January 27, 2010
By Rick Jacobs
It’s the last day for evidence in this trial. We’re still upstairs, in the 19th floor Ceremonial Courtroom. This morning, Teddy from FDL beat me to the room, but it’s pretty much our same little group. So far, there are about eight people here, with a few meandering in. I ran into AP’s Lisa Leff on the way into the building today.
Up on 19, we’ve formed a sort of community. Everyone is respectful of each other, even if we are not all on the same side. The Prop. 8 folks continue to sit in the jury box up here, behind me. I’m at the long plaintiff’s table, next to the projector that occasionally shows videos, slides and “demonstratives” from the trial room.
The other twelve foot long, blond wood table that would have been at home in a college library.
0834: The judge just entered.
Judge Walker: Good morning. Mr. Blankenhorn, you understand that you are still under oath.
Judge Walker: The oath that you took yesterday still applies?
Boies: Good morning Mr. Blankenhorn. I’m going to start with some things we agree on. You agree that marriage is a public good.
Boies: What is a public good?
DB: Benefits society..
Boies: Good for children and couples.
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.
Boies: Reads from B’s book. “If adopting same sex marriage would be likely to impede that goal, I’d be against it.” You believe that the rights of gays and lesbians should take second place to an existing institution?
DB: Read me the sentence again?
Boies: I’ll read the next sentence in which B says that if marriage will be sacrificed, I’d put gays and lesbians in second place.
Boies: To the degree that I must choose, with some anguish, I would choose children’s’ collective good and the institution of marriage…
DB: My entire book…
Boies: I’m not interested in your entire book.
DB: My book is about goods in conflict. (whines)
Boies: I thought you would agree with what I read (because they are your words).
DB: I do agree (whining again, like a little boy), but I am writing about goods in conflict. I do not believe that (gay marriage) is bad. Two “goods” in conflict.
Judge Walker: Let’s have a question and an answer.
Boies: I’m going to read from your chapter Goods in Conflict which is a sort of group think experiment in which you wrote things on a white board.
DB: I agree with substance of what you say, but it’s important …
Boies: Your honor would you instruct the witness to be responsive to my questions and not make statements no matter how important he thinks they are.
DB: I am making important points! I do not need those instructions!
Judge Walker: If this were a jury trial, the jury would be instructed to weigh the witness’s background and other factors. One of those factors is the witness’s demeanor. If the witness is not responsive to the questions, that affects the jury’s weighing of his testimony. I’m sure you would not want your testimony to be diminished by your demeanor. So please be responsive to the questions. Your counsel will have a chance to allow you to expand on points.
DB: Yes, your honor.
Boies: Read silently to yourself the 23 points that are listed in this chapter and tell me whether yes or no you agree with them.
DB: 1. – 7 yes. 8 and 9 no. 11
DB: 1 – 7 yes. 8 and 9 no. 11, 12 yes. 13. I don’t know. 14 no. 15 yes. 16, I don’t know. 17. No. 18 yes. 19. Yes. 20. I don’t know. 21. I don’t know. 22. Yes. 23. I don’t know.
Boies: Thank you. I’d like to publish this list and go through it and both identify the ones you agree with and ask you some questions about the ones you don’t agree with.
(UP on screen)
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.
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.
Boies: You understand that you were to list the documents you used to create your expert report?
DB: No sir. As I explained yesterday…
Boies: I do not want your explanation. I just want a yes or no.
Judge Walker: Perhaps if you showed the witness the expert report.
Boies: Shows report. Which of these show that same sex marriage would undermine hetero marriage.
DB: With proviso that most of these were written before the debate on same sex marriage arose, I can list these exhibits. 2, 3, 10, 24, 37 and that’s all.
Boies: With respect to number 10, who is this?
Boies: Not an anthropologist or
DB: One is by Maggie Gallagher. Who is Maggie Gallagher?
Boise: Who is Maggie Gallagher.
DB: Writer and organizer whose principal focus for the past four or five years has been to oppose gay marriage.
Boies: Do you believe she is a scholar?
DB: I do. She is an intellectually serious person.
Boies: Do you define scholar as intellectually serious?
DB: If you are quarreling over terms…
Boies: I’m not quarreling. You use term scholar a lot. What is it?
DB: Scholar is someone who is able and equipped to engage in serious discussion with one or more bodies of evidence and make rigorous arguments with one or more bodies of evidence. Good scholars operate with integrity and try to seek the truth of the matter.
