Mueller v. Oregon, 208 U.S. 412 (1908) (upholding a statute limiting women's
employment in factories and laundries to 10 hours a day); see also Katherine M. Franke, The Central Mistake of Sex Dis-
crimination Law:The Disaggregation of Sex From Gender, 144 U. Pa. L. Rev. 1, 15-19 (1995) (discussing the debate
among feminists over the ERA).
[FN102]. 261 U.S. 525 (1923) (invalidating an Act of Congress setting minimum wages for women in the District of
Columbia). Paul's side, urging that women be treated the same as men, prevailed.
[FN103]. The same conflict between equality and difference reappeared on the Court's docket sixty-four years later when
east coast feminists and west coast feminists opposed each other in California Fed. Sav. & Loan Association v. Guerra,
479 U.S. 272 (1987) (upholding a California statute requiring employers to grant unpaid short-term leave and reinstate-
ment for pregnancy, but not for other disabilities). West coast feminists, urging the recognition of special accommoda-
tions for pregnancy, prevailed. See generally Herma Hill Kay, Equality and Difference:The Case of Pregnancy, 1 Berke-
ley Women's. L. J. 1 (1985) (supporting special treatment for pregnant women in the workplace and offering an episodic
analysis of reproductive sex differences, treating them as legally significant only during the episodes when they are being
utilized); Linda J. Krieger & Patricia N. Cooney, The Miller-Wohl Controversy:Equal Treatment, Positive Action, and
the Meaning of Women's Equality, 13 Golden Gate U. L. Rev. 513 (1983) (supporting “positive action” for pregnancy in
the workplace because equal treatment of pregnancy-related disabilities results in inequality for women); Wendy Webster
Williams, Equality's Riddle:Pregnancy and the Equal Treatment/Special Treatment Debate, 13 N.Y.U. Rev. L. & Soc.
Change 325 (1984-85) (supporting equal treatment of men and women in the workplace because a concept of legal equal-
ity, rather than special treatment, has served both sexes well by breaking down legal barriers that restricted each sex to a
predefined role and created a hierarchy based on gender). Fortunately, both groups were able to find merit in the Cal Fed
opinion, thus avoiding a permanent rift.
[FN104]. See O'Neill, supra note 28, at 266.
[FN105]. See Laurence C. Nolan, The Meaning of Loving:Marriage, Due Process and Equal Protection (1967-1990) as
Equality and Marriage, from Loving to Zablocki, 41 How. L.J. 245, 248-49 (1998).
[FN106]. See Robert A. Pratt, Crossing the Color Line:A Historical Assessment and Personal Narrative of Loving v. Vir-
ginia, 41 How. L. J. 229, 230 (1998) (telling the story of Richard Loving and Mildred Jeter and noting that 8223 interra-
cial couples currently live in Virginia). See generally Rachel Moran, Interracial Intimacy: The Regulation of Race and

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Romance (forthcoming 2001) (examining the history of anti-miscegenation laws, their judicial dismantlement, and their
continuing controversy surrounding race, identity, and intimacy).
[FN107]. See Judith Areen, Cases and Materials on Family Law 93 (4th ed. 1999).
[FN108]. See Walter Wadlington, The Loving Case:Virginia's Anti-Miscegenation Statute in Historical Perspective, 52
Va. L. Rev. 1189, 1191-93 (1966) (noting that the Governor's Council punished acts of fornication between whites and
blacks as early as 1630, and that the first general statutory proscription against miscegenous marriage was adopted in
1691).
[FN109]. See Madden, supra note 7, at 38-39 (noting that unlike much of U.S. marriage law, these enactments had no
counterpart in English law:“[a]t common law, and in England to-day, no impediment to marriage exists on account of
race, color, religion, or social rank”).
[FN110]. See Degler, supra note 1, at 252-57.
[FN111]. See Comment, Intermarriage With Negroes--A Survey of State Statutes, 36 Yale L.J. 858, 860-61 (1927).
[FN112]. See id. at 859 (noting that “[i]n these states the Negroes comprise from over fifty to less than one per cent of
the entire population” while in the 19 states that had not enacted similar legislation, “in no one of these states do the
Negroes comprise more than five, while in seven of these states they actually form less than one per cent of the total pop-
ulation”). In 6 states in the deep South, the prohibition was enshrined in the state constitution. See Wadlington, supra
note 108, at 1190 & n.8 (listing Alabama, Florida, Mississippi, North Carolina, South Carolina, and Tennessee). Plotting
these 29 states on a map of the United States shows that the 19 that had not enacted such provisions included the 6 New
England states and a band of contiguous Northeast and Central states stretching from New York, New Jersey, and
Pennsylvania across Ohio, Michigan, Illinois, Wisconsin, Iowa, and Minnesota, finishing up with 3 Western states
(Washington, Arizona, and New Mexico) and Kansas.
[FN113]. See Plessy v. Ferguson, 163 U.S. 537 (1896) (upholding an 1890 Louisiana law requiring separate railroad cars
for African-American and white passengers), overruled by Brown v. Board of Educ., 347 U.S. 483 (1954); the Slaughter
House Cases, 16 Wall. 36 (1873) (striking down the Civil Rights Act of 1875).
[FN114]. 347 U.S. 483 (1954) (invalidating under the Equal Protection Clause statutes enacted by four states providing
for segregated public schools).
[FN115]. See McLaughlin v. Florida, 379 U.S. 184 (1964).
[FN116]. Compare Wadlington, supra note 108, with Alfred Avins, Anti-Miscegenation Laws and The Fourteenth
Amendment:The Original Intent, 52 Va. L. Rev. 1224 (1966).
[FN117]. 388 U.S. 1 (1967). The California Supreme Court, in a four to three decision authored by Justice Roger
Traynor, was the only state court to invalidate its own statute; it had done so 19 years before Loving was handed down.
See Perez v. Sharp, 32 Cal. 2d 711 (1948). Many other states had also repealed their statutes. The U.S. Supreme Court
noted that only 16 states of the original 29 still retained miscegenation statutes. See Loving, 388 U.S. at 6. Alabama
voters repealed the last such prohibition, 60% to 40%, in 2000. See Somini Sengupta, Marry at Will, N.Y. Times, Nov.
12, 2000, at WR2.
[FN118]. Loving, 388 U.S. at 11.

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[FN119]. The term “common law marriage” was not uniformly defined, but was usually taken to mean an agreement or
consent to become husband and wife immediately at the time the agreement was made. This agreement was known as a
marriage “per verba de praesenti,” which was recognized in the United States, and was to be distinguished from consent
“per verba de futuro com copula,” which was not valid. See Madden, supra note 7, at 58 (pointing out that “[t]he Americ-
an rule is that a mere agreement to marry in the future, though followed by cohabitation, is not a marriage, unless such
cohabitation is intended and understood by the parties as a consummation of the marriage, and as converting the execut-
ory agreement into a present actual marriage”).
[FN120]. Id. at 50 (noting that “[t]he historical facts were that even the Roman Church, prior to the Council of Trent in
1563, did not require a solemnization of marriages, but permitted parties to become husband and wife by agreement, and
that the change made by the Roman Church in 1563 was not recognized in England, where the law was that no marriage
ceremony was necessary” and dating the reception of the doctrine in the United States from the New York opinion in
Fenton v. Reed, 4 Johns. 52 (1809), which “gave vitality to the doctrine of common-law marriage, and hence it secured a
foothold in this country,” that was buttressed by respected commentators, such as Chancellor Kent and Greenleaf).
[FN121]. See Madden, supra note 7, at 51-53 & n.38 (citing cases from 33 states, the District of Columbia, and Hawaii;
some of the states listed had prospectively changed their law).
[FN122]. See Areen, supra note 107, at 93 (listing Alabama, Colorado, Idaho, Iowa, Kansas, Montana, Oklahoma,
Pennsylvania, Rhode Island, South Carolina, and Texas).
[FN123]. Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75 Or. L. Rev. 709, 717
(1996).
[FN124]. See id. at 723. But see Dubler, supra note 49, at 1908 (noting that Elizabeth Cady Stanton opposed common
law marriage).
[FN125]. See Bowman, supra note 123, at 757-65; see also John B. Crawley, Is the Honeymoon Over for Common-Law
Marriage:A Consideration of the Continued Viability of the Common-Law Marriage Doctrine, 29 Cumb. L. Rev. 397,
424-25 (1999) (noting that many states that had abolished common law marriage have invented other less precise equit-
able doctrines to perform the function of allowing cohabitants to recover in circumstances in which their attempted cere-
monial marriages were invalid, and urging the legislators of Alabama to “weigh the public policy reasons for retaining
the doctrine, as well as the ease and certainty of applying the doctrine, against the uncertainty of what might replace it”).
[FN126]. See Bowman, supra note 123, at 770-76. The ALI Principles of Family Dissolution provide these benefits to
cohabitants who qualify as “domestic partners” without reviving common law marriage. See infra text at notes 359-361.
[FN127]. See supra text accompanying notes 67-85.
[FN128]. Basch, supra note 41, at 80-81 (quoting Henry Loomis, Jr., Divorce Legislation in Connecticut, 25 New
Englander 436 (1866)).
[FN129]. See O'Neill, supra note 28, at 140-42.
[FN130]. See id. at 141-42.
[FN131]. See id. at 142-45.

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[FN132]. Friedman, supra note 42, at 659.
[FN133]. See O'Neill, supra note 28, at 152-58 (noting that the Nevada courts granted about 1000 divorces per year in
the 1920s, over 2500 in 1928, and 5260 in 1931, with the increases following the statutory changes in divorce law and
procedure).
[FN134]. See Williams v. North Carolina, 317 U.S. 287 (1942) (reversing North Carolina convictions of bigamous co-
habitation against two North Carolina residents who had obtained ex parte divorces in Nevada, based on testimony tend-
ing to prove their residences and bona fide domiciles in Nevada, and who had then married each other in Nevada before
returning to North Carolina); Williams v. North Carolina, 325 U.S. 226 (1945) (affirming North Carolina convictions of
bigamous cohabitation against the same defendants when North Carolina, after giving “appropriate weight” to the
Nevada findings of bona fide domicile, had determined that the parties did not establish domiciles in Nevada); Sherrer v.
Sherrer, 334 U.S. 343 (1948) (holding that a husband who had participated in his wife's Florida divorce proceeding by
entering an appearance and filing an answer contesting her allegations as to residence was subsequently foreclosed from
attacking the divorce decree in their former home state of Massachusetts); Estin v. Estin, 334 U.S. 541 (1948) (holding
that a husband's ex parte 1945 Nevada divorce did not terminate his wife's prior 1943 New York separate maintenance
decree, thus establishing the doctrine of divisible divorce). These cases made it plain that, while an ex parte divorce was
vulnerable to an attack on jurisdictional grounds in other states, a bilateral “consent” divorce, in which the defendant ap-
peared and had the opportunity to challenge the plaintiff's sworn testimony as to domicile, was secure. The Supreme
Court has never decided the ultimate question of whether Nevada is required to recognize a sister state's judgment declar-
ing one of its ex parte decrees void for lack of jurisdiction. Nevada made clear in Colby v. Colby, 78 Nev. 150 (1962),
that it will not voluntarily recognize such judgments. For a wonderfully entertaining account of the Nevada divorce trade,
see Thomas Reed Powell, And Repent At Leisure, 58 Harv. L. Rev. 930 (1945).
[FN135]. See Women's Bureau, U.S. Dep't of labor, Bull. No. 294, Handbook on Women Workers 10 tbl.1 (1969).
[FN137]. See id. at 422-23 (estimating that 2.25 million women left voluntarily in the first year after the war ended,
while another l million were laid off; but 2.75 million women joined the labor force at about the same time, so that the
total loss of women workers was about half a million, and arguing that the observers ignored “contrary signs,” including
a Women's Bureau survey which found that three-fourths of working women, in particular large numbers of those over
45, said they wanted to keep their jobs after the war).
[FN138]. See Max Rheinstein, The Law of Divorce and the Problem of Marriage Stability, 9 Vand. L. Rev. 633, 633 n.2
(1956).
[FN139]. See Lynne Carol Halem, Divorce Reform 194-98 (1980).
[FN140]. See Report of Inter-Agency Committee on Background Materials, The American Family:A Factual Back-
ground, Foreword at ii (May 1948). In explaining the interest of the ABA, the ABA Journal editorialized that the confer-
ence “offers the opportunity to focus nationwide attention on efforts to clean up the scandals attending our divorce laws
and their administration.” Editorial, 33 A.B.A. J. 1207 (1947).
[FN141]. Reginald Heber Smith, Dishonest Divorce, Atlantic Monthly, Dec. 1947, at 42, 43-44.
[FN142]. See id.

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88 Cal. L. Rev. 2017
[FN143]. Id. at 44.
[FN144]. See Report on Divorce Laws Acclaimed at National Conference on Family Life, 34 A.B.A. J. 448 (1948)
(Judge Paul Alexander of the Family Court of Toledo, Ohio, gave the report on the Conference).
[FN145]. Association Offers Specific Solutions for Marriage and Divorce Law Evils, 34 A.B.A. J. 894, 894 (1948).
[FN146]. See id. at 895. The Special Committee was renewed in 1950, see Proceedings of the House of Delegates, 36
A.B.A. J. 948, 965 (1950), and continued to function until 1958, when the ABA replaced it with the Section on Family
Law. Proceedings of the House of Delegates, 44 A.B.A. J. 338, 380 (1958).
[FN147]. See Maxine Boord Virtue, Family Cases in Court at xxv (1956).
[FN148]. Judge Alexander was a dominant figure both in juvenile court circles and in the divorce reform effort of the
1940s and 1950s. A list of his affiliations published with a 1953 article included the following:“Chairman ABA Special
Committee on Divorce and Marriage Laws and Family Courts; Chairman Interprofessional Commission on Marriage and
Divorce Laws; Acting Chairman Legal Section, National Conference on Family Life; Past President, National Council of
Juvenile Court Judges; Past President, National Conference of Juvenile Agencies.” Paul W. Alexander, Let's Get the Em-
battled Spouses Out of the Trenches, 18 Law. & Contemp. Probs. 98 n.* (1953).
[FN149]. Id. at 101.
[FN150]. Thomas M. French, Contributions to a Therapeutic Solution to the Divorce Problem:Psychiatry, Conference on
Divorce, 9 U. Chi. L. Sch. Conf. Series 62, 62 (1952).
[FN151]. See Meyer F. Nimkoff, Contributions to a Therapeutic Solution to the Divorce Problem:Sociology, Conference
on Divorce, 9 U. Chi. L. Sch. Conf. Series 55, 58 (1952).
[FN152]. Emily H. Mudd, Contributions to a Therapeutic Solution to the Divorce Problem:Social Work and Marriage
Counseling, Conference on Divorce, 9 U. Chi. L. Sch. Conf. Series 65, 65 (1952).
[FN153]. Madden, supra note 7, at 379-82 (noting at 381 that “[t]he state's function as parens patriae, as well as its gen-
eral power to make reasonable classifications in its regulatory and penal laws, make possible the large number of provi-
sions found in the statutes for the special protection of children”).
[FN154]. See Frank Allen, The Borderland of Criminal Justice 43-61(1964).
[FN155]. In re Gault, 387 U.S. 1 (1967) (setting aside the commitment of a 15-year-old boy to training school for the
duration of his minority in part because of his participation in a lewd telephone call, which act if committed by an adult
would result in a fine of $5 to $50 or imprisonment for not more than two months; the boy's parents were not notified of
his arrest or detention, and neither he nor they were represented by counsel; no record of the hearing was kept).
[FN156]. Paul W. Alexander, Introduction to Virtue, supra note 147, at xxx-xxxi.
[FN157]. See id. at xxxii.
[FN158]. See Virtue, supra note 147.
[FN159]. See id. at 239-41 (“The family court as it exists in Ohio may be highly recommended as an appropriate pattern

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of jurisdiction and court structure for the development of humane and practicable methods of dealing with personal prob-
lem cases.”).
[FN160]. See id. at 248-50.

