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The burning question: Who was the worst witness?

Trial analysis

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.

Go vote!

[polldaddy poll=2604296]

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.

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  • 1. Scottie  |  January 27, 2010 at 6:19 am

    You almost made my head explode. That's not an easy choice to make.

    In the end I chose Blankenhorn. Miller was just stupid but Blankenhorn was stupid and belligerent.

    Also, my birthday is Feb. 25. Nice belated birthday present!

  • 2. Patrick Regan  |  January 27, 2010 at 6:28 am

    <q>In the end I chose Blankenhorn. Miller was just stupid but Blankenhorn was stupid and belligerent.</q>

    That was exactly the same reason I chose him too. It was a tough choice though.

  • 3. Scottie  |  January 27, 2010 at 6:35 am

    Yeah I've never testified in court whatsoever and I'm not a lawyer but even I know not to act like he acted. He went way beyond a hostile witness. Everytime I started to feel bad because Boies was aggressive, Blankenhorn would say something to make me realize he brought that on himself. He was impossible. Boies and the judge have a lot of patience.

  • 4. Nikki  |  January 27, 2010 at 6:42 am

    "…Blankenhorn was stupid and belligerent."

    Add to that, arrogant, sanctimonious and whining.

  • 5. kate  |  January 27, 2010 at 6:40 am

    also exactly why i chose blankenhorn. he was arrogant and combative as well as ill-informed and NOT AT ALL an "expert" sheesh.

  • 6. Scottie  |  January 27, 2010 at 6:53 am

    Yeah exactly. It's funny that we know all this just from the WORDS the Courage Campaign has (thankfully!) typed for us.

    If people saw the video it'd be the #1 Comedy.

  • 7. Andrew  |  January 27, 2010 at 8:17 am

    Exactly my thoughts as well. I'd just say 'Ditto' but I don't want to be associated with Dittoheads and Rush Limbaugh *shudder*

  • 8. DW Jenner  |  January 27, 2010 at 6:21 am

    I'd lke to see a ratio chart showing the # of times Blankenhorn said, " you're putting words in my mouth," "scholars," "I'm not an expert," and any variation of, "if I could just say."

    Might also make for a nice drinking game.

  • 9. John  |  January 27, 2010 at 6:23 am

    Might make a nice drinking game, if you want to die of alcohol poisoning five minutes in.

  • 10. DW Jenner  |  January 27, 2010 at 6:24 am


  • 11. Lee  |  January 27, 2010 at 6:58 am

    I've got to quit reading this at work. Someone is going to ask what I am laughing about. Between the Boies/Blankenhorn exchanges and the comments it's been a fun day of reading.

  • 12. Steffi  |  January 27, 2010 at 8:34 am

    yeah, PLEASE someone create one!!

    also how many times the whitenesses didn't know any of the mentioned real experts of lawy or whatever evidence and how often they actually plainly and obviously argued FOR ss-marriages I mean in clear words not by statements one could also use to turn it into arguments for us.

  • 13. rpx  |  January 27, 2010 at 11:56 pm

    That would be a good poll question actually.

  • 14. nightshayde  |  January 27, 2010 at 6:22 am

    Picky little grammatical detail (I'm a proofreader – it's what I do) — when choosing between two witnesses, it should be "Who was the worse witness…?" If the choice was among three or more, it would be "Who was the worst…?"


  • 15. Opus  |  January 27, 2010 at 9:22 am

    Not to be picky…but you should really have written "If the choice were among three or more, it would be…."

  • 16. Lurker  |  January 27, 2010 at 11:47 am

    Opus is correct.

  • 17. Roger  |  January 27, 2010 at 12:24 pm

    Careful, Opus!!

    "If the choice were among three or more…"

    Are you intending "were" as the plural of "was", or as the subjunctive thereof?

    Sure, the subjunctive is correct but "choice " is singular, so "was" would be correct also..

    I would accept both as idiomatic— but why use the past tense anyway, in subjunctive mood or otherwise??

    "When the choice is ….."

    Yes I know. This is the sort of thing that has us authors sitting up fretting till the small hours… And no doubt judges composing hopefully bullet-proof judgments too..

  • 18. Brian  |  January 27, 2010 at 6:25 am

    My suggestion for the next poll question would definitely be 'which plaintiff's witness do you believe did the most to support the case?'

  • 19. JDI  |  January 27, 2010 at 6:49 am

    And the choices could be: Blankenhorn, Miller or Both!

  • 20. fiona64  |  January 27, 2010 at 7:16 am

    Don't forget our dear friend, Dr. Tam.

  • 21. Alan E.  |  January 27, 2010 at 7:21 am

    yeah I would say Tam, because he actually tied together many of the points that Boise had set up with the previous witnesses.

  • 22. John  |  January 27, 2010 at 6:27 am

    Anyway, I gotta go with Blankenhorn. Besides being a self-important asshole, he almost seemed to be trying to argue for our side at some points, whereas Miller mostly just had no idea what he was talking about.

  • 23. Jenny O  |  January 27, 2010 at 7:50 am

    that's exactly my reason for voting Blankenhorn too. Miller gave statements that supported our side, but not like Blankenhorn did.

  • 24. Sarah  |  January 27, 2010 at 6:30 am

    Sooo hard. I went with Miller because he was more of an expert (even though he wasn't at all in regards to this trial), the fact that his cross examination was such a flop was fairly significant. Blankenhorn was just a joke. Although I have the utmost respect for what Boies can do anyone could have made it clear just how useless Blankenhorn was.

  • 25. fiona64  |  January 27, 2010 at 6:35 am

    That was why I chose Miller as well.


  • 26. Andrea  |  January 27, 2010 at 6:48 am

    I too chose Miller. As a law prof, he met the standard for an "expert" witness, while Blankenhorn clearly did not. They both shot at their own feet, but Miller's gun was loaded.

  • 27. Richard  |  January 27, 2010 at 9:43 am

    No, Andrea, Miller and Blankenhorn did NOT shoot at their feet. They shot at the very heart of the PropH8er's case. But you are so right, Miller's gun wasw loaded. Both barrels. And apparently with an automatic reloader to intensify the effect of the damage.

  • 28. Drew  |  January 27, 2010 at 7:01 am

    My thoughts exactly.

    The Judge just barely allowed Blankenhorn to testify at all. After that grating display of ineptitude on Blankenhorn's part, I'm sure Judge Walker regrets allowing him to take the stand.

    Most of what Blankenhorn said will likely be dismissed without any consideration, which applies to both what helped our cause as well as what little he said that might be favorable to the defense.

    Boies cross of Blankenhorn was excellent, but I thought his voir dire was the real gem of his performance. Had this been a jury trial, there is no way Blankenhorn would have qualified.

    Thank you guys so much for your coverage of this!!!

  • 29. Lymis  |  January 27, 2010 at 9:52 am

    The true value for Judge Walker and for us about allowing Blankenhorn to testify isn't what he said or did, but rather than letting him testify heads off accusations that he didn't let their star witness testify.

    Guarantee if he had been denied, he would instantly have become the second coming of Einstein, Gandhi, and whoever the equivalent social scientist is. This way, he proved he is an idiot.