Boies: One attribute is objectivity?
DB: In the sense that one must try to deal with objectivity, yes. Maggie Gallagher has a dual role. She’s a journalist and a partisan.
Boies: Has she published any peer-reviewed articles? Which ones?
DB: I don’t have her CV here. I can’t recall them here, but she has been in peer-reviewed journals.
Boies: Which ones of her peer-reviewed articles have you relied upon?
DB: I have read thousands of articles, hers included.
Boies: Which of Maggie Gallagher’s?
DB: You are putting words in my mouth.
Boies: On which of Maggie Gallagher’s peer-reviewed articles that rise to objectivity that you say scholars aspire to?
DB: None. I did not rely on any of her articles for my testimony here.
[Blankenhorn is self-righteous and very, very self-important. He really believes that he is a big deal and that what he says matters even though he comes across as a sloppy amateur.]
Boies: Article by Norval Glen you identified.
DB: I believe you asked me to identify any articles that I used to come to my conclusions.
Boies: Which of these materials contain assertions that homosexual marriage will harm heterosexual marriage, if any?
DB: Does it have to say it in that exact form of words that you offered?
Boies: No in words or substance so that a reasonable reader could read or understand that homosexual marriage would weaken heterosexual marriage.
DB: The key word is “likely.” No one can predict the future with certainty.
Boies: Yes, Mr. Blankenhorn. Likely.
DB: I believe a reasonable reader reading these materials would agree that this author states or suggests that homo marriage is likely to weaken institution of marriage.
Boies: Difference between stated and suggested?
DB: Stated would mean unequivocal assertion. Suggested would mean a serious concern or belief that ss marriage would be likely to weaken hetero marriage.
Boies: Let’s take them separately.
DB: Laughing I was afraid that’s where we were going! (Ha Ha)
[Tam did not bother me. He’s just an inflexible old guy. Blankenhorn is sanctimonious and dangerous because he is infinitely flexible, likes to play with words and that can hurt people.]
DB: Number 3, Sinsky—opponent of ss marriage. I cannot speak with certainty
Boies: You understand that you cannot say that in this particular material that is cited here that she unmistakably communicates that ss marriage would undermine hetero marriage.
DB: I do not know if those exact words appear in the book Parity of the Sexes so we have to take her off the list. You are using an extremely narrow construction, which is your right.
Boies: You do understand that these are the works you listed?
DB: Of course!
Boies: Norval Glen trying to talk about substance of same sex marriage or the debate about ss marriage?
DB: I believe it is the latter.
Boies: So he’s concerned about the debate over same sex marriage will weaken marriage?
DB: I have not read this article in years, but this is more about the debate.
Boies: One of the thing he says is that legalizing same sex marriage would at most have a small effect on the percentage of fatherless children.
DB: Let me read it.
Boies: I understand, but do you see what I said?
DB: I do see it.
Boies: Take as much time as you like to review the context and let me know when you are ready.
DB: I’ve finished.
Boies: Do you agree that legalizing same sex marriage would have at most a small effect on the percentage of fatherless children.
DB: Do you want to know what he is saying?
Boies: I want to know what his words are, not what you think they are.
DB: That’s not what he means, but if you don’t want to know, that’s okay. (Pouting)
Boies: Do you agree with what he says here that there is no precedent for creating prohibition of family form.
DB: When I think of polygamy, and I’m no expert, it is prohibited because it is not a good form for children. Other forms that I’m not able to conjure now that have been prohibited, but I don’t remember.
Boies: You have said you are not an expert on polygamy, but do you know why it was prohibited in the US?
DB: I’m not an expert on polygamy.
Boies: Do you know any reasons?
DB: Not that I could state as a scholar.
Boies: You had said, The main rules of the game for the rules for marriage are three.
DB: You make it sound jocular.
Judge Walker: There is a question here, Mr. Blankenhorn.
DB: Do you wish me to stop my inquiry? I’ll stop if you want me to. I’m going for clarity.
[Blankenhorn is more interested in jousting and showing that he is smarter than he is in convincing the judge. The judge looks pretty disgusted at this point. Had Blankenhorn any credibility with any jurist, it is loss.]
DB: Yes! I was right! It came from an Nobel-prize winning economist! That’s why I footnoted it! (See, I told you so! I told you so!)
Boies: You have said that the rules of the game (of marriage) are three.
[NOTE]: Sorry about the delay everyone. A new thread is up.