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Liveblogging Day 11: Daily Summary

Daily Summary Liveblogging

By Julia Rosen

Can you believe we only have one day left of testimony? That’s a shame because watching David Boies cross-exam the defense’s witnesses sure has been entertaining. Our Trial Trackers can’t get enough of it. The stats and comments go through the roof any time Boies is grilling someone.

For those who like metrics as much as I do, we are now at 1.3 million views and over 13,000 comments. That’s more than a thousand comments a day.

Rick will be back tomorrow, which is likely to be a half day, since Boies just has to finish his cross examination of David Blankenhorn. Charles Cooper told Judge Walker today that they will not be calling Frank Schubert to the stand, so Miller and Blankenhorn will be their only witnesses. Then we will have a several week break before the closing arguments.

With that said, daily summary time…

[UPDATE] 9:54

[Wherein Mr. Boies backs Prof. Kenneth Miller into a very small corner bounded by Prof. Miller’s own words and views.)

Sorry if some of this is not clear. I’m trying to get the quotes that Boies reads from Miller’s writings. When they read stuff, that’s hard sometimes. So I try to get the gist.]

B: Look at your Seattle Law Review article. At times … initiative process has provided convenient means by which to undermine minorities and bypass checks and balances. In CA steady stream has passed, nearly all of which have been challenged in court.

M: Yes.

B: Courts have long assumed the responsibility for defending the rights of minorities, especially when political process harms them.

M: Yes.

B: Conflict between initiatives targeted at minorities and courts strict scrutiny to protect minorities is normal. (Courts have long assumed the responsibility for protecting minorities…especially when the operation of those political processes ordinarily relied on to protect minorities..”)

M: My understanding of this quote…

B: You wrote this.

M: Quote from Justice Stone.

B: What is he saying?

M: He’s referring to the democratic processes, the legislative process.

B: Now let me ask you to look at tab 35, page 12. Accurate in 2001 to say that in California over the past four decades, approximately 2/3 of all voter initiatives have been challenged in court and half have been overturned in whole or in part?

M: Many of those did not involve minority rights, but correct.

B: You then go onto say that popular initiatives that go after minorities are sometimes challenged in courts. By contrast initiatives that protect the environment are rarely challenged in court.

M: Yes.

B: You wrote that courts’ strict scrutiny of minority rights means that many times initiatives that affect minority rights are frequently litigated.

M: Yes.

B: You ask, “What prevents initiatives from undermining individual rights? You answer, the Courts.” Would that still be your view?

M: I believe the courts still play a role in checking the initiative process.

B: If it’s a constitutional amendment, only courts can be check?

M: Unless it’s repealed, yes.

B: In exercising judicial review, must check…including individual rights, especially those of unpopular minorities. You wrote that. You agree?

M: I think there is a difference between protecting rights versus expanding rights, but I think that’s right.

B: At the time that prop. 8 was passed, in the months of July, august, did gays and lesbians have a right to marry?

M: There was an initiative pending…

B: Answer yes, no or you can say “I don’t know.” (Laughter).

M: Yes.

B: Simple question, in your view as pol sci did Brown v. Board protect a right or expand a right.

M: Protecting right guaranteed by 14th amendment.

B: So you believe Brown v. Board was not expanding, but protecting a right granted by 14th Amendment?

M: Yes, that’s my view.

[UPDATE] 10:17

B: Reads from another article. “Popular view that courts should be lenient in judicial review for initiatives is 180 degrees off. … “When courts review initiatives, need to be more vigilant, not less.” “Courts are the only institutional filter, the check of first and last resort” in imitative process. Courts project against “majoritarian” rule. Did you believe this when you wrote it?

M: It’s compound statement. Which part?

B: All of it. You wrote it!

M: I did not agree with all of it.

B: You don’t say here that you are exploring the issue. You don’t say maybe this is right and maybe you don’t know?

M: Maybe I should have written it differently. Maybe courts should look at initiatives in the same way as laws passed by legislature.

[Everyone laughed at this guy when he said he did not necessarily agree with all that he wrote at the time he wrote it.]

B: Once the initiative is passed, the only filter is the court.

M: Unless initiative allows for amendment or repeal.

B: Prop. 8 did not do that?

M: No.

B: At that time, you believed that “it is easier for violation of minority rights to emerge from unfiltered majoritarian” measures. You believed that at the time, yes?

M: Yes.

B: Plaintiff’s article, “Anatomy of a Backlash” written by you?

M: Conference paper, never published.

B: This is one of articles you testified about on direct, article you listed when qualified as expert?

M: Yes. Yes.

B: On page 10, you say, “once this majority gives its preference in initiative, neither state courts nor legislature can change it, only federal court can.”

B: You believed that when you wrote it?

M: Yes.

B: And you believe that today?

M: Depends on the state.

B: The state you wrote about and the state we have been talking about in this trial has been and is California.

M: Legislature can put on initiative on the ballot to repeal.

B: Return to the same majoritarian electorate?

M: I reject that. Different electorate in each election.

B: But there is still prejudice in the population and you don’t know how many voters were motivated by prejudice?

M: Correct. (But he says that prejudice is declining.)

B: Hate crimes. Were there other laws that were passed that demonstrate gay and lesbian power?

M: That’s the one I examined.

B: Laws that were passed that you used to demonstrate the political power of gays and lesbians?

M: That’s the only one I identified.

B: Only federal legislation you know of?

M: Only federal legislation I know of passed by congress.

B: All federal legislation is passed by congress! It’s the only one you know!

M: Yes.

B: Do you know the official name of the hate crimes bill?

M: Matthew Shepard Bill? (Sheepishly)

B: Matthew Shepard and James Byrd, Jr. Hate Crimes Bill. Do you know who Byrd was?

M: Someone killed…

B: AA.

M: Yes.

B: So AA community supported bill.

M: Part of the coalition, but AA hate crimes already illegal.

B: Better as a citizen of the US that this hate crimes bill passed? Better for all of us to protect people from hate crimes?

M: Yes.

B: Are you familiar with Meagan’s law?

M: Yes.

B: Provides punishment for people who perpetrate crimes against little girls.

M: Yes.

B: Do you think that passage of that law showed the political power of little girls?

M: No, those who care about them.

B: That’s my point, sir. We’re all better off having this law, just as society as a whole is better off with hate crimes bill.

M: Yes.

B: Looking at hate crimes stats in LA County. Do you have an opinion as to what minority is most subject to violent hate crimes?

M: I would guess gays and lesbians high as are racial minorities.

B: Have you investigated?

M: Not closely.

B: Adjusting for percentage of population, what segment most subject to hate crimes?

M: Have not done that work. Difficult to know percentage of population that is gay and lesbian.

B: Do you have opinion?

M: Not well formed.

B: Did you research that?

M: No. I relied on others. I estimate it’s 5%, but could go one-way or another.

B: Now look at hate crimes stats in California and LA County, exhibit 675, which is hate crimes in CA 2007.

Judge Walker: Asks where it is in book.

[UPDATE] 10:47

[Wherein Mr. Boies teaches us all how to conduct a cross-examination. He manages to get scripture and positions all admitted as evidence by cross-examining the witness, making clear that the witness has done virtually no research for this trial and is at cross purposes with himself. Recall how the Prop. 8 side clumsily just read stuff and tried to get entire books admitted. This is how it is done. And aside from the intellect, skill and style of Mr. Boies, he is making very, very clear points.

Hate crimes stats admitted as evidence, but now changing subject. My guess is we’ll get right back to it as Boies shows that LG are powerless.]

B: You described yesterday all of the powerful allies that gays and lesbians have.

M: Yes.

B: It passed.

M: Yes.

B: Reason it passed was religion?

M: I don’t know if I’d agree with that.

B: You showed report of religions that opposed Prop. 8?

M: Yes.

B: You did not show chart of those that support Prop.8?

M: No. Rebuttal report.

B: Do all churches here (CA Council of Churches) support same sex marriage?

M: Hard to say. They support same sex marriage.

B: Did you look at these one at a time to see which do and do not support same sex marriage?

M: The local ones do, but national or international may not.

B: Do you belong to organizations that have views that you do not share?

M: Yes.

B: The mere fact that these churches are members of CA Council of Churches does not mean that they support ss marriage?

M: Problem is definition of church. National may have different view.

B: Some do not support same sex marriage?

M: Yes, I agree with your statement.

B: You say that there are 1.5 mm members of the Council of Churches. How many are Catholic in the state?