  • 30. A  |  January 27, 2010 at 7:22 am


  • 31. John  |  January 27, 2010 at 6:31 am

    It looks as if by the defenses testimony that all the Pro 8 Ads/and Videos are based on lies and not on research. Will there ever be a law that protects GLBT from these attacks with no resesearch to back up these claims. I mean is there not a law in effect that keeps people from broadcasting flat out lies? If not the pro-8 will use the same tactics in every state to win votes. It just seems to me you cant go arround broadcasting lies about a issue to win a vote?

    As a side note I think someone should make a movie about this trial based on transcripts, and I bet it would be a real eye opener for a lot of people out there….

  • 32. Alan E.  |  January 27, 2010 at 6:33 am

  • 33. Steffi  |  January 27, 2010 at 8:38 am

    but when are we actually going to see some VIDEOS?

  • 34. Tom B.  |  January 27, 2010 at 8:53 am

    I think it was mentioned (not sure though) that the first episode would be posted Thursday at midnight.

  • 35. John  |  January 27, 2010 at 6:35 am

    I vote Shatner for the part of Boies. I can already hear it: "GOOD GOD MAN."

  • 36. John  |  January 27, 2010 at 6:36 am

    Or rather, that should be "GOOD……….GOD MAN," in proper Shatner style.

  • 37. Nikki  |  January 27, 2010 at 6:45 am

    Not Shatner. He was a pompous assh*le to George Takai re: Takai's wedding invitiation…I don't think Shatner is all that much of any ally to LGBT community.

  • 38. Jack  |  January 27, 2010 at 8:57 am

    John–that's too funny. As soon as I saw the name Shatner I said "GOOD GOD, Man," without reading the rest of your statement. You're right too, there has to be that arrogant pause too, " GOOD GOD. . .Man" in Shatner swagger.

  • 39. Straight Ally #3008  |  January 27, 2010 at 9:17 am

    If Shatner's not available, get Ed Begley Jr. to play him again, like he did in HBO's Recount. Check it out.

  • 40. Richard  |  January 27, 2010 at 9:46 am

    What about Patrick Stewart? You know, Captain Picard? He never had any problem with relationships that weren't heterosexual. The only problem he ever had was when Troi's mother was chasing him all over the Enterprise when she was going through the Betazoid equivalent of menopause. Of course, we all know Picard was in love with Dr. Crusher.

  • 41. Lymis  |  January 27, 2010 at 9:54 am

    Please. I think Shatner would be horrified to hear that you think he's homophobic.

    He's world-class self-centered. I think he ignores people without regard to their race, gender, or orientation.

  • 42. Vaati  |  January 29, 2010 at 9:31 am

    Can we throw Janeway in here somewhere? She is much beloved by the lesbians. <3 Also I think Andrew Pugno would be a fetching Cardassian.

  • 43. Alyson  |  January 27, 2010 at 7:19 am

    I've often wondered this too – especially during prop 8 summer and the obama election. there are truth in lending standards when you buy a house – why doesn't this apply to political ads. I get actual emphasising the part that supports you – or telling part of the truth – but flat out lying crosses the line and fox news and palin and prop 8 have made it into an art form.

  • 44. nightshayde  |  January 27, 2010 at 8:53 am

    If they truly believe the crap they're putting out, though, is it really lying or is it just being incredibly wrong?

    I'm sure they would say that anyone who claims being GLBT is not a choice is lying, or that people who say kids do just as well in ss-led households as in straight-led households are lying, or that people who support ssm and say they're Christian are lying about being Christian.

    When you're dealing with religion, "truth" becomes a very fluid concept.

  • 45. Lymis  |  January 27, 2010 at 9:58 am

    You know, though, that only applies to the people who haven't put any time into looking into it.

    I am more than willing to attribute it all to ignorance when it applies to some schmuck just trying to get by.

    When you run a national organization that raises literally millions and issues publications and press reports, organizes TV appearances, and in this case, organizes legislation and lawsuits, ignorance doesn't apply. They have had every opportunity to know the truth. This is nothing but malice.

    Or, thankfully, animus.

  • 46. JefferyK  |  January 27, 2010 at 8:05 am

    Well, it's okay to lie about gay people because . . . we're gay. As Blank would likely say, "It's self-evident!" The testimony often brought up the stigmatization of gay people, and the way people are permitted to lie about us is further evidence of that stigmatization.

  • 47. Sarah  |  January 27, 2010 at 6:33 am

    John – it's in the works, well not a movie but a reenactment. I think a movie would be awesome though, maybe by the time my future kids read about it in their history books (fingers crossed) there will be one.

  • 48. John  |  January 27, 2010 at 6:41 am

    I just feel like a worldwide movie released of word by word of the case and arguments and the outcome of the case would be a blockbuster hit and also get out the message of the lies and hate behind prop 8 to the masses who are not following the GLBT fight for equality. Hollywood needs to start a casting call people may really pay more attention to this trial in a documentary type movie. we need to get it to the masses so the case cant be constrewed and spinned by pro8 supporters and news organizations……

    Thanks for the link

  • 49. Steffi  |  January 27, 2010 at 8:42 am

    yeah, where's Michael Moore when one needs him? isn't this kinda his job? at least he would I think portray this whole topic quite good (though I understand that he might be controversal)

  • 50. Jack  |  January 27, 2010 at 8:59 am

    Apparently Rob Reiner and Dustin Black were in the courtroom taking copious notes. I can see it in theaters now!

  • 51. Ronnie  |  January 27, 2010 at 6:33 am

    I said both because they did the same amount of damage for completely diff reasons.

    As well as the same reasons..

    either way they judge was clearly not amused!

  • 52. stevie  |  January 27, 2010 at 6:36 am

    Blankenhorn swung back and forth between Uriah Heep (the Dickens' character not the band) and a particularly petulent two year old.

    On the other hand Miller managed to shed a few tears for those poor slaveowners who had their property stolen by nasty abolitionists.

    I'm going to have to fall back on the 'don't know' part of the mantra…

  • 53. Peter  |  January 27, 2010 at 6:37 am

    I'd like to see what our legal side says about the defense… were they bad on purpose?
    How are they going to try and use the legal system to get what they want with testimony this bad?
    What strategy can they imagine will work?
    Do they really think the Supreme Court will make this a religious issue instead of a civil rights issue?

    the religious backing of Yes on 8 was unprecedented. We are literally in the middle of history making decisions – what do the scholars (real ones, not Blankenhorn ones!) say about where this can go?


  • 54. Mouse  |  January 27, 2010 at 7:38 am

    Go read at – here's an example of what they are saying:

    "In their desperate attempt to make something of their case stick, the anti-Prop 8 lawyer spent extraordinary time – four hours, in fact – trying to get the witness to concede that the margin of victory for Prop 8 in the November 2008 election was driven solely by “religious” voters. But Dr. Miller’s testimony provided an impenetrable roadblock"

    "the plaintiff attorneys then changed gears and made another run at proving their claim that gays and lesbians are a “politically powerless” minority in California, entitled to extraordinary protection under the US Constitution. They hit a wall there, too"

    "the notion that gays and lesbians can’t win ballot contests in California fell apart when, on cross-examination by Prop 8 Legal Defense team member David Thompson, it came out that in every election in recent history where voters were asked to pass initiatives to increase discrimination against homosexuals, the people of California rejected them."

