By Julia Rosen
This is bizarre, yet somehow unsurprising. David Blankenhorn, star witness for the defense, who was dismantled by Boies on the stand penned a letter-to-the-editor, kvetching about being tied to George Rekers. Blankenhorn swore that he cross his heart, hope to die, never read any of Rekers’ works.
My expert report to the court — which was written entirely by me, includes a list of scholarly sources and is available for anyone to read — includes no mention of Mr. Rekers. And for good reason: I have never met Mr. Rekers or read any of his writings. I recently learned that a separate, lawyer-generated document submitted to the court apparently does list an article by Mr. Rekers in connection with my testimony, but that document, on this point, is in error.
Turns out he lied. At least he is correcting the record, with yet another letter written to the Times. (h/t Joe.My.God)
In a letter published on May 25, I incorrectly stated that I have never read anything written by the conservative minister George Rekers. In fact, in preparing for my report and deposition in the California Proposition 8 trial, I read one report to the court on a previous California marriage case written by Mr. Rekers, as well as a report to the same court taking a position opposed to Mr. Rekers’s.
Whoopsies…forgot all about that didn’t you. Did you also forget about submitting that article by Rekers to the court? Or are you still trying to blame that on the lawyers?
Too bad Boies doesn’t get to have another go at him on the stand. That would have been entertaining.
This won’t effect the trial at all, just Blankenhorn’s already diminished reputation. And it leaves one question: why did Blankenhorn feel so compelled to send this correction to the New York Times?
34 CommentsJune 7, 2010
By Julia Rosen
This weekend at Camp Courage during my training on online organizing, one of the campers asked me essentially, how useful is it to go mix it up with the other side and argue with them.
My answer was that generally you don’t get anywhere, but that it can be entertaining.
What is more useful is when you deconstruct their arguments in your own space/turf.
To that end, today I found an article by the Catholic News Service, covering the last days of testimony, including Blankenhorn. The article ends this way:
Blankenhorn, testifying the previous day as the principal expert witness for the Proposition 8 defense, said the social foundation of marriage is greater than the legal issues surrounding it. He described marriage and domestic partnership as separate institutions. He said marriage predates law and “is not a creature of law.”
“The marital institution is differently purposed, is specifically purposed,” he said. “The purpose is to bring together the biological male and biological female to make it as likely as possible that they are the social and legal parents of the child. That’s the lodestar, that’s the distinctive and core contribution of the institution of marriage.”
Fascinating, because this really is an argument for getting the state out of the “marriage business”. It was something Judge Walker seemed to be particularly interested in at the start of the trial, but asked less about as it wore on.
The trouble is there are hundreds of places where our laws mention marriage. They are incredibly intertwined and this court case is indeed about how marriage is a creature of the law. This is a court of law and one cannot simply claim: society sees it how we see it and so the law should follow our lead.
This court case is about how the law treats two people who make a commitment to each other. It is not about sex. We don’t subject people to a fertility test before their wedding, or inquire at the frequency of their sex life. If we were following the Catholic Church for guidelines, they would likely have us test to ensure no birth control was being used by the couple applying for a marriage license.
Modern marriage is designed for stability, support and social recognition of that commitment. Children, sex and paternity can be a part of it, but are no longer the fundamental reasons for the union. After all, they exist increasing frequency outside of the institution of marriage. The lodestar is love, not sex (the physical act or biology).
135 CommentsFebruary 1, 2010
By Julia Rosen
For those of you who have not been able to read every single liveblog thread, here’s a few of the greatest hits courtesy of the fine folks at AFER.
This is what they did not want to see on TV:
I just want to get married…it’s as simple as that. I love someone. I want to get married. My state is supposed to protect me. It’s not supposed to discriminate against me.” – Plaintiff Paul Katami
Here they are damaging their own case before it even really starts:
Judge Walker: “I’m asking you to tell me how it would harm opposite-sex marriages.”
Pro-Prop. 8 Atty Charles Cooper: “All right.”
Judge Walker: “All right. Let’s play on the same playing field for once.”
Cooper: “Your Honor, my answer is: I don’t know. I don’t know.” – 10/14/09 pretrial hearing rejecting defendant intervenors’ request for summary judgment
And at the tail-end they are still hurting their own cause with David Blankenhorn, one of their two “expect” witnesses.
Blankenhorn admitted that “Adopting same-sex marriage would be likely to improve the well-being of gay and lesbian households and their children,” and would be “a victory for the worthy ideas of tolerance and inclusion” and “a victory for, and another key expansion of, the American idea.” He also testified that it would result in fewer children growing up in state institutions and instead being raised by loving parents and would in fact reduce the divorce rate; reduce promiscuity; improve the stability of couples’ relationships; increase wealth for families and reduce government costs; and a decline in “anti-gay prejudice” and “anti-gay hate crimes.”
Contrast that to our experts.
ILAN H. MEYER, Ph.D., Associate Professor of Clinical Sociomedical Sciences at Columbia University’s Mailman School of Public Health, testified that Prop. 8 treats gay men and lesbians as if they are “not seen as equal… not respected by my state or by my country, by my fellow citizens.”
“As I described stigma earlier, I would say that law, and certainly a constitutional part of the law, would be a very strong part of, as I described, the social structures that define stigma, that define access. In a very simple way, you can think of it as a block or gate toward a particular institution, toward attaining a particular goal. So, in that sense, it is very much fitting in the definition of structural stigma,” Meyer testified. “[Prop. 8 imposes stigma] by the fact that it denies them access to the institution of marriage. As I said, people in our society have goals that are cherished by all people. Again, that’s part of social convention, that we all grow up raised to think that there are certain things that we want to achieve in life. And, in this case, this Proposition 8, in fact, says that if you are gay or lesbian, you cannot achieve this particular goal.”