M: Not sure, but I believe it is the largest denomination in the state.

B: Does it constitute 30% of the population?

M: A third of the 36 million CA population.

B: 12 million.

M: It’s difficult to estimate accurately the numbers of church members, but it’s safe to say that there are more Catholics than Council of Churches members.

B: What is your opinion of how many are Catholic? 30%?

M: About 30%.

B: Second?

M: About 20%, but not hierarchical like Catholics.

B: So taking your estimate of CA population, about 18 million?

M: Yes.

B: You know Catholic Church’s opinion on homosexuality?

M: Uh…

B: Catholic Church calls homosexuality a “serious depravement.”

M: I don’t know…

B: Let’s take a look. (Admits exhibit showing that Catholic Church calls homosexuality and serious depravement.)

M: Let me find the context of that.

B: Let me know when you find the context (muted laughter).

M: Sacred scripture says that Catholic Church says that homosexuality is a serious depravement.

B: Did you know that?

M: I knew church morally opposed.

B: Did you have any doubt that was position of Catholic church?

M: …

B: What is second largest church?

M: Evangelical.

B: That encompasses many churches.

B: Is it true that Southern Baptist church is second largest in CA?

M: Knew that is in US, but not sure about CA.

B: But you investigated that?

M: No.

B: Do you know that Southern Baptists say that homosexuality is shameful and an abomination against God? (Admits this as evidence.)

M: I did not know that language. I knew they were morally opposed.

B: Did you research any other religious groups?

M: Jewish faith. Mostly opposed Prop. 8.

B: Did you investigate what the view of Orthodox was?

M: As well as reform and conservative.

B: Orthodox oppose same sex marriage?

M: Yes.

B: View Orthodox is that homosexuality is a sin like adultery and shall be punished by death. (Admitted into evidence.)

(Confusion about exhibits so moves to Orthodox Churches).

B: Does Orthodox Church favor same sex marriage?

M: They are part of this coalition (California Council of Churches). I do not know if there is local church that supports, but think they must if they are part of CA Council.

B: You keep calling CA Council a coalition. Was it formed to pass same sex marriage?

M: Big part of their leg agenda last few years.

B: But CA Council does a lot of other things?

M: Yes, but I’m not aware of what.

B: Did you investigate that those churches supporting Prop. 8 provided far more money and people than those on the other side?

M: I did not have access to No side, but I made better assessment of yes side.

B: That would mean that you did have access to Yes side’s info?

M: I did have access to some papers, but can’t make comparative judgment.

B: Is this a document that you had access to? (Put in evidence.)

B: Second page, second paragraph that begins, “Grassroots signatures…” Email from Mr. Prentice?

M: Appears to be so.

B: Reads, “largest grassroots in CA history. 300 churches and thousands of pastors” supporting 8.

M: Yes.

B: Next exhibit. As you probably know the giving from LDS members is topping $6mm with no sign of slowing down. You may know that Mormons have been out walking neighborhoods with about 20,000 volunteers. Do you disagree?

M: No reason to disagree with that.

Judge Walker: “Takes massaging to get evangelicals involved, according to this” (Laughter)

B: They may not be so different from the rest of us. Can you say that contribution to yes greater by religious groups than those who opposed?

M: In looking at media reports…

B: Is it your opinion that larger contribution of money and resources by religious groups to yes than no?

W: Objection. Compound.

Judge Walker: (Looks on puzzled) Overruled.

M: My opinion is that religious groups put more resources into 8 than against.

B: Did they provide more institutional resources?

M: Depends upon how to define.

B: Your definition?

M: Depends upon campaign.

B: Well, let’s talk about Prop. 8 just to pick one out of the air.

[UPDATE] 11:07

David Boies is still thoroughly embarrassing Professor Kenneth Miller on cross-exam.

B: Reads a lot of what Miller wrote about religious involvement in Prop. 8, including that Mormons only 2% of CA population, Mormons came from outside US to provide personnel and financial resources.

M: Yes.

B: What part of the support was provided to the No on 8 side by religious organizations?

M: I have no idea because I have not seen that information.

B: You know that religion was a critical factor in passing Prop. 8?

M: I cannot say that. I know it was a critical factor for some voters.

B: You wrote that researchers confirm that religiosity was critical in determining voter attitudes toward Prop. 8.

M: A critical factor, along with party ID, age.

B: You never said that religiosity was critical matter for some voters.

M: I should have. Don’t believe it was critical for all.

B: Look back at earlier pages for context where you say that many observers were mystified at how California was at forefront on equal rights for gays and lesbians, supported Prop. 8 could voted for Prop. 8. This is part where you say that gays and lesbians have all that powerful support, but you then say that apparent contradiction can be explained by examining religious characteristics of California’s Democratic voters. That’s what you are saying?

M: Some…

B: You don’t say “some.”

M: Looks at book…

B: Dr. Miller?

B: You believe that then and you believe it now?

M: You did not say it was an important factor? You believed it when you wrote it. Have you changed your mind since you wrote it in 2009?

B: This was a critical factor.

M: no polling…

B: You came in here as an expert. What is your opinion as to the other critical factors, not just factors?

M: I believe that religiosity is a critical factor.

B: Yes. But what others are critical?

M: Did not list any others that are critical, but others are important.

B: I promised your counsel would be done by now. I am over my time. Will you just focus on my questions?

B: Is it your opinion that the opportunity to establish ss marriage because state’s Dem coalition divided along religious lines?

W: Witness has been cross-examined for about two and half hours. He said an hour ago he was tired. Can we have a ten-minute break?

Judge Walker: There’s something about pots and kettles when it comes to long cross examinations, but we’ll take a break until 10 minutes after the hour.

(HUGE laughter).

[This is very, very sad. It’s boring in a way, but not like what the goof balls on the Prop. 8 side tried to do in their cross. They never, ever could get a witness on our side in a contradiction or even question. So they resorted to reading in over and over and over again articles and sections of books just so they could have them in the record. This witness has been so bent by his own contradictions and lack of knowledge and expertise that he has no shape whatsoever. And this is THEIR expert!!

We right now have them acknowledging that religion played the key role. Stay tuned. This is vital stuff. Remember that never, ever in our history have we had this opportunity to air the vitriolic reasons that Prop. 8 was passed, that homosexuality has been condemned by institutions for decades and hundreds of years. So of course we are a suspect class and the courts are our only line of defense.]

[UPDATE] 10:36

Judge Walker: Mr. Boies, you may continue.

B: Admits exhibits.

Judge Walker: Yes.

B: One other housekeeping matter. Prof. Miller, you have the exhibit that is the list of materials you relied on?

M: Yes.

B: You circled the ones you were sure that you obtained by yourself.

M: Yes.

B: By my count, you circled about 23% of the exhibits that you provided?

M: I can’t say. Less than half.

M: Maybe I should explain the question marks if you want to know?

B: Go ahead.

M: Difficult for me to sort out those that I found about religious organizations versus those that counsel provided.

B: I do want to follow up what you just said. You are aware that Dr. Nathanson put in a report?

M: Yes.

B: If you received any Nathanson material you would have gotten from counsel?

M: Yes.

B: I would submit that about 180 of the items you put question marks by are on Nathanson’s list. You would agree that you got them from counsel? Not coincidence that you both have?

M: I got documents—some but not all—from counsel.

[Which is French for yes, he did not do his own work.]

B: Is it your opinion that the opportunity to establish gay and lesbian marriage in CA was lost in large part because the state’s Dem coalition divided along religious lines?

M: The sentence says “opportunity.”

B: I don’t care what sentence says. Do you agree?

M: In large part, yes.

B: The evidence indicates that many of states Blacks and Latinos cast Prop. 8 in religious terms so that they could vote for civil rights, for Obama and for 8 without contradiction. What evidence?

M: Exit polls that showed that blacks and Latinos voted for Prop. 8. Some but not all mobilization took place in churches.

B: As political scientist, do you believe that a religious majority should not be allowed to impose its views on a minority?

Thompson: Objection.

Judge Walker: Overruled.

B: From time to time in world history, religious majorities have been able to impose it religious principles on minority. Is that an undesirable way to organize society?

M: As a general principle, yes.

B: As a general principle that a religious majority should not be able to use law to impose its view on minority?

M: Might be some exceptions, but yes.

B: As you sit here now, can you think of a time when a religious majority used its power to impose its view and that was good?

M: Abolitionists.

B: Were abolitionist a majority?

M: I don’t know.