    "David Blankenhorn, president of the Institute for American Values, who provided his expertise on the institution of marriage, fatherhood and the family structure. He rejected the suggestion by plaintiffs that marriage is purely a private construct between two adults. Rather, he explained, marriage between a man and woman is a globally recognized and historically public institution. In fact, it is the only social relationship with a “biological foundation” found in the complementary nature of man and woman and their ability to procreate. Across all cultures and times, no other human relationship has been more closely connected to the ultimate goal of uniting the biological, social and legal dimensions of parenthood for the raising of children."

    It must be inordinately taxing to constantly reinvent reality to suit your wishes.

  • 55. Will H  |  January 27, 2010 at 9:51 am

    Maybe Fox news was playing there own reinactment?

  • 56. Andrew  |  January 27, 2010 at 10:28 am

    I think they attended a completely different trial. Perhaps they would benefit from reading the actual transcripts for a change… Oh wait, no need; after all, expert witnesses are perfectly capable of formulating concrete proof from just pretending to have touched a book, no need to read anything.

  • 57. Roger  |  January 27, 2010 at 3:36 pm

    "Impenetrable roadblock"?? A pile of rubble, actually.

  • 58. Ed-M  |  January 28, 2010 at 7:52 am

    The "inpenetrable roadblock" fell right on top of Miller!

  • 59. Jono  |  January 27, 2010 at 6:40 am

    I went with Blankenhorn due to the D-Is telling the judge & plaintiffs at the beginning of the trial that Blankenhorn would tie all of their arguments together and really make their case (or words to that effect). I was actually a bit nervous when they said this, thinking they may have found someone who could reconcile all of the conflicting information. I never thought he could possibly be as damaging to their case as it turned out!

  • 60. John  |  January 27, 2010 at 6:44 am

    Wasn't that after the objection to his "expertise"? Something like "Let him testify and you'll see."

  • 61. Sarah  |  January 27, 2010 at 6:48 am

    That is a great point. Clearly he did nothing of the sort, so now I'm wondering how exactly they thought he was going to. What did they think he was going to say? He was their witness and I didn't feel like they got him to tie their case together at all.

  • 62. Steffi  |  January 27, 2010 at 8:45 am

    I really can't make any sense of it either…

  • 63. Mykelb  |  January 27, 2010 at 6:43 am

    I picked Blankenhorn because he actually thinks Maggie Srivastav is an intellectual. She is nothing of the sort. She is a right wing shill.

    In 1982 she earned a B.A. in Religious Studies from Yale University, where she belonged to the Party of the Right in the Yale Political Union.[1] After having at least one out-of-wedlock child, she married Raman Srivastav in 1993[2] and is raising two children in Ossining, New York.[3][4]

    Gallagher has written a number of books, including ones co-authored by Linda J. Waite, a professor of sociology at the University of Chicago. Gallagher serves as president of the Institute for Marriage and Public Policy,[3] a conservative think tank whose purpose is "strengthening marriage for a new generation."[3][5] Gallagher also serves as President of the National Organization for Marriage (NOM), a 501(c)(4) nonprofit organization that seeks to organize opposition to recognition of same-sex couples in state legislatures and supports heterosexual-only marriage initiatives across the nation.[6]

    Work for the Department of Health and Human Services
    On January 26, 2005, Howard Kurtz of the Washington Post revealed that Gallagher had received tens of thousands of dollars from the Department of Health and Human Services during 2002 and 2003 for helping the George W. Bush administration promote the President's Healthy Marriage Initiative.[7] During this time, Gallagher testified before Congress in favor of "healthy marriage" programs, but never disclosed the payments.[8]

  • 64. Sarah  |  January 27, 2010 at 6:46 am

    Man, that Gallagher. An out-of-wedlock child, and then the nerve to testify for "healthy marriage" programs? Ugh. Like all the born-agains, saying "oh, I had sex/did drugs, but now I've changed my ways and I want to make sure nobody has the choice to do what I chose to do, myself."

    Gotta say, though, I can't take NOM seriously – or any other LOLcat initiative. *rim-shot*

  • 65. Jay  |  January 27, 2010 at 7:10 am

    Am I the only person who sees "NOM" and immediately thinks of Buffy's "nice acronym, mom!" comment?

  • 66. fiona64  |  January 27, 2010 at 7:18 am

    And don't forget the anti-choicers who say that all abortions except for the one *they* had are bad …

  • 67. nightshayde  |  January 27, 2010 at 7:51 am

    Hey now – many of the regulars (myself included) at that LOLcat site are supporters of marriage equality.

    Teh kittehz iz smarter den u fink. =)

  • 68. Lymis  |  January 27, 2010 at 10:07 am

    Sorry, but my husband and I call what the dog does when he doesn't quite bite but clearly wants to be both playful and tough, "Nom nom nom."

    There's a metaphorical irony there somewhere, but I cannot take anyone who calls themselves "Nom" seriously.

  • 69. nightshayde  |  January 27, 2010 at 10:59 am

    I'm definitely with you on that, Lymis.

  • 70. JonInSF  |  January 27, 2010 at 6:44 am

    I'm still unsettled. The defense team would surely last night have instructed Blankenhorn to not say what he did today… and yet he did. There had to be a reason for him AND Miller all but walking into the prosecution's camp. It's all well and good to say these peopleare arrogant, and they are that but they are not *stupid.* You don't coordinate the systematic second-classing of a whole subset of Humanity without being reasonably intelligent.

    So what are they planning?

    Did he have his own agenda of some kind? "Marriage for all at any cost?"

  • 71. rf  |  January 27, 2010 at 7:17 am

    Actually the second classing was already there via our institutions and culture, they just harnessed it. And I think the republicans taught them how to do it, to get religious folks to the polls. I do agree that its quite odd they all fell like this (the defense witnesses)–so either they really have no case but believe what they believe and they think the SCOTUS is going to take them to victory no matter what OR there is something unsettling going on…

  • 72. Roger  |  January 27, 2010 at 3:42 pm

    I think their spiel playing so well to their base has dazzled them just a little bit. By the time they realised they had a different audience it was too late.

    "Pride cometh before a fall."

  • 73. rpx  |  January 28, 2010 at 12:19 am

    @Roger I might be wrong but I believe it is "Pride goeth before the fall"

  • 74. Ed-M  |  January 28, 2010 at 8:02 am

    @rf, I really think there is something unsettling going on. The recent brouhaha over the bible-code inscribed rifle sightpieces has revealed an ongoing slow hostile takeover by the Dominionist fundamentalists.

    I really, really think these people are plotting or rooting for a takeover of the country and an overthrow of the Constitution and common law, to be replaced with "Biblical" sharia law (their prejudices enforced on everybody). If successful, they will only end up fighting each other.

  • 75. Jack  |  January 27, 2010 at 9:17 am

    I understand the feeling. I'm a bit unsettled as well. However, the facts cannot be changed once this is over and they don't testify again. My only thought is that is shows how arrogant the Defendants are. They have mostly relied on religion and sanctimonious lies to get people to vote their way. They are self-righteous it is criminal. I said it a few days ago that the testimony that tried to imply that the gay community does not exist reminds me of Ahmadinijad (sp?) from Iran saying, "We do not have homosexuals in Iran." Or claiming that the holocaust did not happen. Such schools of thought frequently come from religious zealots. It is painful to watch some of these proceedings but I think they are necessary to show those that fell into their trap and voted for Prop 8 how they have been duped.

  • 76. nightshayde  |  January 27, 2010 at 11:01 am

    I think Blankenhorn might be arrogant enough to think that whatever he says is so important, he won't listen to anyone who tells him to stop talking.

