The Federal Prop. 8 Trial / Gay Marriage Catch-All

Seth wrote:
bnpederson wrote:
Bloo Driver wrote:

Incidentally, the anti-Prop8 forces seem to have picked up some really unlikely buddies.

Gotta rebel against daddy somehow.

Actually that's John McCain's wife who is now supporting anti-Prop8 messages. That's a pretty huge deal -- his daughter Meghan has been against prop8 for a long time.

Also I am not sure if I should be filled with revulsion, horror, pity, or what for Mr. Tam.

I am filled with pity. Pity that, in a world where the information is out there for the taking, where people can no longer hide information, that people continue to stick their heads in the sand and ignore it.

Phoenix Rev wrote:

Boies asks Tam if he knows American history and how Asians were once not allowed to marry who they wishes. Tam says yes.

Boies ends his re-direct.

End of Day 8.

Damn. That's powerful.

Phoenix Rev wrote:

He says he has no documentation to prove he wasn't involved with the groups, and says, "I am Chinese and didn't know I would have to face a lawyer one day to talk about this."

If the defense had hired the unfrozen caveman lawyer these two would have had an impenetrable defense to any and all questions.

After reading the summaries of Tam's testimony I totally see why he was afraid of physical violence. Because his own side probably hates him so much that they're going to take him out back and teach him a lesson.

ThatGuy42 wrote:

After reading the summaries of Tam's testimony I totally see why he was afraid of physical violence. Because his own side probably hates him so much that they're going to take him out back and teach him a lesson.

It is my closely-held belief that stupidity should be painful.

Day 9 –

Part 48 – Testimony of Dr. Gregory Hererk
Dr. Hererk is a professor of social psychology at UC-Davis. He studies the attitudes of straight people toward gay people and attitudes toward HIV.

Hererk has a long back and forth with the plaintiff’s attorney about the nature of sexual orientation including how it is viewed by psychology and psychiatry today. He says he defines sexual orientation as a term used to describe intense sexual attraction to men by men and to women by women as well as patterns of identification and behavior.

Hererk gives the history of how homosexuality was perceived and states that prior to the 1970s, homosexuality was considered a mental illness based on conjecture and hearsay, noting there was no research on sexual identity or orientation. He says that research in that area led to the changes in the 70s which removed homosexuality from the list of “mental disorders” by various groups.

He is asked about reparative therapy and says that every empirical study that has been done says that it is never successful and leads to damage to the person. He says that every study that followed up with persons who underwent the therapy reported no significant change in their attraction to people of the same gender. He states that people in the therapy will often act out the life of a heterosexual, but they still have concrete attractions to people of the same sex.

Hererk is asked about marriage vs. DPs in CA. . He says they grant the same rights, but there is more than just a difference in the name. He says that most people are willing to grant gays and lesbians DPs, but not marriage and says that shows there is more going on than just a difference of nomenclature. He says that people in marriages there are social barriers to dissolution of the relationship that isn’t there with DPs or CUs. Hererk notes that when there was a change in the law regarding how CUs are viewed, CA sent out a letter to everyone in a CU or DP and said the couples may want to consider terminating the partnership. He says that a change in tax law or the like would never lead to the state sending a letter to married couples stating that they should consider divorce.

Hererk talks about the stigma of being gay or lesbian and says that Prop. 8 is a part of the structural stigma.

Hererk talks about a study he did that surveyed gay people and whether or not they felt they chose their sexual orientation. 87% of gay men and 79% of lesbians said they had no or little choice in the matter. He says he doesn’t have any data, but theorizes the response from heterosexuals would be about the same.

Part 49 – Cross Examination of Dr. Hererk
Hererk is asked for his definition of sexual orientation. He repeats what he said earlier. Prop. 8 attorney asks about the difference between social and personal identity. Hererk gives an explanation. He says some gays may not wish to be part of the gay community.

