Windsor v. The United States Of America

Filing 56

FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - DECLARATION of Dugan Exhibit B in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db).

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Exhibit B Letitia Anne Peplau June 17, 2011 Page 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -against- 10-CV-8435 THE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D., Friday, June 17, 2011 Letitia Anne Peplau June 17, 2011 Page 2 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, and DAMON SAVOY & JOHN WEISS, 310 CV 1750 Plaintiffs, (VLB) v. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED STATES OF AMERICA, Defendants. -------------------------------------- Letitia Anne Peplau June 17, 2011 Page 3 1 2 3 DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D., 4 an Expert Witness herein, taken by Defendant, 5 pursuant to Agreement, at the offices of Paul 6 Weiss Rifkind Wharton & Garrison, LLP, 1285 Avenue 7 of the Americas, New York, New York, on Friday, 8 June 17, 2011, at 10:40 a.m., before Margaret Eustace, 9 a Shorthand Reporter and notary public, within 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and for the State of New York. Letitia Anne Peplau June 17, 2011 Page 11 1 L.A. Peplau, Ph.D. 2 A. Yes, I have. 3 Q. How many times? 4 A. I have testified twice. 5 Q. Have you ever been excluded as an 6 expert in a case? 7 A. No. 8 Q. Do you know the plaintiffs in both 9 these cases? 10 A. No, I don't. 11 Q. You have never met any of them? 12 A. No. 13 Q. I know the answer to this, but I will 14 ask it for the record: Are you an attorney? 15 A. No. 16 Q. I would like to go into the question 17 of sexuality. 18 How do you define homosexuality? 19 A. 20 would use. 21 of the broader term of sexual orientation. 22 That is what I addressed in my affidavit. 23 24 25 Q. Homosexuality isn't actually a term I I would think of it in the terms How would you define sexual orientation? A. I would define sexual orientation as Letitia Anne Peplau June 17, 2011 Page 12 1 L.A. Peplau, Ph.D. 2 an enduring set of emotional sexual 3 attractions towards men, toward women or 4 toward both. 5 I would as well define sexual 6 orientation as including a person's identity 7 as gay or lesbian or heterosexual or bisexual. 8 And I would also include it under the rubric 9 of sexual orientation related behavior. For 10 example, forming a relationship with a person 11 of the same sex or of the other sex. 12 Q. Within the definition of sexual 13 orientation, do you define gay differently 14 from that? 15 16 MR. BENSON: A. Object to the form. I think the term gay is used in a 17 variety of ways. It is one of the sexual 18 orientation identity labels that some people 19 might adopt. 20 commonly used with regard to men, but it is 21 sometimes used in a generic way to apply to 22 women as well. The term is, I think, most 23 Q. How would you define lesbian? 24 A. I think of lesbian as an identity 25 label or category that would be used for women Letitia Anne Peplau June 17, 2011 Page 13 1 L.A. Peplau, Ph.D. 2 whose enduring attractions are toward other 3 women. 4 Q. How would you define bisexual? 5 A. Again, I would define it as an 6 identity label for a person whose emotional 7 and romantic and sexual attraction are towards 8 persons of both sexes. 9 10 Q. different definitions of sexual orientation? 11 12 Do different fields of study use MR. BENSON: A. Object to the form. You know, I really am not an expert 13 on how philosophy or political science or 14 other fields might define sexual orientation. 15 So I don't have a good answer for that 16 question. 17 Q. 18 19 What about in the social sciences? MR. BENSON: A. Object to the form. You know, I am a psychologist, so the 20 definition of sexual orientation that I use 21 and that I am most familiar with is one that 22 is -- has been used by the American 23 Psychological Association, which is our 24 national professional association, it has been 25 used by them in their educational materials Letitia Anne Peplau June 17, 2011 Page 14 1 L.A. Peplau, Ph.D. 2 for the public and for practitioners. 3 widely accepted definition within psychology, 4 but I really couldn't tell you what is a 5 standard sociology definition of sexual 6 orientation would be. 7 MR. DUGAN: It is a I am going to have 8 this marked Exhibit 3. This is the APA 9 answers to your questions. 10 (APA answers were marked as 11 Defendants' Exhibit 3 for 12 identification.) 13 Q. Dr. Peplau, do you recognize this 14 document? 15 A. Yes. 16 Q. What is this document? 17 A. It's a document prepared by the 18 American Psychological Association. It is 19 called "Answers to your questions." 20 been prepared as an educational material by 21 the APA. It has 22 Q. I direct you to page 2 of this 23 document. 