    I'm really curious as to what's going on behind the scenes at PM or at NOM right now. I know they won't let on to the outside world that they're concerned — but I wonder if they really are concerned. Are they deluded enough to believe their own hype?

  • 77. Mykelb  |  January 27, 2010 at 6:44 am

    Sorry guys, You might know her as Maggie Moo or Maggie Gallagher. She is so proud of HER OWN MARRIAGE THAT SHE USES HER MAIDEN NAME.

  • 78. michael  |  January 27, 2010 at 7:56 am

    I think she does that because her maiden sounds more "white middle American" then her husbands…

  • 79. Lymis  |  January 27, 2010 at 10:12 am

    And, sorry, that's her right. She is welcome to use her maiden name professionally.

    Unless she goes on record that all women are supposed to take their husband's name professionally, this needs to be dropped.

  • 80. Roger  |  January 27, 2010 at 3:21 pm

    Yes, I know she has the right to use her maiden name professionally — and by old convention the title attached to it would be "Miss" — but it is another old convention among conservatives that you appear in public with your spouse and family at every opportunity. Even the Mayor of San Diego did that, both at his press conference explaning his decision not to veto his council's resolution of support for no on 8 and at his presser after testifying in this case.

    Maggie's constant failure to follow suit does make it look as though she is ashamed of her marriage. Of course, whether she is RC or LDS, she knows that both organisations frown just a little on different-sects marriage…

  • 81. Deborah  |  January 27, 2010 at 6:45 am

    Suggestion for a new poll: considering the abysmal job the Prop 8 attorneys/witnesses did during this trial, will they appeal, and risk marriage equality going nationwide, or cut their losses?

  • 82. Christopher in San F  |  January 27, 2010 at 6:51 am

    I'm sure they will appeal if they lose just like our side would appeal if we lose. Although, I think it will be a tough sell for them to appeal and try to convice the judge to rule for their side. Either way, I'll bet my bottom dollar this will go to SCOTUS which I have to say I'm anxious about….


    Christopher in San Francisco

  • 83. John  |  January 27, 2010 at 6:53 am

    I'm honestly worried if this makes it to SCOTUS. Especially given their recent decisions, they might rule against us regardless of the evidence.

  • 84. Marlene Bomer  |  January 27, 2010 at 10:17 pm

    Oh, they'll appeal all right, Deb — if only to shear the sheep for more of their hard earned money!

    $50,000 to promote bigotry? That LDS family should be ashamed they were strongarmed into giving that, and AFAIC, the LDS should be up on charges for doing that, not to mention the RC royalty in Maine!

  • 85. James  |  January 27, 2010 at 6:48 am

    I think they were both equally bad. The Prop 8 supporters can only use lies, deceit, and fear as their tactics. In court where truth prevails, they both fell flat on their face.


  • 86. JAB  |  January 27, 2010 at 6:48 am

    The word for Blankenhorn is 'unctuous'. Self-anointed with pious superiority and insincere self-effacement.

  • 87. Roger  |  January 27, 2010 at 3:26 pm

    The Victorian phrase was "oily and saponaceous."

    Applies equally well to Miller and attorney Thompson too.

  • 88. Chris  |  January 27, 2010 at 6:49 am

    I had to vote for Miller. B was bad, but also came off as having no expertise. Miller is a PHD and has an area of expertise, but helped our side with many of his conclusions and was shown to not be an expert in the one area the defense wanted him to be.

  • 89. Adrenalin Tim  |  January 27, 2010 at 6:51 am

    Definitely Miller.

    Blankenhorn was simply not an "expert" by any reasonable means, so I don't think his testimony would be weighted that much.

    But with Miller, he's actually a Ph.D and relatively knowledgeable in the field of Calif. politics and ballot initiatives. The fact that his testimony came out saying virtually the opposite of what the defendants were trying to prove will be seriously damaging to their cause.

  • 90. rpx  |  January 28, 2010 at 12:17 am

    I agree, it is Miller, Miller hurt their case more. Judges are going to look first at credentials before they hear or read a word of testimony. Immediatly after reading the Voir Dire(spelling?) on Blankenhorn they will not give his testimony much weight. OTOH Miller is credntialed so they will give his testimony weight. And good I hope they do because he failed miserably under cross. If I were a judge when I got done reading the transcript right after Blankenhorn testified I would lift up my head, look at the ceiling in puzzlement and say to myself, "This is it? This is the best defense they could muster?"
    Now I am wondering about Olson. I am thinking that pehaps Boies got more facetime in this trial and perhaps in the Appeals we are going to be seeing more of Olson. As much as everyone is complimenting Bois, and he does deserve our high praise, I am certain Olson has contributed equally as much, we are just not seeing it.

  • 91. JC  |  January 28, 2010 at 1:33 am

    My theory is that Boies is the pitbull or "bad cop" of the pair and that Olsen is the bookending "good cop" who does opening and closing arguments. Just wait–he'll be back to tie it all up eloquently

  • 92. Andrew  |  January 27, 2010 at 6:53 am

    Personally, I think Tam really took the cake for showing what we wanted to show about the way the campaign was run. Yes Blankenhorn was beligerent and an expert about nothing. And yes Miller was just… a mess. But Tam really showed the animus, the lies, the way that prop 8 used unfounded fear-based messages to get the votes from the people they knew they could sway on this issue.

    Coming out of this trial, I actually have a sense that the religious groups in CA basically got played by this ultra-conservative group that wants to base their bigotry on their feelings that being gay is just "icky."

  • 93. Sam  |  January 27, 2010 at 6:56 am

    I'd argue that the question should be "Who was the best witness?"… at least as far as we're concerned! 🙂

  • 94. michael  |  January 27, 2010 at 7:59 am

    Another question could be-Which witness's testimony did not support the plaintiffs in this case

    A. None
    D.All the above.

  • 95. liam  |  January 27, 2010 at 6:57 am

    I feel like this site has done so very well in keeping with a certain level of decorum throughout the presentation of evidence. I'd hate to see polls like this degrade the site in any way for those who may visit and read the material here to form their own opinions between now and the final ruling.

    Every small bit to maintain a cohesive and respectable image for the LGBT community with help combat public mispercepcions.

    Still, it's a great question to ask. =)

  • 96. Desert Verdin 1 of 1  |  January 27, 2010 at 7:04 am

    Your concern is noted!

  • 97. Charles  |  January 27, 2010 at 6:58 am

    Miller by very, very far.

    Blankenhorn is just a stupid biased partisan who's not an expert in anything. Boies couldn't even do much with him, since he didn't even answer or understand the questions.

    Miller however, is a scholar (yeah, a real one this time), who's written books… with which he doesn't even agree o_O
    Boies REALLY destroyed him. By going into his previous writings etc., he really hit where it hurts. He was also intelligent enough to know that he was cornered and trapped, which akes it all the more tragic and pathetic.

  • 98. Sarah  |  January 27, 2010 at 7:01 am

    From protectmarriage: "But Dr. Miller’s testimony provided an impenetrable roadblock, establishing that—while religious views were certainly one of many factors that informed some voters’ support for Prop 8—no exit poll or voter study has shown that religion alone determined the result of the election."

    Really? Miller was an impenetrable roadblock huh? teehee

  • 99. rf  |  January 27, 2010 at 7:20 am

    Perhaps they were talking about his skull?