LETITIA ANNE PEPLAU, Ph.D. Professor of Psychology at the University of California, Los Angeles, testified that she has “great confidence that some of the things that come from marriage, believing that you are part of the first class kind of relationship in this country, that you are — that you are in the status of relationships that this society most values, most esteems, considers the most legitimate and the most appropriate, undoubtedly has benefits that are not part of domestic partnerships.”
I’m a bit of an American history nut and this was one of the most interesting pieces of information from the trial for me.
DR. COTT also testified about the meaning of marriage in the context of slavery. “When slaves were emancipated, they flocked to get married. And this was not trivial to them, by any means. They saw the ability to marry legally, to replace the informal unions in which they had formed families and had children, many of them, to replace those informal unions with legal, valid marriage in which the states in which they lived would presumably protect their vows to each other. In fact, one quote that historians have drawn out from the record … it was said by an ex-slave who had also been a Union soldier, and he declared, ‘The marriage covenant is the foundation of all our rights.’”
“And then in corollary with that,” Dr. Cott continued, “there are other ways in which this position of civil rights, of basic citizenship, is a feature of the ability to marry and to choose the partner you want to choose. … It has to do with a black man, Dred Scott, who tried to say, when he was in a non-slave-holding state, that he was a citizen. And in an infamous decision, the Supreme Court denied him that claim. And why this is relevant here is that Justice Taney spent about three paragraphs of that opinion remarking that the fact that Dred Scott as a black man could not marry a white woman — in other words, that there were marriage laws in the state where he was and many other states, that prevented blacks from marrying whites — was a stigma that marked him as less than a full citizen…. he remarked on it because of the extent to which this limitation on Dred’s ability to marry was a piece of evidence that Justice Taney was remarking upon in his opinion to say this shows he
could not be a full citizen.”
From Dr. Gregory Herek:
He also agreed with the following from the APA: “…the American Psychological Association concludes that there is insufficient evidence to support the use of psychological interventions to change sexual orientation” and testified that no other major mental health organizations have endorsed therapies to change sexual orientation, and that aside from being ineffective, they can cause harm.
“It’s important to realize that the underlying assumption of these therapies tends to be that there’s something wrong; that homosexuality is a mental illness; that it’s something that needs to be cured or something that needs to be fixed or repaired. And that, of course, is completely inconsistent with the stance of the American Psychological Association, the American Psychiatric Association, and other professional organizations in this area,” he testified.
Professor Chauncey testified about the decades of discrimination against LGBTs and how the Prop 8 campaign was just more of the same.
Specifically regarding Prop. 8, Dr. Chauncey testified that “the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.”
After viewing several pro-Prop. 8 television ads and videos, Dr. Chauncey testified that the language and images suggesting the ballot initiative was needed to “protect children” were reminiscent of efforts to “demonize” gay men and lesbians ranging from police raids to efforts to remove gay and lesbian teachers from public schools.
“You have a pretty strong echo of this idea that simple exposure to gay people and their relationships is somehow going to lead a whole generation of young kids to become gay,” Dr. Chauncey testified. “The underlying message here is something about the – the undesirability of homosexuality, that we don’t want our children to become this way.
And yes there was even a George Washington reference during the trial:
DR. COTT challenged statements made by defendant-intervenors’ attorney Charles Cooper during his opening statement that procreation is the “central and … defining purpose of marriage.” She testified that the ability or willingness to procreate has never been a litmus test for marriage.
“There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage. In fact, it’s a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile,” she testified.
As for death of straight marriage when gays are allowed to tie the knot:
DR. PEPLAU testified that there is no evidence to suggest that marriage equality would harm others.
“It is very hard for me to imagine you would have a happily married couple who would say, ‘Gertrude, we have been married for 30 years, but I think we have to throw in the towel because Adam and Stewart down the block got married,’” Dr. Peplau testified.
Which one do you think did the most to help our case?
27 CommentsJanuary 30, 2010
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 CommentsJanuary 28, 2010
By Julia Rosen
David Boies became a hero around these parts for his thorough embarrassing of both Dr. Kenneth Miller and David Blankenhorn during his epic cross-examinations. One of our regular Trial Trackers in the comments, the poster formerly known as Barb, even changed her username to “Lesbians Love Boies”.
We loved that phrase so much that we made it into a t-shirt. It’s available on Skreend, with a portion of the proceeds going to benefit the Courage Campaign. Think of Skreened as a more ethical Cafepress that prints all of their gear on American Apparel. So all of you gay boys can buy one too and fit your gym bodies. Or if you haven’t been to the gym in a while, there are some sweet hoodies and tote bags available.
If you are wearing one and ever run into David Boies, please do take a picture of the two of you together. We’d love to post it.
[UPDATE] You asked for it in the comments and you got it. “Boys <3 Boies" is now available for purchase!
76 CommentsJanuary 27, 2010
By Julia Rosen
Brian thought that he had the question of the day “This is a Witness for the Defense?”, but that was a little too rhetorical.
I’ve got a better one. Who was the worst witness for the defense, Dr. Kenneth Miller or David Blankenhorn? Which one did the most damage to their case. Or put another way, which one was the most helpful for our side?
I know, it’s a tough call. I’m sure we can all agree the real winner was David Boies and the plaintiffs.
This won’t be the last poll we put up. After all, there is a lot of time to kill between now and February 26th. If you have ideas for future polls you want to see run on the Trial Tracker, please chime in the comments.
174 CommentsJanuary 27, 2010