Hererk says that sexuality is on a continuum. He is asked about gays being gay but not acting on the attraction. Hererk says that is true, but is also true about straight people as well. Attorney asks if some people engage in same-sex sex but never identify themselves as gay or bisexual. Hererk says that does happen.

There is a protracted discussion between the attorney and Hererk about identity as gay, bi or straight.

Hererk is asked about the work of Badgett. Attorney reads one small paragraph about sexual identity and asks Hererk if he agrees. Hererk says he can’t answer the question because he needs to see the paragraph in context. Attorney quotes Badgett as saying that there has been “heated theoretical debate” over the definition of sexuality. Hererk is asked if he agrees. He says he can’t comment unless he reads Badgett’s book.

Hererk is asked if someone who has sex with the same number of people from both genders would be considered heterosexual. Hererk says it depends on the number because have sex once with a male and once with a female could mean a variety of things.

Attorney for Prop. 8 gives various articles to Hererk and asks about them when they mention there are varying degrees of sexuality. Attorney is trying to point out that there really is no firm definition of what it means to be gay or bisexual and gay people in particular vary widely in how they identify themselves.

(Note: this is a concerted effort to show that there is not one firm definition of homosexuality and that because of that, you can’t really have same-sex marriage since you can’t define “same sex.”)

The questioning of Hererk on study after study goes on for several hours. I won't list each study here, but the studies all have phrases in them such as "the fluidity of sexual identity" and the like. The Prop. 8 side wants to demonstrate that since sexual identity is fluid, you can't really have gay marriage since it really isn't "gay" marriage. (This begs the question, if sexual identity is, in fact, fluid, why do straight people get to get married?)

Attorney from Prop. 8 then introduces a letter from Sigmund Freud. This is followed by the peppering of Hererk about whether or not a person can change their sexual orientation through reparative therapy. Hererk says that every study done says the therapy is ineffective. Prop. 8 attorney then asks if it is impossible to change from gay to straight. Hererk says someone somewhere may have changed but says that type of therapy is harmful. Attorney then reads the letter from Freud which says that analysis can make a woman's son change from gay to straight. Hererk looks at the letter and then reads the sentence after where Freud says that whether or not the conversion is successful, the important thing is happiness and peace and if the son is happy being gay, so be it.

Attorney returns to the citing of articles about the fluidity of sexual identity.

Attorney asks if hate crimes are illegal in CA. Hererk says, "I believe crime is illegal in California" which causes the entire courtroom and Judge Walker to burst into laughter.

Part 50 - Re-Direct of Dr. Hererk
Plaintiffs' attorney asks for clarification on some answers and the re-direct and all of Hererk's testimony boils down to this:

Attorney: If two women want to get married, is it a reasonable assumption that they are lesbian?
Hererk: Yes.
Attorney: If two men want to get married, is it a reasonable assumption that they are gay?
Hererk: Yes.

End of testimony of Dr. Hererk and end of the trial for the day.

Note: Judge Walker says there will be a break in the trial between the resting of counsel and the closing arguments so Walker can read the evidence that has been submitted. Estimates are about 2-3 weeks.

Phoenix Rev wrote:

(Note: this is a concerted effort to show that there is not one firm definition of homosexuality and that because of that, you can’t really have same-sex marriage since you can’t define “same sex.”)

Any decent lawyer could turn this back on the defense in a heartbeat. If you can't define homosexuality, then the same logic would obliterate the meaning of heterosexuality, thus rendering any delineation between what sex should marry what sex completely worthless.

Bloo Driver wrote:
Phoenix Rev wrote:

(Note: this is a concerted effort to show that there is not one firm definition of homosexuality and that because of that, you can’t really have same-sex marriage since you can’t define “same sex.”)

Any decent lawyer could turn this back on the defense in a heartbeat. If you can't define homosexuality, then the same logic would obliterate the meaning of heterosexuality, thus rendering any delineation between what sex should marry what sex completely worthless.

