A friend-of-the-court brief filed in support of California's Proposition 8, the 2008 initiative through which voters enshrined traditional marriage in the state constitution, says the homosexual federal judge who overturned the measure simply was wrong.

"Ample trial testimony and record evidence confirm findings of amicus' study – change is possible for some people and same-sex attraction is not an immutable trait," said the filing, submitted to the 9th U.S. Circuit Court of Appeals by attorney Gary Kreep of the United States Justice Foundation.

The brief was submitted on behalf of the National Association for Research and Therapy of Homosexuality.

"The conclusion of the court below to the contrary is an error," the brief asserts.

The decision by Judge Vaughn Walker, who ruled that the age of limiting marriage to a man and a woman is over, said that, "No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation."

"Presumably," said the amicus brief, "this finding is meant to establish the idea that sexual orientation is immutable."

But that, according to the brief, is wrong.

"Amicus respectfully suggests that this finding constitutes plain error. First, it is not supported by the evidence cited by the court below. Second, it ignores research and reports in the relevant literature."

Explained the document, "The first significant problem with the suggestion of immutability by the court below is that it is contradicted by the very evidence cited in its support. This is clear from the court's descriptions of, and quotes from, that evidence."

Further, the brief explains, "Although not carefully discussed by the court below, there is some evidence that change in orientation can occur without specificintervention , or spontaneously. A 2007 literature review found evidence of sexual fluidity: 'A summary of these studies … is that about half of those with exclusive SSA [same-sex attraction] were once bisexual or even heterosexual. And about the same number changed from being exclusively SSA to bisexual or even heterosexual.'

"An earlier study reported that approximately 2 percent of the heterosexual population they surveyed had reported having been exclusively homosexual at an earlier time," the brief continued.

The successful move by individuals away from "unwanted homosexuality" has been documented as far back as the 1800s, it explains.

"In 1882, Charcot published a paper titled 'Inversion of the Genital Sense.' Already famous for his treatment of hysterics through hypnotic induction, Charcot applied the same type of therapy to homosexual men. He reported success because 'the homosexual became heterosexual,'" the brief documents.

Other reports were confirmed from 1892, and similar reports were reported in the 1930s, 1950s, 1960s and 1970s.

Recently, there's been much more evidence, it said,

"Elan Karten's 2006 dissertation studied 117 men who had participated in some type of reorientation activity and found that meaningful sexual reorientation had occurred. Nicholas Cummings, former APA president, estimates 2,400 clients of the Kaiser-Permanente Health Maintenance Organization successfully reoriented their sexuality to heterosexuality over a 20-year period. A survey of 285 anonymous members of the American Psychoanalytic Association conducted by Houston MacIntosh revealed that of 1,215 homosexual patients analyzed by those members, 23 percent changed from homosexuality to heterosexuality and 84 percent received significant therapeutic benefits."

Even Robert Spitzer, professor of psychiatry at Columbia and one of those involved in changing the "Diagnostic and Statistical Manual" of theAmerican Psychiatric Association to de-list homosexuality as a mental disorder, appeared to have doubts.

He concluded, according to the brief, "Like most psychiatrists I thought that homosexual behavior could be resisted, but sexual orientation could not be changed. I now believe that's untrue – some people can and do change."

While the existing research data does have limitations, including the very definition of sexual orientation and arguments over how that is exhibited as behavior, it certainly undermines assumptions that same-sex attraction is immutable, the brief said.

And the brief acknowledges the difficulty in changing.

"As with any psychological treatment, the client's motivation and determination to comply with treatment predicts the greatest positive response in most cases. As with other deeply ingrained psychological conditions and behavioral patterns, change through therapy does not come easily, and there is a substantial therapeutic failure rate, as well as a need for ongoing maintenance of any success that is attained," the brief stated.

But that still doesn't document the judge's claim that homosexuality is immutable, it said.

It also explains that even among those who describe themselves as same-sex attracted, individuals report wide shifts of focus.

Walker concluded in his ruling that neither "ethical and moral principles" nor "religious beliefs" have any legitimate role in his redefinition of marriage.

Walker, among other comments, said marriage between a husband and a wife is "an artifact of a time when the genders were seen as having distinct roles in society and in marriage" but that time has gone.

He also suggested the genders of "parents" are irrelevant to children.

Proposition 8 was passed by voters in 2008. In his Aug. 4 decision, Walker declared it violates the rights of homosexuals under the federal Constitution.

Walker's decision ignored the terse warning contained in state Supreme Court Justice Marvin Baxter's dissenting opinion in the 2008 state case on same-sex "marriage." Baxter warned of the "legal jujitsu" required to establish same-sex "marriage" by court order just a few months beforeCalifornia voters passed Proposition 8 and amended the constitution to limit marriage to one man and one woman.

"The bans on incestuous and polygamous marriages are ancient and deeprooted, and, as the majority suggests, they are supported by strong considerations of social policy," Baxter warned in his dissent. "Our society abhors such relationships, and the notion that our laws could not forever prohibit them seems preposterous. Yet here, the majority overturns, in abrupt fashion, an initiative statute confirming the equally deeprooted assumption that marriage is a union of partners of the opposite sex. The majority does so by relying on its own assessment of contemporary community values, and by inserting in our Constitution an expanded definition of the right to marry that contravenes express statutory law.

"Who can say that, in 10, 15 or 20 years, an activist court might not rely on the majority's analysis to conclude, on the basis of a perceived evolution in community values, that the laws prohibiting polygamous and incestuous marriages were no longer constitutionally justified?" Baxter wrote. That state court decision was overturned by voters a few months later.

The Alliance Defense Fund, one of the groups working to protect marriage, documented some of Walker's far-reaching conclusions that opined marriage could not be limited to one man and one woman:

• "Religious beliefs that gay and lesbian relationships are sinful or inferior to heterosexual relationships harm gays and lesbians."

• "Rather, the exclusion exists as an artifact of a time when the genders were seen as having distinct roles in society and in marriage. That time has passed."

• "The gender of a child's parent is not a factor in a child's adjustment."

• "The evidence shows beyond any doubt that parents' genders are irrelevant to children’s developmental outcomes."

• "Gender no longer forms an essential part of marriage; marriage under law is a union of equals."

• "Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples."

Liberty Counsel has called the ruling "outrageous."

"This is a classic example of radical individualism and judicial activism. Judge Walker obviously has not learned the lesson of 2008, when theCalifornia Supreme Court refused to stay its decision on marriage. That decision was reversed in short order, but it caused a huge disruption," said chief Mathew Staver.

The American Family Association has launched an action alert to its several million supporters calling for the impeachment of Walker.

The alert asks supporters to contact their members of Congress and demand his removal.

"What you have here is a federal judge using the power of his position to legitimize what is sexually aberrant behavior," Bryan Fischer, an analyst for the organization, told WND. "He's trampling on the will of 7 million voters in California. It's just a gross breach of his judicial responsibility.

"We think of it as an expression of judicial tyranny, judicial activism on steroids," he said.

The organization's action alert offers to constituents an option to track down their representatives in Washington and contact them directly on the issue.

www.wnd.com/index.php

Sept. 23, 2010