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.

MUST SEE VIDEO: Protect Children? Then Mean It!

My friend Rob Tisinai of Waking Up Now does it again with another great rebuttal to the anti-LGBT wingnuts.



Check out more of Rob's videos on YouTube.

Prop 8 Trial Coverage Day 10: Prop 8 Supporters Get A Walloping in Court

Yesterday, attorneys for the plaintiffs challenging Prop 8 submitted incendiary evidence linking ProtectMarriage.com (aka Yes on 8 campaign) to campaign messaging that claimed same-sex marriage would lead to polygamy, incest and bestiality. Proving this was part of campaign messaging is essential in providing proof that animus toward LGBT was a motivation for voters to take away marriage rights from gays and lesbians.

Plaintiff's attorney Chris Desseaux played video of simulcast rally hosted by ProtectMarriage.com, a rally that excited many of Prop 8 supporters to volunteer and vote against LGBT rights. Following are quotes pulled from the rally:

"Then pedophiles would have to be allowed to marry 6-7-8 year olds. The man from Massachusetts who petitioned to marry his horse after marriage was instituted in Massachusetts. He'd have to be allowed to do so. Mothers and sons, sisters and brothers, any, any combination would have to be allowed."

"Second of all, the polygamists are waiting in the wings because if a man can marry a man and a woman can marry a woman based on the fact that you have the right to marry whoever you want to marry, then the polygamists are going to use that exact same argument and they're probably going to win."

"We are seeing the people of Massachusetts being desensitized day by day concerning homosexuality and becoming more and more adjusted to the idea of homosexual marriage being the law of the land and the homosexual agenda becoming more and more of a powerful element in the life of our society."

"I think a helpful way to think about this is to compare it to 9/11 cuz a lot of us are asking-How does this directly affect us? Well I wasn't directly affected by 9/11 and my guess is most of you weren't either in the sense I didn't know somebody who crashed the plane in the building. I didn't know somebody who was in the building. But after 9/11 the world was a fundamentally different place and that has affected me. The change in the redefinition of marriage is the same type of thing."

Chad Griffin Board President of the American Foundation for Equal Rights (AFER) the group responsible for the Prop 8 federal challenge, responded to yesterday's evidence by saying, "We saw again today how the Prop. 8 campaign sought to link marriage equality to incest, polygamy, bestiality and pedophilia to justify the restriction of people's civil rights. This clearly points to the discriminatory motivations and unconstitutionality of the initiative."

Rick Jacobs of the Courage Campaign, whose quick typing has kept everyone abreast of the going-ons in court by liveblogging at Prop 8 Trial Tracker, responded to the video, remarking, "This evidence is not just a smoking gun. It was an arsenal of incendiary devices directed at the LGBT community and voters. This is how the Prop 8 side won -- through fear and lies."

The day did not get better for the defendants. After plaintiffs rested their case, Prop 8 proponents called the first of possibly only two witnesses to the stand. Kenneth Miller, a professor at Claremont McKenna College who teaches California politics and researches ballot initiatives, testified that LGBT citizens have political power and therefore do not need "suspect class" constitutional protection and therefore justifies ballot initiatives targeting them.

Miller defined political power as access to large amounts of money and to political leaders. He pointed to the fact that the No on 8 campaign raised $43 million compared to Yes on 8's roughly $40 million. He also listed allied politicians and political leaders, such as Attorney General Jerry Brown and California Governor Arnold Schwarzenegger, both whom refused to defend Prop 8.

However, David Boies first questioned the witnesses' "expert" status.

From Prop 8 Trial Tracker:

B: At your depo [sic] not aware of what Mattachine Society was.

M: Yes, I did some research and found out that it was founded by Harry Hay in 1950.

B: Role in 1970s period in which you say an expert.

M: Yes.

B: But you did not know about them when you wrote your report?

M: Yes.

B: In depo you were not aware of general social survey?