I don't see how that really matters anyways, since any form of legal same-sex marriage would have its own definition of homosexuality. Opposite-sex marriage already has its own restrictions (e.g. children or blood relatives can't get married, regardless of whether they self-identify as a heterosexual couple), so I don't see why same-sex marriage would be any different.

Besides, the issue isn't heterosexual marriage vs. homosexual marriage, it's same-sex marriage vs. opposite sex marriage. As the Prop 8 guys love to point out, a gay man and a lesbian can already get married to each other, and that's sure as hell not a heterosexual marriage.

And again, who you find attractive or who satisfy's you sexually is completely a separate issue from marriage. Many, not most, not even half, of Marriages in the US are between people who are physically and emotionally attracted to eachother. There is infidelity, total breakdown of a marriage, and then people move on to another partner. Men, women, gay, straight does not matter. If marriage was between sexually and emotionally satisfied people in the US, we would not have the high divorce rate, or rates of infidelity that we do.

muttonchop wrote:

I don't see how that really matters anyways...

Besides, the issue isn't heterosexual marriage vs. homosexual marriage...

I don't disagree with that. This is obviously a shell game tactic, I was just pointing out it was a pretty bad shell game tactic.

Bloo Driver wrote:
muttonchop wrote:

I don't see how that really matters anyways...

Besides, the issue isn't heterosexual marriage vs. homosexual marriage...

I don't disagree with that. This is obviously a shell game tactic, I was just pointing out it was a pretty bad shell game tactic.

I wasn't trying to argue with your point either. Flipping it around to the definition of heterosexuality is a great idea.

Today the trial reviewed several videos in regards to rallies and ads for Prop 8 and ... well, in a word, it was damning. Some of the worst of it is at the Prop 8 Trial Tracker site.

Comparing gay marriage to 9/11? Classy.

Yeah. It was disgusting. Apparently, after Massachusetts allowed gay marriage and then had to allow a man to marry his horse.

I so have some beachfront property in Phoenix that I was to sell those people because they would buy it in a heartbeat.

I admit, though, that one of the commenters on that thread had me snarfing water after that comment was made in court: something along the lines of "Well, of course, after two men get married, what's next? The union between a man and a horse, a woman and a rock, a plane and a building..."

Which, so wrong, but black humor is sometimes necessary to get past the idiocy.

Man, the parallels between the testimony at this trial and the testimony of the Dover intelligent design trial are scary (in a good way, considering the outcome of that trial).

Ouch. Looks like that did a poor job vetting the guy who's being cross-examined. Also, "Good God, Man!" needs to be on a t-shirt. Immediately.

Day 10 –

Part 51 – Procedural Motions
The morning starts with the plaintiffs’ attorney wanting to enter a large number of documents into evidence. The defense objects on various items and demands that Mr. Frank Shubert, a Prop. 8 supporter, be allowed to testify. The plaintiffs object as Shubert wasn’t on the witness list, but defense says they want Shubert to possibly testify about the documents being admitted by the plaintiffs.

At one point, the plaintiffs want to admit a score of documents from ProtectMarriage.com, but the defense objects saying that the documents aren’t from PM.com. Plaintiffs say they have copyrights on them claiming they are from PM.com and some of the video evidence was on the PM.com website. Defense tries to make the case that the videos on the website were not necessarily the product of PM.com. Judge Walker says he wants to see the evidence tagged by the plaintiffs for review.

A six-minute segment of the video is played. In it, an interviewer asks people what they think of gay marriage. One says it will lead to the destruction of society. One says it undermines straight marriage. Another says that she is black and can’t change her skin colors, but gay can change their “deviant behavior.” Another says that allowing gay marriage is another 9/11. Yet another says that if homosexuality is not chosen, then pedophiles would have to be allowed to marry, as would mothers and sons and men who wanted to marry horses.

Plaintiffs want to admit an email exchange between Ron Prentice and Jim Garlow showing that after the campaign, they wanted to keep any of their material from public view. Defense objects. Judge Walker allows.