B: They were not.
Judge Walker: Counsel is attempting to understand the witness’s views. If the witness would answer the questions directly, there would not be a need for these other questions.

Thompson: But world history was start of question, and I never raised that in direct.

Judge Walker: This is cross-examination, Mr. Thompson. Objection overruled.

B: As a general rule, is imposition of majority view by majority religion good for society?

M: No.

Ms. Pachter from AG: What is basis for your opinion that role of AG could ameliorate majoritarianism?

M: AG provides title and summary. Less pure majoritarian than if proponents writing title and summary/

AG: Is it your understanding that AG can write anything other than neutral title and summary?

M: That was contested by both sides.

AG: Your understanding of the law in CA is that AG must provide neutral title and summary or can provide opinion?

M: Law says that AG must provide neutral, but within AG’s office there is some discretion and this is key.

AG: One of things that people can do is go to court to challenge AG’s title and summary

Judge Walker: Can AG do more than provide a neutral title and summary for the initiative?

M: Different in different in states?

Judge Walker: We’re talking about California. The question is can the AG do more?

M: AG can take public position.

Judge Walker: That’s not my question. You don’t know? Is that your answer?

M: Yes, I do not know.

T: Did you review all 427 documents in appendix?

M: I tried to.

Thompson (T): Please relay methodology of understanding progressive religious involvement in Prop. 8?

M: Did extensive reading. Pew website provides important information.

Thompson: You were asked about some studies you had done about four decades of ballot measures in CA and Colorado and another state. How successful were CA initiatives in 1970s that had the potential to tap into a strain of anti-minority sentiment against G and L?

M: Only one I know of is 6 and it was defeated.

T: 1980s?

M: Three anti-HIV/AIDS that were anti-homosexual and were defeated by voters.

T: Goes to document from Prof. Segura.

[UPDATE] 12:13

T: Moves into evidence document from Segura that shows the 74% of homosexuals not in favor of marriage.

T: What is the measure of warmth of CA toward gays and lesbians?

M: 2006 Field organization poll said that close to 2/3 of Californians held either positive or neutral view of gays and lesbians.

T: Do you recall you were shown documents by Catholic and Southern Baptists?

M: Yes.

T: First principle here: “God loves all people and we love all people regardless of their sexual” preference or whatever.

M: That is consistent with my understanding of evangelical religious view.

T: Put in 30-second ad.

B: Objects.

J: Put in by plaintiff. I’ll look at it and see if it’s relevant.

T: Tries to play but it does not work. (The audio indicates it’s the Courage Campaign ad about the Mormons.)

T: We’ll try again later on that one.

T: Can you explain the evolution of your thinking on the initiative process since the time you wrote the Santa Clara law review article?

M: Since two decades ago, I pursued Madisonian critique and articles were very clear on comparison of majoritarianism with courts as institutional check on pure democracy. That was my approach to this until 2001 or 2002. Then I took research leave shortly after Goodrich decision. Paper I wrote in 2005 started to shift my thinking on this. I have a more favorable view of this process having reviewed since beginning of last century. See it as a way to allow people to express their popular sovereignty.

TR also thought direct democracy could express intuitional check on courts that were too activist. This is basis for my book on direct democracy that diverges from Madison. He believed that democracy harmonized in legislature. My later views showed ways courts could pull power from people. Initiative system is way for people to protect selves from court.

Conversation yesterday about state DOMAs, 11 from citizen-initiatives, but rest and majority from legislatures, which harmonize with, direct democracy. Taking out of hands of people by courts is too strong for courts. I think of it as different from protection of minority by courts.

M: I decided a long time after thinking about this, that marriage is different. People should have input on definition of marriage. Not invidious discrimination. Okay for people to come to consensus on it and courts should not impose selves.

Finally, I looked at Prop. 22. I looked at homos as vulnerable minority for that in 2000 when they raised $4 million to fight it (and lost). Prop. 8 they raised over $40 million and had enormous coalition. I may have been wrong to say that homos were vulnerable minority in 2000.

T: Other than marriage, what has happened with initiatives and gays and lesbians?

M: One or two in 1990s, but hard to find any others that hurt homos.

T: You recall Estridge Amicus Brief in which he says that there is forced education but not okay?

T: Puts up that ad that says teaching kids about gay marriage will happen in CA.

T: What messages does that ad say?

B: Objection. Beyond the scope.

Judge Walker: Clearly beyond the scope.

T: I’m just reading from the Amicus Brief in which Estridge says central means of defeating Prop. 8 was teaching kids that gay marriage taught in school as good as hetero?

Judge Walker: Just stick to the Estridge document.

T: Wants to play ad again.

B: Object.

Judge Walker: I thought you were on the right track, Mr. Thompson, asking about the article, not the video.

T: Asks one more time about whether teaching same sex marriage in school is same as religion imposing views.

B: No.

T: Defendants rest.

Judge Walker: You say it is never appropriate for judiciary to intervene in initiative process?

M: no.

Judge Walker: When is it appropriate?

M: Only when it violates federal constitution.

Judge Walker: Who makes that determination?

M: This is the first time that it has gotten to federal court.

Judge Walker: You made an interesting comment. You said that it is sometimes appropriate for courts to intervene. When is that?

M: When there is a well-grounded constitutional principle violated by initiative. That’s my view. The Estridge-Kane brief deals with state constitution. Must be a well-rounded constitutional reason to check.

Judge Walker: So it is appropriate for judiciary to intervene?

M: Yes.

Judge Walker: We’ll break for luncheon. I’m going to hear a motion suppress at lunch which means that we probably won’t reconvene until 1:15 or thereabouts.

Note: Mr. Thompson said at the beginning of his cross, “this is the last binder for this trial, Your Honor.” To which the judge said, “That’s a relief.”

[So we’re winding toward a close of this phase of the trial. We might indeed finish up today. They have a maximum of two more witnesses, probably one. The next phase is for the judge to think and review everything and then to reconvene for closing argument. Then, he’ll issue his decision.]

[UPDATE] 2:06

[Looks like we won’t finish today. If the judge is indeed going out of town tomorrow, this will likely get held over until Monday. We’ll see.]

Dr. David Blankenhorn (DB) is sworn in.

Charles Cooper (CC) is examining him.

DB: Harvard in 1977 with degree in social studies. 1979 degree of history at University of Warwick. MA with distinction. John Knox fellowship as undergraduate study abroad at University of Warwick. Then spent two years in VISTA program, as community organizer in Boston and then continue my work as community organizer in Massachusetts and Virginia.

Our job as organizers was to advocate for reforms they thought were important. For me, seeing the weakened state of communities and families in those communities, particularly of children without fathers, motivated me.

In 1987, started Institute for American Values. Non-partisan think-tank focused on marriage and childhood well-being. I’m president.

Commission research, hold conferences. Our signature product is report to the nation where scholars work intensively for a period of time and then jointly release findings and recommendations. Main subjects, fatherhood, marriage, family structure, family well-being. In past years added other areas, but these are primary.

Annual report called state of our unions, which is report on the state of marriage. And then working on third periodic report on marriage.

Work with fifteen scholars to come up with principal social science findings on marriage. Have done two; now working on third.
Personally involved as principal writer or investigator or working with scholars to identify them and then with them in non-leadership role as they develop their conclusions.

CC: Have you authored any books?

DB: I authored a book called Fatherless America, a book about consequences of 35% of children living apart from their fathers. Then 2007, Future of Marriage that looks at marriage and how we might strengthen it in future.

CC: Describe research re: Fatherless America?

DB: Interviews with fathers in six different cities around the country and used transcripts. Looked at literature. Then held scholarly gatherings at which papers were commissioned and presented. Strengthened my work.

DB: Fair to say that book was widely and generally well reviewed: LAT, Washington Post, NYT, Newsweek, and CBS Evening News. Led to lots of public speaking at civic and community groups.

CC: Dr. Michael Lamb has testified in this case. Did he review your book?

DB: He disagreed about some of its findings, but gave it a respectful review.

CC: Demonstrative Number 1 which is among the things that Mr. Lamb said.

DB: This is among the nicer things he said.

Boise: Your honor, we have seen this before.

Judge Walker: It does ring a bell.

Thompson (T): Yes, it is in evidence.

CC: Witness’s book is in evidence, defense exhibit 103.

CC: Future of Marriage book, now.

DB: Talks about consequences and how society might strengthen the institution.

CC: Describe how you authored this.

DB: Spent concentrated time to learn literature about marriage as a cross-cultural institution. Spent time with scholars. Consulted my own accumulated body, having read, written and spoken about the issue over the past twenty years.

