Alex Blaze

Prop 8 trial: Whose side are these witnesses on?

Filed By Alex Blaze | January 27, 2010 7:30 PM | comments

Filed in: Marriage Equality, Politics
Tags: David Blankenhorn, David Boies, gay marriage, Kenneth Miller, marriage, Prop. 8, same-sex marriage, trial

I'm struck, as I read about the defense's witnesses and their case (which is supposed to be finished today), by the paucity of facts they're willing to present. I know, I know, there really isn't much truth in the traditional sense when it comes to their arguments. After reading about them making arguments with the plaintiffs' witnesses that LGBT people are politically powerful and oppressing good Christians, that they're really not homophobes, just dictionary fans, or that gays can change because Kinsey and others have acknowledged that bisexuals exist and that sexuality is more complicated than just the sex of the people you're attracted to, in 2010, in front of educated people paying attention, I thought they were bringing their A game.

Apparently not. The defense's star witness was David Blankenhorn, president of the Institute for American Values. Their mission is "To contribute intellectually to the renewal of families and civil society in the U.S. and the world," and they describe themselves as an intellectual think-tank "more interested in first-rate scholarship than in the 'correct' conclusions." They've published books by not just Blankenhorn, but intellectual giants of our time, like Maggie Gallagher.

I suppose the defense in court found out that they should have researched a little beyond the think tank's ad copy - Blankenhorn didn't get off to a good start in cross-examination:

Boies went after Blankenhorn's credibility immediately, noting that he apparently had only one peer-reviewed article to his credit and that was a thesis on a labor dispute between cabinetmaker unions in Britain.

Although Blankenhorn was being offered as an expert witness on how same-sex marriages are detrimental to heterosexual marriages and children, Boies noted that Blankenhorn's education had been in history.

"You've never taught a course in college," said Boies, "and you have no degree in psychology, psychiatry, sociology, anthropology...."

"No," said Blankenhorn, interrupting.

"And in preparation for this testimony, did you undertake any scientific study of what effects permitting same-sex marriages have been in any jurisdiction where same-sex marriages have been permitted?" asked Boies.

"No," said Blankenhorn. And that's about when Blankenhorn began to resist Boies' punches. Rather than answer the yes-or-no questions that Boies posed, Blankenhorn began to try and give explanations for his points of view. But clearly some damage had already been done and, when time came for Judge Vaughn Walker to decide whether Blankenhorn could be qualified as an expert witness, it was clear the judge had some hesitation.

Walker noted that the U.S. Supreme Court's guidance on whether someone can be qualified as an expert witness requires that the expert have "specialized skills as opposed to the insights of an intelligent layperson."

"If this were a jury trial," said Walker, the decision "might be a close one. But I will permit [the witness] to testify and weigh the testimony in light of his qualifications."


It didn't get much better. Crazy enough, one thing that both sides agree on is that marriage is the best thing since sliced bread. The marriage-focused and the Religious Right both depend on arguments that marriage is an incredibly important institution that makes people richer, more moral, more valuable, and better parents, often using the flimsiest of evidence to back it up. Any supposed benefit to marriage more abstract that the material goods bestowed upon the couple is suspect in my book because a lot of people really, really want to believe in the "Happily ever after" myth.

Boies started there, but Blankenhorn obviously didn't seem prepared to start saying that, while marriage is awesome, it wouldn't do much good for the gays. Remember, this guy is supposed to convince people that gays should not be allowed to marry and that there was no homophobia behind Prop 8.

Here's how he started the second day of cross examination (from Rick Jacobs's live-blog):

Boies: Good morning Mr. Blankenhorn. I'm going to start with some things we agree on. You agree that marriage is a public good.
DB: Yes.
Boies: What is a public good?
DB: Benefits society..
Boies: Good for children and couples.
DB: Yes.
Boies: You believe it would benefit gay and lesbian couples and their children to allow same sex marriage?
DB: I believe it is likely to do that.
Boies: You believe it is almost certain to do that?
DB: Yes, I believe same sex marriage is almost certain to benefit gay and lesbian couples and their children.