Plaintiffs show a video segment where Prentice is addressing 2500 pastors and thanking them for their support, and then gives a laundry list of who is in their court (LDS, Catholic Church, Focus on the Family). He asks the pastors to canvass and if they meet people who say they are voting against Prop. 8, immediately tell them how children will be forced to learn about gay marriage in schools.

Plaintiffs produce a flyer that says that the goal of the gay community is not marriage, but the annihilation of marriage. Plaintiffs show a video from the Family Research Council stating that dads have intellectual differences from moms and how children can’t learn to be leaders unless they have a dad around.

Additional documents are admitted.

Part 52 – Testimony of Prof. Kenneth Miller
Miller is a professor at Claremont McKenna and a visiting professor at UC San Francisco with a focus on political science. He says he has written about CA politics, the gay and lesbian community in politics, and direct democracy. However, under voir dire Miller admits that he doesn’t know much about gay and lesbian political power except from the 1970s on. Plaintiffs object to him being noted as an expert on gay political power and Judge Walker says their objection is noted but Miller can continue. However, Judge Walker says he will keep in mind Millers limitations.

Defense counsel asks a series of questions on the political power of gays and lesbians. Miller says the gay community was able to raise $43 million for No on 8 campaign which demonstrates they have political power. There is a prolonged back and forth about how many Democrats hold political office in CA. He notes how many progressive politicians and groups worked to defeat Prop. 8.

After lunch, Miller is asked about the role of progressive churches in trying to defeat Prop. 8. Miller says they were active, but can’t cite statistics. He is asked how many progressive churches ordain gays and lesbians. Miller doesn’t know. (Oy. This is embarrassing for an “expert.”) Miller is asked about the role of gay political power in legislation in CA as proof that gays have power. He says it does.

Miller is asked about Prop. 22 and Prop.8 and he says that gays and lesbians were unsuccessful in direct democracy, but that doesn’t mean the voters stripped away their civil rights. (Oh, jeez.)

Part 53 - Cross Examination of Prof. Miller
Boies asks Miller what he knows about anti-discrimination laws for gays and lesbians. Miller says he knows a lot. Boies puts him to the test. Boies asks various questions about pro gay and lesbian laws on the books. Miller says he doesn't know. Boies asks about his deposition and if those same questions were asked. Miller says yes. Boies notes the deposition was six weeks ago and asks if Miller did any research regarding the questions he didn't know. Miller says some.

Boies asks Miller about the rebuttal report he filed after his deposition, specifically, did Miller do his own research. Miller hedges. Boies hands him the index of the rebuttal and asks Miller which items he researched himself. Miller says this will take time. Twenty minutes later, he had marked the items he added on his own to the rebuttal as opposed to those done by his counsel.

Boies asks Miller how many of the 10 most populous states in the U.S. have anti-discrimination laws for gays and lesbians. Miller says he doesn't know. (But, he claims he's an expert on gay and lesbian issues since the 70s.)

Boies asks Miller what gay bashing is. Miller says it is insults and sometimes violence. Boies reads Miller his deposition answer where Miller says gay bashing is only insults. Boies reads again from Miller's deposition including a question about books and articles Miller has read on gay bashing. Miller says he can't name any.

Boies asks Miller if he is aware of any "official discrimination" of gays and lesbians on a federal level. Miller says DADT and DOMA. (That is probably something Prop. 8 counsel did NOT want their witness to say.)

Miller is asked if he did any comparisons at all between gays and African Americans vis-a-vis political power. Miller says he never has done any comparisons.

Miller is asked about his research on initiatives. Miller is quoted in an article that initiative undermine legislatures. Miller says that is sometimes the case. Miller is asked how the CA initiative process works and how a constitutional amendment initiative is pulled back. Miller says only by another initiative. Boies asks him when was the last time that happened in CA. Miller says, after evading the question several times, that he doesn't know.