CC: Well reviewed?

DB: Not as widely reviewed as other, but got me invited to public speaking. I argued that we should not have same sex marriage. Got me invited to discussions with proponents of same sex marriage.

(Bad static)

CC: Prof. Dale Carpenter, Univ of Minn., probably best book yet written opposing same sex marriage.”

Francis Fukuyama says “enormously deepens the current debate on same sex marriage as a public institution designed to promote and foster procreation and the raising of children, an understanding not based on religious conviction but on observation of how our species has evolved over time.”

CC: Admit book into evidence.

CC: Other books?

DB: Black Fathers in Contemporary Society, 2003

The book of Marriage Equality USA Promises to keep: Decline and Renewal of Marriage in America (1996)

Rebuilding the Nest: A New Commitment to the American Family (1990)

50 references to my work in peer-reviewed articles and a number of reviews in academic journals (7 reviews).

Cited five times in Court Cases including by CA Supremes and Mass Supreme Judicial Court, both with respect to same sex marriage.

DB: Served on advisory panel for Bush I chaired by Ashcroft. Then served on panel that helped Gore do family conferences in Nashville while he was VP.

DB: I have delivered lectures quite often over the years on marriage, fatherhood, and family structure.

CC: Have you been invited to participate in debates or panel discussion on ss marriage?

DB: Have had opportunity to meet with leading proponents of same sex marriage, such as Evan Wolfson, Andrew Sullivan, Jonathon Rausch. We call them “conversations” now.

DB: Testified before congress.

CC: Tender Blankenhorn as expert on fatherhood, marriage and family structure.

Judge Walker: Voir Dire?

Boies: You got a master’s degree and that degree was in history?

DB: Comparative labor history.

Boies: Thesis?

DB: Comparative labor. Study of two cabinet maker unions that was peer-reviewed.

Boies: What is peer-reviewed?

DB: Competent persons who decide whether it should be published?

Boies: Other than on cabinet makers, have you ever had a peer-reviewed publication?

DB: Black Fathers co-published, was peer-reviewed.

Boies: Any others?

B: No. Except that at our own institution we have peer-review because we hold the process in such high regard.

Boies: Are you saying that there are more publications than two?

DB: I thought you were bracketing our organization. We’re looking at two publications only.

Boies: Those two peer-reviewed had nothing to do with same sex marriage?

DB: They did not.

Boies: You have never taught course at college or univ on marriage, fatherhood, family structure?

DB: Correct.

Boies: Do you understand that fields of anthropology, psychology, and psychiatry are important for this subject?

DB: No. You can go through list because I have told you what my degrees are.

Boies: Have you taught at college…

DB: any college or university has never employed me ever.

Boies: In the three cases in which you testified, were they about same sex marriage?

DB: No.

Boise: In preparation for your testimony did you do scientific study of ss marriage?

DB: Not for this preparation for this testimony.

Boies: I’m sure you’d like to answer questions that I’m not asking, but your counsel will allow you to do that. Your question is sliding over my words. Did your research include studying the effects of same sex marriage in any of the countries where same sex marriage is permitted?

DB: I don’t think I’m able to answer those questions if yes or no.

Boies: Answer my question, sir. Do you understand my question?

DB: No.

Boise: You are aware that there are jurisdictions that have permitted same sex marriage?

DB: I am so aware.

Boise: 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.

Judge Walker: Within the context of marriage, family structure and fatherhood?

Boies: Same sex marriage, which is context of this case.

CC: If you will let him testify you’ll see.

Judge Walker: I understand. I may let him do that. But do you have any other case?

CC: No.

Judge Walker: Recites Supreme and Appellate courts definitions of expert. Different for hard sciences that social sciences. If this were a jury trial, it might be a close call as to whether or not he may testify, but it’s a bench trial. As Mr. C said, I can weigh the testimony in the context of Mr. B’s level of expertise.

DB: Socially approved sexual relationship between a man and a woman. From broad consensus finding from scholars, including anthropologists, who have sought to expiate this in the modern era.

Marriage regulates legal relationship with children.

[UPDATE] 2:02

Boies objects to leading the witness. Judge says rather than just reading words and having him agree or disagree, ask him a question.
B: Claude Levi Strauss has said that across society, we have interest, in so far as we can make it so, the union of the man and woman who created child are also social and legal parents. Only one institution that brings together social, biological and legal. We think of it as the gift we give to children. You as a child are being given this gift of being able to know and known by the two people who brought you into the world.

This word “affiliation” –with whom child is affiliated—is cross-cultural reason for institution of marriage. Wonderful finding is that, as scholars who have looked it, gives child biological, social and legal parenthood. Fixes that because it’s so important for children. Marriage has evolved and changed over the years and across culture, but it’s for the children.
Marriage can look very different in different places and time. Always doing this thing, east, west, north and south, always doing this thing. For 1,000 years. It’s not just one thing among many. Because of its universality in piece of diversity, good evidence is that marriage addresses this thing.

This thing is need for child to be known by these two people. To make it as likely as possible that parents are social and biological.

[UPDATE] 2:22

DB: Reads quotes from books by people he says are scholars. They are admitted into evidence. These are from what he drew his expert opinion.

DB: Book from Dr. Kingsley Davis, eminent psychologist, who writes about marriage. “Granted that the unique trait of what is commonly called marriage is social approval. Approval of what? Intercourse between a man and a woman that produces offspring.”

DB: From 1951 book in Great Britain by what is widely accepted as most respected anthropologists in world. Field guide. These are concepts that are used by anthropologists in field. The family in this sense is based on marriage. Defined by union such that children are product of such offspring.

DB: Probably the most famous definition of marriage in history.

DB: Book called Human Family Systems by Pierre Vandenberg, 1979, anthropologist.

[They like old books.]

DB: (reads) “Here I shall argue that while all this is true, marriage is the socially sanctioned pair bond for the avowed social purpose of procreation.”

DB: Sex Culture and Myth published in 1962 by Malinowski. Widely and fairly viewed as father of kinship studies in anthropology.
We are thus led at all stages of our argument that the institution of marriage is dependence of children on parents.
I made a pretty close study of Malinowski because of his importance in the field.

DB: 1985 book View from Afar by Claude Levi Strauss , “one of the giants of the field” The family … of two individuals who have children relied on by every society.

CC: You relied on this (and all others above?)

DB: Yes.

CC: Are these the only studies you relied on?

DB: No. I’m not saying that everyone agrees with them, but I view these as representative of what people in the field say marriage is. Could multiply by ten and still get same message.

DB: My conclusion is that this is the correct view of society, that this is what marriage is.

CC: Is there an opposing view?

DB: Yes there is. There is a well-developed and relatively newer view that marriage is not this, that marriage is fundamentally a private, adult commitment.

DB: Reads from a report: Beyond Conjugality published by distinguished Canadian legal professionals in 2001 to make recommendations of marriage and family in Canada.

CC: Was this for same sex marriage?

DB: Not only, but one point it addresses.

CC: Turn to page Roman XVIII.

[UPDATE] 2:36

[This guy is really, really earnest. He reminds me of one of those southern ministers. He does not come off as an intellectual, which is useful for them. He’s the face of what they want out there. He’s smooth and likeable. He uses big words and term and then quickly defines them for all of the world. He’s what they have. And he’s not a Harvard professor or a slick lawyer. That’s what this is all about for them. They want this part of the PR machine out there. They want to say, ‘you know (wink), our whole lives we have all known that marriage is all about kids. This new gay thing is fine for them, but it’s just not marriage.’

This is our real challenge: we have to tell the stories that show that gay people are normal, that love is to be consecrated and celebrated, that kids are frequently NOT part of a biological family and often it’s better if they are not.

DB: “Marriage is sometimes referred to as an institution, but that’s an odd application of the term. The Department of Defense is an institution. But a marriage is a private arrangement for parties in love.”

Reads from Prof. Charles Estrich, the case for same sex marriage. “In today’s society the importance of marriage is relational and not procreational.” Has debated him before.

CC: Are there other sources that you relied on that show marriage as adult-centric?

DB: Yes sir. There are many, many others like this that are out there.

CC: Do you believe it is accurate?

DB: No sir, I do not believe it is accurate. I believe that the relationship between adults is a dimension but I do not believe that in the history of societies this has been the heart and core, that the thing itself can be encapsulated in this idea that marriage is a private affective commitment between two adults.