  • 100. Karl  |  January 27, 2010 at 7:03 am

    I think they did equal damage. And the parallels to Kitzmiller V Dover are striking. You saw the same shredding of religious right experts when exposed to rational questioning. And Kitzmiller helped stem the tide of the Intelligent Design movement.. Lets hope this a turning point for SS marriage. I've been calling my fiance a fiance for way to long.

  • 101. AK  |  January 27, 2010 at 7:06 am

    Miller was completely out of his depth and was thoroughly demolished by Boies. I kind of felt bad for him, because he so clearly realized that everything was going wrong.

    Blankenhorn, however, had his credibility completely undermined by Boies and, even worse, his attempts to keep afloat antagonized the judge.

    On top of that, he admitted entirely too many plaintiff-friendly facts. He effectively became a witness for the plaintiff. Boies was very clever in cutting down Blankenhorn's arguments piece by piece without letting him get the chance to present them over and over again; at the same time, Boies ensured that all of his statements that were positive towards gay marriage were broadcast loud and clear.

    Miller was nullified, and made the Prop 8 side look baseless. Blankenhorn was subverted in every way, and made the Prop 8 side look completely irrational.

  • 102. AK  |  January 27, 2010 at 7:08 am

    Watching Boies flatten Dr. Tam, though, was truly wonderful, and probably did more for our side than anything else could.

  • 103. rpx  |  January 28, 2010 at 12:25 am

    Yes, Dr Tam the most infamous line int he whole trial- "I believe in NARTH" The comments that that statment generated were truly entertaining.

  • 104. Jay  |  January 27, 2010 at 7:16 am

    I voted for both, simply because they were equally bad in different ways. I ended up staring at the screen of my work computer in frank disbelief at their incoherent testimony.

    I just hope it helped! (Our side, of course; I doubt they were much help to their own.)



  • 105. DanN  |  January 27, 2010 at 7:18 am

    It has to be Blankenhorn. In the opening statement, whenever the judge asked the defense a question about how they will prove it he said Blankenhorn would prove it. I think we can all agree he did not prove anything other then he is not an expert.

    The defense relied upon him more so his failure is must more important.

    That being said, it might matter on the district and appeals court level but it wont matter with the supreme crt. Just like with cameras the justices will have made there decision and then find a why to support it, instead of looking at the record first.

  • 106. Christopher in San F  |  January 27, 2010 at 7:21 am

    Even though I'm anxious for this to go to SCOTUS I'm cautiously optimistic. I don't doubt Scalia & Thomas will rule against us, but I'm hoping the others will actually wait to hear the testimony/evidence before making a decision….or maybe it's just wishful thinking.


    Christopher in San Francisco

  • 107. Ed-M  |  January 28, 2010 at 8:17 am

    @Christopher in SF, I agree with you. It is possible it could go 5-4, 6-3 or even 7-2 provided Kennedy, Roberts and Alito look at the evidence and the testimony with open minds instead of allowing themselves be swayed by the hard-liners. Because IMO if SCOTUS decides the case in favor of Prop 8, then ipso facto Lawrence and Romer will have to be rolled back. And that will leave us back where we started after Bowers v Hardwick was decided.

  • 108. Jim Keller  |  January 27, 2010 at 7:21 am

    Ultimately, both wound up arguing for the plaintiff's more than for the defense, but since Miller was ultimately arguing for suspect classification (saying gays and lesbians are as powerful/powerless as African Americans) and Blankenhorn merely proving that there's no rational basis for Prop 8, I think Miller will ultimately go down in the history as the one who did the most damage.

  • 109. Roger  |  January 27, 2010 at 3:48 pm

    I know the words were Boise's, but his suggestion that by Miller's logic (was it Miller or Blanken?) the Meagan Act proved the political power of little girls struck me as especially telling. I notice it got no reply.

  • 110. Dick Mills  |  January 27, 2010 at 7:28 am


    Sorry, I couldn't help myself. I think that neither of them benefited the Pro(p) H8 cause, so I voted that they were equally bad. I think that Tam was their Achilles Heel though.

  • 111. rpx  |  January 28, 2010 at 6:00 am

    Don't forget Tam was one of the original signatories to the Proposition submitted to the state.

  • 112. A  |  January 27, 2010 at 7:30 am

    Off-topic, but here's a great rundown of NOM's anti-SSM arguments with a refutation or rebuttal to every one:
    (from last April)

  • 113. Steve Zlick  |  January 27, 2010 at 7:33 am

    I think the theory that the defense threw the case on purpose is gaining traction. I know they didn't have much to deal with, but the idea that these were the best experts they could find is laughable. The others who dropped out also seemed to help our case, albeit with cherry-picked snippets of testimony.

    In a way, they've got nothing to lose by losing. An unlikely win would stop the case at the 9th Circuit level; the Supremes could simply decline to take the case. In the much more likely scenario of a loss, it's a great fundraising opportunity on the road to their confident SCOTUS win. Alas, I think their confidence there is well founded.

  • 114. Darth  |  January 27, 2010 at 7:46 am

    I don't think that theory holds up, mainly because the evidence and witnesses presented in this case are all the appellate courts have to work with (in addition to brief arguments by each side). Overturning a ruling on appeal is a pretty high bar to clear; you essentially have to show that the lower court erred in either procedure or the application of the law.

  • 115. michael  |  January 27, 2010 at 8:03 am

    I think that is why the Judge is going to take his time with this one. He wants to be sure that mistakes will not be made on his end because he is aware that the High Court will be looking for anything possible to overrule his decision.

  • 116. Charles  |  January 27, 2010 at 8:16 am

    I agree with Michael. he's made sure to accept a large body of evidence, an to give himself a few weeks to at least pretend he's thinking about it (even though by now, I'd be surprised if he hadn't made up his mind considering how the trial went…)

  • 117. Rachel  |  January 27, 2010 at 7:50 am

    How about we take this trial and start linking the pages on news sites that have articles on it! Take the links and just spread them out there~ it may only be a few who click but others will talk about it and people WILL read the transcripts! Let's have the other side really squirm when they start getting asked the same questions we were asking by their own flock!

    I linked the transcripts on this article by the WSJ. And then I left it at that. I wont go back to look. I dont need to. The seed was planted, time to move on to greener pastures. I wont dare go back, in case I get even angier and say something stupid… (

  • 118. Marlene Bomer  |  January 27, 2010 at 11:25 pm

    Rachel — I posted my responses to some of the bigots there, cause I like baiting these masters of bigotry (would that make me a master baiter then? >giggles<).

  • 119. Vaati  |  January 29, 2010 at 10:29 am

    Bravo Marlene and Rachel! I read through all those comments and have to say, how horribly backwards are these people? They claim to be the 'higher IQ' bearing members of society? Stunning.

  • 120. Jeff  |  January 27, 2010 at 8:01 am

    "The burning question: Who was the worst witness?"

    I know the answer to that. But I can't answer if my only choices are "yes" or no." Scholars say… 😉

    Sorry, I was just reading the official transcripts from yesterday with Blankenhorn's testimony and can't get all that runaround out of my head!

  • 121. billandtuna  |  January 27, 2010 at 8:03 am

    Wow, what a tough choice. After much back and forth between the three options, I had to go with Blankenhorn, because he should have been their capstone moment.