Miller is asked a lot of questions about states that bar SSM and then Boies asks him about whether or not Prop. 8 is discriminatory. Here is the paraphrased exchange:

Boies (B): Prof. Kane talks about hyper-amendability of constitution. He cites Prop. 14 and 105. What are they?

Miller (M): 14 to which he refers was passed in 1954.

B: And that was to take equal housing rights away from blacks.

M: Kane says that unlike 8, 105 applied to entire population. And unlike 8, 14 found that discrimination was at base, but 8 is on its face.

B: Do you agree that discrimination is on its face with Prop. 8? 8? 8?

M: No. It defines marriage as between man and woman.

B: You’ve said that 8 treats gays and lesbians differently. As a political scientist, is it discrimination?

M: Differently, but not necessarily in the law.

B: Not as lawyer, but as political scientist, is there discrimination?

M: Makes a distinction between people so that under that definition is it discrimination

B: Just to tie that down, this is discrimination?

M: By that definition, yes.

B: Kane and Estridge say that this is discrimination. Do you agree?

M: I don’t agree with them.

B: They say that discrimination of Prop. 8 is on the face of Prop. 8. You told me that Prop.8 treats people differently and that is discrimination.

M: It creates a distinction between people.

B: We’re going backwards. I asked you if the definition you used is the definition that most political scientists use. You said you do not know.

M: Dictionary definition. Very common in scholarship to have different definitions.

B: Is there a definition that you have that would make this not discrimination.

M: Let me try to move this forward. It is my view that Prop. 8 makes distinction, but whether it is invidious discrimination or not, I don’t agree.

B: Prof. Kane and Estridge do not refer to invidious.

M: I think it’s implied.

Boies then asks Miller about the claim by Prop. 8 that teaching SSM to children is harmful. He asks if there is a basis in fact for that claim. Miller says no, but says that wasn't the only reason why people would vote for Prop. 8.

End of testimony for Day 10.

Hell of a job reporting on all of this Rev. Thanks again.

... I have no idea what to think after that, except: "Good God, Man!"
Apparently Miller's expertise is limited to his own opinions. He seemed shaky even about his own work.

Boies strikes me as very, very good at his job.

I'm coming in late here, but I just got through the Dr. Tam stuff.

Hooooooooly sh*t.

Sonicator wrote:

A less important (and more personal niggle): Dr Blankenhorn

his degree is a Masters in History

Eh? Last time I checked, you don't get the "Dr" title for a Masters thesis. PhD, MD, etc., not an MA.

Sorry, Sonicator. Several of the blog feeds had him listed as Dr. and I didn't put 2 and 2 together. I will edit to clarify, although he may have an honorary degree somewhere.

Still, I will make the change.

Day 11 -

Part 54 - Continuation of Cross Examination of Prof. Miller
Boies asks Miller about his statements on groups that supported the No on 8 campaign. He asks about the labor unions. Miller says the unions did support No on 8, but admits that he doesn’t know how many actual union members votes against it. Boies asks about professional organizations like the American Medical Association and the American Bar Association. Miller says he is sure they supported No on 8 but, again, doesn’t know if a majority of the individual members were against Prop. 8

Boies begins to ask Miller about discrimination in the workplace. Miller says that there is discrimination based on sexual orientation but he hasn’t studied it. Boies shows some documents from groups noting work and school place bullying. Miller says he doesn’t know much about it because he hasn’t studied it. Boies asks Miller about the stereotype that gays molest children. Miller says he knows that stereotype but doesn’t know how pervasive it is because he hasn’t studied it. Miller is asked if some people voted for Prop. 8 based on stereotypes. Miller says yes.

Boies asks Miller about his book and the initiative process and whether or not initiative that directly affect minority groups can easily tap into an anti-minority sentiment. At this point, someone in the courtroom starts yelling anti-gay epithets and is escorted from the courtroom. Miller is asks about his statements and Miller says if he had to rewrite the book he would recast what he wrote. Miller is asked about a part in his book where he says that the initiative process bypasses the checks and balances of a representative democracy and disproportionately target minorities and mentions how this happened with Prop. 22. Miller says that he doesn’t believe that statement now. (How convenient.)