DB: The affected dimension of marriage in many societies is negligible. Many where most are arranged or governed by kin groups. Many societies in which affective dimension is not true. In our society, it’s one that is important and one we celebrate on Valentine’s day and so forth. That is not all marriage is.

What these analysts are saying is incorrect as a matter of our history and lives. That assertion they made as a question of what may happen in the future is one thing, but not accurate view of today’s society.

CC: What role does religion play in marriage?

DB: We know now that this concept is a universal or nearly universal in society. This is not something religion invented. It does not depend on rationale for religion. Evolution of marriage is natural. It concerns itself with natural not supernatural forces. Exists in mono and polytheism. Simply erroneous to imagine that this institution is an artifact of religion. Not controversial among scholars.

CC: You don’t disagree that marriage is sacred to many religions.

DB: Not at all. Religion is important to many and marriage is important. They believe that marriage is a promise to God or higher power, not just spouse. Marriage occurs in synagogue, church or mosque. Sometimes religious officials are agent of state in legally performing marriage. Many people draw from religion the inspiration to the calling of the marriage vocation. Interconnection or strong influence of religion on this dimension of life. Might call marriage in many societies a religiously informed institution. The thing itself, I’m trying to be very clear, this is not derived from religious doctrine. It’s not derived from anything supernatural. It derives from our bodies and does not conjure supernatural.

DB: I do not believe that anti same sex marriage is a symptom of homophobia. Homophobia is present in our society and many others around the world. I regret and deplore it and wish it to go away. I have sought to look at the evolution of marriage in societies as I have sought to understand how marriage became universal in its reach and impact and how those custodians of the institution have sought to state the reasons, goals of institutions, what the thing was trying to do and why it matters so much. I am not able to find any evidence that animus toward gay and lesbian people or hatefulness of homosexual persons is why they justified their participation in the marital institutions. I am not saying that no such evidence exists. If such evidence exists, I want to know it. I’m telling you I have looked for it and I cannot find it.

[UPDATE] 2:56

DB: Big speech about how it’s absolutely much better to have child with natural mother and father. Scholars are extremely emphatic that optimal outcome for children, whether it be living in poverty, abuse, neglect, –across the range of outcome measures, this family form of a two parent biological couple in a stable marriage is best outcome for child.

DB: Summary in the form of a research brief of research carried out by three scholars from Child Trends, non-partisan research center in DC, was published in I believe 2002. Called Marriage from a Child’s Perspective.

Research clearly demonstrates that family structure matters for children and that family structure that is best for children is bio mother and father in low-conflict marriage. Parental divorce linked to range of negative outcomes. Not good in single, cohabiting or extended family homes. Marriage is good for children.

I relied on these also in my research.

DB: Reads article excerpt by Sarah McLanahan. Children who grow up in household are worse off with one bio parent than with both regardless of whether married when child born, they have remarried, etc.

CC: Does customary definition benefit only the child?

DB: Certainly benefits child, but benefits mother, father, society. Mother because it means it’s less likely to raise on own. Father because it attaches to child. For society because seed bed for good citizens. Human capital question. Highest investment we can make is to give children the gift of growing up in family forum. Does not guarantee success, but has been very well documented by scholars as the best bet.

[By talking about the scholars, we are constantly reminded that he is not one.]

CC: Deinstitutionalization of marriage?

DB: First paper I ever wrote at institute. Institution is relatively stable pattern of rules and structures intended to meet basic social (communal) needs. Deinstitutionalization means it becomes more brittle. When you take away its rules and you weaken its structures, scholars say you see deinstitutionalization. You can see this with a baseball team or museum. People become less loyal to it. It loses esteem and thus is less capable of carrying out its role in society. This concept is key to study for any institution, but most importantly for scholars to look at with respect to marriage. There has been marked process of deinstitutionalization of marriage. Need to come to its aid.

CC: You just testified that institution of marriage has already been weakened. What are manifestations?

DB: Look out of wedlock childbirth, five decades ago to now , rate is 38% vs. what we had in 1960. Increase in divorce suggests a reduction in value of marriage. Assistive repro technology that disturbs bio bond and last but not least the the the spread of the idea and reality of same sex marriage in the view of, I think, leading scholars, is another aspect of manifestation of this trend of deinstitutionalization.

Heterosexuals did the deinstitutionalizing. (He laughs sort of). Did not just come up a few years ago when we started discussing ss marriage. Scholars are telling us that process of weakening will be accelerated significantly by same sex marriage.

[This is oxymoronic. He seems to be saying that the more people who want to marry, the better, but not if they are gay?]

DB: I believe same sex marriage will culminate the process of deinstitutionalization of marriage. If you change definition of marriage that has been child centered public institution to adult centered private instit

[UPDATE] 3:29

[Wherein at the end, the witness says “Discriminatory not to call two things that are the same by the same name.” This is not out of context. That’s what he said about same sex marriage vs. domestic partnerships. Read to the end. This guy is just too much. And boy can he talk!

I’m sorry to keep editorializing, but this guy has strong opinions and no data. He just knows what he knows, is apparently incapable of original research and just keeps repeating himself.]

DB: Dr. Norval Glenn who is prominent sociologist at Univ. of Texas in Austin 2004. Reads: However, acceptance of the arguments made by advocates of same sex marriage would lead to its logical end, i.e., that purpose of marriage is the couple rather than anything larger than the couple.

The scholars are on opposite side of policy side of whether we should adopt same sex marriage.

CC: Are there other scholars who talk about same sex as accelerating deinstitutionalization of marriage?

DB: Yes

CC: How confident are you that same sex will accelerate deinstitutionalization of marriage?

DB: Impossible to say. I do believe marriage will weaken through deinstitutionalization. No one can say with absolute certainty that this will happen. I sincerely, believe this is likely result of adopting same sex marriage.

CC: Getting close to end of examination. How will this manifest self in society?

CC: In what ways in your opinion will extending marriage to ss couples and therefore the deinstitutionalization of marriage manifest itself in society?

DB: I think a likely consequence is acceleration or devaluation of marriage, fragility, divorce, one-parent homes.

[Okay here it is. He says that if the gays can marry, more people will get divorced.]

DB: My fear and my conclusion is that this is a likely outcome.

DB: I have had some personal experience with this. Since 1995, I have spent more time than just about anyone else saying that child needs father. Ought to be non-controversial. Will go from mildly controversial to mean-spirited, offensive. If you cannot speak publicly about a value, hard for me to see how we can defend value. Simply being able to say that a child needs a mother and father, if that becomes just indefensible in any forum, a church, a school, a PTA meeting we lose something precious.

Boies: Objects.

Judge Walker: I’ll overrule . You said you are getting close to the end?

CC: Yes, your honor. How will same sex marriage hurt kids?

DB: When Canada passed same sex marriage, struck words, “natural parent” and replaced with “legal parent” which increases likelihood of children being raised in family forms other than her own two natural parents.

Also possibility, I there, could be the possibility of the public willingness to consider family forms such as polygamy. I think polygamous marriages are not in the interest of women or society. There’s already that in our society. The concept that marriage is between two people is already weakest attribute. It seems likely that over time that this aspect of the institution as well will come under criticism and call for reform.

CC: Why would redefining marriage as adult centric increase possibility of polygamy being accepted?

DB : Because man and woman reinforces idea of institution to two. If you knock out one of pillars, becomes less defensible.

DB: I support Civil Unions as possibly humane compromise between homos and marriage. I co-authored article in NYT with Jonathan Rausch who is scholar at Brookings who is proponent of same sex marriage.

DB: I really had not thought much about domestic partnerships until about two years ago. Rausch publicly challenged me and called me out on this. Said your thinking about DPs is uninvolved and immature. He challenged me to consider more carefully. I told him that I would and I did. It began a sort of journey with him and other leaders of pro-same sex marriage. That led to Rausch and I writing article endorsing civil unions and domestic partnerships in NYT.

CC: Why had you not thought about domestic partnerships until that time?

DB: Did not think I had to. Went into with idea that if you set up comparable institution to marriage and open to heteros as well, would set up smorgasbord of options for relationships. The people I was talking to were vociferous in denunciation of domestic partnerships. They thought was invidious, demeaning to same sex people. I accepted that view. Strongly influenced. I repeated that view as back of the bus, discriminatory and unfair. My concern about setting up dual institutions and the unfairness, the idea that it would be discriminatory without having written or thought much about.

Then in meeting with Rausch in 2007 and in next two years, I tried to think about it deeply and carefully with Rausch and others and that led to article I published with him last year.