It seems to me that the use of marriage counselors and the widespread interest in expansion of this service is
most important as showing recognition by court and community that viable marriages must be saved, and that the court
ought not to ignore but rather to act affirmatively on behalf of the social and moral values implicit in preserving family
life.
Id. at 248.
[FN161]. Blake, supra note 32, at 239.
[FN162]. See Report of the Governor's Commission on the Family 5-16 (1966) (citing Virtue, supra note 147, at 7-8 n.4)
[hereinafter California Governor's Commission Report]. This recommendation was not adopted by the Legislature. See
Max Rheinstein, Marriage Stability, Divorce, and the Law 378 (1972) (noting that the California bar “may have been
primarily responsible for the elimination from California divorce reform of the family court plan”).
[FN163]. California Governor's Commission Report, supra note 162, at 9; see also Herma Hill Kay, A Family Court:The
California Proposal, 56 Calif L. Rev. 1205, 1226-27 (1968) (pointing out that “[i]t should be clearly understood that the
California proposal does not provide for mandatory attempts at reconciliation”); id at 1205-12 (distinguishing the Cali-
fornia proposal from Judge Alexander's model).
[FN164]. See John Leslie Goddard, The Proposal for Divorce Upon Petition and Without Fault, 43 Cal. St. B.J. 90, 98
(1968).
[FN165]. Virtue, supra note 147, at 228.
[FN166]. Id. at 84.
[FN167]. 750 Ill. Comp. Stat. Ann. 5/401 (West Supp. 1999).
[FN168]. Virtue, supra note 147, at 89-90.
[FN169]. See Alexander, supra note 156, at xxxi-xxxii.
[FN170]. Virtue, supra note 147, at 90.
[FN171]. Max Rheinstein, Our Dual Law of Divorce:The Law in Action Versus the Law of the Books, Conference on
Divorce, 9 U. Chi. L. Sch. Conf. Series 39 (1952).
[FN173]. See Rheinstein, supra note 171, at 41.
[FN174]. Id.
[FN175]. Id. at 42.
[FN176]. Id. at 41.

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[FN178]. Id. at 662-63.
[FN179]. See Herbert Jacob, Silent Revolution:The Transformation of Divorce Law in the United States 37 (1988)
(pointing out the social and political significance of New York Governor Nelson Rockefeller's reelection in 1962 follow-
ing the out of state divorce secured by his wife); see also Justice Felix Frankfurter's caustic comment about divorce prac-
tice in the late 1940s in his dissenting opinion in Sherrer v. Sherrer, 334 U.S. 343, 367 (1948) (Frankfurter, J., dissenting)
(requiring Massachusetts to give Full Faith and Credit to a Florida divorce decree obtained by a Massachusetts wife
where the husband had appeared in the Florida proceedings but did not contest the wife's testimony as to her Florida
domicile) (“[T]he practical result [of Sherrer] will be to offer new inducements for conduct by parties and counsel,
which, in any other type of litigation, would be regarded as perjury, but which is not so regarded where divorce is in-
volved because ladies and gentlemen indulge in it.”).
[FN180]. See John Rock, The Time Has Come (1963). During the nineteenth century, the most commonly used method
of birth control was probably coitus interruptus. See Degler, supra, note 2, at 211-13. The social and legal struggles over
contraception in the late nineteenth and early twentieth centuries are typified by the contrast between the Comstock law
enacted in New York in 1873 to prevent the use of the mails to convey “obscene matter” and Margaret Sanger's efforts to
teach women how to regulate their fertility. See Lawrence Lader, The Margaret Sanger Story and the Fight for Birth
Control (1955).
[FN181]. See Arthur M. Schlesinger, A Thousand Days:John F. Kennedy in the White House 927-28 (1965).
[FN182]. See id. at 729.
[FN184]. See id. at 441-42.
[FN185]. 29 U.S.C. § 206(d) (1994). Section 206(d)(1)provides:

No employer having employees subject to any provisions of this section shall discriminate, within any establish-
ment in which such employees are employed, between employees on the basis of sex by paying wages to employees in
such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establish-
ment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are per-
formed under similar working conditions, except where such payment is made pursuant to(i)a seniority system; (ii) a
merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on
any other factor other than sex; Provided, That an employer who is paying a wage rate differential in violation of this
subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.
See generally Caruthers Gholson Berger, Equal Pay, Equal Opportunity and Equal Enforcement of the Law for Women,
5 Val. U. L. Rev. 326 (1971) (reviewing the legislative background and judicial construction of the Equal Pay Act and
Title VII of the Civil Rights Act and urging a liberal interpretation of both Acts).
[FN186]. Schlesinger, supra note 181, at 950-77.
[FN187]. Theodore H. White, The Making of the President--1964, at 173-77 (1965).
[FN188]. Civil Rights Act of 1964 §§ 701-716, 42 U.S.C. §§ 2000e to 2000e-15 (1994).
[FN189]. See Developments in the Law--Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84

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Harv. L. Rev. 1109, 1166-67 (1971).
[FN190]. See 42 U.S.C. § 2000e-2(a) (1994). The expanded coverage came about when a southern Congressman, hoping
to defeat the bill, moved to add “sex” to the list of categories protected from discrimination. See Carolyn Bird, Born Fe-
male 1-15 (1969); Leo Kanowitz, Women and the Law:The Unfinished Revolution 104-05 (1969). The move backfired;
over the opposition of Congresswoman Edith Green, but with the support of five other Congresswomen, the amendment
passed. See Jo Freeman, How “Sex” Got into Title VII:Persistent Opportunism as a Maker of Public Policy, 9 Law & In-
eq. J. 163 (1991).
[FN191]. See Cal. Govt. C. § 12900 et seq. (“California Fair Employment and Housing Act”) (West 1992 & 2000 Supp.);
N. Y. Executive Law § 290 et seq. (“Human Rights Law”) (McKinney 1993).
[FN192]. See Bureau of the Census, U.S. Dep't of Commerce, Statistical Abstract of the United States:1994 (Table No.
616) (114th ed. 1994).
[FN193]. Betty Friedan, The Feminine Mystique (1963).
[FN194]. See Maren Lockwood Carden, The New Feminist Movement 154-55 (1974); Degler, supra note 2, at 443. An-
other influential work appeared earlier in France:Simone de Beauvoir, The Second Sex (1949).
[FN195]. See Carden, supra note 194, at 104-05 (noting that Betty Friedan was elected President and that Dr. Kathryn
Clarenbach of Wisconsin became Chair of the Board); see also Marcia Cohen, The Sisterhood:The True Story of the Wo-
men who Changed the World 129-37 (1988).
[FN196]. I have traced these developments in detail elsewhere. See Herma Hill Kay, Equality and Difference:A Perspect-
ive on No-Fault Divorce and Its Aftermath, 56 U. Cinn. L. Rev. 1, 26-44 (1987). I there defined a “pure” no-fault divorce
law as one that “abolish[es] all fault-based grounds for divorce and install[s] in their stead a pure no-fault law based on
marriage breakdown” and indicated that 15 states had enacted such laws. Id. at 5 & n.19.
[FN197]. See Howard A. Krom, California's Divorce Law Reform:An Historical Analysis, 1 Pac. L.J. 156, 158 (1970).
[FN198]. See Virtue, supra note 147, at 3-51.
[FN199]. Others who testified included a number of family law judges, most prominently Judge Roger A. Pfaff of the
Los Angeles Conciliation Court, practitioners, and state officials. See Kay, supra note 196, at 29-30; Krom, supra note
197, at 160-61.
[FN200]. See California Governor's Commission Report, supra note 162, at 5-32. Gough was named Executive Director
of the Commission and the author was a member. See id. at 145-46.
[FN201]. See Stephen Cretney, Law, Law Reform and the Family 32-50 (1998) (noting at 34-36 and at 42-48 that the
Archbishop's Group was appointed in response to the most recent of two efforts to pass a private member's bill permit-
ting divorce based on separation for seven years).
[FN202]. See California Governor's Commission Report, supra note 162, at 28-29; Putting Asunder, supra note 32, at
18-19.
[FN203]. See Cretney, supra note 201, at 54 (noting that the Archbishop's Group published its report on July 29, 1966).

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The Report of the Governor's Commission was transmitted to Governor Edmund G. Brown on December 15, 1966. See
California Governor's Commission Report, supra note 162, at 1.
[FN204]. See California Governor's Commission Report, supra note 162, at 27 & n.17, 29 & n.18, 32 & n.26.
[FN205]. See Jacob, supra note 179 at 52-53 (noting that the Assembly hearings in January and October 1964 “provided
an opportunity for Kay and others to introduce the no-fault concept and some of the other innovations which later marked
the 1969 law” and concluding that “two years before the Archbishop of Canterbury's report made no-fault a widely dis-
cussed concept and before New York's divorce reform law, Kay outlined the basic features of a complete reform of
American divorce law”).
[FN206]. See J. Herbie DiFonzo, Beneath the Fault Line:The Popular and Legal Culture of Divorce in Twentieth-century
America 162 (1997):
The governor's commission...concentrated its proposals on one integrated scheme, heavily influenced by the
archbishop of Canterbury's group:no-fault dissolution of marriage, to be processed by a therapeutic family court. Not
only did the commission quote at length from Putting Asunder, but its proposal linking the removal of fault to a transfer
of domestic cases to an administrative and therapeutic--rather than purely adjudicative--body replicated the heart of the
Church of England report.
[FN208]. See N.Y. Dom. Rel. Law § 170 (McKinney 1999) (effective September 1, 1967). The additional grounds for di-
vorce were cruel and inhuman treatment that so endangers the physical or mental well being of the plaintiff as to render it
unsafe or improper for plaintiff to cohabit with defendant, abandonment for a period of two or more years, confinement
in prison after marriage for three or more consecutive years, and living separate and apart for two or more years pursuant
to a separation decree or a recorded separation agreement. See Halem, supra note 139, at 254-69; see also Comment,
New York's New Divorce Law:Beyond the Sixth Commandment, 5 Colum. J. L. & Soc. Probs. 1 (1969). South Carolina
had enacted a statute authorizing courts to grant decrees of absolute divorce on the grounds of adultery, desertion, phys-
ical cruelty, and habitual drunkenness in 1949, and added its version of no-fault divorce, voluntary separation for one
year, in 1976. See S.C. Code Ann. § 20-3-10 (Law. Co-op 1999).
[FN209]. See Virtue, supra note 147.
[FN210]. See Kay, supra note 196, at 37-38.
[FN211]. See id. at 38-39; see also Krom, supra note 197, at 170-74.
[FN212]. See Goddard, supra note 164, at 90:

These basic proposals...would result in a sudden and profound change in the law and procedure governing di-
vorce as known and developed in Anglo-American jurisprudence for several centuries...Such cataclysmic changes should
only be adopted after the most careful thought and analysis, inasmuch as there are few precedents on which to base any
forecast of the far-reaching effects of divorce upon petition and without fault.
See also Kay, supra note 196, at 37 n.175, 39-40. The opposition was centered in the Los Angeles Conciliation Court.
Judge Roger A. Pfaff had been active throughout the California reform period, and was a member of the Governor's
Commission. Ill health prevented him from attending its meetings, but he followed its proceedings and wrote a letter ex-
pressing his reservations to the Commission's Co-Chair, attorney Richard Dinkelspiel.
[FN213]. See Kay, supra note 196, at 40-41 (pointing out that “[t]he California Family Law Act of 1969 was quite a dif-

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ferent document from the Family Court Act proposed in 1966 by the Governor's Commission on the Family”); see also
Krom, supra note 197, at 174-80.
[FN215]. 39 Cal. 2d 858, 864, 250 P.2d 598, 601 (1952):

Since the family is the core of our society, the law seeks to foster and preserve marriage. But when a marriage
has failed and the family has ceased to be a unit, the purposes of family life are no longer served and divorce will be per-
mitted. “[P]ublic policy does not discourage divorce where the relations between husband and wife are such that the le-
gitimate objects of matrimony have been utterly destroyed.” (quoting Gibson, C. J., in Hill v. Hill, 23 Cal. 2d 82, 93, 142
P. 2d 417, 422 (1943)).
[FN216]. California Governor's Commission Report, supra note 162, at 91 (Section 028 and accompanying Comment).
[FN217]. Family Law Act of 1969 § 8, 1969 Cal. Stat. 3324 (originally codified at Cal. Civ. Code §§ 4506-4507 (West
1970)).
[FN218]. The defense of recrimination, which arose upon “a showing by the defendant of any cause of divorce against
the plaintiff, in bar of the plaintiff's cause of divorce,” would have ruled out such an acknowledgement of mutual fault if
the causes were “in bar” of each other. Former Cal. Civ. C. § 122 (Deering 1961), repealed by 1969 Cal. Stat. ch. 1608,
sec. 3, at 3313, operative Jan. 1, 1970. Both drafts abolished this defense. See California Governor's Commission Report,
supra note 162, at 77; 1969 Cal. Stat. ch. 1608, sec 3, at 3312, operative January 1, 1970.
[FN219]. Family Law Act of 1969 § 8, 1969 Cal. Stat. 3325, amended by Act effective Jan. 1, 1970, ch. 1609, § 14 1969
Cal. Stat. 3355 (originally codified at Cal. Civ. Code § 4509 (West 1970)).
[FN220]. This provision was repealed in 1975. See Act of Apr. 18, 1975, ch. 35 § 1, 1975 Cal. Stat. 59.
[FN221]. Rheinstein, supra note 162, at 368.
[FN222]. Cal. Fam. Code § 2335 (West 1994) (the successor to Cal. Civ. Code § 4509).
[FN223]. See Cal. Stat. 1993, ch. 219, § 110, 1617 (A.B. 1500), amending Cal. Fam. Code § 2335 to delete former sub-
sections(a)&(b)(Deering 1994 & Supp. 1999).
[FN225]. See California Governor's Commission Report, supra note 162, at 45-46.
[FN226]. Family Law Act of 1969 § 8, 1969 Cal. Stat. at 3333 (originally codified at Cal. Civ. Code §4800 (West 1970)).
[FN227]. California Assembly Committee on Judiciary Report on A.B. No. 530 and S.B. No. 252 (The Family Law Act),
4 Cal. Assembly Daily J. 8053, 8061-62 (Aug. 8, 1969) [hereinafter California Assembly Report]. Assemblyman Hayes
was the author of A.B. 530. The Report was designed as a statement of legislative intent. The report explained that “if the
nature of the property is such that an equal division is not possible without impairment of a principal asset, then the court
shall have discretion to establish conditions which will result in a substantially equal division.” It gave the example of a
business, where the court “could award the entire business to the husband and grant the wife her one-half interest in cash
or give her a greater share of other property or a greater support allowance.”

