Prop 8 Trial Coverage Day 11 and 12: Defendant's Last Witness Not Cooperative and Not Knowledgeable; Testimony Concludes

The Prop 8 trial witness testimony ended today with defendant's last "expert" witness David Blankenhorn, the founder and president of the Institute for American Values, a conservative group committed to the "renewal of marriage."

On Tuesday plaintiff's attorney David Boies immediately went after his so-called expert status, almost disqualifying Blankenhorn from being a witness at all. Lisa Keen reports:

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.

In regards to his own expertise, Blankenhorn would go on to say about the research he was using to back up his claims, "I'm simply repeating things that they say" and "These are not my own conclusions."

At this point, Blankehorn refused to cooperate and to answer the questions that Boies directed at him.

At least a dozen times in the testimony, Mr. Blankenhorn refused to answer Mr. Boies when the lawyer posed a question and asked him to answer with a straightforward “Yes, no, or I don’t know.” Mr. Blankenhorn would say that there was no way to answer without extended clarification — even after Judge Walker instructed him to respond on several occasions.

During a typical exchange, Mr. Boies asked the witness if any of the scholars he has relied on had “asserted that allowing same sex marriage would lower the rate of heterosexual marriage.”

Mr. Blankenhorn replied that the “safest answer is I don’t know,” before adding, “But I believe the answer is that some of them have.”

Mr. Boies then asked Mr. Blankenhorn to name the scholars, but the witness refused.

As the questioning devolved into bickering, Judge Walker put both hands in the air to stop the pair.

“Don’t argue with each other,” he said wearily, pointing to Mr. Boies and then to Mr. Blankenhorn. “Just ask a question and give an answer.”

As Boies went down the list of research that Blankenhorn used to support his arguments that same-sex marriage would "deinstutionalize" marriage, Boies pointed out that in fact the research did not support Blankhenhorn's statements.

As the question and answer spiraled into a quarrel around 5pm, Judge Walker said, “I wonder whether in view of the hour that a good night’s sleep might help with this line of questioning." (Read Tuesday's trial transcript or Prop 8 Trial Tracker's Day 11 summary.)

Hear Ted Olson and David Boies press conference from yesterday courtesy of Rex Wockner.



Prop 8 and the Right to Marry has a great list of articles to read on Tuesday's hearing.

The American Foundation for Equal Rights (AFER), the group behind the Prop 8 challenge, reported that today, as the cross-examination of Blankenhorn continued, Blankenhorn actually conceded and bolstered many of the points supporting the case against Prop 8.

Many of Blankenhorn's admissions include:

Marriage is vitally important in American society.Prop. 8 causes grievous harm to gays and lesbians and their children Prop. 8 perpetrates this harm for no good reason.

He admitted marriage is a "public good" and that marriage would benefit gays and lesbians, their children and society at large.

He also testified (text below as shown on screen):

· "Gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children."

· "Extending the right to marry to same-sex couples would probably mean that a higher proportion of gays and lesbians would choose to enter into committed relationships."

· "Same-sex marriage would likely contribute to more stability and to longer-lasting relationships for committed same-sex couples."

· "Same-sex marriage might lead to less sexual promiscuity among lesbians and (perhaps especially) gay men."

· "Same-sex marriage would signify greater social acceptance of homosexual love and the worth and validity of same-sex intimate relationships."

· "Gay marriage would be a victory for the worthy ideas of tolerance and inclusion. It would likely decrease the number of those in society who tend to be viewed warily as 'other' and increase the number who are accepted as part of 'us.' In that respect, gay marriage would be a victory for, and another key expansion of, the American idea."

· "Gay marriage might contribute over time to a decline in anti-gay prejudice as well as, more specifically, a reduction in anti-gay hate crimes."

· "Because marriage is a wealth-creating institution, extending marriage rights to same-sex couples would probably increase wealth accumulation and lead to higher living standards for these couples as well as help reduce welfare costs (by promoting family economic self-sufficiency) and decrease economic inequality."

· "Extending marriage rights to same-sex couples would probably reduce the proportion of homosexuals who marry persons of the opposite sex, and thus would likely reduce instances of marital unhappiness and divorce."

· "By increasing the number of married couples who might be interested in adoption and foster care, same-sex marriage might well lead to fewer children growing up in state institutions and more growing up in loving adoptive and foster families."

Though Blankenhorn cited polygamy as a reason to oppose same-sex marriage, using the overly used but never factually supported slippery slope argument, plaintiff's power attorney Ted Olson dismissed it.

“This is the game that they’re playing,” Ted Olson said. “They define marriage as a man and a woman. They call that the institution of marriage. So if you let a man marry a man and a woman marry a woman, it would deinstitutionalize marriage. That is the same as saying you are deinstitutionalizing the right to vote when you let women have it. It’s a game. It’s a tautology. They’re saying, 'this is the definition. You’re going to change the definition by allowing people access that don't have it now, and that would change it so that people who currently have access won't want it any more because it's changed.' This is all nonsense. They are not proving that. This is a syllogism that falls apart. The major premise, minor premise and conclusion are empty.”

Today, the Prop 8 proponents rested their case after only two weak witnesses whose expert status was not only eviscerated on the stand, but both conceded the main points of the plaintiff's arguments. The plaintiffs had well over a dozen witnesses.

As reported earlier, Judge Walker will be taking his time to go over the evidence. Final arguments won't be scheduled until late February or early March.