M: No, but no know. [sic]

B: You did not know who Alan Speer or Elaine Goldman were and that they were elected as first openly gay in 1976 and 9175 respectively?

M: No. I did not know and do not. Know some were elected in1970s.

B: We object to his testimony as expert out of area of initiatives. He does not even know the key facts.

And later, during cross-examination, Miller experienced a further bruising.

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: You have done no such research?

M: Yes. I did large study of outcomes. Idealized picture of legislature. Legislatures do not always live up to those four opportunities. The institutional structure of the legislature set up for those four things, not initiative process.

B: If there is going to be any refinement, it will be in drafting because it cannot be amended once it’s out there?

M: In California, there is no opportunity to amend unless they pull it back.

B: How often has that happened in California?

M: Not infrequently.

B: When was last time?

M: I guess.

B: I’m not asking you to guess. I’m asking you to tell me the last time.

M: Many times it’s pulled back.

B: When was last time in CA that signatures were gathered and then proponents pulled back to make compromise?

M: Discussed in 2005 special, but did not happen.

B: Give me last time in California?

M: I can give you example in Colorado.

B: We’re talking about Ca. You wanted to talk about CA.

T: Objection, He’s badgering the witness.

Judge Walker: Overruled. This is cross-examination.

B: Good God man.

"Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples," Miller testified under cross-examination. He also admitted that lesbians face greater bias than straight women, and directly stated a federal law that defines marriage as an opposite-sex union as well as Prop.8 as discriminatory.

Miller was further harangued when he was asked to point out research that he had done himself versus what the defendant's attorneys had given him.

Of yesterday's hearing, AFER says, "On Monday, Miller admitted that he based his testimony in part on materials provided to him by the attorneys defending Prop. 8, instead of relying on his own "expert" research. Beyond that, he testified that he could not remember whether attorneys provided at least 65 percent of the materials he based his research on, totaling well over 200 documents, articles, etc."

AFER further states, "Miller made several admissions while on the stand that were damaging to the defendants and strengthening to the plaintiffs' case. He also repeatedly revealed his lack of knowledge of key information and research related to his area of purported expertise and this case."

The cross-examination of Miller will continue today in court.

Image: Kenneth Miller

Prop 8 Trial Coverage: A Bad Case of PMS

Guest blogger Davina Kotulski of DavinaKotulski.com reports on the Prop 8 trial. This will be Davina's last guest post on the trial. She has done a great job in covering the plaintiff's arguments and witness testimonies. Thank you, Davina!

I want to apologize for Friday’s last blog. To be honest, I had horrible PMS, protect-marriage syndrome. Protect Marriage Syndrome, or PMS, comes on when you have to sit for hours on end and listen to Yale and Cambridge educated experts testify that you are not insane, a child-molester, a degenerate, or an obsessive compulsive gender confused threat to civilization which I guess is supposed to make you feel good.

Only, then it is followed up with having to listen to another lawyer attempt to deconstruct that witness’s testimony to the most absurd, out of context, details, for hours and hours and hours with the purpose of denying your basic dignity, worth as a human being and your constitutional rights.

I had one hell of a case of bad PMS on Friday.

GAYS ON PARADE (STRIKE THAT) TRIAL!

In her testimony on January 15th, Helen Zia talked about being on trial at her work for being gay and how that depleted her, even caused her to burn her journal, which is like losing a limb to a writer.

All LGBT people are on trial under Prop 8. Even though marriage equality supporters have brought forward this constitutional challenge to denying our right to marry, like Zia, we are on trial. We are on trial as parents, as citizens, as worthy human beings. There is nothing right about this.

LGBT people are equal. We are as whole, perfect, and complete as our straight brothers and sisters. We too have hearts that beat and love. When we fall in love it is our hearts first that seek connection with our beloveds. It’s not about plumbing. Dr. Sylvia Rhue with the National Black Justice Coalition says, “When the hearts fit the parts fit.”

The attorney asked Helen Zia, “How do you feel about Lia?”