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88 Cal. L. Rev. 2017
[FN228]. Family Law Act of 1969 § 8, 1969 Cal. Stat. 3333 (originally codified at Cal. Civ. Code §4801 (West 1970)).
[FN229]. California Assembly Report, supra note 227, at 8062. Assemblyman Hayes subsequently quoted this statement
in support of his motion to terminate his obligation to support his former wife. See Riane Tennenhaus Eisler, Dissolu-
tion:No-Fault Divorce, Marriage, and the Future of Women 24-31 (1977).
[FN230]. See In re Marriage of Rosan, 101 Cal. Rptr. 295, 304 (1972) (reversing a spousal support order as inadequate in
a case where the wife had not worked outside the home in 17 years and noting “[w]e find nothing in the Family Law
Act...indicating any legislative intent that a wife of a marriage of longstanding...should be...relegated to a standard of liv-
ing substantially below that enjoyed by the parties during the marriage...”). Rosan was subsequently approved, and con-
trary cases disapproved, by the California Supreme Court. See In re Marriage of Morrison, 143 Cal. Rptr. 139 (1978).
[FN231]. See supra note 83. NCCUSL had approved the project in 1965.
[FN232]. See id. Professor Levy was appointed as Reporter in 1965; the author was named Co-Reporter in 1967.
[FN233]. See Rheinstein, supra note 162, at 385-86; Kay, supra note 196, at 44-51; Maurice H. Merrill, Section
305:Genesis and Effect, 18 S.D. L. Rev. 538, 540 (1973).
[FN234]. Section 305 of the 1970 UMDA provided as follows:

(a) If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irre-
trievably broken, or one of the parties has so stated and the other has not denied it, the court, after hearing, shall make a
finding whether the marriage is irretrievably broken.(b)If one of the parties has denied under oath or affirmation that the
marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to
the filing of the petition and the prospect of reconciliation, and shall(1)make a finding whether the marriage is irretriev-
ably broken, or(2)continue the matter for further hearing not less than 30 or more than 60 days later, or as soon thereafter
as the matter may be reached on the court's calendar and may suggest to the parties that they seek counseling. At the ad-
journed hearing, the court shall make a finding whether the marriage is irretrievably broken.
UMDA § 305 (1970).
[FN235]. See Harvey L. Zuckman, The ABA Family Law Section v. The NCCUSL:Alienation, Separation, and Forced
Reconciliation Over the Uniform Marriage and Divorce Act, 24 Cath. U. L. Rev. 61, 63, 71-73 (1974).
[FN236]. UMDA § 302 (a)(2), 9B U.L.A. Part II, 1 (Master Ed. 1998).
[FN238]. Robert Levy, Uniform Marriage and Divorce Legislation:A Preliminary Analysis 138 (1969) (unpublished
monograph prepared for NCCUSL, on file with author).
[FN239]. See Jacob, supra note 179, at 77-78. Jacob asserts that the UMDA's
most important effect was to legitimate no-fault in a way that California's adoption could not. Whereas Califor-
nia's adoption might be discounted because California often adopted avant-garde ideas belittled elsewhere, the NCCUSL
and ABA's endorsement of no-fault divorce indicated that this was a reasonable idea that warranted serious consideration
by state legislatures, for the NCCUSL and ABA were middle-of-the-road, conservative organizations little given to extra-
vagant social experimentation.
Id. See also Robert J. Levy, A Reminiscence About The Uniform Marriage and Divorce Act--and Some Reflec-
tions About Its Critics and Its Policies, 1991 BYU L. Rev. 43, 44. Levy notes that, while only parts of the UMDA were

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adopted in any jurisdiction,

the Uniform Act has been identified as the policy vehicle for the rapid spread through the United States of two
important divorce law trends:1) “no-fault divorce”--that is, the abolition of the “fault grounds” for divorce which had
been a formal feature of the English and American divorce law for centuries; and 2) “equitable distribution of marital
property”--the concept that marriage should be treated as a partnership whose assets must be fairly distributed between
the spousal partners at divorce without regard to their formal ownership.
Id. The UMDA's influence on divorce law reform far outstripped its impact on the law of marriage. See Robert J.
Levy, Trends in Legislative Regulation of Family Law Doctrine:Millennial Musings, 33 Fam. L. Q. 543, 548 (1999)
(noting that although only eight states adopted the UMDA's divorce provisions more or less intact, almost every state
substantially modified its statutory grounds for divorce, while no state followed “in recognizable form” its marriage doc-
trines).
[FN241]. See Deborah L. Rhode & Martha Minow, Reforming the Questions, Questioning the Reforms, in Divorce Re-
form at the Crossroads 191, 195 (Stephen D. Sugarman and Herma Hill Kay eds., 1990) (noting that “[t]he newly emer-
ging women's rights movement was not significantly involved with early divorce reforms, in part because it was under-
staffed and overextended during this period, but more important, because the implications of such reforms were not yet
apparent”).
[FN242]. See Model Penal Code § 207.11 (Tent. Draft No. 9, 1959).
[FN243]. Zad Leavy & Alan F. Charles, California's New Therapeutic Abortion Act:An Analysis and Guide to Medical
and Legal Procedure, 15 UCLA L. Rev. 1, 1 & n.3 (1967).
[FN244]. See Cal. Penal Code § 274, Historical and Statutory Notes (West 1999) (amended 1967) (proscribing the per-
formance of an abortion upon a woman “unless the same is necessary to preserve her life”).
[FN245]. See Model Penal Code § 230.3 cmt. 1 at 426-27 (1980).
[FN246]. See Mary Ann Glendon, Abortion and Divorce in Western Law 63 (1987).
[FN247]. Rheinstein, supra note 171, at 39.
[FN248]. See Herbert L. Packer & Ralph J. Gampell, Therapeutic Abortion:A Problem in Law and Medicine, 11 Stan. L.
Rev. 417, 447 (1959) (The survey was sent to 29 hospitals and 26 responded). The authors observe that
[t]he abortion problem exhibits a dramatic variation between legal norm and social fact. The legal norm is con-
demnation, save for a limited exception, varied in its statement but always narrow in its reach. The social fact is omni-
presence, on a scale of which we are just beginning to be aware.
Id. at 417.
[FN249]. See Shively v. Stewart, 421 P.2d 65 (1966) (granting discovery to doctors in an administrative disciplinary ac-
tion charging unprofessional conduct brought by the California State Board of Medical Examiners against nine San Fran-
cisco physicians for performing abortions on women who had contracted German measles in the early stages of preg-
nancy). An amicus curiae brief filed in the case on November 28, 1966, by more than 200 deans of medical schools and
heads of pediatrics, obstetrics, and gynecology departments across the country asserted that “‘[t]ermination of pregnancy
to preserve the health and well-being of the pregnant woman, or to prevent the birth of a severely deformed child, is a
procedure firmly established by medical science and approved as clinically sound by an overwhelming majority of med-

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88 Cal. L. Rev. 2017
ical opinion.”’ Leavy & Charles, supra note 243, at 26 (quoting amicus curiae brief).
[FN250]. See Model Penal Code § 230.3 cmt. 1, at 426 n.4 (1980).
[FN251]. See Leavy & Charles, supra note 243, at 2; Roy Lucas, Federal Constitutional Limitations on the Enforcement
and Administration of State Abortion Statutes, 46 N.C. L. Rev. 730 (1968); Robert I. Sanders & Carlton R. Stoiber, Note,
Colorado's New Abortion Law, 40 U. Colo. L. Rev. 297, 297 (1967). Unlike Colorado and North Carolina, the California
statute omitted the fetal deformity (German measles) provision in order to avoid a veto by Governor Ronald Reagan. See
Leavy & Charles, supra note 243, at 3 & n.15.
[FN252]. See Model Penal Code § 230.3 (1962) provided in part:

(1) Unjustified Abortion. A person who purposely and unjustifiably terminates the pregnancy of another other-
wise than by a live birth commits a felony of the third degree or, where the pregnancy has continued beyond the twenty-
sixth week, a felony of the second degree.
(2) Justifiable Abortion. A licensed physician is justified in terminating a pregnancy if he believes there is sub-
stantial risk that continuance of the pregnancy would gravely impair the physical or mental health of the mother or that
the child would be born with grave physical or mental defect, or that the pregnancy resulted from rape, incest, or other
felonious intercourse. All illicit intercourse with a girl below the age of 16 shall be deemed felonious for purposes of this
subsection. Justifiable abortions shall be performed only in a licensed hospital except in case of emergency when hospital
facilities are unavailable.
Subsection 230.3(3)required a written certificate from two physicians specifying the circumstances they believed to justi-
fy the abortion.
[FN253]. See Michael S. Sands, The Therapeutic Abortion Act:An Answer to the Opposition, 13 UCLA. L. Rev. 285,
287 n.16 (1966) (listing a few women's “civic” organizations that supported the California reform effort, including Uni-
versity Women for the Humane Abortion Law and the California Division of the American Association of University
Women).
[FN254]. See Cohen, supra note 195, at 179-80, 391.
[FN255]. Lucinda Cisler, Unfinished Business:Birth Control and Women's Liberation, in Sisterhood is Powerful 245,
274-81 (Robin Morgan ed., 1970).
[FN256]. See Haw. Rev. Stat. § 453-16 (Michie 1998) (permitting abortion of nonviable fetuses); McKinney's 1970 N.Y.
Session Laws, ch. 127, 170, eff. July 1, 1970 (codified at N.Y. Penal Code §125.05(3)) (permitting abortion within the
first 24 weeks of pregnancy).
[FN257]. Roe v. Wade, 314 F. Supp. 1217 (N.D. Tex. 1970), aff'd in part and rev'd in part, 410 U.S. 113 (1973).
[FN258]. Doe v. Bolton, 319 F. Supp. 1048 (N.D. Ga. 1970), judgment modified and aff'd, 410 U.S. 179 (1973).
[FN259]. See generally Sarah Weddington, A Question of Choice (1992) (Weddington represented plaintiff Jane Roe).
[FN260]. 410 U.S. 113 (1973) (holding that the constitutional right of privacy, inherent in the concept of liberty found in
the due process clause, encompasses a woman's decision, in consultation with her physician, to terminate her pregnancy,
though her right may be qualified by the state's interests, which grow in importance as the pregnancy progresses to term,
in protecting her health and in guarding the potential life of the fetus).
[FN261]. 410 U.S. 179 (1973) (invalidating both the statutory indications for justifiable abortion and the procedural re-

73 56
88 Cal. L. Rev. 2017
quirement that the abortion take place only in a licensed hospital with the concurrence of two physicians as imposing im-
permissible constraints on a woman's right of privacy).
[FN262]. See Model Penal Code § 230.3 cmt. 4 at 443-44 (1980) (“[T]he effect of Roe and Doe is largely to abrogate the
criminal law of abortion as stated in the Model Penal Code.”).
[FN263]. See Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1198-1209 (1992)
(suggesting at 1200 that “[t]he Roe decision might have been less of a storm center had it both homed in more precisely
on the woman's equality dimension of the issue and, correspondingly, attempted nothing more bold at that time than the
mode of decisionmaking the Court employed in the 1970s gender classification cases.”).
[FN264]. See Cohen, supra note 195, at 393.
[FN265]. See S. Rep. No. 92-689 (1972); Equal Rights for Men and Women 1971:Hearings Before Subcomm. No. 4 of
the Comm. on the Judiciary House of Representatives, 92d Cong., 1st Sess. (1971); H.R. Rep. No. 92-259 (1971); The
Equal Rights Amendment:Hearings Before the Subcomm. on Constitutional Amendments of the Comm. on the Judiciary
U.S. Senate, 91st Cong., 2d Sess. (1970); Equal Rights 1970:Hearings Before the Comm. on the Judiciary U.S. Senate,
91st Cong., 2d Sess. (1970). The text of clause 1 of the proposed ERA reads as follows:“Equality of rights under the law
shall not be denied or abridged by the United States or by any state on account of sex” (quoted in Hearings, and in Mans-
bridge, infra note 267, at 1).
[FN266]. See Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment:A Question of Time, 57 Tex. L. Rev.
919, 919 (1979).
[FN267]. See Barbara A. Brown et al., The Equal Rights Amendment:A Constitutional Basis for Equal Rights for Wo-
men, 80 Yale L.J. 871, 909 (1971) (noting that article was written to provide a definitive interpretation of the proposed
Amendment, does not discuss abortion, but notes that “most of the objections which have been addressed to the absolute
form of the Amendment are answered by the fact that the Amendment is inapplicable to laws dealing with unique physic-
al characteristics of one sex or by application of the constitutional right of privacy”); see also Jane J. Mansbridge, Why
We Lost the ERA 124-28 (1986).
[FN268]. See Mansbridge, supra note 267, at 91-98 (noting that other family law issues, such as child custody, domicile
of married women, married women's names, and the age at which marriage was permitted were also raised); Brown,
supra note 265, at 944-49, 951-52; see also Deborah L. Rhode, Equal Rights in Retrospect, 1 Law & Ineq. J. 1 (1983).
[FN269]. See Cohen, supra note 195, at 359; Mansbridge, supra note 267, at 112-17.
[FN270]. See Report of the Advisory Comm'n on the Status of Women, California Women 79-80 (1969).
[FN272]. Report of the Advisory Comm'n on the Status of Women, California Women 31 (1967).
[FN273]. See Isabella Grant, How Much of a Partnership is Marriage? Community Property Rights Under the California
Family Law Act of 1969, 23 Hastings L.J. 249, 256-57 (1971).
[FN274]. See Cal. Joint Interim Comm. on Judiciary, Hearings on Community Property (Sept. 25-26, 1972; Oct. 10,
1972; Oct. 20, 1972).