Miller is asked about which initiatives get challenged most in court. Miller says those involving minority rights. He is asked what prevents initiatives from undermining minority rights and Miller says the courts. Miller says there is a difference between protecting rights and expanding rights. Miller is asked if gays were allowed to marry before Prop. 8. Miller tries to dodge the question but he says yes they did have the right to marry.

Miller is asked about a statement he wrote: “When courts review initiatives, they need to be more vigilant, not less. ... Courts are the only institutional filter, the check of the first and last resort.” Miller says he did not agree with all of that when he wrote it. This brings laughs from the courtroom.

Miller is asked about a statement he made in a paper: “Once the majority gives its preference in initiative, neither state courts nor the legislature can change it. Only federal courts can.” He says he agreed with the statement at the time he wrote it but hedges on whether he believes it now.

Boies asks Miller about federal hate crimes bill. Boies has to remind him that the bill was named after not only Matthew Shepard but also James Byrd Jr. Miller says African-Americans were part of a coalition that supported the bill, but that there was already hate crimes legislation for African-Americans on the books. Boies asks if it isn’t better that we have this legislation than not. Miller says yes.

Boies asks if Miller is familiar with Megan’s Law. Miller says yes. Boies asks if passage of that law showed the political power of little girls. Miller says no, but the power of those who care about them. (WOW! In one sentence, Miller just undermined the defense.) Boies asks if we aren’t better off having this hate crimes legislation than not. Miller again says yes.

Miller is asked about religious people voting for Prop. 8. Miller says there were many religious people who voted against it and a religious coalition that opposed Prop. 8. Miller mentions the CA Council of Churches. Boies asks if all of the members of the Council of Churches opposed Prop. 8 and Miller says he doesn’t know. Boies asks how many people the CA Council of Churches represents and Miller says about 1.5 million. Miller is asked how many people are Catholic in CA and after some discussion the number of 18 million is agreed to. (18 million vs. 1.5 million!)

Boies asks Miller if Catholics, Evangelicals and Orthodox Jews are opposed to gay marriage. Miller agrees they are. Miller is asked if he did research on which religious groups supported or opposed Prop. 8. Miller says he did not. Miller is asked if one of the members of the CA Council of Churches, the Orthodox Church, opposed Prop. 8. Miller says he doesn’t know. (They do not, btw.)

After significant back and forth about the effects of religiosity on the vote on Prop. 8, Miller admits that the religious background of the voters was a critical factor.

Boies returns to the discussion from yesterday regarding the materials Miller submitted in his rebuttal. Boies had asked him to circle the number of items he actually contributed as opposed to those provided by the Prop. 8 counsel and pro-Prop. 8 witnesses. Miller says he only supplied less than 50% of the materials.

Boies asks Miller if it is undesirable for religious majorities to impose their views on minorities. Miller says, as a general rule, that is correct. Miller also concedes that it is not good for society.

Part 55 - Re-Direct of Prof. Miller
Attorney Thompson asks Miller about a document by Dr. Segura that says that 74% of gays and lesbians don't want to get married. Miller says that 2/3rds of all Californians have either a neutral or positive view of gays. Miller says that he has thought long and hard about marriage and thinks it is the big exception to all of his writings, that the people should come to a consensus about what the definition is and not have the courts interfere with that consensus.

Thompson finishes his testimony, but Judge Walker asks questions of Miller regarding the role of the courts in overturning initiatives. Miller jumps all over the place before admitting that it is always appropriate for the judiciary to intervene when it comes to initiatives involving the rights of citizens.