CC: I take it that you no longer have views you had before?

DB: Still worry that domestic partnerships possibly could have weakening effect on marriage institution, but think we should do anyway because of other issues involved, but satisfied myself on issue of fairness. Is it unjust to have DP program. Core journey and exploration for me. My thinking now is that the core principle that we can hold out for our understanding is that marriage is larger than the sum of its legal incidence. When we say the word marriage, it’s a big institution that performs a very large contribution to society and much larger than its legal incidence. Marriage is not a creature of law. We look to law to recognize and support marriage, to give it support. Look at legal incidents of DP and legal incidents of marriage, comparable, but not same as marriage. Purpose of marriage is to bring together bio male and female, to bring together two genitors of child, to make it as likely as possible that they will be parents of child. That’s the lodestar. The DP is a differently purposed institution particularly with respect to marriage. This lodestar notion that animates the DP is different. Discriminatory not to call two things that are the same by the same name. I had to work that out with myself in the mirror. I’m not saying he’s responsible (Rausch) for my journey. I have worked that out to my satisfaction. Means a lot to me personally. I have been able to understand as advocate for customary marriage.

CC: Thank you.

Judge Walker: Ten minute break.

[UPDATE] 3:52

[Wherein the defendant’s witness says he’s for same sex marriage, seriously.]

Boies cross-examines.

Boies: Did you understand that the research shows that there is causal relationship between father/mother family and worse outcome to children?

DB: Yes.

Boies: Did you read the entire chapter?

DB: I read the whole book.

Boies: Do you remember the next page that says that single family homes are not cause of poor outcomes.

DB: Yes.

Boies: Are you saying that adoptive parents are worse than bio?

DB: No. (Insists on saying that because of screening often adoptive parents can be better parents than bio.)

Boies: Yes, I was going to get to that, but you have speeded things along.

(Puts up article from B’s institute. Did not expect to do this, but witness is more helpful than I thought.)

Boies: Offer exhibit 2880. When your Institute for American Values does it studies, it treats bio and adoptive together.

DB: I did not do this study, but I would not be surprised if we used them all together. We used customary practice that lumps them together. To see different outcomes, you’d have to study them separately.

Boies: Ordinarily, researchers include adoptive parents in studies with bio parents?

DB: No sir.

Boies: Ordinarily, do researchers …

DB: Depends on factors.

Boies: Let me jump right to bottom line.

DB: Good.

Boies. Are you aware of any study that shows that children of gays and lesbians have different worse outcomes than straight?

DB: No. May I add?

Boies: It is not okay for you to volunteer any information. You can give speeches when your counsel has you.

Boies: Have you given a lot of thought to DPs?

DB: Yes.

Boies: I asked you whether it was your view if DPs contribute to deinstitutionalize marriage? Yes, No. I don’t know.

DB: Yes, they could.

Boies: Let’s try to get your view regardless of what you said before.

DB: I believe it’s possible they could do so.

Boies: You say it’s possible. Anything is possible. Do you say it’s likely that they do so?

DB: I believe

Judge Walker: Counsel is entitled to an answer to his question. There’s a question and then an answer. That’s the way the process works.

Boies: Do you believe that DPs that are open to opposite sex couples are likely to speed deinstitutionalize of marriage.

DB: Yes.

Boies How about only open to same sex?

DB: Significantly less likely to do so.

Boies: Opposite sex couples over 62?

DB: Significantly less likely.

Boies. You know that same sex couples are raising children?

DB: Of course!

Boies: Hundreds of thousands?

DB: I don’t know.

Boies: Did you attempt to find out how many?

DB: Yes.

Boies: Approximately how many?

DB: I don’t know.

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.

[UPDATE] 4:17

Boies: Reads DB’s quotes in which he says that America would be more just if it provides same sex marriage.

DB: I believed when I wrote them and I believe them now.

Boies: Do you recall scholars that you identified with Mr. Cooper?

DB: Yes.

Boies: Did any of the scholars that you identified with Mr. Cooper say that same sex marriage would reduce hetero marriage?

DB: May I say it back to you? I think I understand it.

Boise: Have any of scholars you have relied on asserted that allowing same sex marriage would lower rate of hetero marriage.

DB: Safest answer is I don’t know, but I believe the answer is that some of them have.

Boies: In that case, I’ll ask you which ones?

DB: I thought you might. That’s why I was careful walking into it. (Harrumphs.)

Boies: Comes from those discussions.

DB: Mr. Glenn talks about deinstitutionalization…

Boise: I need you to focus on the question. It’s a simple question.

DB: Not simple to me.

Judge Walker: Don’t argue with each other. Just ask a question and give an answer.

DB: I can answer the question.

Judge Walker: Than why don’t share your answer?

Boise 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.

[Judge has completely stopped paying attention. This witness has ZERO credibility.]

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.

Boies: I do want to follow up on something you just said.

DB: No sir, (that article by Glenn) it’s listed.

Boies. At end of expert’s report, you placed a list sources on which you relied to form your opinion.

DB: Yes. That’s the list from which I was just reading.

Boies: Maybe the easiest way for me to approach this is to go through the articles that you went through with Mr. Cooper.

[UPDATE] 4:35

This witness is probably very clever. He is belligerent, but clever. I fear that even though he is worthless or worse for their side, he’ll be great to say that he was bullied or whatever. He was not. He’s just uncooperative and not an expert on anything discernable.]

Boies: Did Prof. Quayle write anything in here about same sex marriage?

David Blankenhorn (DB): No. I’m not aware of her ever having said anything about same sex marriage. That was written in 1988.

Boies: Deinstitutionalization?

DB: No. She’s a historian. That’s a term that comes from sociology.

Boies: Neither Davis, nor Quayle, or Fraser, nor Committee of Anthropology of Northern Ireland, nor prof. Vandenberg, nor prof. Malinowski talk about same sex marriage or deinstitutionalization of marriage?

DB: Not correct.

Boies. I was trying to speed things up, but it won’t work.

DB: I can speed things up.

Boies. Let’s do it my way.

Boies: Fraser, same sex or deinstitutionalization?

DB: No.

Boies: Quayle, same sex or deinstitutionalization?

DB: No

Boies: Davis?

DB: Either uses deinst or uses same argument. My best understanding is that he does use that term.

Boies. At end of that long speech, you said yes.

DB: Not long speech.

Boies: I get to ask the questions. I ask them in a precise way to get you to say yes, no or I don’t know.

DB: That was not a long speech. I can’t answer these yes or no. I do know the answers and I can’t answer when you ask that way.

Boies: (Finally gets him to answer “I don’t know.”) There. I knew I could do it!


Boies: Royal Institute discusses same sex or deinstitutionalization of marriage?

DB: Not same sex, but in substance discusses process of deinst.

Boies: Can you find that for me sir?

DB: If you get me the book, I can.

Boies: Vanderveer?

DB: I tried to make clear that I did not rely on them for same sex and deinstitutionalization. They are historians.

Boies: I’m trying to make the same point, that you tried to make, that you did not rely on any of the people in this notebook to arrive at your conclusions?

DB: That’s not correct. We already found that Prof. Davis dealt with deinst.

Boies: Where?

DB: I can’t find it here, but he does.

Boies: Malinowski?

DB: Not on same sex marriage.

DB: Deinst, in body of writing.

Boies: In those materials in your binder does Malinowski deal with subject of deinst of marriage?

DB: I don’t know.

Boies: Prof. Levi Straus?

DB: I can save time by saying that he does not deal with same sex marriage but I don’t know if he dealt with deinst. Quite confident that this is only article in my testimony.

[UPDATE] 4:42

[This is the last for today, but I may try to reflect tonight. The presentation phase of the trial ends tomorrow at noon. It’s kind of sad, but it’s way time.

Boies keeps trying to get him to answer yes, no, I don’t know.

The judge is very amiable, but pushing. He said, Mr. B, you can answer the questions and then Mr. Boies or your counsel can ask what you think.]

Judge Walker: Perhaps a good night’s sleep will help everyone here. Can we conclude by noon tomorrow?

Boies and Cooper confer.

Boies: Yes, I can sharpen my questions and perhaps the witness can sharpen his answers and we can work together to get that done.

Judge Walker: Mr. Cooper, will you call Mr. Schubert?

CC: I don’t believe that will be necessary. We can solve the evidentiary issues between us.

Judge Walker: Very well.

CC: Tomorrow at 8:30?

Judge Walker: Absolutely! See you tomorrow.

