Scandal Stirs Legal Questions in Anti-Gay Cases

The New York Times/May 18, 2010

For years, George A. Rekers has held himself out as an expert witness in court on homosexuality, arguing in cases concerning same-sex marriage and gay adoption that gay men and lesbians lead parlous lives and raise troubled children.

Now Dr. Rekers himself is under fire, raising new legal questions about his courtroom role.

The Miami New Times, an alternative newspaper, revealed this month that Dr. Rekers took a 10-day trip to Europe with a male prostitute whom he apparently had met through a Web site,

News coverage has focused largely on his seeming hypocrisy, given that Dr. Rekers, a clinical psychologist and ordained Baptist minister, has written that "leaders of the homosexual revolt" use "manipulative techniques of classic revolutionary strategies" to keep homosexuals from trying to change their orientation.

But legal experts say the scandal may affect more than Dr. Rekers’s reputation. They say it places obligations on those who have relied on Dr. Rekers to inform the court in at least one continuing case to modify or withdraw their arguments.

"Each lawyer must tell the court if he comes to know that one of his witnesses has given ‘false’ testimony," said Stephen Gillers, an expert in legal ethics at New York University. That could come into play if the expert is discredited, he added.

Dr. Rekers has responded to the storm of coverage with a mix of withdrawal and defiance. He resigned from the board of the National Association for Research and Therapy of Homosexuality, a group that argues that sexual orientation can be altered through therapy. On the group’s Web site, he denounced the "false reports," stating: "I have not engaged in any homosexual behavior whatsoever. I am not gay and never have been."

On his own Web site, a note states that he "did not even find out about his travel assistant’s Internet advertisements offering prostitution activity until after the trip was in progress." Both men have denied having sex, though the escort, Jo-vanni Roman, told CNN that he gave Dr. Rekers daily "sexual" massages on the trip.

A representative of Dr. Rekers responded to a request for an interview with an e-mail message stating, "Because this has become a legal matter concerning defamation, Professor Rekers has been advised not to grant interviews."

Regardless of what occurred in Europe, the trip could affect cases in the United States. Dr. Rekers’ involvement, for example, has been critical in a suit challenging a Florida law banning adoption by gay parents. His testimony was a major part of Attorney General Bill McCollum’s defense of the statute, for which the state paid Dr. Rekers $120,000.

Mr. McCollum has distanced himself from Dr. Rekers. "It is safe to say that if this case moves beyond this stage, Mr. Rekers will have no further involvement in the case," said Ryan Wiggins, a spokeswoman for Mr. McCollum. "We will certainly not be recommending him in the future."

In the November 2008 decision declaring the Florida gay adoption law unconstitutional, Judge Cindy Lederman of Miami-Dade Circuit Court wrote that Dr. Rekers was "motivated by his strong ideological and theological convictions that are not consistent with the science," and not "credible." Mr. McCollum, a Republican who is running for governor, has appealed that decision. In papers filed well before the scandal broke, he denounced the court’s "wholesale disregard" of testimony by Dr. Rekers and another expert, calling the decision "arbitrary," stressing Dr. Rekers’ qualifications and stating that "the trial court entirely discredited him based on his religion."

To Professor Gillers, Mr. McCollum is now obligated both as a lawyer and as a public official to alert the appellate court. "It is not enough for the attorney general simply to refrain from relying on the testimony in his brief and argument," he said. "He has an affirmative duty to speak up."

Ms. Wiggins, the spokeswoman for Mr. McCollum, said she could not comment further on pending litigation.

Dr. Rekers has a less direct link to another high-profile gay rights case: the federal court challenge to a California law banning same-sex marriage, which was passed in 2008 by a voter initiative.

Dr. Rekers did not testify in that case, but his views, in the form of a declaration filed in a previous case, were cited in the documents prepared for trial by two men initially identified as expert witnesses. (Only one, David Blankenhorn of the Institute for American Values, testified.)

The question of whether sexual orientation could be altered through therapy was also discussed extensively in court.

Charles J. Cooper, the Washington lawyer who is defending the California law, said in an e-mail that "Dr. Rekers has had no involvement in the Proposition 8 case," having not served as an expert for either party. A decision is pending.

Dr. Rekers, 61, has been a part of cases that are no longer in the judicial pipeline, most notably a 2004 suit over an Arkansas law that restricted gay foster care in Arkansas. Judge Timothy Fox of Pulaski County Circuit Court overturned the state law, and wrote that he found Dr. Rekers’ testimony "extremely suspect" and that Dr. Rekers "was there primarily to promote his own personal ideology." That decision was unanimously affirmed by the state Supreme Court in 2006.

The practical effect of the Rekers scandal on the legal movement to restrict gay rights is unclear. He is not the only expert espousing such views. Another Arkansas case concerning restrictions on gay adoption is under way, for example, and Dr. Rekers is not part of that case.

The universe of such experts, however, may not be large. In describing Dr. Rekers’s selection in the Florida case, Mr. McCollum told reporters last week, "There were only two willing to step forward and testify, and we searched a long time."

James Esseks, the director of the Lesbian Gay Bisexual Transgender and AIDS Project at the American Civil Liberties Union, said the scandal was ultimately beside the point. "Is he gay or not? Did he hire the rent boy or not hire the rent boy?" he said. "I have no idea what’s true or not in that realm, and it doesn’t make any difference."

Largely because of the Florida and Arkansas cases, he said, "Dr. Rekers has been discredited already, and completely independently of any of that."

Ted Haggard, former pastor of the New Life megachurch in Colorado Springs whose ties to a male prostitute led to scandal, said his situation was different from that of Dr. Rekers.

"He made statements that his personal religious beliefs should be inculcated into civil law," Mr. Haggard said in an interview. "I never said anything about that."

"He said same-sex couples were unable to raise healthy kids," he added. "I would never say anything like that."

John Leland contributed reporting.

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