Zia replied, “ She’s my soul mate. I love her, she’s the person I want to spend the rest of my life, the most important person to me in the world.”

Most husbands and wives, be they straight or gay, know exactly what Zia is talking about. That’s why we choose to marry, because we want to do everything we can to protect, honor, and cherish our beloved.

Zia spoke of her and Lia, getting their domestic partnership licenses. “They issues dog licenses at the same counter,” she said and then discussed getting married in San Francisco in 2004 when it was legal for a little over a month. She spoke of the wedding reception she and Lia had planned with their families that would be attended by her mother, siblings, and some of her sibling’s children.

“My marriage was invalidated a week before our wedding reception.” The attorney asks her, “How did that make you feel?”

Anyone with a heart can guess how it made her feel.

Zia said she felt “devastated, sad, grieved, horrible, our marriage had made us so happy, brought us so much joy, and was suddenly invalidated.” But what struck an even deeper chord for Zia was that she and Lia felt that their relationship was invalidated “and as human beings we were invalidated.”

PARTNERS IN LIFE? DO YOU MEAN LIFE INSURANCE?

Zia, and many of the other 4,000 couples like my wife, Molly and I, who were married in 2004 and later judicially invalidated, struggled to get through that dark time until we were able to marry again in 2008.

“Getting married has presented numerous tangible and intangible benefits.” Zia said, “After marriage, my niece came up and said to Lia. “Auntie Lia, now you are really my auntie.”

Marriage has also made a difference to how they relate to people. “People wondered ‘who is this person who is hanging on to you extra close?’

‘This is my partner.’

‘Partner, partner in what business?’

We’d say, ‘we are partners in life.’ And get used to seeing this look on their face, ‘What does life mean? Do you mean life insurance?’”

Marriage also made a difference Lia’s parents and family. “It’s a matter of how our families relate to people,” Zia said. “We show up to every family event and they ask ‘who is that?’ ‘This is Helen’s friend.’ They never got partner, now with marriage, they are able to say ‘Helen is my daughter-in-law.’

For Helen’s mother too, marriage has given her a language to explain her relationship to Lia. “My mother would struggle to say this is Helen’s friend and now she would say ‘this is my daughter-in-law.’ That’s it. end of story. We are not partners in life or business. We are spouses. This is my wife.”

MARRIAGE IS THE JOINING OF TWO FAMILIES

“Marriage is not just about us.” Zia testified. “Our families related to each other differently. Marriage is the joining of two families. My family and Lia’s family relate to each other differently. My brother lived near my father-in-law for years. After we were married, Lia’s father stopped by my brother’s house and dropped things off. When he introduced his children he said ‘These are my daughters and this is my favorite daughter-in-law.’”

Zia spoke of how both she and her wife Lia, shared “the important events in life,” together, births and deaths of family members. “When Lia’s father died, that’s when family comes together.” She spoke of how having marriage secured her place in the family. She was a part of the memorial and listed in the obituary. “Marriage defines who family is, who is in the circle.”

While Zia spoke, the feeling tone in the overflow room was one of soft, gentleness. It was like being in a movie theatre where people are watching a romantic comedy. There were aahhs, warm laughter, and even a few tears as Zia recounted her relationship with Lia, what Lia means to her, and how having legal marriage has affected their life.

It was deeply touching. As the court house closed up that day, one woman spoke with me and said, “I never wanted to get married until I heard Helen Zia speak. I want to know what it’s like to feel what she described.”

In the words of John Lennon, “You may say I’m a dreamer, I’m not the only one. I hope someday you will join us and the world will live as one.”

Look for my new book Love Warriors: The Rise of the Marriage Equality Movement and Why It Will Prevail, April 2010.

For updates of the Prop 8 trial for January 24 and 25th, go to: Courage Campaign’s Prop 8 Trial Tracker. I'm hitting the proverbial showers.

Image: Helen Zia (left) and wife Lia (right).