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[FN275]. See S.J. Res. 20, 1972 Reg. Sess., 4 Cal. Assembly Daily J. 7596 (Nov. 13, 1972) The debate over the ERA
questioned, among other things, the husband's power to control the community property. The power of control extended
to wives in 1975 was strengthened in 1987 by a requirement that each spouse manage the property in “good faith” and
that provided remedies for violation. See Carol S. Bruch, Protecting the Rights of Spouses in Intact Marriages:The 1987
California Community Property Reform and Why It Was So Hard to Get, 1990 Wis. L. Rev. 731, 744-56.
[FN276]. See Herma Hill Kay, An Appraisal of California's No-Fault Divorce Law, 75 Calif. L. Rev. 291, 303-04 (1987)
(noting that the three changes in laws were measures(1)prohibiting the denial of credit to a married woman whose prop-
erty and income would have supported the grant of credit to a married man;(2)granting wives equal power with husbands
to manage the community property; and(3)authorizing widows to assume ownership of the community estate without
having the entire estate administered in probate).
[FN277]. National Comm'n on the Observance of the International Women's Year, The Legal Status of Homemakers in
California 2 (1977).
[FN278]. See Martha L. Fineman, Implementing Equality:Ideology, Contradiction and Social Change:A Study of Rhetor-
ic and Results in the Regulation of the Consequences of Divorce, 1983 Wis. L. Rev. 789, 843 & n.170.
[FN279]. See id. at 847-50; Jacob, supra note 179, at 99-101.
[FN280]. See Richard W. Bartke & Lori A. Zurvalec, The Low, Middle and High Road to Marital Property Law Reform
in Common Law Jurisdictions, 7 Community Prop. J. 200, 219-32 (1980); see also id. at 221 (noting that Professor June
Weisberger was the primary draftsperson of a bill circulated in August 1979).
[FN281]. See June Miller Weisberger, The Wisconsin Marital Property Act:Highlights of the Wisconsin Experience in
Developing a Model for Comprehensive Common Law Property Reform, 1 Wis. Womens L.J. 5 (1985).
[FN282]. See Uniform Marital Property Act (UMPA), 9A U.L.A. Part I, 103 (Master Ed. 1998).
[FN283]. See Ginsberg & Flagg, infra note 289, at 11.
[FN284]. McGowan v. Maryland, 366 U.S. 420, 425-26 (1961) (upholding Maryland's “blue laws” forbidding most com-
mercial activities on Sunday); see also F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920) (invalidating a Vir-
ginia law that taxed the income of local corporations derived from business done both within and without the state, while
exempting the outside income of local corporations which did no local business:“[T]he classification must be reasonable,
not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the le-
gislation, so that all persons similarly circumstanced shall be treated alike”).
[FN285]. See Gunther, infra note 287, at 8-9.
[FN286]. See John E. Nowak et al., Handbook on Constitutional Law 524 (1978); see also Developments in the Law-
-Equal Protection, 82 Harv. L. Rev. 1065, 1087-88 (1969).
[FN287]. Gerald Gunther, The Supreme Court, 1971 Term--Forward:In Search of Evolving Doctrine on a Changing
Court:A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).
[FN288]. See, e.g., Hoyt v. Florida, 368 U.S. 57 (1961) (upholding a “volunteers only” requirement of jury service for
women); Goesaert v. Cleary, 335 U.S. 464 (1948) (upholding a statute prohibiting women from working as bartenders,

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except for the wives and daughters of male tavern owners); Muller v. Oregon, 208 U.S. 412 (1908) (upholding protective
laws for women; although the case was decided principally on due process grounds, an equal protection argument con-
tended that the statute constituted impermissible “class legislation”). Earlier cases upheld discrimination against women
on other constitutional grounds. See, e.g., Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1874) (holding that the right to
vote is not among the privileges and immunities of U.S. citizenship); Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1873)
(holding that the right to practice law is not protected by the Privileges and Immunities Clause).
[FN289]. Hon. Ruth Bader Ginsburg & Barbara Flagg, Some Reflections on the Feminist Legal Thought of the 1970s,
1989 U. Chi. Legal F. 9, 13.
[FN290]. See Reed v. Reed, 404 U.S. 71 (1971) (“It is appellant's principal position that the sex line drawn by Sec.
15-314 of the Idaho Code, mandating subordination of women to men without regard to individual capacity, creates a
‘suspect classification’ for which no compelling justification can be shown.”) (quoting appellant's brief).
[FN291]. 404 U.S. 71 (1971) (striking down an Idaho statute giving preference to men over women as administrators of
decedents' estates).
[FN292]. See Gunther, supra note 287, at 34. (“It is difficult to understand the result without an assumption that some
special sensitivity to sex as a classifying factor entered into the analysis.”).
[FN293]. Judge Harrison L. Winter may have been the first to use the new term in Eslinger v. Thomas, 476 F.2d 225,
230-31 (4th Cir. 1973) (invalidating practice of South Carolina Senate not to hire women as Senate Pages) (footnotes
omitted):
Thus Reed, in a case of invidious sex discrimination, prescribed as a test of validity the presence of a “fair and
substantial” relation between the basis of the classification and the object of the classification. A classification based
upon sex is less than suspect; a validating relationship must be more than minimal. What emerges is an “intermediate ap-
proach” between rational basis and compelling interest as a test under the equal protection clause.
[FN294]. 411 U.S. 677 (1973) (invalidating requirement that a female member of the uniformed services, unlike a male
member, must show that her spouse is dependent on her for over one-half of his support in order to claim him as a
“dependent” for purposes of obtaining increased quarters allowances and medical and dental benefits).
[FN295]. Id. at 688 (opinion of Brennan, Douglas, White, and Marshall, JJ.).
[FN296]. Ginsburg & Flagg, supra note 289, at 18.
[FN297]. Id. at 11.
[FN298]. President Carter appointed Ruth Bader Ginsburg to the Court of Appeals for the District of Columbia Circuit
for the Term beginning June 30, 1980. See The American Bench:Judges of the Nation 43 (10th ed. 1999-2000).
[FN299]. During this same period, the Court was hammering out the meaning of the statutory prohibition against sex dis-
crimination in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e to 2000e-15, with mixed results. I have else-
where compared the Court's statutory and constitutional sex discrimination cases. See Herma Hill Kay, Models of Equal-
ity, 1985 U. Ill. L. Rev. 39.
[FN300]. Justice O'Connor took the oath of office on September 26, 1981. The Supreme Court Justices 509 (Clare Cush-
man ed., 2d ed. 1995). It bears mention that President Reagan, as governor of California from 1966-1974, had signed

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both the Family Law Act of 1969 and the Therapeutic Abortion Act of 1967.
[FN301]. See Kay, supra note 196, at 51-55. South Dakota, the last state to enact a no-fault provision, did so in 1985. See
S.D. Codified Laws § 25-4-2(7) (Lexis 1999 Revision) (adding “Irreconciliable differences” to its list of grounds). See
also Friedman, supra note 42, at 664, describing the explosive force of the “no-fault revolution”:“Then, suddenly, the
dam seemed to burst in divorce law. Twenty years ago, consensual divorce was a radical idea. Today, it is unquestioned
fact. The old system collapsed completely; no-fault rushed into the vacuum. California was a pioneer state, but no-fault is
now the rule almost everywhere.”
[FN302]. No additional ratifications were secured during the extended period allowed by Congress. See Mansbridge,
supra note 267, at 13.
[FN303]. Rhode Island enacted a statute in March 1973 creating a conclusive presumption “that human life commences
at the instant of conception and that said human life at said instant of conception is a person within the language and
meaning of the fourteenth amendment of the Constitution of the United States.” This provision was declared unconstitu-
tional in Doe v. Israel, 358 F. Supp. 1193 (D. R.I. 1973). Opponents also pursued the possibility of an amendment to the
U.S. Constitution. By the summer of 1973, 16 proposed anti-abortion amendments were pending before the House Judi-
ciary Subcommittee No. 4, and one had been introduced into the Senate. See Kay & West, supra note 12, at 532-33. To
date Congress has not sent any such amendment to the states for ratification. During the 1999 Senate debate over “partial
birth abortion,” however, Senator Tom Harkin, D-Iowa, exposed the strength of the opposition to Roe itself by offering a
nonbinding amendment in support of Roe. The amendment passed by a vote of only 51-47. See Alison Mitchell, Senate
Votes to Ban a Controversial Abortion Procedure, N.Y. Times, Oct. 22, 1999, at A18 (noting that a “partial birth abor-
tion” refers to a procedure used in the second and third trimester of pregnancy in which the fetus is partly extracted feet
first and the brain removed before the fetus is fully taken out of the womb). The Supreme Court struck down a partial
birth abortion statute as unconstitutional in Stenberg v. Carhart, 120 S. Ct. 2597 (2000).
[FN304]. See generally B.J. George, Jr., State Legislatures versus the Supreme Court:Abortion Legislation in the 1980's,
12 Pepp. L. Rev. 427 (1985) (reviewing state legislation regulating abortion between 1973 and 1984 and concluding that
further abortion legislation is currently unnecessary and unproductive).
[FN305]. See Roe, 410 U.S. at 163 (“[F]or the period of pregnancy prior to this ‘compelling’ point, the attending physi-
cian, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment,
the patient's pregnancy should be terminated.”).
[FN306]. See Susan Frelich Appleton, Doctors, Patients and the Constitution:A Theoretical Analysis of the Physician's
Role in ‘Private’ Reproductive Decisions, 63 Wash. U. L.Q. 183, 192-226 (1985).
[FN307]. See Robert H. Bork, The Tempting of America 271-321 (1990).
[FN308]. 505 U.S. 833, 846 (1992).
[FN309]. See id. at 872-73 (opinion of O'Connor, Kennedy, and Souter, JJ.). Justice Blackmun, the author of Roe and
Doe, adhered to the trimester framework, see id. at 934 (opinion of Blackmun, J.), as did Justice Stevens, see id. at 914
(opinion of Stevens, J.).
[FN310]. Id. at 870 (opinion of O'Connor, Kennedy, and Souter, JJ.).
[FN311]. Id. at 878.

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[FN312]. 120 S. Ct. 2597, 2617 (2000). In granting certiorari, the Court limited review to questions one and two presen-
ted by the petition, see 120 S. Ct. 865 (2000), thus declining the invitation in question four to reconsider the wisdom of
Roe v. Wade. Justice Blackmun reminded the Court in Casey that “[t]hree years ago, in Webster v. Reproductive Health
Services, 492 U.S. 490 (1989), four Members of this Court appeared poised to ‘cas[t] into darkness the hopes and visions
of every woman in this country’ who had come to believe that the Constitution guaranteed her the right to reproductive
choice,” id. at 922 (opinion of Blackmun, J.) (citations omitted), and went on to warn that “I am 83 years old. I cannot re-
main on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the
issue before us today.” Id. at 943. Justice Blackmun retired in 1994; his successor was Justice Steven Breyer, who wrote
the majority opinion in Stenberg. The vote was 5-4, with Justice Kennedy joining the dissenters.
[FN313]. See White House Working Group on the family, The Family:Preserving America's Future 3 (1986).
[FN314]. See Leonore J. Weitzman, The Divorce Revolution:The Unexpected Social and Economic Consequences for
Women and Children in America (1985).
[FN315]. Martha Fineman first published her critique in a 1983 law review article, see Fineman, supra note 278, and later
expanded it into a book, Martha Alberson Fineman, The Illusion of Equality (1991).
[FN316]. See Jacob, supra note 179, at 159. I have commented elsewhere on Weitzman's criticisms of the California
Family Law Act. See Kay, supra note 196, at 59-77; see also Levy, supra note 239, at 53 (observing that “[a]t least some
of Weitzman's claims about the doctrinal goals of the [UMDA] were either misplaced or simply wrong”).
[FN317]. Weitzman, supra note 314, at 25-26.
[FN318]. See id. at 27.
[FN319]. Id. at 323.
[FN320]. Id. at 339.
[FN321]. See Sanford L. Braver, Ph.D., The Gender Gap in Standard of Living After Divorce:Vanishingly Small?, 33
Fam. L. Q. 111, 113 (1999) (“It would probably be fair to say that Weitzman's findings are the most widely known and
influential social science results of the last twenty years.”).
[FN322]. The California legislature, for example, created a Task Force on Family Equity in 1985 and charged it with re-
viewing Weitzman's book and making appropriate recommendations. Cal. S. Res. 28, 1985-86 Reg. Sess. § 4. I have re-
viewed the work of this Task Force elsewhere. See Herma Hill Kay, Beyond No-Fault:New Directions in Divorce Re-
form, in Divorce Reform at the Crossroads, supra note 241, at 6, 18-28.
[FN323]. See Saul D. Hoffman & Greg J. Duncan, What Are the Economic Consequences of Divorce, 25 Demography
641, 641 (1988) (noting that Weitzman's result is “at considerable variance with the findings of other researchers who
have examined the economic consequences of divorce” and claiming that her findings on this point “are almost certainly
in error”); Jacob, supra note 179, at 159-64.
[FN324]. See Richard R. Peterson, A Re-Evaluation of the Economic Consequences of Divorce, 61 Am. Soc. Rev. 528,
532 (1996). The author notes that
[r]esults based on the corrected raw data file using the measures of the income/needs ratio described above show
that the effects of divorce are not nearly as large as those reported by Weitzman.... The mean income/needs ratio is 10