24 causes a person to have a particular sexual 25 orientation?" There is a question that says, What Letitia Anne Peplau June 17, 2011 Page 15 1 L.A. Peplau, Ph.D. 2 And I will read this in for the 3 record. 4 "There is no consensus amongst 5 scientists about the exact reasons that an 6 individual develops a heterosexual, bisexual, 7 gay or lesbian orientation. 8 research has examined the possible genetic, 9 hormonal, developmental, social and cultural 10 influences on sexual orientation no findings 11 have emerged that permit scientists to 12 conclude that sexual orientation is determined 13 by any particular factor or factors. 14 think that nature and nuture both play complex 15 roles. 16 choice about their sexual orientation." 17 Do you agree with this? Although much Many Most people experience little or no 18 A. Yes. 19 Q. And is this a consensus for you 20 amongst scientists? 21 MR. BENSON: 22 A. Object to the form. I think it is a widespread view. 23 There are many ideas here, but in the main, I 24 think the ideas that the causes of sexual 25 orientation are not understood is an idea that Letitia Anne Peplau June 17, 2011 Page 16 1 L.A. Peplau, Ph.D. 2 is accepted by many researchers. 3 Q. Would it fair to say that scientists 4 don't know what causes a particular sexual 5 orientation? 6 A. I will say that. 7 Q. Paragraph 11 of your expert report 8 you stated -- 9 10 MR. BENSON: record. 11 12 Exhibit 2 for the MR. DUGAN: Q. Yes. -- you stated that, "It is well 13 established that homosexuality is a normal 14 expression of human sexuality." 15 16 17 What do you mean by "normal" in that sentence? A. What I really mean is explained in 18 the following sentence, which says, "It is not 19 a mental illness, and being gay or lesbian has 20 no inherent association with a person's 21 ability to lead a happy, healthy or productive 22 life or to contribute to society." 23 I mean it in that way, that 24 homosexuality is part of a wide array of forms 25 of sexual orientation and that there is Letitia Anne Peplau June 17, 2011 Page 18 1 L.A. Peplau, Ph.D. 2 one that suggests that unlike some of the past 3 views that linked sexual orientation with 4 mental health that that is a view that 5 psychologists and I no longer accept. 6 7 Q. sexual orientation. 8 9 10 I want to go back to the question of Is there a difference between sexual orientation and sexual attraction? A. I think sexual orientation is a 11 fairly broad term that encompasses many 12 components, and attraction would be one of the 13 ingredients of sexual orientation. 14 15 Q. the American population is homosexual? 16 17 Do scientists know what percentage of MR. BENSON: A. Object to the form. There are a variety of estimates that 18 have been made based on research projects. 19 So, for example, in the national 20 representative probability sample by Laumann 21 and others, a project I reference, they used 22 people's sexual orientation identity 23 self-definition of being lesbian, gay or 24 bisexual or heterosexual. 25 And according to their data, Letitia Anne Peplau June 17, 2011 Page 19 1 L.A. Peplau, Ph.D. 2 somewhere between 1 and 2 percent of women 3 identified as lesbian, and somewhere between 2 4 and 3 percent of men identified as gay. 5 think that's a reasonable estimate, using 6 self-identification as a measure of sexual 7 orientation. 8 9 Q. Have these estimates varied throughout time? 10 11 And I MR. BENSON: A. Object to the form. It is fairly new that we have 12 estimates based on representative probability 13 samples. 14 and others, there were certainly estimates 15 that were based on nonrepresentative samples 16 and sometimes those estimate were different. And so prior to research by Laumann 17 Q. You cite Dr. Kinsey's work. 18 A. Yes. 19 Q. I believe he said that -- he had that 20 famous 10 percent number about homosexuals. 21 Has that number been discredited? 22 MR. BENSON: 23 A. Yes. Objection to form. I would say that people have a 24 better understanding of Kinsey's numbers, that 25 Kinsey's sample of men, just where the number Letitia Anne Peplau June 17, 2011 Page 20 1 L.A. Peplau, Ph.D. 2 comes from was not representative, and that it 3 is, I think, now widely believed to have been 4 too large a number. 5 Q. Does the percentage of people who 6 consider themselves homosexual differ in 7 different areas of the country? 8 9 MR. BENSON: A. Object to the form. The data that I know that have 10 representative samples are not differentiated 11 by region of the country. 12 Laumann data are not differentiated by region, 13 so I don't have a basis for answering that 14 question. 