    I am fascinated by the conjecturing about why the protectmarriage people might be intentionally scuttling the case. If so, was their their intent from the beginning? It's hard to imagine that a group that appears to be well-organized would let their case fall apart so spectacularly, and it's hard to believe that FOTF and crew wouldn't give them all necessary financial backing.

    Is it too cynical to think that they know that they will eventually lose this battle, and are intentionally using the opportunity to position themselves as hapless martyrs, run over by a queer steamroller?

    A lot of their rhetoric lately has been about the persecution of Christians, at the hands of gay meanies.

    But in the end, I just can't bring myself to believe that they would intentionally throw it, but it is increasingly hard to come up with any less im-plausible explanation.

  • 122. billandtuna  |  January 27, 2010 at 8:21 am

    I'm thinking a follow-up question would be:

    Are the proposition 8 supporters intentionally "throwing" the case?

    1) No, defense just incompetently executed.
    2) No, it's just not possible to make a strong case for restricting marriage in a court of law.
    3) Yes, once they saw things going South, they threw in the towel.
    4) Yes, that was the plan from the beginning.

  • 123. Steffi  |  January 27, 2010 at 8:59 am

    I stated this before though it is unlikely. maybe since they expect this to go to SCOTUS anyway they just want us to think we are on the safe side so we won't prepare properly for the highest court and THEN they bring in their REAL witnesses and REAL evidence??

  • 124. nightshayde  |  January 27, 2010 at 9:43 am

    Others have mentioned, though, that they don't get to bring in more evidence if/when this gets to the SCOTUS. They can have better lawyers arguing their case, but the only witness testimony & evidence they get are the things that were presented in this trial.

    I believe the lawyers get a small bit of time for oral arguments, but nothing like what we've seen here.

    If I am mistaken, please correct me.

  • 125. Marlene Bomer  |  January 27, 2010 at 11:28 pm

    You're 100% correct, Nyghtshayde! However, the H8 side may hope the full Ninth Circuit order a new trial if the PM folks whine about incompetent counsel.

  • 126. PM, in the UK  |  January 27, 2010 at 8:06 am

    Blankenhorn: antagonistic, and twice was his fitness to testify challenged – the second time by judge Walker!

  • 127. Steffi  |  January 27, 2010 at 8:31 am

    I pitied Miller but I had to laugh at Blankenhorn.
    and since the new term Blankenhorn(y) came up: here is how I'm gonna use it in futur:

  • 128. AK  |  January 27, 2010 at 8:34 am

    The Prop 8 side is not scuttling the case. The evidence that gets in now is all they have to use when there's an appeal. Even if they were ABSOLUTELY CERTAIN that they could win in front of the Supreme Court, they would have to do all the work of establishing relevant evidence right now.

  • 129. David  |  January 27, 2010 at 8:49 am

    Yeah, I caught that too. It will be an interesting case to follow to SCOTUS. I am confident with our team of legal experts and the testimony presented, our side will win!

  • 130. Tigger  |  January 27, 2010 at 8:37 am

    Does the rational of the State Supreme Courts of CA, IA, & Conn finding LGBT a suspect class have any influence on the judge or courts in this case?

    The CA Supreme Court had a groudbreaking and compelling opinion finding us a suspect class. And Iowa voted 7-0 in our favor on a Court full of Republican appointees..

  • 131. Deborah  |  January 27, 2010 at 8:48 am

    CA, IA and Conn cases were state SC's, in no way binding on the SCOTUS. SCOTUS would hear this because the lower courts are all over the place on the level of scrutiny applied.

  • 132. David  |  January 27, 2010 at 8:48 am

    I actually voted for both, since it was a toss-up in my view, as to which was a worse witness for the defense.

  • 133. Bill  |  January 27, 2010 at 8:57 am

    Wait just one damned second…

    THERE WAS A DEFENSE????????????????????????

  • 134. rpx  |  January 28, 2010 at 6:15 am

    Ha-Ha good point

  • 135. Jack  |  January 27, 2010 at 9:05 am

    I've been thinking about this trial in the SCOTUS. I am not surprised it will come down to Kennedy. I remembered his decision in the "Lawrence" case so I looked him up. They say that the conservatives hate his stance on GLBT issues and abortion.

    Though the one I think this case will hit a sour note on is Thomas. Though he already hates this community, if you think about it, he may be down-right irritated that the case uses "Loving" since he is married to a white woman.

    Thought I would post what Wikipedia says about Kennedy . . ."Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. He wrote the Court's opinion in the controversial 1996 case, Romer v. Evans, invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he authored the Court's opinion Lawrence v. Texas, which invalidated criminal prohibitions against homosexual sodomy under the Due Process Clause of the United States Constitution, overturning the Court's previous contrary ruling in 1986's Bowers v. Hardwick. In doing so, however, he was very careful to limit the extent of the opinion, declaring that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. In both cases, he sided with the more liberal members of the Court. Lawrence also controversially referred to foreign laws, specifically ones enacted by the Parliament of the United Kingdom and the European Court of Human Rights, in justifying its result. Kennedy voted, with 4 other Justices, to uphold the Boy Scouts of America's organizational right to ban homosexuals from being scoutmasters in Boy Scouts of America v. Dale in 2000. On 19 October 2009 Justice Kennedy temporarily blocked Washington state officials from releasing the names of people who signed petitions for a referendum ballot measure that would repeal a gay rights domestic partnership law."

  • 136. Richard  |  January 27, 2010 at 9:38 am

    I tried to view the poll and vote, but the website for the poll said the profile doesn't exist. Did I do something wrong?

  • 137. Ronnie  |  January 27, 2010 at 9:39 am

    OK I found him……. Go_proton77 on yahoo! finance MB

    He says…..

    "Re: 0bama Brown shirts 27-Mar-09 05:39 pm
    Good point. The liberals on this board will do anything to suppress free speech.!!!!" – Go_proton77

    Which is hilarious because his fellow prop ha8ters are doing the same via no comments on theirs and PUG-NO's "blog" as well not airing this trial so they can hide the truth of their lies……….

    HYP – O – CRITES!!!!!!!!!!

  • 138. Vaati  |  January 29, 2010 at 10:46 am

    That's what they are good at though, hypocrisy and being willfully out of sync with reality. Good find, Ronnie.

  • 139. Linda  |  January 27, 2010 at 9:43 am

    Everyone sounds so confident of a win. I'm not so sure we should be counting our chickens. The team did a fantastic job and seems like evidence is on our side…but I'd hate to get burned

  • 140. Ronnie  |  January 27, 2010 at 10:56 am

    I'm not so much confident as I am just a tad optimistic!

    but because of the evidence and their lack there of as well as testimony and their lack there of

    I went from 50/50 to 70/30

  • 141. Ed-M  |  January 28, 2010 at 8:31 am

    I know. We got burnt in '86. 🙁

    And a SCOTUS victory for us will unleash Hurricane H8!

  • 142. Bob  |  January 27, 2010 at 10:18 am

    Both witnesses were bad for the defence, but in different ways.

    Kenneth Miller was a bad witness for the defence, but in the end he was a worse witness for himself: by representing himself as an expert and having that representation so thoroughly shredded, his academic reputation has been left in tatters.

    David Blankenhorn was a worse witness for the defence. Not only was he thoroughly discredited as an expert in any field, but his testimony actually bolstered the plaintiffs' case but essentially proving what they're saying: marriage is good for gays and lesbians and their families, and causes no discernible harm to heteros. On the other hand, Blankenhorn will probably reap benefits from being involved, in the form of fodder for his "work" and speaking invitations by gay marriage foes.