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percent higher for men in the year after divorce than it was in the year before separation; for women the mean income/
needs ratio was 27 percent lower.
Id.
[FN325]. See Lenore J. Weitzman, The Economic Consequences of Divorce are Still Unequal:Comment on Peterson, 61
Am. Soc. Rev. 537, 538 (1996). Weitzman states that
[w]hile it is likely...that the gender gap is less than I reported, even if the post-divorce standards of living, as
Peterson contends, drop an average of only about 30 percent for women, and rise only about 10 percent for men, that is
still a 40 percent difference between the two--and that outcome is unconscionable for a legal system and a society com-
mitted to fairness, justice, and equality.
Id.
[FN326]. See Braver, supra note 321, at 130.
[FN327]. See Peterson, supra note 324, at 529 (“The Divorce Revolution was also discussed widely in the popular
press:It was cited over 85 times in newspapers, and over 25 times in national magazines from 1985 to 1993.”).
[FN328]. See id. at 535:

The inaccurate findings have distorted the debate over no-fault legislation because some critics attributed differ-
ences between Weitzman's results, based on a California sample, and those of other studies to California's no-fault di-
vorce laws. These critics argued that the economic consequences of divorce for women were much more severe in Cali-
fornia than elsewhere in the United States because of California's no-fault divorce legislation. In fact, I have demon-
strated that the findings reported by Weitzman were inaccurate. The corrected findings reported here do not support the
argument that the economic consequences of divorce for women were more severe in California than elsewhere.
[FN329]. Glendon, supra note 246, at 105; see also Ira Mark Ellman, The Misguided Movement to Revive Fault Divorce,
And Why Reformers Should Look Instead to The American Law Institute, 11 Int'l J. L., Pol'y & Fam. 216, 229-30 (1997)
(criticizing the “slogan” no-fault, no-responsibility divorce, but appreciating Glendon's insight that a sound divorce law
must “recognize and enforce the responsibilities that arise both from marriage and from the procreation of children”).
[FN330]. See Marsha Garrison, The Economics of Divorce:Changing Rules, Changing Results, in Divorce Reform at the
Crossroads, supra note 241, at 75, 75-101 (calling for more information concerning the responsibility of the no-fault
movement for divorced wives' declining fortunes, and noting that many avenues exist to approach the situation, including
more rigorous appellate review of awards by trial judges); see also Richard R. Peterson, Statistical Errors, Faulty Conclu-
sions, Misguided Policy:Reply to Weitzman, 61 Am. Soc. Rev. 539, 539 (1996) (“Lenore Weitzman...and I agree that
there is a significant gender gap in the economic consequences of divorce, that this gap results in financial hardship for
many divorced women and their children, and that legal reforms and public policy must address this hardship.”).
[FN331]. White House Working Group on the Family, supra note 313, at 6.
[FN332]. Id. at 21.
[FN333]. See American Law Institute, Conference on the Law and Public Policy of Family Dissolution:Conference Ma-
terials 1 (January 4, 1990). The ALI noted that “[s]uch a project will serve two functions”:
(1) It will help rationalize the law in an area where there has been rapid and revolutionary development in the
last two decades but which now may be at a point where a document analyzing the basic principles would serve a useful
function; and
(2) It will focus the attention of one of the most prestigious institutions of the law, the American Law Institute,
on an area that has long lacked major intellectual attention by the legal profession.

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[FN334]. Id. at 3.
[FN335]. See id. at iv (letter from Reporter Marygold S. Melli to conference participants); see also Marygold S. Melli,
Whatever Happened to Divorce?, 2000 Wis. L. Rev. 637, 638 (pointing out that “[t]oday, divorce is not an end of a rela-
tionship but a restructuring of a continuing relationship.”).
[FN336]. See Report of the Director, 1999 A.L.I. Ann. Rep. 1, 8. The Co-Reporters of the UMDA, the author and Robert
J. Levy, are among the Advisors to the ALI Project. See Principles of the Law of Family Dissolution:Analysis & Recom-
mendations v-vi (Tentative Draft No. 3, Part I, 1998).
[FN337]. See Principles of the Law of Family Dissolution:Analysis & Recommendations, §§ 4.03-4.08 (Proposed Final
Draft, Part I, 1997).
[FN338]. See id. § 4.15.
[FN339]. See id. § 4.18.
[FN340]. See Ira Mark Ellman, The Theory of Alimony, 77 Calif. L. Rev. 1 (1989).
[FN341]. See Principles of the Law of Family Dissolution, supra note 337, §§5.02-5.03.
[FN342]. See id. § 5.03(2)(a).
[FN343]. See id. § 5.03(2)(b).
[FN344]. See id. § 5.03(2)(c).
[FN345]. Id. § 5.03(3)(a).
[FN346]. Id. § 5.03(3)(b).
[FN347]. See J. Thomas Oldham, ALI Principles of Family Dissolution:Some Comments, 1997 U. Ill. L. Rev. 801, 830
(suggesting that section 5.05, which recognizes a right to postdivorce income sharing based on length of marriage and
difference between the income of the former spouses, be abolished, and criticizing the requirement of a minimum period
of caregiving to qualify the caregiver for career damages in section 5.06).
[FN348]. Principles of the Law of Family Dissolution, supra note 336, § 2.06(1). Section 2.03(4) defines the term
“custodial responsibility” to mean physical custodianship and supervision of a child, and section 2.03(5) defines the term
“decisionmaking responsibility” to mean authority for making significant life decisions on behalf of a child.
[FN349]. Id. § 2.07.
[FN350]. Principles of the Law of Family Dissolution:Analysis & Recommendations § 2.09(1). (Preliminary Draft No. 9,
1999). This general directive is followed by a list of exceptions in subsections 2.09(1)(a) through 2.09(1)(h) that may be
required to achieve any of the following objectives: (a)permitting the child to have a relationship with each parent for a
specified amount of time;(b)accommodating the child's “firm and reasonable” preferences; (c)keeping siblings together if
doing so is necessary to their welfare; (d)protecting “the child's welfare when the presumptive allocation under this sec-
tion would harm the child because of a gross disparity in the quality of the emotional attachment between each parent
and the child or in each parent's demonstrated ability or availability to meet the child's needs”;(e)taking account of a pri-

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or agreement of the parents that is appropriate to consider in light of specified circumstances;(f)avoiding allocations “of
custodial responsibility that would be extremely impractical or that would interfere substantially with the child's need for
stability” in light of specified circumstances;(g)dealing with parental relocation; and(h)“to avoid substantial and almost
certain harm to the child.”
[FN351]. See The Family Support Act of 1988, 42 U.S.C. § 667(a) (1994). TANF is the successor to the previous AFDC
(Aid to Families with Dependent Children) program.
[FN352]. See Jane C. Venohr & Robert G. Williams, The Implementation and Periodic Review of State Child Support
Guidelines, 33 Fam. L.Q. 7, 10 (1999) (listing the following models:“(1) Percentage of Obligor Income; (2)Income
Shares;(3)Melson formula; or(4)the Massachusetts/District of Columbia hybrid of the percentage of obligor income mod-
el”).
[FN354]. See Grace Ganz Blumberg, Balancing the Interests:The American Law Institute's Treatment of Child Support,
33 Fam. L.Q. 39, 41 (1999).
[FN355]. See id. at 44-45. The “marginal expenditure formula” holds that “an absent parent's child support obligation
should generally be the marginal amount (expressed as a percentage of obligor income) that the absent parent would con-
tribute to the support of the child if the absent parent were sharing a home with the child and the child's custodial, or res-
idential, parent.” Id. at 42. The “Massachusetts formula” makes a “preliminary assessment” of gross income earned by
the obligor and then increases the amount payable as child support as the child grows older, topping out at age 18. Id. at
44 & n.10.
[FN356]. See Principles of the Law of Family Dissolution §§ 3.03-3.06 (Tentative Draft No. 3, Part II 1998).
[FN357]. See Blumberg, supra note 354, at 47 (defining cognizable interests as those “that are taken into account in es-
tablishing the operative objectives of Chapter 3”).
[FN358]. See Principles of the Law of Family Dissolution, supra note 356, § 3.03; Blumberg, supra note 354, at 47.
[FN359]. Principles of the Law of Family Dissolution, supra note 350, § 6.03(1).
[FN360]. See id. § 6.03(2).
[FN361]. See id. § 6.03(6).
[FN362]. See id. § 6.01(2).
[FN363]. See id. §§ 7.01-7.15.
[FN364]. See Kay, supra note 322, at 36 (calling for “a nonpunitive, nonsexist, and nonpaternalistic” framework for mar-
riage dissolution).
[FN365]. See Ira Mark Ellman, Inventing Family Law, 32 U.C. Davis L. Rev. 855, 875-76 (1999) (describing how he
and his two ALI Co-Reporters went about the task of replacing the traditional family law rules of discretion with prin-
ciples that set out a presumptively correct result embodying the Institute's value choices, and requiring a judge who be-
lieves a departure from the result is necessary to explain that departure in written findings).

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[FN366]. See, e.g., National Organization for Women v. Operation Rescue, 726 F. Supp. 1483 (E.D. Va. 1989)
(enjoining demonstrators), aff'd 914 F.2d 582 (4th Cir. 1990), rev'd in part, vacated in part, and remanded sub nom. Bray
v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993).
[FN367]. 42 U.S.C. § 1985(3) (1994).
[FN368]. Bray, 506 U.S. at 310 (Stevens, J., dissenting) (footnote omitted).
[FN369]. See 18 U.S.C. § 248 (1994) (providing both criminal penalties and civil remedies against anyone who commits
violent, threatening, obstructive, and destructive conduct that is intended to injure, intimidate or interfere with persons
seeking to obtain or provide reproductive health services).
[FN370]. See Cheffer v. Reno, 55 F.3d 1517 (11th Cir. 1995); United States v. Wilson, 73 F.3d 675 (7th Cir. 1995), cert.
denied, 519 U.S. 806 (1996), on remand, 2 F. Supp.2d 1170, 1172 (E.D. Wis. 1998) (finding defendant Wilson guilty of
violating FACE and rejecting his argument that he did not interfere with the receipt or provision of “reproductive health
services” since he was preventing the killing of babies; ruling that “the defendants, by admitting that their motive for ob-
structing the clinic was to protect pre-born babies from being killed in their mothers' wombs, admit to a motive pro-
scribed by the statute”); American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995), cert. denied, 516 U.S. 809
(1995). A motion by Randall A. Terry and Operation Rescue to vacate a permanent injunction against their activities on
the ground that FACE had rendered it moot was denied in New York State National Organization of Women v. Terry,
159 F.3d 86 (2d Cir. 1998), cert. denied sub nom. Pearson v. Planned Parenthood Margaret Sanger Clinic, 119 S. Ct.
2336 (1999).
[FN371]. See David Samuels, The Making of a Fugitive, N.Y. Times, March 21, 1999, § 6 (Magazine), at 47.
[FN372]. See Catherine A. MacKinnon, Sexual Harassment of Working Women 32, 32-47 (1979) (identifying two types
of sexual harassment:“quid pro quo” in which sex is demanded in return for job benefits, and “condition of work” in
which the woman is treated as a sexual object at work, but not explicitly promised favors or threatened with punitive ac-
tion).
[FN373]. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986) (holding that a plaintiff may establish a viola-
tion of Title VII by proving that discrimination based on sex has created a hostile or abusive work environment).
[FN374]. See Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) (holding that if a plaintiff is harassed be-
cause of sex, Title VII does not require that the alleged harasser be of the opposite sex).
[FN375]. See Nina Totenberg, Preface, in The Complete Transcript of the Clarence Thomas-Anita Hill Hearings 5, 7
(Anita Hill ed., 1994) (“The hearings ripped open the subject of sexual harrasment like some sort of long-festering
sore.”).
[FN376]. See Nomination of Judge Clarence Thomas To Be Associate Justice of the Supreme Court of the United
States:Hearings Before the Comm. on the Judiciary U.S. Senate, 102nd Cong., 1st sess., 1 (1993) (opening statement of
Chairman Joseph R. Biden, Jr.); id. at 36-39 (testimony of Anita Hill); id. at 157-58 (testimony of Clarence Thomas)
(denouncing the proceedings as a “high-tech lynching”).
[FN377]. The Senate confirmed Justice Thomas by a vote of 52 to 48 on October 15, 1991. See How the Senators Voted
on Thomas, N.Y. Times, Oct. 16, 1991, at A19.

73 65
88 Cal. L. Rev. 2017
[FN378]. See Totenberg, supra, note 375, at 7 (noting that Senator Carol Mosely-Braun of Illinois, who defeated Alan
Dixon, one of the 11 Democrats who voted to confirm Justice Thomas, in the primary, became the first of four women
who were newly elected to the United States Senate in 1992); the other three were Dianne Feinstein and Barbara Boxer
of California, and Patty Murray of Washington.
[FN379]. See Michael X. Delli Carpini & Ester R. Fuchs, The Year of the Woman? Candidates, Voters, and the 1992
Elections, 108 Pol. Sci. Q. 29, 35-36 (1993) (noting that the women's campaign fund more than doubled its receipts and
Emily's List quadrupled its donations from 1990 to 1992; that more women ran for public office in 1992 than ever before
in the nation's history, and that women scored record successes in state offices (except for governorships) and at the na-
tional level). But see Marian Lief Palley, Elections 1992 and the Thomas Appointment, PS:Pol. Sci. & Pol., March 1993,
at 28, 29 (1993) (noting that, although the November 1992 electorate was 54% female and 46% male, some women lost
elections in states and districts where women voters outnumbered men voters).
[FN380]. Justice Ginsburg took the oath of office on August 10, 1993. See The Supreme Court Justices 535 (Clare Cush-
man ed., 2d ed. 1995).
[FN381]. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 26 n.* (1993) (Ginsburg, J., concurring) (observing that “it
remains an open question whether ‘classifications based upon gender are inherently suspect”’) (citation omitted); see also
supra text accompanying notes 284-299.
[FN382]. 518 U.S. 515 (1996). In Virginia, the Court invalidated the single-sex admissions policy of the Virginia Milit-
ary Institute, and announced a “skeptical scrutiny of official action denying rights or opportunities based on sex” in these
terms:
Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court
must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding
and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important gov-
ernmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those
objectives.”’ The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it
must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.
Id. at 531-33 (citations omitted).
[FN383]. See Cass Sunstein, The Supreme Court, 1995 Term-- Foreword:Leaving Things Undecided, 110 Harv. L. Rev.
4, 73 (1996) (declaring that “Virginia heightens the level of scrutiny and brings it closer to the ‘strict scrutiny’ that is ap-
plied to discrimination on the basis of race”).
[FN384]. 388 U.S. 1 (1967) (holding Virginia's miscegenation statute invalid); see supra text accompanying notes
108-118.
[FN385]. See Baker v. Nelson, 191 N.W.2d 185 (1971), appeal dismissed, 409 U.S. 810 (1972).
[FN386]. See Singer v. Hara, 522 P.2d 1187 (1974), review denied, 84 Wash. 2d 1008 (1974).
[FN387]. See Baehr v. Lewin, 852 P.2d 44 (1993). On remand, the trial court held that the state had failed to bear its bur-
den of overcoming the presumption that the statute was unconsitutional by demonstrating that it furthered compelling
state interests and was narrowly drawn to avoid unnecessary abridgement of constitutional rights. See Baehr v. Miike,
CIV. No. 91-1394, 1996 WL 694235, (Haw. Cir. Ct. Dec. 3, 1996) The Hawaii Supreme Court dismissed the case in light
of the 1998 constitutional amendment adopted by the voters. See Lyle Denniston, Hawaii Court Rules Against Gay Mar-
riage, S.F. Chron., Dec. 11, 1999, at A1. See infra note 390.