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  • 1. Fritz  |  January 26, 2010 at 11:16 am

    All contributors and commenters: Love Ya ALL !!!

    It's too bad that this couldn't be televised. And I don't mean in an edited, YouTube fashion, but taken on by C-SPAN (for whom I work as an archivist) or some other organization. I would love to have seen the 'harumphing," agitated looks by participants, rolling-of-eyes, verbal stumbling, tears, etc., … shown by all. C-SPAN does really good court coverage of what they are allowed to tape. Just sayin' …

    As this is winding down, I urge anyone out there to get on TV or in the MSM with their impressions of the trial. Particularly if it can be in a forum/format in which the two sides are allowed to present their impressions. That would allow pro-plantiff and pro-8 to advance thier positions, but also let people know how to reach the public transcripts of the trial and the places that the differing "takes" on the trial. Let's have some good public debate on the trail ex post facto. Let's force more discussion of the facts vs. feelings, and let people sort that out. Bloggers here at CC, FDL, SJMN you have contacts don't you? You know who might be able to represent for the defendants? (BTW where were/are the oldy-time court artists? Is that a dead profession? I miss them if they're gone …) Set up some forums on this case with anything you've got and try to persuade the video media, in whatever form to cover, or do for yourselves to get the message out. But, go for free news media first and generate interest. It's the best way to bring more in. After bringing in with live/tape-delay media — use the social media as secondary way of publication. And also post on this site for additional content and ideas.

    This is likely to go through coruts and this site can b immensely useful if people agree to sighn on for action alerts, announcements, etc., but more importantly it may be a place for video testimony ~ what if video testimony becomes basis for further cases, differing takes on discrimination (think Massachusetts couples wanting to have fed tax equality) to build evidenciary base for ultimate challenge heard in SCOTUS.

    Thanks everyone involved in presenting this live blog and all the followers! I have been enraptured since day one, and rush home to check on uppdates at the end of the day, and again after 8 pm ET! I will miss the exhilaration of its "serial" nature, and all are to be commended.

  • 2. Richard  |  January 26, 2010 at 11:17 am

    So they are going to rest their "case" after Boies finishes his cross of Blankenhorn? This is really becoming suspicious, peole. They are trying to throw this case at this level so they can bring in big guns in an attempt to claim bias. Now it really becomes clear why they did not want cameras in the courtroom. Cameras recording the proceedings would have produced viable, admissable evidence that they could ill afford.

  • 3. Ronnie  |  January 26, 2010 at 11:31 am

    I don't think they can shout bias….

    1. it was a 50/50 chance that they would get a judge that agrees with them.

    2. Despite their lies, they had equal access to all the same documents.

    3. The videos are damning evidence…nobody can contend to that.

    4. They had just as many witnesses, however their witnesses were cowards and chickened out.

    5. Their "expert" witnesses were not prepared to testify, their fault not our side nor the judges.

    6. All three prop ha8te witnesses including Tam, were in a sense discredited.

    7. Boies and Olsen are abundantly good and strong lawyers, If the defense is deliberately trying to throw the case you better believe they are ready to strike.

    8. With all of this testimony and evidence in favor of Same sex marriage, I believe the playing field has/will leveled out in appeals.

  • 4. NG  |  January 26, 2010 at 11:37 am

    If I'm not mistaken, Richard, there are cameras in the courtroom; The judge is videotaping for personal reference or something like that.

  • 5. Lesbians Love Boies  |  January 26, 2010 at 11:25 am

    Unfortunately I don't think they can claim bias when you look at the lack of trying on their part. It could truly be that those witnesses ARE the best they could find for their side. At least the only ones willing to testify.

    It looks suspicious, but I don't think it is.

  • 6. Fritz  |  January 26, 2010 at 11:29 am

    LBL and Richard – I was verbose, but this is why we need to take the case to the media and explain how it was compelling and enthralling to so many (on either side?)

  • 7. erasure25  |  January 26, 2010 at 11:37 am

    I think you mean "Fortunately, I don't think…" 🙂

    It would be a stretch to me. I mean, these guys are Defendant Intervenors, which means they took up the defense because they wanted to! How can they go back and say it's biased because their witnesses suck? It seems they should have been prepared before inserting themselves as the Defense. And, these guys had to petition the Court to become intervenors in the early stages of the lawsuit… so they can't say they had no time to prepare. And these are the guys that ran the Prop 8 campaign from the very beginning!

  • 8. erasure25  |  January 26, 2010 at 11:38 am

    Oops, nevermind… Unfortunately is right… LOL…

  • 9. Jane  |  January 26, 2010 at 11:29 am

    It's hard to defend utter silliness, let alone stupidity and bigotry. Reason and intelligence will prevail.

  • 10. erasure25  |  January 26, 2010 at 11:39 am

    I am aghast at any law firm that would take up the Yes on 8 side… it seems they would just make a mockery of themselves.

  • 11. David  |  January 26, 2010 at 11:33 am

    Sure, Miller and Blankenhorn are terrible witnesses for the defense, but can they do any better? Their testimony has been nothing but the same "arguments" they've been using for years: bad for children, bad for society, polygamy, pedophilia, bestiality, etc. That's all they got, and they have no way to prove any of it–because it's all BS.

  • 12. RAL  |  January 26, 2010 at 11:35 am

    I've found Blankenhorn to be a more interesting witness than their first. I still don't agree with him but he's not as easy to dismiss as either Miller or other aspects of the defense's case.

    Here is a long and worthwhile debate from 4 years ago (I think) with Evan Wolfson. Pay particular attention to the Q & A section of the interview.

  • 13. Lesbians Love Boies  |  January 26, 2010 at 11:42 am

    2 hours long : )

    I will definitely watch it. I have listened to the intro.

    Thanks for the link

  • 14. RAL  |  January 26, 2010 at 11:53 am

    Also, its broken up into maneagable chunks. Listen to bits and pieces to get a sense of him.

  • 15. Kyle  |  January 26, 2010 at 11:36 am

    Wall Street Journal already has an article up about today's proceedings. Is it just me or does this sound like they are trying to make our side sound mean? And unless I misread something, I didn't see where Blankenhorn and Boies "bickering prompted the judge to end the trial for the day."

  • 16. Kyle  |  January 26, 2010 at 11:36 am

    I forgot to include the link, sorry. Here it is:

  • 17. erasure25  |  January 26, 2010 at 11:41 am

    WSJ is a conservative rag under Murdoch. I'm not surprised.

  • 18. Kyle  |  January 26, 2010 at 11:43 am

    The comments on the WSJ article are toxic as well.

  • 19. Happy  |  January 27, 2010 at 1:14 am

    I was about to say the same thing. The whole tone of the article is Pro Prop 8. I noticed it was written by one of those Asians Against Same-Sex Marriage types (the infamous Dr. Tam indicated there are many such folks out there), Stu "Woo."

  • 20. Jay  |  January 27, 2010 at 5:51 am

    Interestingly, the graphic on that WSJ story pretty much confirms the arguments that laws have been passed to discriminate against gays and lesbians. And Happy, try not to bring racism into this issue.

  • 21. Rob  |  January 26, 2010 at 11:41 am

    So I'm curious, what happens during the several week break? Does the judge begin writing his decision? or does he simply review everything that's happened during the trial? Also, how soon can we expect to get a verdict?

  • 22. Tom B.  |  January 26, 2010 at 11:49 am

    IANAL, but he mentioned that'll be the time he needs to go over the mountain of binders the defense has thrown at him.

  • 23. M.E. Graves  |  January 26, 2010 at 1:09 pm

    It's too bad the defense couldn't find some way to keep all of their binders together… like some for of binder for binders…

  • 24. M.E. Graves  |  January 26, 2010 at 1:11 pm"

  • 25. M.E. Graves  |  January 26, 2010 at 1:12 pm

    Well, that didn't end well… Sorry for the bad link… go here…

  • 26. M.E. Graves  |  January 26, 2010 at 1:07 pm

    It is a lot of information to go through. The judge is going to take weeks just so he can evaluate the *ahem* evidence from the other side and the evidence from our side so that he can ask questions during closing arguments just as he did during the trial. The decision shouldn't take that long after due to the fact that he already will have any questions answered, and the likelihood of either side throwing out any new gems of information are slim to none…

    that is, unless the yes side has discovered the secret plan of the LGBT community for world domination and plans to throw THAT bombshell into the court…

  • 27. michael  |  January 26, 2010 at 4:48 pm

    Don't tell anyone about us painting the White House Hot Pink…That is supposed to be a secret on the day after our world domination….Shhhhhh!

