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Archives – January 28, 2010

NOM’s Maggie Gallagher’s Tiny Violin

By Julia Rosen

Remember way back when, before the trial started, when NOM was predicting they would lose this case because Judge Walker wasn’t ceding to their lawyers’ every demand and motion?

Turns out the actual proceedings of the case didn’t make NOM’s president Maggie Gallagher any more confident about the outcome. Today out of nowhere she penned a letter whining to Judge Phyllis Hamilton, Chair of the Rules Committee that Judge Walker simply attempting to get the trial televised lost the case for them. Well actually, she put Judge Hamilton’s name/address at the top, but addressed the letter to Judge Walker. Don’t worry…as you will see these details don’t matter too much to Maggie.

My objection to televising high-profile trials is not theoretical. It emerges directly from the experience of the attempt to televise the trial for Proposition 8. Two-thirds of the expert witnesses-people who had been willing to sit for deposition, to prepare testimony, to fly to Sacramento to testify-dropped out under the prospect of having their faces and names televised.

Uuum, Maggie the trial was in San Francisco. While we residents of humble Sacramento are happy to be confused with our much more famous (and by you despised) neighbor 85 miles west, we won’t try and take away this spotlight from San Francisco.

The Supreme Court stepped in to prevent the broadcast of these hearings. But it was too late. Expert witnesses had already dropped out. The trial had been changed, forever, by the mere prospect of television broadcast.

Our case for Proposition 8 has been deeply harmed. The public record has been impoverished and the information available to reviewing courts permanently reduced all because some witnesses feared retaliation as a result of the publicity. I wish they had more courage, but I cannot view their fears as unreasonable.

Maggie conveniently forgets that part of the televising plans included allowing witnesses to request that the cameras be shut off during their testimony. NOM and Prop 8 built their case on unfounded fear and are now trying lay the groundwork for appeal, or at least influence the media narrative. More from Maggie:

Here’s the bottom line: If the Supreme Court should overturn Proposition 8 and find a constitutional right to gay marriage I will never know whether or not that would be a result of the haste to televise the trial.

Oh poor Maggie, I have a tiny violin playing for you. My heart is just breaking.

More seriously, if these witnesses were as good as Mr. Blankenhorn and Dr. Miller, you were better off having them not testify. For proof I give you this lede from an article in the SacBee today:

The star witness for backers of Proposition 8 testified Tuesday that he’s confident – but has no evidence – that same-sex marriage would increase divorce rates and lower the rate of heterosexual marriage.

Blankenhorn had no evidence because he was not really an expert and chances are that if this was a jury trial, he would not have been admitted as an official expert witness.

My guess is the witnesses they had lined up were supposed to actually testify that children are better of in homes headed by a man and a woman than a same-sex couple. After all, that’s what Pugno was claiming was their big argument. They never got a legitimate social scientist up there to prove this, not that it would actually be possible. Study after legitimate study has proven that children do just as well with same sex parents as they do with opposite sex ones.

The facts, they burn.

Really that’s what it comes down to, the facts. Judge Walker will weigh the evidence presented in court and issue his legal opinion. Maggie, et al are just upset that we have three branches of government that check and balance each other. They simply want public opinion to be the final word, not those pesky “activist judges”, you know like George H. W. Bush appointees like Judge Walker. So, they whine and complain. They try and shut the public out to in order to keep them from hearing these facts, not the fears and lies of a campaign.

This letter will have no effect on the trial. It is simply an attempt to undermine the legitimacy of its proceedings. And perhaps to hear some violin music.

252 Comments January 28, 2010

And So This is It

by Brian Leubitz

My tireless job of saving you the dirty task of wading over to the protect marriage website is never done, or so it seems. Fear not, for I have digested some of the nonsense, and will try to decode some for my fellow Trial Trackers.

Pugno’s post wrapping up the testimony phase of the case was pretty simple, and boils down their case to one, relatively comprehensible, paragraph:

Meanwhile, we have shown that limiting marriage to its longstanding definition is rational because marriage benefits children, not just the adults. Whenever possible, it is best for a child to have both a mother and a father. And man-woman marriage is the only human relationship that can biologically serve that distinctive purpose. A same-sex relationship can never offer a child both a mother and father. It’s that simple.

And their case is really that simple. Sperm meets egg. That’s it. Finito. But take a look around our vast, diverse country, past the world that Protect Marriage and NOM want to show you. You’ll see single parents, couples who married far past child-rearing age, couples who had no intention of ever having children, and yup, some same-sex couples who do have children. There is no doubt that child-rearing is critical to our nation, but we should be considering all children, not just the ones Protect Marriage wants you to see. I’ll let the defense expert David Blankenhorn take it from here:

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

Blankenhorn acknowledges that the Prop 8 harms same-sex couples, but argues the damage to the “institution of marriage” would be far worse if gays and lesbians were to marry. Yet throughout this trial, they have presented no evidence that shows that gay marriage harms straight marriage. No expert who could point to any studies that clearly state the case for that supposition. Quite to the contrary, Blankenhorn looked lost on on cross-examination when David Boies questioned him about the subject.

Pugno, throughout this trial, has repeatedly referred back to the rational basis test, and it is true that is known as a rather weak test. But the fact remains that the Prop 8 team must, at the very least, show that there was a legitimate governmental interest. Religion, idealism, traditionalism, these are not legitimate governmental interests in and of themselves.

Look, I can deal with some people hating me. It’s their right. But as the legendary jurist Oliver Wendell Holmes said nearly a century ago, “The right to swing my fist ends where the other man’s nose begins.”

117 Comments January 28, 2010

Polygamy Obsession

By Julia Rosen

It’s always interesting to read a mainstream media report of an event you watched unfold, or in this case read. Invariably, the media chooses to focus on a sidelight or misses the most important moments. In this case it is the former. For some reason both the LA Times and SF Chronicle both spend an inordinate amount of time today talking about David Blankenhorn’s testimony about polygamy.

We all know the argument. If you let gay people marry, than what’s to stop polygamy, incest etc. etc.

In the LAT’s case they spent about a third of the article wrapping up this phase of the trial on polygamy. Here is a snippet.

Blankenhorn, however, insisted that polygamy satisfied the principles of marriage because it involves a man who marries one woman at a time.

Boies asked whether Blankenhorn was testifying that a man with five wives is consistent with his rule that marriage involves two people.

Blankenhorn said yes, adding that the marriages did not occur at the same time, and “each marriage is distinct.”

Ok, I get that this is loony toons and probably will sell newspapers, but what about Blankenhorn admitting that legalizing marriage equality “would be a victory for, and another key expansion of, the American idea”?

How about when Blankenhorn stated that same sex marriage “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”?

Big Love is a great show and all, it’s on my DVR scheduler. But Blankenhorn talking about polygamy truly was a sidelight to the hours upon hours of David Boies dismantling him as any sort of an expert or scholar and Blankenhorn unwittingly making the plaintiffs’ case for them.

Media coverage of this trial has been extremely light. That is due in part to some enormous stories like Haiti and more recently the President’s State of the Union address and quite frankly the fact that there is no video of the proceedings. However, that increases the importance of the quality of the articles that are produced. The Trial Tracker has received a ton of traffic, but it pales in comparison to the mainstream media’s reach.

Any of the Trial Trackers seen articles lately that don’t match what really went on in the trial? Please throw the links in the comments.

83 Comments January 28, 2010