73 66
88 Cal. L. Rev. 2017
[FN388]. See U.S. Const. art. IV, § 1.
[FN389]. See, e.g., Barbara J. Cox, Same-Sex Marriage and Choice-of-Law:If We Marry in Hawaii, Are We Still Mar-
ried When We Return Home?, 1994 Wis. L. Rev. 1033; Deborah M. Henson, Will Same-Sex Marriages Be Recognized
in Sister States? Full Faith and Credit and Due Process Limitations on States' Choice of Law Regarding Marital Status
and Incidents of Homosexual Marriage Following Hawaii's Baehr v. Lewin, 32 J. Fam. L. 551 (1994); Candace L. Sage,
Sister-State Recognition of Valid Same-Sex Marriages:Baehr v. Lewin--How Will it Play in Peoria?, 28 Ind. L. Rev. 115
(1994); Thomas M. Keane, Note, Aloha, Marriage? Constitutional and Choice of Law Arguments for Recognition of
Same-Sex Marriage, 47 Stan. L. Rev. 499 (1995).
[FN390]. Haw. Rev. Stat. Ann. § 572-1 (Michie 1997). The constitutionality of this provision would appear to be doubt-
ful, given the rationale of Baehr. See Baehr, 852 P.2d at 60, 67 (construing the Hawaii marriage statute to restrict the
marital relation “to a male and a female” and remanding for trial on the constitutionality of the provision as thus con-
strued). Nonetheless, on December 9, 1999, the Hawaii Supreme Court interpreted the 1998 amendment as having re-
vived the 1995 statute restricting the issuance of marriage licenses to couples of the opposite sex. See Lyle Denniston,
Hawaii Court Rules Against Gay Marriage, S.F. Chron., Dec. 11, 1999, at A1, A14.
[FN391]. See H.R. 117, 19th Leg. (1997).
[FN392]. See David L. Chambers and Nancy D. Polikoff, Family Law and Gay and Lesbian Family Issues in the Twenti-
eth Century, 33 Fam. L. Q. 523, 529 (discussing the legal status of the same sex marriage litigation in Hawaii after the
1998 election).
[FN393]. See Jennifer Wriggins, Maine's ‘Act to Protect Traditional Marriage and Prohibit Same-Sex Mar-
riages':Questions of Constitutionality Under State and Federal Law, 50 Me. L. Rev. 345, 347-48 (1998).
[FN394]. H.R. 3396, 104th Cong., 2d Sess. (1996) (enacted).
[FN395]. See Eric Schmitt, Panel Passes Bill to Let States Refuse to Recognize Gay Marriage, N.Y. Times, June 13,
1996, at A15.
[FN396]. See 142 Cong. Rec. H7505-06 (daily ed. July 12, 1996); 142 Cong. Rec. S10129 (daily ed. Sept. 10, 1996).
[FN397]. See Defense of Marriage Act, Pub. L. No. 104-199, 110 Stat. 2419 (codified at 1 U.S.C. § 7 (Supp. II 1997)).
DOMA contains two substantive provisions. Section 2 exempts states from any obligation imposed by the Full Faith and
Credit Clause or its implementing statute “to give effect to any public act, record, or judicial proceeding or any other
State, territory, possession, or tribe, respecting a relationship between persons of the same sex that is treated as a mar-
riage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”
Section 3 defines the terms “marriage” and “spouse” for the purpose of federal law, including eligibility for federal bene-
fit programs, as follows:“The word ‘marriage’ means only a legal union between one man and one woman as husband
and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
[FN398]. See, e.g., Andrew Koppelman, Same-Sex Marriage, Choice of Law, and Public Policy, 76 Tex. L. Rev. 921
(1998); Andrew Koppelman, Dumb and DOMA:Why the Defense of Marriage Act is Unconstitutional, 83 Iowa L. Rev. 1
(1997); Scott Ruskay-Kidd, Note, The Defense of Marriage Act and the Overextension of Congressional Authority, 97
Colum. L. Rev. 1435 (1997); see also authorities cited supra note 389.
[FN399]. See Herma Hill Kay, Same-Sex Marriage in the Conflict of Laws:A Critique of the Proposed “Defense of Mar-

73 67
88 Cal. L. Rev. 2017
riage Act” in The Civil Law in the 21st Century:Festschrift in Honor of Koji Ono on the Occasion of his 60th Birthday
902, 906-11 (1997) (arguing that DOMA is superfluous for conflict of laws purposes); Larry Kramer, Same-Sex Mar-
riage, Conflict of Laws, and the Unconstitutional Public Policy Exception, 106 Yale L.J. 1965, 1999-2007 (1997)
(arguing that the public policy exception, counted on by opponents of single-sex marriage to permit states to decline to
recognize marriages not permitted in the forum, is unconstitutional, thus making DOMA essential for non-recognition,
but concluding that DOMA was beyond the power of Congress).
[FN400]. See Barber v. Barber, 62 U.S. (21 How.) 582, 584 (1859) (recognizing in dictum a voluntary “domestic rela-
tions exception” for the federal courts); see also Homer H. Clark, Jr., The Law of Domestic Relations in the United
States 414-16 (2d ed. 1988); Ruskay-Kidd, supra note 398, at 1467-82. But see Adams v. Howerton, 673 F.2d 1036 (9th
Cir.), cert. denied, 458 U.S. 1111 (1982) (declining to admit a male alien to the United States as the “spouse” of a male
American citizen despite the couple's having obtained a marriage license and participating in a marriage ceremony in
Colorado, reasoning that Congress had established its own definition of a “spouse” for purposes of the immigration
laws). Adams was decided at a time when the INS refused to admit homosexuals as immigrants under the “psychopathic
personality” exception, subsequently removed in 1990. See Robert J. Foss, The Demise of the Homosexual Exclu-
sion:New Possibilities for Gay and Lesbian Immigration, 29 Harv. C.R.-C.L. L. Rev. 439 (1994).
[FN401]. See Marjorie Dick Rombauer, Marital Status and Eligibility for Federal Statutory Income Benefits:A Historical
Survey, 52 Wash. L. Rev. 227 (1977); see also Kristian D. Whitten, Section Three of the Defense of Marriage Act:Is
Marriage Reserved to the States?, 26 Hastings Const. L.Q. 419, 421, 444-58 (1999) (arguing that section 3 so “seriously
impairs a state's power to define the ‘marriage’ relationship for its people” that it violates the Tenth Amendment).
[FN402]. See Herma Hill Kay, Private Choice and Public Policy:Confronting the Limitations of Marriage, 5 Austl. J.
Fam. L. 69, 81-84 (1991); see also William N. Eskridge, Jr., The Case for Same Sex Marriage (1996); Richard A. Posner,
Should There Be Homosexual Marriage? And If So, Who Should Decide?, 95 Mich. L. Rev. 1578, 1578-79 (1997) (book
review) (noting that, while Eskridge's case for legislative reform is “a powerful one,” and that “it would not trouble me if
a state were persuaded by it and adopted such a law[,]” the case is “unconvincing” that “the courts, in the name of the
Constitution should force acceptance of same-sex marriage on all the states at once”).
[FN403]. 744 A.2d 864 (Vt. 1999).
[FN404]. Id. at 884.
[FN405]. Id. at 886.
[FN406]. Id.
[FN407]. See Carey Goldberg, Vermont's High Court Extends Full Rights to Same-Sex Couples, N.Y. Times, Dec. 21,
1999, at A1; Editorial, Vermont's Momentous Ruling, N.Y. Times, Dec. 22, 1999, at A30; Editorial, A Vermont Ruling
Advances Gay Rights, S.F. Chron., Dec. 22, 1999, at A28.
[FN408]. See Carey Goldberg, Forced to Act on Gay Marriage, Vermont Finds Itself Deeply Split, N.Y. Times, Feb. 3,
2000, at A1 (describing legislative hearings).
[FN409]. See Carey Goldberg, Vermont's House Backs Wide Rights for Gay Couples, N.Y. Times, Mar. 17, 2000, at A1
(noting that the vote was 76 to 69, and that the bill is expected to pass “more easily” in the senate in April and that Gov-
ernor Howard Dean has said he will sign it).

73 68
88 Cal. L. Rev. 2017
[FN410]. See H.847, Vermont House of Representatives, Sec. 3, adding 15 V.S.A. Chapter 23, § 1201(2), § 1204(a),
(visited May 26, 2000) http:// www.leg.state.vt.us/docs/2000/bills/intro/H-847.HTM. Governor Dean signed the bill on
April 26, 2000. See N.Y. Times, April 27, 2000, at A19.
[FN411]. Id. at sec. 1(15) “a parallel system of civil unions does not bestow the status of civil marriage...”. See also sec.
1(4) (“Civil marriage under Vermont's marriage statute consists of a union between a man and a woman”).
[FN412]. See supra note 397.
[FN413]. See Douglas B. Harris, The Rise of the Public Speakership, 113 Pol. Sci. Q. 193, 195-200 (1998).
[FN414]. See Gary C. Jacobson, The 1994 House Elections In Perspective, 111 Pol. Sci. Q. 203, 203, 209 (1996) (noting
that “[a]lthough the contract got some attention, in the media and was a target of Democratic counterattacks, most voters
went to the polls blissfully unaware of its existence.”).
[FN415]. Christian Coalition, Contract with the American family 1 (May 1995) (on file with author).
[FN416]. Id. at 19.
[FN417]. See The Legal Services Act of 1974, 42 U.S.C. § 2996 (1994).
[FN418]. See Christian Coalition, supra note 415, at 25.
[FN420]. Others had made the same point earlier. See Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum,
1991 BYU L. Rev. 79, 116-119 (“[I]t is apparent that the significant rise in the divorce rate in the United States did not
begin until the no-fault divore reform movement was well-underway.”).
[FN421]. See, e.g., Robert M. Gordon, Note, The Limits of Limits on Divorce, 107 Yale L.J. 1435, 1438-41 (1998). In
homes characterized by a high degree of marital conflict, however, children may be better served if their parents do not
remain together. See Donna Ruane Morrison & Mary Jo Coiro, Parental Conflict and Marital Disruption:Do Children Be-
nefit When High-Conflict Marriages are Dissolved?, 61 J. Marriage & Fam. 626, 636 (1999) (finding, based on a study
of 727 children between the ages of 4 and 9 in 1988 who lived in intact families to determine the relation between par-
ents' marital conflict and childrens' level of behavior problems in 1994, that “frequent marital conflict has a deleterious
effect on children, possibly even exceeding the adverse effects of physical separation or divorce”).
[FN422]. See Laura Bradford, Note, The Counterrevolution:A Critique of Recent Proposals to Reform No-Fault Divorce
Laws, 49 Stan. L. Rev. 607, 607 (1997).
[FN423]. See id. at 618-19.
[FN424]. See, e.g., Divorce Reform at the Crossroads, supra note 241; Symposium on Family Law, 1991 BYU L. Rev. 1;
Symposium, Twenty-Five Years of Divorce Revolution, 1994 Utah L. Rev. 501.
[FN425]. Even Lynn Wardle, whose critique of no-fault divorce was one of the most trenchant, disavowed a “root and
branch” approach. Though he maintained that “[m]any of the problems that prompted the adoption of no-fault grounds
for divorce, such as hostile litigation, deceit in legal processes, the existence of a ‘gap’ between law and practice, and
loss of privacy, still remain-- disguised and perhaps embedded more firmly in the legal and social fabric than they were

73 69
88 Cal. L. Rev. 2017
twenty years ago,” (Wardle, supra note 420, at 135) he explained that reforming “the first generation of no-fault divorce
laws....does not mean we should ‘turn the clock back’ and reenact 1950s-era divorce laws.” Id. at 137.
[FN426]. Some argued that the fault initiatives were out of line with Supreme Court decisions safeguarding individual
privacy within the family and therefore possibly unconstitutional, see, e.g., Bradford, supra note 422, at 621-32; others
believed that measures ostensibly designed for the protection of children actually harmed them, see, e.g., Gordon, supra
note 421, at 1456-61.
[FN427]. See Ira Mark Ellman and Sharon Lohr, Marriage as Contract, Opportunistic Violence, and Other Bad Argu-
ments for Fault Divorce, 1997 U. Ill. L. Rev. 719, 725 & n.18.
[FN428]. Ira Mark Ellman, The Misguided Movement to Revive Fault Divorce, And Why Reformers Should Look In-
stead to The American Law Institute, 11 Int'l J. L. Pol. & Fam. 216, 225 (1997) (footnote omitted).
[FN429]. See Ira Mark Ellman, The Place of Fault in Modern Divorce Law, 28 Ariz. St. L. J. 773, 789-802 (1996)
(arguing that it is unnecessary and unproductive to encourage marital tort claims to be presented in dissolution suits); see
also Ira Mark Ellman and Stephen D. Sugarman, Spousal Emotional Abuse as a Tort?, 55 Md. L. Rev. 1268 (1996)
(exploring whether spousal emotional abuse should be a tort, and concluding that it is probably a mistake).
[FN430]. See Linda D. Elrod et al., A Review of the Year in Family Law:Children's Issues Dominate, 32 Fam. L.Q. 661,
715 (1999) (Chart 4:Grounds for Divorce and Residency Requirements). It should be remembered, as Chart 4 makes
clear, that 34 states still retain fault grounds for divorce, having simply added their no-fault ground to the existing list.
[FN431]. Spaht, supra note 5, at 69-70 (footnotes omitted).
[FN432]. Id. at 87-88, 107-08 (noting that [“i]f a spouse agrees to a covenant marriage, divorce requires proof of fault in
the nature of adultery, conviction of a felony and a sentence of imprisonment at hard labor or death, abandonment (for
one year) physical or sexual abuse of a spouse or child of the parties, habitual intemperance or cruel treatment and a peri-
od of time living separate and apart thereafter”). As originally introduced, the Covenant Marriage Bill permitted only two
grounds for the dissolution of a Covenant Marriage:adultery and abandonment for one year. See id. at 123.
[FN433]. Id. at 108 & n.292. Louisiana's “no-fault” ground for a regular marriage is voluntary separation for one year.
[FN434]. La. Rev. Stat. Ann. § 9.273(A)(1) (West 1999).
[FN435]. See Spaht, supra note 5, at 89-90.
[FN436]. See id. at 95 (footnote omitted).
[FN437]. See id. at 97.
[FN438]. See id. at 97-98.
[FN439]. See id. at 98, 100.
[FN440]. See id. at 103-05 (observing that nonpecuniary losses include “embarrassment, mental anguish, humiliation,
and psychological damage” and pointing out that sums awarded “need not be nominal”).
[FN441]. Id. at 78-79.