  • 28. Ronnie  |  January 26, 2010 at 11:54 am

    Oh so when they say that we have power because we have the press and the media on our side I say….


    Historically speaking the media, press ect, has always been on the side of the minority or the under dog because:

    1. It's good press
    2. historically speaking the minority eventually wins
    3. When religion in concerned the press is for freedom of speech and freedom in general.
    4. It is what wins awards.

    Its a very selfish field but then again what isn't?

  • 29. michael  |  January 26, 2010 at 12:00 pm

    What I learned today (and confirmed what I already knew) is that when someone decides to "create" an 'institution", they create pretty much everything else.

    Or in layman's terms: "they pull supporting evidence out of their ass".

  • 30. Rev Scott West  |  January 26, 2010 at 1:02 pm

    Thanks to these transcripts, I am falling behind on my disseration. It is delicious reading though.

  • 31. IAN LELAND  |  January 26, 2010 at 1:03 pm

    is this link the official prop8trialtracker facebook page?

  • 32. Linda  |  January 26, 2010 at 2:39 pm

    Clearly our opposition has a direct line to the AP. Anyway our team can do the same thing?

    Let's not forget Rob Reiner. I'm soooooooo looking forward to that movie! I hope it comes out BEFORE this thing gets to SCOTUS!

  • 33. payattention  |  January 26, 2010 at 4:02 pm

    Its know wonder Maggie Gallagher was worried that this would be a kangaroo court, the defense is jumping on its big stupid kangaroo feet. By the defense dumb witness testimony and the part religion's money has played to supress minorities, hopefully this judge will declare marriage, however defined by each party, is separated by church and state and use the separation principle to overturn yes prop 8 ballot intiative, I wish this had been televised to show the sheer "no facts" stupidity of the "I dont know" defense.

  • 34. michael  |  January 26, 2010 at 4:54 pm

    I think that Blankenhorn is Maggie….She has had surgery to transform herself.

  • 35. Roger  |  January 26, 2010 at 5:27 pm

    Impossible. Blankenhorn is moderately good-looking. It would take a miracle to make Maggie even that easy on the eye.

  • 36. Kyle  |  January 26, 2010 at 4:42 pm

    I was there in the courtroom for this today, and I was truly fascinated. I got to sit in a room filled with heroes (and their antagonists)…Made my day! Seeing it in person gave though me an even deeper respect for the people blogging this and bringing it to life on the page. Proceedings were often tedious and moved at a slugs pace. Courage Campaign has done an excellent job of making it palatable and exciting in its written format. Amazing job!

  • 37. Tina Berry  |  January 26, 2010 at 5:05 pm

    Want to do something about marriage equality? Join the Pink Envelope Campaign! We are a grassroots time-targeted letter writing campaign. We will all send letters to the President on June 5th (the first Sat), sealed, of course in pink envelopes. The hope is to flood the White House mailroom to send the message that we believe the only solution to marriage equlity will be a federal one… And we don't want to wait YEARS for the courts to make changes! For more info, see our myspace page:

  • 38. Skemono  |  January 26, 2010 at 5:10 pm

    Boies. Are you aware of any study that shows that children of gays and lesbians have different worse outcomes than straight?

    DB: No.

    Which means that all this:

    Research clearly demonstrates that family structure matters for children and that family structure that is best for children is bio mother and father in low-conflict marriage. Parental divorce linked to range of negative outcomes. Not good in single, cohabiting or extended family homes. Marriage is good for children.

    was completely irrelevant. Thanks, witness!

  • 39. Scott  |  January 26, 2010 at 5:43 pm

    To Theodore Olson and David Boies.

    THANK YOU. You have handled this case with immense professionalism and whether it is able to enact lasting legal change for us the very handling of the discussion by the two of you has elevated this conversation in ways crucial to equality, and has lent a credibility unatainable by those of us directly affected by it. The transcripts have read like a dialogue in social pain. At times I have laughed, because I wanted to cry, and at times I have cried, because I wanted to laugh. Sounds silly, but the silliest moments in this campaign are at times the most painfully ironic. So to the two of you; Thank You. There is no proper way to repay our allies who stand with us in our struggle.

  • 40. G. Rod  |  January 27, 2010 at 12:49 am

    Well said GR

  • 41. RebeccaRGB  |  January 26, 2010 at 6:07 pm

    The defense's objections remind me of this scene from Liar Liar, which I thought we'd all enjoy:

    Fletcher: Your honor, I object!
    Judge: Why?
    Fletcher: Because it's devastating to my case!
    Judge: Overruled.
    Fletcher: Good call!


  • 42. Kevin3  |  January 26, 2010 at 6:16 pm

    I agree that the LGBT communities have been discriminated against and still are discriminated against, that irrational and harmful hatred of members of the LGBT communities exists, that LGBT individuals are not (in general) harmful to society, and that they can raise children just as well as heterosexual couples. I think that many of the arguments Prop 8 supporters have publicly made so far have displayed prejudice and a lack of thought. Having said all that, I still think that the core idea of Prop 8 “only marriage between a man and woman is valid or recognized in California” is not discriminatory based on sexual orientation or gender nor should it be equated with past segregation laws.

    Segregation: Prop 8 is different from segregation laws. It does not prohibit the mixing of gay and straight in a marriage as segregation did. Prop 8 does not prohibit a gay man from marrying a straight woman and vice versa. It segregates (for the purposes of marriage) males from males and females from females regardless of sexual orientation. Sexual orientation is not the reason for the segregation/prohibition (as being black was).

    Discrimination based on Sexual Orientation and Gender. Prop 8 supporters are wrong to declare the superiority or inferiority of gays or of heterosexuals. This is obviously untrue. However, I do not think the core idea of Prop 8 is discriminatory. Here’s why. Prop 8 does not state that heterosexuals can marry and gays and lesbians cannot. Prop 8 does not prohibit gays and lesbians and homosexuals from marrying. All are allowed to marry. It does prohibit a gay man from marrying a gay man. It prohibits a lesbian woman from marrying a lesbian woman. It does not prohibit a gay man from marrying either a lesbian woman or a heterosexual woman. It does not prohibit a lesbian woman from marrying a gay man or a heterosexual man. The restriction cannot be said to confer inferior status on gays because it equally prohibits a heterosexual man from marrying a gay man and a heterosexual woman from marrying a lesbian woman.

    Despite the constitutionality of Prop 8, I believe that the best way forward is what Judge Thompson has already alluded to. The state should get out of the business of issuing marriage licenses and begin to only register civil unions.

  • 43. Scott  |  January 26, 2010 at 8:26 pm

    "All are allowed to marry. It does prohibit a gay man from marrying a gay man. It prohibits a lesbian woman from marrying a lesbian woman. It does not prohibit a gay man from marrying either a lesbian woman or a heterosexual woman."
    "The restriction cannot be said to confer inferior status on gays because it equally prohibits a heterosexual man from marrying a gay man and a heterosexual woman from marrying a lesbian woman."

    All are allowed to marry. It Does prohibit a black man from marrying a white woman. It prohibits a white man from marrying a black woman. It does not prohibit a white man from marrying a white woman and a black man from marrying a black woman.
    The restriction cannot be said to confer inferior status on blacks because it equally prohibits a white man from marrying a black woman and a black man from marrying a white woman.

    Just to show you how a couple little words make that sound just plain ludicrous. Jim Crow in a new bottle is still Jim Crow and it's no tastier than it was the first time around.

  • 44. G. Rod  |  January 27, 2010 at 12:55 am

    Cool GR

  • 45. Roger  |  January 26, 2010 at 6:55 pm

    A question which seems to fit in here as well as anywhere :

    Can Judge Walker declare sexual orientation a suspect classification, or is that a power reserved to the Supreme Court?

    And if he can and does, can the Supreme Court overrule that?

  • 46. Alexa Valavanis  |  January 27, 2010 at 4:57 am

    A huge thank you for your work in keeping us informed. I am a proud supporter of the Courage Campaign.
    Until there is equality for all,

  • 47. A  |  January 27, 2010 at 6:45 am

    @Julia — you've got an unclosed bold tag which is causing almost the entire content plus all comments to be bold.

  • 48. couragecampaign  |  January 27, 2010 at 6:50 am

    Thanks A

    Been a while since I've missed on of those.

    Thanks for leaving the comment.


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    (Warning, folks, the links are porn)

    do you have a point to make?

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