Part 56 - Testimoney of David Blankenhorn
Blankenhorn has a degree in history from the University of Warwick (MA). He says he has written numerous articles, several books, served on commissions and panels. On voir dire, he says his degree is a Masters in History and his thesis was on Comparative Labor (his thesis was about two cabinet-making unions). He says he has never had any peer-reviewed article but his book on fatherless America was peer-reviewed. He says he has never taught a class at a college or university and, in fact, has never taught at all. He says he has never testified about SSM in any trial before as a witness. Boies asks that he not be admitted as an expert witness, but Judge Walker says that if this was a jury trial, Blankenhorn would be out, but since it is a bench trial, he will weigh the evidence from Blankenhorn accordingly.

Blankenhorn says he has read books by Levi Strauss and others and based on that he came to the conclusion that the focal point of marriage is procreation. He says that is the common belief in the field of marriage and family. He says he has read lots of books that claim that marriage is "adult centric" but completely disagrees with that conclusion.

Blankenhorn says that marriage is not a product of religion but a natural evolution of the propagation of the species. He says that marriage is important to religious people but marriage is not, itself, religious. Further, he says that homophobia exists, but it has nothing to do with SSM. He says he has tried to find any link between homophobia and the prohibition of gay people getting married and he can't find one shred of evidence to that fact.

Blankenhorn talks about the virtues of a child growing up with his or her biological parents. Says children not in that scenario are at risk and are missing out on the joys of a stable family. He talks about how marriage is becoming deinstitutionalized and says all the books he has read from scholars points to that conclusion. (Alas, Blankenhorn is not a scholar.) He says he can't say for certain that deinsitutionalization of marriage will destroy marriage, but we shouldn't take chances.

Blankenhorn says flat out that if gays are allowed to marry and straights keep devaluing marriage, the result is more divorce.

Blankenhorn says that when gay marriage was allowed in Canada, parents went from being "natural parents" to being "legal parents." That, he states, devalues the role of biological parents. He says that allowing gay marriage sets the tone for accommodating other marriages like polygamous ones.

He says he might accept CUs and DPs, but has a great fear that any legal recognition of gay relationships will devalue and weaken marriage. But, if push came to shove, he could live with CUs and DPs, but he wouldn't be thrilled with it. (Dear, Dr. Blankenhorn, I will put my marriage to Rubb Ed up against yours any day of the week and twice on Sundays.)

Part 57 - Cross Examination of Blankenhorn
Boies questions Blankenhorn about his writings. Blankenhorn says that adoptive parents can be just as good as biological parents. Boies asks if Blankenhorn is aware of any study that shows that the children of gay parents have worse outcomes than straight parents. Blankenhorn says no.

Blankenhorn is asked if straight couples entering into DPs or CUs deinstitutionalizes marriage. He says yes. What about straight couples over the age of 62? Yes, it deinstitutionalizes.

Then there is this exchange:

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

Blankenhorn: Of course!

Boies: Hundreds of thousands?

Blankenhorn: I don’t know.

Boies: Did you attempt to find out how many?

Blankenhorn: Yes.

Boies: Approximately how many?

Blankenhorn: I don’t know.

Blankenhorn: I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

He is asked if the scholars he has cited believe that allowing SSM will cause a decrease in heterosexual marriage. Blakenhorn goes out of his way to avoid the question and ticks off the judge. He is asked to name the scholars who say that allowing gay marriage will cause a decrease in heterosexual marriage. He starts playing word games and Judge Walker becomes exasperated and stops paying attention. He finally names two scholars and says he is pretty sure they would say that SSM causes a decline in straight marriage. Boies jumps down his throat and demands he say what they have said, not what they would say if they were in the courtroom.

Blankenhorn then drops this on the court:

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.

(Why is this man on the stand? Who the hell is this guy? Does anyone think he has any shred of credibility?)

Blankenhorn is then asked about all of his scholarly sources and if they agree that SSM will deinstitutionalize marriage. Blankenhorn admits that only two of some 10 scholars even discuss that issue as the others say nothing about SSM. However, he can't cite exactly where those other two says there is a threat to marriage.

End of testimony for Day 11.

Phoenix Rev wrote:

Blankenhorn then drops this on the court:

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.