73 70
88 Cal. L. Rev. 2017
[FN442]. See id. at 79.
[FN443]. Id. at 79-80 (footnote omitted).
[FN444]. Id. at 78 & n. 61.
[FN445]. See id. at 80 & n.73 (noting that “[a]n important function of law, i.e., tort and contract, is to punish. It seems
particularly appropriate to punish a spouse for breaching his promise which was made solemnly and which is of such im-
portance to third parties, principally his children but also to society at large”).
[FN446]. Id. at 107.
[FN447]. See supra text at note 69.
[FN448]. See Christine B. Whelan, No Honeymoon for Covenant Marriage, Wall St. J., Aug. 17, 1998, at A14.
[FN449]. Spaht, supra note 5, at 71-72.
[FN450]. See id. at 73 & n.35.
[FN451]. See, e.g., Jeanne Louise Carriere, “It's Deja Vu All Over Again”:The Covenant Marriage Act in Popular Cul-
tural Perception and Legal Reality, 72 Tul. L. Rev. 1701 (1998); Amy L. Stewart, Covenant Marriage:Legislating Family
Values, 32 Ind. L. Rev. 509 (1999); but see Gary H. Nichols, Note, Covenant Marriage:Should Tennessee Join the Noble
Experiment?, 29 U. Mem. L. Rev. 397, 460 (1999) (concluding, after a lengthy review of pros and cons, that “the Legis-
lature should provide a law which affirms that marriage is important and that couples should not enter marriage without
serious consideration”).
[FN452]. Ariz. Rev. Stat. Ann. § 25-903(8) (1999). See also Ira Mark Ellman et al., Teacher's Manual for Family Law,
Cases, Text, Problems 27-34 (3d ed. 1998).
[FN453]. See Nichols, supra note 451, at 457 (noting that, as of October 27, 1998, 19 states, including Louisiana, had
had or had at the time, covenant marriage bills pending in the state legislature).
[FN454]. 20 U.S.C. § 1681(a) (1994).
[FN455]. See N.Y. Times, July 11, 1999, at A1, A19.
[FN456]. See Kay & West, supra note 12, at 1059 (the phrase “equal play” was created by former co-author Ruth Bader
Ginsburg to apply to claims of sex segregation in athletics).
[FN457]. See Debra Baker, The Fight Ain't Over, 85 A.B.A. J. 52, 55 (1999) (noting that neither measure used the text of
the federal equal rights amendment that passed Congress in 1972).
[FN458]. Id. at 54. See also supra text accompanying notes 380-383.
[FN459]. Id. at 55 (going on to note that, while concerns about drafting women may have faded, “abortion rights and gay
marriage continue to be real concerns”).
[FN460]. See id. at 55-56.

73 71
88 Cal. L. Rev. 2017
[FN461]. See Margaret Talbot, The Little White Bombshell, N.Y. Times, July 11, 1999, § 6 (Magazine), at 39.
[FN462]. See Gina Kolata, U.S. Approves Abortion Pill, N.Y. Times, Sept. 29, 2000, at A1.
[FN463]. See id.
[FN464]. Spaht, supra note 5, at 70.
[FN465]. See id. at 71.
[FN466]. Degler, supra note 2, at 395.
[FN467]. Elisabeth S. Scott, Rehabilitating Liberalism in Modern Divorce Law, 1994 Utah L. Rev. 687.
[FN468]. Id. at 722. She also notes that “[i]n the commercial setting, a relational contract is one that extends indefinitely
over time, and that may serve multiple varied purposes, creating a complex interdependent relationship.” Id. at 723.
[FN469]. See Glendon, supra note 246, at 81 (“In Sweden and in most American states, where there is no legal obstacle
to unilateral divorce on nonfault grounds, a ‘right’ to divorce exists in the popular sense....[T]he virtually universal un-
derstanding in practice is that the breakdown of a marriage is irretrievable if one spouse says it is.”).
[FN470]. Black's Law Dictionary 839 (6th ed. 1990).
[FN471]. Id.
[FN472]. Id.
[FN473]. Id.
[FN474]. Some empirical evidence shows that a pattern of two phases of decline in marital quality is normative over a
10-year period, occurring after four years of marriage, then stabilizing, and declining again at about the eighth year of
marriage. See Lawrence A. Kurdek, The Nature and Predictors of the Trajectory of Change in Marital Quality for Hus-
bands and Wives Over the First 10 Years of Marriage, 35 Developmental Psychol. 1283, 1293-95 (1999). Although the
researcher does not claim that the couples studied were representative, since they were disproportionately white and col-
lege educated, the sample was fairly large, including 522 newlyweds at year 1, and ending with 93 newlyweds at year 10.
The suggestion of identifiable periods of marital reexamination lends support to a pattern of marital interaction that fits
quite nicely with a joint venture analogy. See also Marvin v. Marvin, 18 Cal. 3d 660, 684, 557 P. 2d 106, 122, 134 Cal.
Rptr. 815, 831 (1976) (listing joint ventures among other possible legal relationships available to couples who choose to
live together in nonmarital cohabitation).
[FN475]. I have shown this elsewhere. See Herma Hill Kay, Legal and Social Impediments to Dual Career Marriages, 12
U.C. Davis L. Rev. 207, 211-18 (1979).
[FN476]. See id. at 219-20.
[FN477]. See Ruth Bader Ginsburg, Gender and the Constitution, 44 U. Cin. L. Rev. 1, 42 (1975) (“The breadwinning
male/homemaking female division of functions deserves neither special favor nor condemnation by the law. It is a pat-
tern individuals should be free to adopt or reject, without government coercion.”).

73 72
88 Cal. L. Rev. 2017
[FN478]. See Kay, Models of Equality, supra note 299, at 63-77.
[FN479]. See generally Arlie Hochschild, The Second Shift:Working Parents and the Revolution at Home (1989). See
also Marion Crain, “Where Have All the Cowboys Gone?” Marriage and Breadwinning in Postindustrial Society, 60
Ohio St. L. J. 1877, 1932-62 (1999) (advocating a reduction of the forty-hour work week and integrating paid work with
family life as a way of facilitating egalitarian co-provider marriage.).
[FN480]. These attitudes were manifested most recently in the support by the Mormon and Catholic churches for Propos-
ition 22 on the 2000 California primary ballot. Proposition 22 added Section 308.5 to the Family Code, to read as fol-
lows:“Only marriage between a man and a woman is valid or recognized in California.” Calif. Voter Information Guide,
March 7, 2000 Primary Election, p. 132. Proponents of Proposition 22 raised $10 million for the campaign, with the help
of the Mormon and Catholic churches. After the measure was approved by a vote of 61 to 39% of voters, President Gor-
don Hinckley of the Church of Jesus Christ of Latter Day Saints thanked California voters for their support. Stressing the
Mormon position as “pro-family” rather than “anti-gay,” Hinckley characterized the vote as having upheld “a moral issue
of great importance.” S.F. Chron., March 9, 2000, at A6. See also Robert Nugent, The U.S. Catholic Bishops and Gay
Civil Rights, 38 Catholic Lawyer 1 (1998) (reporting on the Vatican's 1992 document on potential gay rights legislation).
[FN481]. See Baptists in Texas Reject a Call for Wives to ‘Submit’ to Husbands, N.Y. Times, Nov. 10, 1999, at A2
(reporting that the Texas convention refused to accept an amendment overwhelmingly adopted in 1988 by the 15.7 mil-
lion-member Southern Baptist Convention which declared that “A wife is to submit graciously to the servant leadership
of her husband, even as the church willingly submits to the headship of Christ”). A spokesperson for the Southern Baptist
Convention said the Texas convention had rejected “a clear teaching of the Bible.”
[FN482]. Katharine T. Bartlett, Feminism and Family Law, 33 Fam. L. Q. 475, 500 (1999). See also Ira Mark Ellman,
Divorce Rates, Marriage Rates, and the Problematic Persistence of Traditional Marital Roles, 34 Fam. L. Q. 1, 21-42
(2000) (exploring the “hypothesis of an inverse connection between gender income equality and marriage rates, mediated
by resistence to changing gender roles” and concluding that encouraging marriage may replace preventing divorce as the
new social concern).
[FN483]. See Glendon, supra note 246, at 88-91; see also Judith T. Younger, More Light Thoughts and Night Thoughts
on the American Family, 17 L. & Ineq. J. 723, 734-37 (1999).
[FN484]. See Rhode and Minow, supra note 241, at 209-10; see also Kay, supra note 196, at 88-89.
[FN485]. Stephen D. Sugarman, Dividing Financial Interests on Divorce, in Divorce Reform at the Crossroads, supra
note 241, at 130, 152.
[FN486]. See Herma Hill Kay, Commentary:Toward a Theory of Fair Distribution, 57 Brook. L. Rev. 755, 759-61
(1991).