15 Q. 16 The term LGBT, lesbian, gay, bisexual and transgender, what does that term mean? 17 18 For instance, the MR. BENSON: A. Object to the form. Sometimes when people are trying to 19 find a shorthand way to talk about people who 20 are not sort of traditionally heterosexual, 21 they will use acronyms. 22 really just a way of saying here are a set of 23 people. 24 might be an LGBT resource center for students, 25 and that would be a center that provided And I think that's For instance, in many colleges there Letitia Anne Peplau June 17, 2011 Page 25 1 2 L.A. Peplau, Ph.D. homosexual acts? 3 MR. BENSON: 4 Same objection. 5 A. Object to the form. You know, how I would classify such a 6 person would depend on the goal of the 7 research project. 8 interested in studying the transmission of 9 sexually transmitted diseases might be Researchers who are 10 particularly interested in studying men who 11 have sex with men regardless of whether they 12 identify as heterosexual or gay. 13 that is commonly used for that for those men 14 is men who have sex with men, MSM. 15 Q. 16 And a term birth? 17 18 Can sexual orientation be defined at MR. BENSON: A. Objection to form. What research shows is that people 19 come to understand their sexual orientation 20 most typically during adolescence, so I would 21 say that looking at a newborn, I would not be 22 able to tell you what that child's sexual 23 orientation is going to be. 24 25 Q. In paragraph 15 of Exhibit 2, you describe the continuum of sexual orientation. Letitia Anne Peplau June 17, 2011 Page 36 1 L.A. Peplau, Ph.D. 2 (Copy of paper by Herek Norton 3 Allen and Sims was marked as 4 Defendants' Exhibit 4 for 5 identification.) 6 Q. Do you recognize that, Dr. Peplau? 7 A. Yes. 8 Q. What is that? 9 A. This is a copy of the paper by Herek 10 Norton Allen and Sims that I was referring to 11 in paragraph 25. 12 13 Q. If I could have you turn to page 186, which is table 3 of this article. 14 You wrote, "95 percent of gay men 15 experience no choice at all or very little 16 choice about their sexual orientation." 17 Looking at table 3, is it fair to say 18 that nearly 7 percent of gay men felt that 19 they had a small amount of choice in their 20 sexuality and 5.2 percent said that they 21 experienced a fair amount or a great deal of 22 choice in their sexuality? 23 MR. BENSON: 24 25 Q. Objection to form. Let me split that up. Is it fair to say that 7 percent of Letitia Anne Peplau June 17, 2011 Page 37 1 L.A. Peplau, Ph.D. 2 gay men felt that they had a small amount of 3 choice in their sexuality? 4 A. Yes. 5 Q. And is it fair to say that 5.2 6 percent experienced a fair amount or great 7 deal of choice in their sexuality? 8 A. Yes. 9 Q. With regard to lesbians, doesn't the 10 study show that 31.6 percent of lesbian women 11 experience a small amount or a fair amount of 12 choice in their sexuality? 13 MR. BENSON: 14 Compound. 15 Q. Objection to form. I will split that up. 16 Does this study show that 15.2 17 percent of lesbians experience a small amount 18 of choice in their sexual orientation? 19 A. Yes, that's what the study shows. 20 Q. And does this study show that 16.4 21 percent of lesbians experience a fair amount 22 or a great deal of choice in their sexual 23 orientation? 24 A. Yes, that's what this study shows. 25 Q. And looking at the last column there, Letitia Anne Peplau June 17, 2011 Page 38 1 L.A. Peplau, Ph.D. 2 on table 3, if one factors in gays, lesbians 3 and bisexuals, both bisexual men and women, 4 isn't it true that 14.2 percent experience a 5 small amount of choice in their sexual 6 orientation? 7 A. Yes, that's what the table shows. 8 Q. Is it true that 25.2 percent 9 10 11 experience a fair amount or a great deal of choice in their sexual orientation? A. So just so I am clear, what we are 12 doing here is we are adding in bisexuals, who 13 are people who are attracted to both men and 14 women, and when you do that you find that the 15 percent of lumping together lesbians, gay men 16 and bisexuals who report they have a fair 17 amount or a great deal of choice is 25 18 percent. 19 20 And, yes, that's what the table shows. 21 MR. DUGAN: Mark that Exhibit 5. 22 (Paper by Greg Herek was 23 marked as Defendants' Exhibit 5 24 for identification.) 25 Q. Do you recognize Exhibit 5, Name of Cases: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of THEA CLARA SPYER, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. (10 Civ. 8435) (BSJ) (JCF) UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS, SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE, and DAMON SAVOY & JOHN WEISS, Plaintiffs, v. OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the Commissioner of the Social Security Administration, UNITED STATES POSTAL SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the United States of America, DOUGLAS H. SHULMAN, in his official capacity as the Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as United States Attorney General, JOHN WALSH, in his official capacity as Acting Comptroller of the Currency, and THE UNITED STATES OF AMERICA, Defendants. (310-CV-1750) (VLB) Date of Deposition: Friday, June 17, 2011 Name of Witness: Letitia Anne Peplau, Ph.D. Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition I wish to make the following changes, for the following reasons: PAGE LINE: 16:3 CHANGE FROM: “would it” CHANGE TO: “would it be” REASON: Transcription error PAGE LINE: 22:23 CHANGE FROM: “ASEF (ph)” CHANGE TO: “NSF [National Science Foundation]” REASON: Transcription error PAGE LINE: 29:20 CHANGE FROM: “questions” CHANGE TO: “lesbians” REASON: Transcription error PAGE LINE: 32:13 CHANGE FROM: “Does California studies” CHANGE TO: “Those California studies” REASON: Transcription error PAGE LINE: 33:2–3 CHANGE FROM: “I see against relationships of lesbians and gay men.” CHANGE TO: “I see—where it says, ‘The relationships of lesbians and gay men’” 2 Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition REASON: Transcription error PAGE LINE: 41:4 CHANGE FROM: “It was always conceivable” CHANGE TO: “It is always conceivable” REASON: Transcription error PAGE LINE: 42:15–18 CHANGE FROM: “All close same sex relationships between friends, relatives, coworkers, acquaintances or others which shall be considered homosexual relationships.” CHANGE TO: “Of all close same-sex relationships between friends, relatives, coworkers, acquaintances, or others, which shall be considered homosexual relationships?” REASON: Transcription error PAGE LINE: 49:5–6 CHANGE FROM: “however, it actually an encompasses” CHANGE TO: “however, it actually encompasses” REASON: Transcription error PAGE LINE: 51:3–5 CHANGE FROM: “harms not individuals in legal same sex marriage but gay men, lesbians and bisexuals as a group.” CHANGE TO: “harm not only individuals in legal same-sex marriages, but gay men, lesbians, and bisexuals as a group.” REASON: Transcription error 3 Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: 57:10 CHANGE FROM: “no singular theory” CHANGE TO: “no single theory” REASON: Transcription error PAGE LINE: 57:14 CHANGE FROM: “the interplay biological,” CHANGE TO: “the interplay of biological,” REASON: Transcription error PAGE LINE: 57:24 CHANGE FROM: “that is all learning experience” CHANGE TO: “that it is all learning, experience” REASON: Typographical error PAGE LINE: 59:22 CHANGE FROM: “married that the families would accept” CHANGE TO: “married that their families would accept” REASON: Typographical error PAGE LINE: 61:7 CHANGE FROM: “protection or lesbians” CHANGE TO: “protection for lesbians” REASON: Typographical error 4 Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: 63:6 CHANGE FROM: CHANGE TO: Add “Q:” REASON: Typographical error PAGE LINE: 66:6 CHANGE FROM: “One form that” CHANGE TO: “One form that is” REASON: Transcription error PAGE LINE: 67:11 CHANGE FROM: “homosexual marriage is one” CHANGE TO: “homosexual marriage if one” REASON: Transcription error PAGE LINE: 70:21 CHANGE FROM: “I to want pose an objection” CHANGE TO: “I want to pose an objection” REASON: Transcription error PAGE LINE: 71:24 CHANGE FROM: “will not effect heterosexual” CHANGE TO: “will not affect heterosexual” REASON: Typographical error 5 Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: 76:8 CHANGE FROM: “they in partners are” CHANGE TO: “that partners are” REASON: Transcription error PAGE LINE: 77:25 CHANGE FROM: “expert” CHANGE TO: “experiment” REASON: Transcription error PAGE LINE: 78:3 CHANGE FROM: “assign people’s conditions” CHANGE TO: “assign people to conditions” REASON: Transcription error PAGE LINE: 78:18 CHANGE FROM: “simply her asking” CHANGE TO: “simply asking her” REASON: Typographical error PAGE LINE: 80:13 CHANGE FROM: “mental harm disparities” CHANGE TO: “mental health disparities” REASON: Transcription error 6 Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: 81:24 CHANGE FROM: “Fingerhut, et al. Paper” CHANGE TO: “Fingerhut, et al. paper” REASON: Typographical error PAGE LINE: 82:16 CHANGE FROM: “depressed” CHANGE TO: “depression” REASON: Transcription error PAGE LINE: 88:8 CHANGE FROM: “an individual as” CHANGE TO: “an individual’s” REASON: Typographical error PAGE LINE: 96:2 CHANGE FROM: “many Americans old” CHANGE TO: “many Americans hold” REASON: Typographical error PAGE LINE: 98:4 CHANGE FROM: “imagines of lesbian” CHANGE TO: “images of lesbian” REASON: Transcription error 7 Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition PAGE LINE: 98:6 CHANGE FROM: “for trails” CHANGE TO: “portrayals” REASON: Transcription error PAGE LINE: 98:14 CHANGE FROM: “More the point” CHANGE TO: “More to the point” REASON: Typographical error 8