  • 143. Ronnie  |  January 27, 2010 at 10:20 am

    I just made this statement to my mother I felt the need to share it after watching the video together posted by straight ally #3008…….. .

    The people who are against same sex marriage and equality continue to ignore the simple fact that this is about human. EVERYONE!

    It hurts not just LGBT people whose lives are destroyed by these anti-equality laws.

    It hurts our kids, not just teens but babies, infants, toddlers, 5yo's, 10yo's!…… those of who have children…..

    It hurts our heterosexual friends, families, co-workers, neighbors, supporters and their families and kids……

    It hurts us not just those who have been in relationships for years but those of us who are single and do have dreams of finding mr/mrs perfect and be just as committed as others

    We are teens, 20 somethings, Over the hilliers, Baby boomers, Black, white, asian, latino, muslim, straight, gay, transexual, lesbian, bisexual, religious, non-religious, left handed, right handed, brunette, blonde, black haired, red haired, blue haired, HUMAN.


  • 144. rpx  |  January 28, 2010 at 6:36 am

    Oh my God I cried so hard when I watched that video. I'm going to repost it on facebook and also again a link to this website. Hetrosexual people gotta know, they gotta begin to open their eyes, ears and heart.

  • 145. waxr  |  January 27, 2010 at 12:05 pm

    You should have included Tam as a choice.

  • 146. Ronnie  |  January 27, 2010 at 12:16 pm

    He said it!!!!!!!! Obama Said it!!!!!
    The Bigots are DONE!!!!!!!!!!!!!!

  • 147. Roger  |  January 27, 2010 at 3:59 pm

    Fill me in. What did Mr Obama say?

  • 148. Bob  |  January 27, 2010 at 4:09 pm

    Obama said some pretty words about how DADT should be repealed. Nothing of substance, no timeline, no suggestions, no deadline. More of the same talk but no action.

  • 149. Ronnie  |  January 27, 2010 at 4:39 pm

    Yeah something like that but it was the response that he got that was the most telling…..a wide standing O….however the leaders of the armed forces looked pissed…but that was pretty telling as well.

  • 150. Ed-M  |  January 28, 2010 at 8:48 am

    And it looks like the standing O came from both sides of the aisle this time. When Clinton tried a full revoking on the FDR ban he was met with bipartisan opposition!

    My best memory from that time was an Ann Telnaes cartoon:

    Female Civilian:He probably asked for it.
    FC: He was dressed provacatively.


  • 151. James  |  January 27, 2010 at 1:42 pm

    Hi all,

    After having read all the transcripts of this cast, and trying to put my personal bias aside, it seems to me a no-brainer that the plaintiffs should win.

    I can't imagine any circumstances under which the judge could find any other outcome, and remain credible.

    However, I'm no legal boffin, so would someone care to explain in simple terms what reasons there might be, or what reasons might be given for a failure of the plaintiff's case?

    I understand there is an "uphill battle" to establish GLBT as a suspect class, but apart from that, what other factors could contribute to, or justify, a win for the defense?

    What could the judge possibly say to justify such an outcome?

    Thanks in advance.

  • 152. Rod  |  January 27, 2010 at 2:19 pm

    I just read the latest blog post at They sound defeated. They wrote:

    "The plaintiffs put on a spectacular show-trial of irrelevant evidence, calling to the stand many “expert” witnesses to testify that allowing homosexual marriage would: help local governments raise more tax revenues, help gay and lesbian couples to accumulate greater wealth, and improve the self-esteem of homosexuals. But those are political arguments for society to consider, not legal support for the claim that the US Constitution contains the right to homosexual marriage. The courtroom is simply not the proper forum for what is clearly a social, not a legal, appeal."

    There's a lot to chew on there, I mean, it was both ours AND THEIR witnesses who made those "political arguments" in court. And now the problem isn't gay marriage, nooooo, now the problem is that the people are using the courts as a forum to determine what is lawful.

  • 153. Ronnie  |  January 27, 2010 at 2:33 pm

    If showing videos and written documents that shows religious prejudice is irrelevant evidence in a trial that is saying that prop ha8te is discriminatory as well as all witnesses involved making statements that go into the record supporting our argument …then WHAT THE FUCK IS RELEVANT EVIDENCE!!!!

    You spin me right round baby right round like a record baby right round round round!

  • 154. Urbain  |  January 28, 2010 at 6:25 am

    But those are political arguments for society to consider, not legal support for the claim that the US Constitution contains the right to homosexual marriage. The courtroom is simply not the proper forum for what is clearly a social, not a legal, appeal.

    I think this is key. My take is that they will focus on legal theory and not on the witnesses' testimony. For instance, they may say that the voters acted rationally because DOMA has not been the subject of a constitutional challenge and has been in place for over a decade.

  • 155. Rod  |  January 28, 2010 at 8:59 am

    Given the testimony of all the witness, most especially that of the defense's own witnesses, I think our side at a minimum successfully showed that the leading proponents mislead the electorate. Prop 8 proponents and their campaign lied and instilled fear into the electorate, and none of their rhetoric, opinions, and fear ridden fantasies could be tied to ANY supporting evidence. Even more, the demeanor, actions, and labyrinths of illogic displayed by their witnesses showed their biases and dislike of gay people.

  • 156. billandtuna  |  January 29, 2010 at 5:25 am

    …the problem is that the people are using the courts as a forum to determine what is lawful.

    Forgive me if I'm mistaken, but isn't that exactly what the courts are supposed to do under our Consitution?

  • 157. Ed-M  |  January 29, 2010 at 3:39 pm

    Yes. And the founding fathers knew that is what our courts were supposed to do even before the Constitution ws adopted. And james Madison said as much in one of the Federalist Papers.

  • 158. Caleb  |  January 27, 2010 at 2:25 pm

    Tam came across as a willfully ignorant bigot. As an individual, his testimony (while pissing a lot of people off) was much more useful in proving the various connections and motives behind prop8.

    Miller, Blankenthorn, and the four withdrawn witnesses? Much more damning.

    Even without impeaching either of them as "experts" in their claimed fields (Blankenthorn making it in by the skin of his teeth)… both were hugely damaging to the defense in their revealing of the lack of genuine, peer reviewed, and widely accepted science to back up prop8.

    They were both self-contradictory (as was Tam, at times)… and clearly crossed the line into evasiveness. Judge Walker, politely, gave clear indications he knew they weren't being forthright. You can be damn sure he's doing to factor that into his weighing of their testimony.

    Tam was a run-of-the-mill bigot.

    Miller and Blankethorn — and the four additional witnesses who were deposed and withdrawn? Fucking Kryptonite.

    I can hardly wait for closing arguments.

  • 159. Roger  |  January 27, 2010 at 10:07 pm

    The problem now is that we are so close to this that it's hard to sort out all the stuff that has come before us. I'm making this post as much to clarify things in my own mind as much as anything.

    I'm no lawyer,and I'd appreciate comments/corrections from the experts. My apologies for the typos — I'm sure there are many.

    Going right back to the beginning:

    This case grew out of the California Supreme Court's decision last year that the amendment to the CA constitution made by Proposition 8 forbidding same-sex marriage was constitutional on the grounds that as the Domestic Partnerships available to S-S couples in California conferred all the benefits of marriage S-S couples didn't suffer discrimination if the name "marriage" was reserved to mixed-sex couples. Therefore, the Prop8 amendment is legal and constitutional.