88 Cal. L. Rev. 2017
END OF DOCUMENT

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plan your perfect "Being in West Hollywood, we've been inundated," said Tom
wedding. Rosa, owner of the Cake and Art bakery on Santa Monica Boulevard. "After the ruling, the phone really picked up."
www.BrocadeWeddings.com
Rosa said couples who had waited for decades to legally marry were splurging on 5-foot tall confections shaped like
$595 Wedding DJ's carousels and cakes featuring handcrafted birds of paradise.
here in
Mike Standifer and Marc Hammer were already planning a commitment ceremony for October, but when the court
Bay area, call for $200 ruling came out, they decided to throw an even bigger bash and get married.
off (regularly $795)
free brochure/DVD They plan on spending about $25,000, which includes renovations on their Hollywood home so they can have the
www.aSensorySoundSystem.com
party in their backyard. The new price tag includes rings, their suits and those of their wedding party, and the cost of
flying in Standifer's priest from Tennessee -- all things they wouldn't have done if they were just having a party.
"The wedding dynamic in the last two weeks changed everything," Standifer said. The wedding businesses he's
worked with so far seem thrilled. "I think it's because the economy's not so great, but the vendors have been treating
us like royalty," he said.
By some estimates, weddings and commitment ceremonies for same-sex couples generate $1 billion a year in
revenue.
PlanetOut, a media and entertainment company that conducts surveys about gay and lesbian consumers, says gay
consumers earn 20% more than their straight counterparts, on average, and spend about 10% more on nuptials.
The court ruling comes at a good time for many small wedding-related businesses, which are finding that their
traditional customers are spending less on weddings because of the economy.
"Brides are being more frugal with things they don't see as a priority," said Richard Markel, president and director of
the Assn. for Wedding Professionals International.
Things really slowed down in February, said Michael Willms, owner of Entertainment Design Events, an event
planning company that's done big bashes such as a wedding for actress Lindsay Price, who stars in the NBC show
"Lipstick Jungle."
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Ads by Google / Ad Feedback But they've picked up now. The day after the ruling, Willms booked a $55,000 same-sex wedding.
Wedding Photographer "These weddings will be much more lavish," he said. "Everybody's been waiting for it to be legal to throw the big
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M.V. Lee Badgett, research director at the Williams Institute on Sexual Orientation Law and Public Policy at the UCLA
LA Wedding Photography School of Law, estimates that gay weddings could provide a $370-million boost to the state economy.
photojournalists Los
Angeles Wedding That estimate presumes that about half of California's 92,000 same-sex couples will tie the knot, multiplied by $8,040,
Photographer
www.albertpostel.com the amount of money from savings accounts that Badgett figures same-sex couples will use on their weddings.
Event planners, restaurants, tent and chair rental agencies, florists, caterers and hotels should all get a piece of that
pie, she said.
"There's an opportunity to get a big wedding windfall," she said.
There are, of course, some caveats. No one can accurately project how many gay couples will spend thousands of
dollars on weddings. And the legality of gay weddings is potentially short-lived, as officials verify petition signatures for
a proposed Nov. 4 ballot initiative that would prohibit same-sex marriage.
Still, wedding-related companies that traditionally market to the gay and lesbian community are finding business is
picking up.
Mitch Goldstone, president of Irvine-based photo service ScanMyPhotos.com, said he has gotten more than 300
requests for wedding invitations with photos on them since the court ruling.
"I guess people are still concerned about dealing with unsympathetic local photo labs," he said.
Rosa, the baker, said a lesbian couple came to him for their cake after a bakery in San Bernardino said it was booked
for the summer and couldn't make their wedding cake when a clerk saw the two women together.
Other businesses are trying to capture the attention of gay and lesbian couples.
Susan Goldman, a wedding photographer, registered the domain name biggayweddings.com a month ago so she
could market her services to same-sex couples. The Ramada hotel in West Hollywood is promoting a honeymoon
special, and the West Hollywood Marketing & Visitors Bureau is launching an ad in a magazine for the gay
community, selling West Hollywood as a good place for weddings and honeymoons.
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Business
Exhibit M
PROP ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY.
8 INITIATIVE CONSTITUTIONAL AMENDMENT.
ARGUMENT IN FAVOR OF PROPOSITION 8
Proposition 8 is simple and straightforward. It contains the We should not accept a court decision that may result in public
same 14 words that were previously approved in 2000 by over schools teaching our kids that gay marriage is okay. That is an
61% of California voters: “Only marriage between a man and a issue for parents to discuss with their children according to their
woman is valid or recognized in California.” own values and beliefs. It shouldn’t be forced on us against our will.
Because four activist judges in San Francisco wrongly Some will try to tell you that Proposition 8 takes away legal
overturned the people’s vote, we need to pass this measure as a rights of gay domestic partnerships. That is false. Proposition 8
constitutional amendment to RESTORE THE DEFINITION DOES NOT take away any of those rights and does not interfere
OF MARRIAGE as a man and a woman. with gays living the lifestyle they choose.
Proposition 8 is about preserving marriage; it’s not an attack However, while gays have the right to their private lives, they do
on the gay lifestyle. Proposition 8 doesn’t take away any rights or not have the right to redefine marriage for everyone else.
benefits of gay or lesbian domestic partnerships. Under California CALIFORNIANS HAVE NEVER VOTED FOR SAME-
law, “domestic partners shall have the same rights, protections, SEX MARRIAGE. If gay activists want to legalize gay marriage,
and benefits” as married spouses. (Family Code § 297.5.) There they should put it on the ballot. Instead, they have gone
are NO exceptions. Proposition 8 WILL NOT change this. behind the backs of voters and convinced four activist judges in
YES on Proposition 8 does three simple things: San Francisco to redefine marriage for the rest of society. That is
It restores the definition of marriage to what the vast majority the wrong approach.
of California voters already approved and human history has Voting YES on Proposition 8 RESTORES the definition of
understood marriage to be. marriage that was approved by over 61% of voters. Voting YES
It overturns the outrageous decision of four activist Supreme Court overturns the decision of four activist judges. Voting YES protects
judges who ignored the will of the people. our children.
It protects our children from being taught in public schools that Please vote YES on Proposition 8 to RESTORE the meaning of
“same-sex marriage” is the same as traditional marriage. marriage.
Proposition 8 protects marriage as an essential institution of
society. While death, divorce, or other circumstances may prevent RON PRENTICE, President
the ideal, the best situation for a child is to be raised by a married California Family Council
mother and father. ROSEMARIE “ROSIE” AVILA, Governing Board Member
The narrow decision of the California Supreme Court isn’t just Santa Ana Unified School District
about “live and let live.” State law may require teachers to instruct BISHOP GEORGE MCKINNEY, Director
children as young as kindergarteners about marriage. (Education Coalition of African American Pastors
Code § 51890.) If the gay marriage ruling is not overturned,
TEACHERS COULD BE REQUIRED to teach young children
there is no difference between gay marriage and traditional
marriage.
REBUTTAL TO ARGUMENT IN FAVOR OF PROPOSITION 8
Don’t be tricked by scare tactics. THE CONFUSION AND GUARANTEES THE CERTAINTY
• PROP. 8 DOESN’T HAVE ANYTHING TO DO WITH COUPLES CAN COUNT ON IN TIMES OF GREATEST
SCHOOLS NEED.
There’s NOT ONE WORD IN 8 ABOUT EDUCATION. Regardless of how you feel about this issue, we should guarantee
In fact, local school districts and parents—not the state—develop the same fundamental freedoms to every Californian.
health education programs for their schools. • PROP. 8 TAKES AWAY THE RIGHTS OF GAY
NO CHILD CAN BE FORCED, AGAINST THE WILL AND LESBIAN COUPLES AND TREATS THEM
OF THEIR PARENTS, TO BE TAUGHT ANYTHING about DIFFERENTLY UNDER THE LAW.
health and family issues. CALIFORNIA LAW PROHIBITS IT. Equality under the law is one of the basic foundations of our
And NOTHING IN STATE LAW REQUIRES THE society.
MENTION OF MARRIAGE IN KINDERGARTEN! Prop. 8 means one class of citizens can enjoy the dignity and
It’s a smokescreen. responsibility of marriage, and another cannot. That’s unfair.
• DOMESTIC PARTNERSHIPS and MARRIAGE PROTECT FUNDAMENTAL FREEDOMS. SAY NO TO
AREN’T THE SAME. PROP. 8.
CALIFORNIA STATUTES CLEARLY IDENTIFY NINE www.NoonProp8.com
REAL DIFFERENCES BETWEEN MARRIAGE AND
DOMESTIC PARTNERSHIPS. Only marriage provides the ELLYNE BELL, School Board Member
security that spouses provide one another—it’s why people get Sacramento City Schools
married in the first place! RACHAEL SALCIDO, Associate Professor of Law
Think about it. Married couples depend on spouses when McGeorge School of Law
they’re sick, hurt, or aging. They accompany them into DELAINE EASTIN
ambulances or hospital rooms, and help make life-and-death Former California State Superintendent of Public Instruction
decisions, with no questions asked. ONLY MARRIAGE ENDS
56 | Argu m en t s Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency.
PROP ELIMINATES RIGHT OF SAME-SEX COUPLES TO MARRY.
8 INITIATIVE CONSTITUTIONAL AMENDMENT.
ARGUMENT AGAINST PROPOSITION 8
OUR CALIFORNIA CONSTITUTION—the law of our DOMESTIC PARTNERSHIPS ARE NOT MARRIAGE.
land—SHOULD GUARANTEE THE SAME FREEDOMS When you’re married and your spouse is sick or hurt,
AND RIGHTS TO EVERYONE—NO ONE group SHOULD there is no confusion: you get into the ambulance or hospital
be singled out to BE TREATED DIFFERENTLY. room with no questions asked. IN EVERYDAY LIFE, AND
In fact, our nation was founded on the principle that all ESPECIALLY IN EMERGENCY SITUATIONS, DOMESTIC
people should be treated equally. EQUAL PROTECTION PARTNERSHIPS ARE SIMPLY NOT ENOUGH. Only
UNDER THE LAW IS THE FOUNDATION OF AMERICAN marriage provides the certainty and the security that people know
SOCIETY. they can count on in their times of greatest need.
That’s what this election is about—equality, freedom, and EQUALITY UNDER THE LAW IS A FUNDAMENTAL
fairness, for all. CONSTITUTIONAL GUARANTEE. Prop. 8 separates one
Marriage is the institution that conveys dignity and respect group of Californians from another and excludes them from
to the lifetime commitment of any couple. PROPOSITION 8 enjoying the same rights as other loving couples.
WOULD DENY LESBIAN AND GAY COUPLES that same Forty-six years ago I married my college sweetheart, Julia.
DIGNITY AND RESPECT. We raised three children—two boys and one girl. The boys are
That’s why Proposition 8 is wrong for California. married, with children of their own. Our daughter, Liz, a lesbian,
Regardless of how you feel about this issue, the freedom to can now also be married—if she so chooses.
marry is fundamental to our society, just like the freedoms of All we have ever wanted for our daughter is that she be treated
religion and speech. with the same dignity and respect as her brothers—with the same
PROPOSITION 8 MANDATES ONE SET OF RULES FOR freedoms and responsibilities as every other Californian.
GAY AND LESBIAN COUPLES AND ANOTHER SET FOR My wife and I never treated our children differently, we never
EVERYONE ELSE. That’s just not fair. OUR LAWS SHOULD loved them any differently, and now the law doesn’t treat them
TREAT EVERYONE EQUALLY. differently, either.
In fact, the government has no business telling people who can Each of our children now has the same rights as the others, to
and cannot get married. Just like government has no business choose the person to love, commit to, and to marry.
telling us what to read, watch on TV, or do in our private Don’t take away the equality, freedom, and fairness that
lives. We don’t need Prop. 8; WE DON’T NEED MORE everyone in California—straight, gay, or lesbian—deserves.
GOVERNMENT IN OUR LIVES. Please join us in voting NO on Prop. 8.
REGARDLESS OF HOW ANYONE FEELS ABOUT
MARRIAGE FOR GAY AND LESBIAN COUPLES, PEOPLE SAMUEL THORON, Former President
SHOULD NOT BE SINGLED OUT FOR UNFAIR Parents, Families and Friends of Lesbians and Gays
TREATMENT UNDER THE LAWS OF OUR STATE. JULIA MILLER THORON, Parent
Those committed and loving couples who want to accept the
responsibility that comes with marriage should be treated like
everyone else.
REBUTTAL TO ARGUMENT AGAINST PROPOSITION 8
Proposition 8 is about traditional marriage; it is not an attack Your YES vote on Proposition 8 means that only marriage
on gay relationships. Under California law gay and lesbian between a man and a woman will be valid or recognized in
domestic partnerships are treated equally; they already have the California, regardless of when or where performed. But Prop. 8
same rights as married couples. Proposition 8 does not change will NOT take away any other rights or benefits of gay couples.
that. Gays and lesbians have the right to live the lifestyle they
What Proposition 8 does is restore the meaning of marriage choose, but they do not have the right to redefine marriage for
to what human history has understood it to be and over 61% of everyone else. Proposition 8 respects the rights of gays while still
California voters approved just a few years ago. reaffirming traditional marriage.
Your YES vote ensures that the will of the people is respected. Please vote YES on Proposition 8 to RESTORE the definition
It overturns the flawed legal reasoning of four judges in of marriage that the voters already approved.
San Francisco who wrongly disregarded the people’s vote, and
ensures that gay marriage can be legalized only through a vote of DR. JANE ANDERSON, M.D., Fellow
the people. American College of Pediatricians
Your YES vote ensures that parents can teach their children ROBERT BOLINGBROKE, Council Commissioner
about marriage according to their own values and beliefs without San Diego-Imperial Council, Boy Scouts of America
conflicting messages being forced on young children in public JERALEE SMITH, Director of Education/California
schools that gay marriage is okay. Parents and Friends of Ex-Gays and Gays (PFOX)
Arguments printed on this page are the opinions of the authors and have not been checked for accuracy by any official agency. Arg um ents | 57
Exhibit N
DEFINT_PM_003184
DEFINT_PM_003185
DEFINT_PM_003186
DEFINT_PM_003187
DEFINT_PM_003188
DEFINT_PM_003189
DEFINT_PM_003190
DEFINT_PM_003191
DEFINT_PM_003192

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Case3:09-cv-02292-VRW Document204 Filed09/23/09 Page1 of 4

1 GIBSON, DUNN & CRUTCHER LLP

5 Theodore J. Boutrous, Jr., SBN 132009

10 BOIES, SCHILLER & FLEXNER LLP

15 UNITED STATES DISTRICT COURT

Gibson, Dunn &

1 I, Enrique A. Monagas, declare as follows:

6 and County of San Francisco’s (collectively, “Plaintiffs”) Joint Opposition to Defendant-Intervenors’

8 called as a witness, I could and would testify completely thereto.

11 3. Attached hereto as Exhibit B is a true and correct copy of the Transcript of

12 Proceedings before this Court on August 19, 2009.

13 4. Attached hereto as Exhibit C is a true and correct copy of Defendant-Intervenors’

15 5. Attached hereto as Exhibit D is Plaintiffs’ Responses to Defendant-Intervenors

16 Proposition 8 Proponents’ First Set of Interrogatories, served on September 16, 2009.

18 Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation (2009),

20 7. Attached hereto as Exhibit F is Plaintiffs’ Responses to Defendant-Intervenors

22 8. Attached hereto as Exhibit G is a true and correct copy of David R. Francis, Is

26 9. Attached hereto as Exhibit H is a true and correct copy of American Psychiatric

27 Association, Healthy Minds. Healthy Lives., Gay/Lesbian/Bisexuals, at

28 http://www.healthyminds.org/More-Info-For/GayLesbianBisexuals.aspx (last visited Sept. 23, 2009).

Gibson, Dunn &

3 Can We Do about It?, Child Trends Research Brief (June 2002).

15 Pugno to Station Managers (Sept. 29, 2008), produced by Defendant-Intervenors, at

21 /s/ Enrique A. Monagas

Gibson, Dunn &

1 ATTESTATION PURSUANT TO GENERAL ORDER NO. 45

5 /s/ Theodore B. Olson

Gibson, Dunn &

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

BEFORE THE HONORABLE VAUGHN R. WALKER, JUDGE

KRISTIN PERRY, ET AL., )

For Plaintiffs: Gibson, Dunn & Crutcher

Reported By: Belle Ball, CSR 8785, RMR, CRR

(Appearances continued, next page)

Belle Ball, CSR #8785, RMR, CRR

Also For Plaintiffs: BOIES, SCHILLER & FLEXNER

For Defendants Schwarzenegger, Scott and Horton:

For Defendant Attorney General Edmund G. Brown, Jr.:

For Defendant Logan:

(Appearances continued, next page)

Belle Ball, CSR #8785, RMR, CRR

For Defendant Patrick O'Connell:

For Proposed Intervenor Plaintiffs Our Family Coalition,

(Appearances continued, next page)

Belle Ball, CSR #8785, RMR, CRR

For Proposed Intervenor Defendant Campaign for California

For Intervenor Defendants:

For Intervenor Defendants:

For City and County of San Francisco:

Reported By: Belle Ball, CSR 8785, RMR, CRR

Belle Ball, CSR #8785, RMR, CRR

1 WEDNESDAY, AUGUST 19, 2009

4 THE CLERK: Calling Civil Case 09-2292, Christine

5 Perry, et al. versus Arnold Schwarzenegger, et al.

6 Appearances on the Plaintiffs' side, please.

7 MR. OLSON: Good morning, Your Honor. Theodore B.

8 Olson, Gibson, Dunn & Crutcher, on behalf of the Plaintiffs.

9 THE COURT: Good morning, Mr. Olson.

10 MR. BOIES: Good morning, Your Honor. David Boies of

11 Boies, Schiller & Flexner, on behalf of Plaintiffs.

12 THE COURT: Mr. Boies, good morning.

13 MR. BOUTROUS: Theodore J. Boutrous, Jr., for the

14 Plaintiffs. Good morning, Your Honor.