January 26, 2010
by Brian Leubitz
The Defendants continued their case today by calling David Blankenhorn. If you were watching the liveblogging today, you will notice that Blankenhorn is at times combative, and as Rick points out, a little “pastorly.” While he was perhaps more comfortable talking to crowds and in the witness stand than Prof. Miller, he also crumbled on cross-examination. How far did he stray from the defendants talking points? This far:
DB: I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children.
But, Blankenhorn started out in a far different place. Unlike Prof. Miller, Blankenhorn doesn’t have a university and a doctorate to shield himself behind. Sure, he does have a master’s degree in a questionably related field, but he did talk to a few people while writing his book. Oh, and he worked on a task force for President Bush the elder. But as for actually looking at the actual data, not so much:
Boies: You are aware that there are jurisdictions that have permitted same sex marriage?
DB: I am so aware.
Boies: Have you attempted to study effects of same sex marriage in any of these jurisdictions?
DB: Yes, but I want to explain my definition of study.
Boies: I’d like to explore this in an orderly way. Which countries?
DB: Tried to pay some attention to effects of same sex marriage in Scandinavia and Massachusetts. But I have not conducted scientific study with data. I have talked to people and read about it. I did not come up with expert findings on those subjects.
Boies: Your honor, I object.
By objecting, Boies was arguing that Blankenhorn was, in fact, not a qualified expert. Judge Walker noted that if it was a jury trial, he might not be admitted, but as their is no jury to prejudice, he allowed it. And, it is probably fortunate that he did. Because for all of Blankenhorn’s geniality, he couldn’t really escape his underlying problem: testifying before a judge isn’t about how friendly you are, or how pleasant you can be, it’s about the facts of the case. And Blankenhorn either didn’t know them, couldn’t remember, or just plain attempted to make them up. Take this exchange, where Judge Walker was getting visibly frustrated:
Judge Walker: Than why don’t share your answer?
Boies asks question again.
DB: I believe that some of the scholars believe that permitting same sex marriage would lead to deinst of marriage. And goes on…
Judge Walker: Shall I take that as a “I don’t know?”
DB: With respect your honor, I do know the answer. I said it and I can repeat it.
Judge Walker: (Quite exasperated) The record is quite clear on what you said.
Boies: What scholars said that same sex marriage will lead to lower marriage rates?
DB: It will take me a few minutes to compose my memory.
Boies: Let’s be sure you know what is being asked. Which scholars that you have named with Cooper assert that deinstitutionalization of marriage will be hastened by same sex marriage and will lead to lower rates of hetero marriage.
DB: Professor Norval Glenn said that. He’s one of the most distinguished family scholars.
DB: Prof. David Popenoe from Rutgers is another one.
DB: Popenoe says that same sex marriage will reduce hetero marriage rates. I can’t sit here right now that I cannot prove in exact word formulation what he said. If he were sitting here, I believe that’s what he would he say.
Boies: I am asking you to tell us what these people have written, not what you think they’d say if they were here, or what you believe they think. Do you understand the difference.
DB: Of course I do.
Boies: Answer my question.
DB: I am trying to the best of my ability. I came all the way from NY to be here to answer your questions to the best of my ability. I believe that Popenoe asserts that deinstitutionalization of marriage will lead to lower marriage rates, but I do not know if he mentioned same sex marriage.
Boies: While we were talking, I was looking at Professor Glenn’s paper. I don’t see that it mentions same sex marriage?
DB: It never occurred to me that everything I would say regarding my views had to be documented. I have studied this for twenty years. Maybe I made a mistake, but it never occurred to me that all of the views that I state had to tie to documents at end of book. If it did, this would have had many more scores of documents listed.
Oh, jeez, you big city lawyer, I didn’t realize that as an “expert” witness I had to base my testimony on documented facts rather than my own opinion or how I would think the real experts would answer.
This last statement is really rather stunning coming from a witness who was put on the stand as an expert. He essentially admitted that he doesn’t know how real academics work, or how a bibliography works, or really the subject matter that he is supposed to be testifying upon.
At the end of the day, Blankenhorn is like a scared 7-year old who hasn’t studied for a history test. I almost expected his last answer to be Yeti or Santa Claus. He was reaching, grasping for anything he could possibly reach. But, even he had to acknowledge that marriage equality would help gay and lesbian families. Blankenhorn is, after all, the guy who wrote a New York Times op-ed with Jonathon Rauch arguing that the federal government should repeal portions of DOMA and allow same-sex couples the rights of married couples, just not the name. Separate but equal. Everything but the name. Just make sure that gay and lesbians are just one step behind.
While Rauch might disagree, it is the hasty compromise of a man who sees the truth for what it is. Marriage would benefit gay and lesbian families. It wouldn’t harm straight families.
The Constitution’s promises of equal protection under the law will eventually win out. Separate but equal is anathema to the Constitution, and Blankenhorn’s career has been a story of a man fighting to keep small minds small. Today, he got called on it.