He proceeded to agree with all of these points:

1. Same sex marriage would meet the stated needs and desires of g and l who want to marry. In so doing it would improve the happiness and well being of many gay and lesbian and individuals, couples and family member.
2. Gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children.
3. Extending the right to marry to ss couples would probably mean that a higher proportion of gays and lesbian would choose to enter into a commitment relationships.
4. Same sex marriage would make more gays and lesbians enter committed relationships.
5. Decrease promiscuity.
6. Same sex marriage would signify greater social acceptance of homosexual love and will increase the worth and validity of intimate relationships.
7. Gay marriage would be a victory for the worthy ideas of tolerance and include. It would likely decrease the number of those in society who tend to be treated warily as "other" and increase the number who are accepted as part of us. In that respect, gay marriage be a victory for and another key expansion of the American idea.
910. Gay marriage might contribute over time to t decline in anti gay prejudice as well as more specifically reduction in hate crimes.
11. Long one- basically would make homos more stable economically and therefore more likely to contribute to US.
15. Extending same sex marriage rights to would probably reduce the proportion of homosexuals who marry persons of the opposite sex and thus would likely reduce unhappy marriage to opposite sex couples.
18. By increasing the number of married couples who m be interned in adoption and foster care because same sex couples can have kids in their families.
19. Adopting same sex marriage would likely be accompanied by a side ranging and potentially valuable national discussion.
22. Gay marriage would probably expand the possibility and research on a variety of topics related to marriage and parenting.

Some of those I find stupid (like the hate crimes one), some I find offensive (like the contribute more to America one). But no matter how I feel on the topic, this isn't stuff I'd expect the defense to simply concede.

He then completely disagrees with the defense, which is supposed to be defending domestic partnerships:

Boies: Go back to number 14, with which you disagreed. Let me ask you if you agree with any part.
Reference here to "marriage lite" schemes such as civil unions and domestic partnerships, which can harmfully blur the distinctions between marriage and non marriage"
DB: I do believe, it is a concern of mine, one concern that needs to be taken into account, because cu and dp are similar to marriage so they could blur the distinction.
Boies: You are saying that marriage lite schemes such as civil unions and domestic partnerships are a concern because they could blur the distinction between marriage and non-marriage.
DB: Yes sir.

Well, then it'd seem like Prop 8 is a bad idea!

The rest of his cross-examination is him admitting he doesn't know much about anything, that he isn't aware of Supreme Court cases that relate to what he's testified about, that he wasn't familiar with scholarship on same-sex couples and marriage, and that he never studied same-sex marriage anywhere it's legal. He also said that he thought Maggie Gallegher is an "intellectual," so I guess this guy's bar is a little low.

That all happened after his testimony, which seems to be the standard "same-sex marriage destroys opposite marriage" argument. I doubt that'll hold much sway after cross-examination with the trial judge.

Kenneth Miller wasn't so hot either

Kenneth Miller was the defense's other star witness, set to testify that gays are politically powerful and therefore they don't need the court's protection. That's central to a case that's about overturning a referendum that was voted on by the people.

But he didn't have much evidence to that effect:

T: How can professors help the LGBT movement?
M: They teach and they are well respected. They often go into government and then come back to the academy.
T: How about lawyers?
M: Lawyers often run for political office and they have influence.
T: How does persuasion play a role in political power?
M: If you have an idea and you are able to persuade a person in power that your idea is, should be acted upon, your ability to persuade that lawmaker or in initiative process is key.
T: Can you provide example of persuasive idea is favorable to outcome?
M: AA had very little political power. One of the primary instruments was the power of ideas. Used the power of ideas to persuade lawmakers of their case.
M: Increasing success of the LBGT movement to endorse candidates that win elections. EQCA regularly assesses success they have at electing candidates of their choice. "Californians voted into legislature 95% of candidates endorsed by EQCA Pac. 59/62 candidates elected/endorsed.

Miller went on to talk about some ordinances and anti-discrimination legislation passed in some states. It doesn't really compare much with what Sagura was saying last week.

He was also supposed to testify to the validity of the ballot initiative process, something he disagreed with in a paper a while back. He elaborated in court:

B: The first sentence reads that by limiting opportunities for the proponent to ... initiative system makes compromise less necessary." This is what M wrote in 2004.
M: I agree with this.
B: Reads: By allowing proponents (of initiatives) to eschew compromise, initiative system leads to polarization. You wrote that?
M: Yes.
B: Do you believe it to be true?
M: More or less, yes.
B: Last full sentence: thus in CA, both initiative const amendments and statutes undermine the authority of representative government. What did you mean there by representative government?
M: I'll have to recall... In general I meant that initiatives have the tendency to make it more difficult to do its job, for example by locking in spending mandates or other things. Fair characterization of my views on this.[...]