    However, the central question for this court (ie Judge Walker) to decide is whether the amendment actualy does lead to discrimination and harms those discriminated against (ie s-s couples), thereby bringing it into it in conflict with the equal protection guaranteed by the 14th amendment of the US constitution. If it doesn't, then the amendment may stand.

    But does it, and what harms flow from it if it does? That is the central question Judge Walker must decide.

    Now, the plaintiff allege that it does discriminate and that they suffer considerable harm thereby, so they are being denied equal protection.

    The first complication is that the actual defendant in the case is the State of California in the person of its governor, its Attorney-general and other specifeied officials.

    They have refused to defend the suit, on the grounds that they believe the anti-s-s marriage prohibition unconstitutional, so the suit is being defended by a group of people (the Defendant-intervenors, esentially the people who organised the Proposition 8 referendum) who have been given the Court's permission to act as proxy defendants. How significant the original defendant's withdrawal is is for Judge Walker to decide.

    The second complication is that some of the Defendant-Intevenors have also withdrawn, allegedly beacuse they didn't want to be videotaped and the tapes made public via You-tube –and despite the Supreme Court prohibiting such videotaping and broadcasting. Presumably Mr Walker will assess whether that helps their case or not.

    Now, he can make his judgment on any one of three bases. First is "rational basis", by which the state needs only to show that it was reasonable (rational) to impose the discrimination and that any harm it does is balanced by benefits to the state. Or society or whatever.

    The second is after "strict scrutiny" of the law (the P8 amendment) and its consequences. This requires that discrimination against a minority which has certain defined characteristics is "suspect" and can only be imposed by the state for compelling reasons, not just rational ones. The group concerned is called a "suspect group", a term which I must say I find a little confusing, as it is the discriminatory law which is to be examined with suspicion and not the group…

    Anyway, the plaintiffs have provided a lot of evidence in the form of personal testimony and expert opinion, to show that the prop8 law is discriminatory, that the people it discriminates against do suffer genuine harm, and that in fact it also harms the legitimate interests of the state, both economically and socially, and that there is no rational reason for this to occur other than animus against gay people. As there is no rational reason for the prop 8 law, they say, it should be overturned.

    They have also presented expert evidence that suggests that G&L people meet the criteria that make them a suspect group, so the state then must show compelling reasons why the anti-s-s law must remain.

    These reasons include a long history of discrimination and worse, even murder and other hate crimes, that gayness is an immutable characteristic (you can't turn gay people straight) and that G&L people have little real political power to get their grievances redressed…

    The defendant-intervenors have alleged that not only do the defandants suffer no harm, but that reinstating s-s marriage will do great harm to scociety and the state by harming "traditional marriage" and above all by harming children.

    And they dispute that G&L people can be considered a suspect group, saying that gayness can be cured, that discrimination isn't all that bad, that gay people do have a lot of political power…

    The elephant in the room is religion. On the one hand, it is common knowledge that the widespread animus against G&L people is largely rooted in religious prohibitions against homosexuality; on the other, it would be unwise for the plaintiffs to be seen as anti-religion. Religion is rather popular, especially among the justices of the Supreme Court, to which it is very likely that Mr Walker's verdict will be appealed.

    On the other, that makes life even more awkward for the defence, as if they admit their opposition to s-s marriage (and their animus against gay people) ultimately arises from homosexuality being forbidden by God they at once run afoul of the First Amendment of the US constitution, which forbids enshrining religious morality in law.

    And that, I think, is why their performance has been less than stellar — they've had to pussy-foot around the cornerstone of their case. Tam Hak-Shing's remark that s-s marriage must be forbidden or else the country will "fall into the hands of Satan" was an extraordinary thing to hear in an American court of law. No wonder they tried to keep him off the stand.

    I don't think they are deliberately throwing the game. Once they have to leave God out of it their case is hollow.

    Anyway, I think Mr Walker will find for the plaintiffs and overturn California's Proposition 8 law. And that he will go to great pains to write a bullet-proof judgment.

    But nice as it would be if he made sexual orientation a suspect class, it won't surprise me if he finds rational-basis sufficient.

    * * * * * * * *
    Sorry to go on at such length. As Pliny the Elder once said, "If I had more time I could have written a shorter letter."

  • 160. Marlene Bomer  |  January 27, 2010 at 11:34 pm

    Roger — The courts haven't had any problem taking religion to task when it violates the Establishment Clause, which both Loving v Virginia and DOMA does.

  • 161. JC  |  January 28, 2010 at 2:42 am

    Sorry for too brief reply but CA SC decision was NOT based on what you say. SC had already ruled that marriage was our right. DP had nothing to do with upholding 8. Rather our team tried to claim that the initiative was brought improperly (amendment vs revision). Very important distinction.

  • 162. Roger  |  January 28, 2010 at 8:53 am

    I stand corrected, though the media here in Australia reported that the the CA court held that whether the no s-s marriage insertion into the CA constitution was an amendment or a revision, it was fair in any case, as all it did was reserve the designation "marriage' to the opposite-sex version of what was effectively the same thing, hence no discrimination. That struck me as a bit odd, as the same court had held shortly before that there was a significant difference between Domestic Partnerships and marriage.

    And the defendants in the present case did try the Oh but they're just the same anyway" argument several times in cross-examination.

    * * * * * * *
    I should add that when I say "the media" my news source of choice is the (publically-funded) Australian Broadcasting Corporation, known derisively as the Gay B C in conservative circles.

    We are actually a long way ahead of the US (or most of it) in this business. The constitutional position is simpler of course — the Oz (federal) constitution differing from the US one in that powers not already reserved to the States (there are only six of them) under their constitutions revert by default to the Commonweatth.

    One of those is the regulation of marriage, and the governing document is the Commonweath Marriage Act, which was amended by the Howard government in 2004 to insert the "only one man, one woman" business.

    But in 2008 the present (Labor) government amended a whole heap of laws and regulations to fulfill an election promise that it would remove all discrimination in Commonweath law against gay people, including couples.

    They've stopped short of amending the Marriage Act, but "registered domestic partnerships" do now give effectively the same rights as marriage. (The notable exception is adoption, a State matter.)

    But s-s marriage does have broad public support, 60% in favour according to the latest polls, and the Labor Party is coming around to making its introduction Party policy. Marriage will come, it's only a matter of time.

    Thankfully, we are the most secular society of all the Western democracies — some say the most secular on earth — with "no religion" equal-second as the most widely held religion (with Anglicanism, and not far behind Roman Catholicism) and the fastest-growing one. We do have a religious right, but they have little influence and there is very little chance of anti-gay amendments to the constitution being proposed and none of their passing.

  • 163. Roger  |  January 27, 2010 at 10:23 pm


    "The defendant-intervenors have alleged that not only do the defendants suffer no harm…."
    should of course read
    ."… allege that not only do the plaintiffs suffer no harm…"

    My apolgies.

  • 164. Lee  |  January 28, 2010 at 12:12 am

    Tam made me laugh. I might have voted for him. XD


  • 165. Ann Catherine  |  January 29, 2010 at 2:51 am

    When do the criminal charges get filed against these two and the attorneys who put them up to this scam? If they are only repeating back to the courtroom what the attorney's gave them to say, it's illegal to do that and all of them should be prosecuted for the sham.

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