Prop 8 Trial Coverage: Day 9 Summary and Day 10 Preview; Closing Arguments Delayed

From the American Foundation for Equal Rights:

Taking the stand Friday, Jan. 22 was Gregory M. Herek, Ph.D. a Professor of Psychology at the University of California at Davis. He testified about the nature of sexual orientation; that mainstream mental health professionals and behavioral scientists do not regard homosexuality as an illness or disorder, and that "change therapies" have been scientifically discounted, and can be extremely harmful. He endured more than five hours of cross examination without wavering from his testimony.

Herek testified that sexual orientation was not readily changeable, and that “change therapies are especially harmful because they present view that homosexuality is an illness or disorder, so when therapy doesn't work, individuals are led to think it's a personal and moral failure."

He also testified about the stigma and prejudice that gay men and lesbians face; the harm to gay men and lesbians and their families caused by Prop. 8; and how domestic partnerships are inferior to marriage and are linked with the stigma gay men and lesbians face.

A "social stigma" gave "a level of permission to attack" gays and lesbians, Herek said. "[Marriage] is not simply a word. Just the fact we're here today suggests this is more than a word."

Olson and Boies also showed Dr. Herek the deposition testimony of defendants' expert Daniel Robinson, one of the four expert witnesses dropped from their witness list. Robinson, like the three other experts dropped from their list, made statements damaging to the defendants' case and in support of the plaintiffs during his deposition, as was shown in court this week.

For, example, the defendants' experts stated that equal marriage would increase family stability and improve the lives of children; that sexual orientation is not something that can be readily changed; and that gay men and lesbians have faced a long history of discrimination including violence – discrimination that continues today and that includes Prop. 8. They also acknowledge broad scientific and professional consensus in favor of equal marriage.

Plaintiffs are expected to submit some more evidence and then rest their case on Monday. Defendants will follow with their own witnesses.

On Friday, Judge Walker announced that he will delay closing arguments for several weeks, indicating he will be closely examining submitted evidence and that he will have more questions during the closing. Arguments are expected to be scheduled in late February, early March.

Links:

• Prop 8 Trial Tracker Liveblogging Day 9 Summary
• Day 9 at Mercury News
• Fire Dog Lake
• Lisa Keen at Keen News Service
• Shannon Minter: Perry v. Schwarzenegger Proceedings, Day 9
• More day 9 articles at Prop 8 and the Right to Marry
• Wall Street Journal: Defense Set to Press Gay-Marriage Case

Hawaii Passes Veto Proof Civil Unions Bill - So What's Next?

I put this out on Twitter earlier today because I didn't have time to put up a post, but for those who don't follow UTF on Twitter, here's the great news from the Honolulu Advertiser:

"The Senate voted 18 to 7 to pass a civil-unions bill. The bill now moves to the House for consideration with a veto-proof majority. The bill would give same-sex and heterosexual couples the ability to enter into civil unions and receive the same state rights as marriage. The Senate gallery was overflowing with people as the Senate prepared to vote. Sen. Kidani offered a floor amendment to change the effective date of the civil-unions bill from Jan. 1, 2010 to Jan. 1, 2011. Kidani said the amendment is to correct a technical flaw and would give the Department of Health more time to implement civil unions. A retroactive date would not make the bill legally invalid, but could invite a veto by Gov. Lingle on technical grounds. Amending the bill could also delay its passage and allow opponents to put more pressure on Democrat senators who appeared ready to pass the bill today. Sen. Ihara, who supports civil unions, said he felt compelled to correct the technical flaw to remove a reason for a veto."

Read HRC's Backstory on how the vote went down. All this, even after the major anti-LGBT protest against the civil unions bill.

The pressure is on the House now to pass the bill. They actually passed a similar bill last year, so hopefully we can get a repeat performance. A decision will be made next week whether they will take up the measure.

Go to Equality Hawaii to get involved.

VIDEO: Olbermann Reacts to Supreme Court Ruling - "Be Prepared for the Ban on Same-Sex Marriage"

Part 1



Part 2