B: Looks at another article he published in 2001. We discuss how ironically direct democracy can be less democratic than representative democracy because it violates norms of... transparency, compromise..."
M: Yes, that's what I called my Madisonian critique of democracy.
B: Hence, direct democracy that forms greatest threat to democratic government are initiative forms. Initiative Constitutional Amendments most seriously undermine representative government because they can only be undone by another constitutional amendment. Do you still believe this is an accurate statement?
M: I don't believe it is always the case. It can be. It's true that an initiative constitutional amendment can only be undone by another amendment. Has to be put on ballot, maybe by leg, but still has to be passed by the people.
B: Looking at heading, Undermining Democratic Opportunities. "Leg procedures tend to maximize" compromise vs. initiatives.
M: Generally true.
B: You have studied initiatives?
M: Over 900.
B: When do initiatives provide for compromise and building consensus in society?
M: I cannot say specifically, but in general it's better to have informed deliberation, consensus building and compromise.
B: How many would you give where initiatives fit the above?
M: Maybe 3 or 4 or 5. Would have to do serious investigation to see how drafting done and campaign run.[...]

B: Heading here says violating democratic norms. "Initiative process violates number of norms in democracy." What were the norms you were referring to?
M: I'm trying to get the context here (paging through). I think it's the norms in the paragraph above: competence, fairness, accountability (and one other).
B: Go back to your law review article. "In sum it is ironic that initiative process is considered purer democracy ...when it violates democratic opportunities and procedural guarantees."
M: I was talking about consensus building, etc. Not sure about procedural guarantees. Might have been openness. The four norms you were just talking about.

Well, we kind of knew that already. We just didn't expect the defense to agree.

Why did they drop the ball?

They have plenty of lawyers and resources to argue this case. They should be ready to at least bullshit their way through the social science - the right's been doing that for years when it comes to "proving" that the gays are bad parents, destroy marriage, blah blah blah.

I have no idea why they wouldn't call more witnesses and have better experts ready to go. Maybe they don't care and know that the Supreme Court is already stacked in their favor. Maybe they were actually blind-sided by their witnesses' incompetence here. Maybe the arguments they made can't be understood by folks like me who are either too lay or too pro-gay to get them.

Or maybe there's really no truth to what they're saying and, when forced to prove their points in a slow, deliberate, academic manner (as opposed to shouting them over the talk radio or presenting scare ads with kids talking about how they're scared by what they learned in school), they show that their entire intellectual basis is just dressed up prejudice.

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Jeff in Sylmar | January 27, 2010 8:01 PM

quote: Or maybe there's really no truth to what they're saying and, when forced to prove their points in a slow, deliberate, academic manner (as opposed to shouting them over the talk radio or presenting scare ads with kids talking about how they're scared by what they learned in school), they show that their entire intellectual basis is just dressed up prejudice.
My money is on this reason.

Don Sherfick Don Sherfick | January 27, 2010 8:08 PM

Your summary was great and your observations concerning the apparent awfullness of the defenses presentation very insightful. But to go back a bit to your observation here:

"Any supposed benefit to marriage more abstract that [sic?] the material goods bestowed upon the couple is suspect in my book because a lot of people really, really want to believe in the "Happily ever after" myth."

A "myth" or a decent aspiration rarely perfectly achieved? A little different from the true myth of "I'm young and beautiful and will be forever after.

beergoggles | January 27, 2010 9:25 PM

I think the only thing stopping these people from lying through their teeth like they do in public and television ads is that little thing called perjury and the consequences thereof.

Take away the threat of sticking them in prison for a few years and they'll be back to lying for jebus or mammon or whatever deity of their choice.

I think they're taking it easy here and planning on bringing out the big guns for higher up the court-chain.

Good thinking, Bil! --- in fact, they might even hope to lose in the lower courts, thinking that if they get to SCOTUS and then win, it will be a national precedent instead of a regional one.

I agree. to me it seems to be a ploy- throwing the first round to invite lower expectations. future, more thought-out argument later on would then come as an unexpected "surprise"...

I don't think so. This is the only trial they'll get, ergo the only place they'll be allowed witnesses. Everything from here on out is legal arguments, which might also be their strategy.

Frankly I don't think they're that smart.