Anyone who'd studied a field for 20 years would have learned the importance of citing sources the first time that they published an article!

He says he has never had any peer-reviewed article

Oh. Right. /facepalm

For the non-academics out there, most people get at least 1-2 peer reviewed articles by the end of their doctorate.

Which brings up a less important (and more personal niggle): Dr Blankenhorn

his degree is a Masters in History

Eh? Last time I checked, you don't get the "Dr" title for a Masters thesis. PhD, MD, etc., not an MA.

Next up, a real estate agent will talk about the impact of gay marriage on house sales. He's an expert since he's been in real estate for 20 years, even though he's never actually sold a house. (ok, it's not quite that bad, but it's close.) PR said it best:

(Why is this man on the stand? Who the hell is this guy? Does anyone think he has any shred of credibility?)

Edit: My sources of information on the trial have all been very pro-SSM, and I'd be interested in seeing the coverage from opposite perspective. Fun as it is to point and laugh at these guys, has anyone seen any (intelligent) discussion of the case from the other side?

Phoenix Rev wrote:
Sonicator wrote:

A less important (and more personal niggle): Dr Blankenhorn

his degree is a Masters in History

Eh? Last time I checked, you don't get the "Dr" title for a Masters thesis. PhD, MD, etc., not an MA.

Sorry, Sonicator. Several of the blog feeds had him listed as Dr. and I didn't put 2 and 2 together. I will edit to clarify, although he may have an honorary degree somewhere.

Still, I will make the change.

No worries - I'm just touchy since I'm in the throes of writing up my phd thesis at the moment.

Phoenix Rev wrote:

He says he has no documentation to prove he wasn't involved with the groups, and says, "I am Chinese and didn't know I would have to face a lawyer one day to talk about this."

Phoenix Rev wrote:
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.

Facts? Accountability? You mean we can't just make sh*t up and people will believe us?

After reading today's summary, I was shooting the breeze with our company's legal counsel and I started talking about this trial. I asked him if he was following it, and he said only a little, since the trial didn't matter really. I was a little surprised by his flippant tone (he's usually pretty clinical and professional about these sorts of things) and asked him why he was being so dismissive. He pointed out to me that I had spent ten minutes detailing just how Goddamned awful the defense was on this case and that they were being effectively being completely overrun at every turn, including witnesses that are faulty at best. He then reminded me of something I had said awhile ago, which was that win or lose, this was probably on its way to the Supreme Court, an assessment he agreed with. With all that in mind, the current defense team is pretty much just throwing aimless punches at the air so they don't look like they've given up, but they have in fact given up. He sees little point in them wasting time and research efforts on this trial, instead feeling out the Plantiffs and developing a better case for the SC.

It seemed a little too courtroom-thriller to me, but it also made sense. It's a little disturbing to think that maybe at this point the defense looks so pathetic simply because they don't even care about this trial anymore.

It does make sense, Bloo, and it isn't something that I haven't thought of as well. Mostly because the defense is a train wreck here.

That being said, I think it is a huge gamble for the defense to shrug their shoulders and wait for the Supreme Court to grant cert.

While many would think the current court might uphold Prop. 8, I don't see the current make up of the court as anything other than a big question mark. Here is what we have:

Prop. 8 Unconstitutional: Stevens, Ginsburg, Breyer
Prop. 8 Constitutional: Scalia, Thomas
Unknown: Sotomayor, Alito, Roberts, Kennedy

Now I know the conventional wisdom is that Alito and Roberts would uphold Prop. 8 and Sotomayor would strike it down leaving Kennedy as the deciding vote. However, there are just too many unknowns and odd factors here, such as the fact that Ted Olson will argue the case in front of the SCOTUS and that we really don't know Alito's or Robert's views on gay marriage.

Of course, we are also forgetting the fact that it may be sometime before the case would end up at the door of the Supreme Court and by that time, Scalia, Thomas, Stevens or Ginsburg might die and cause the court to reshuffle.

I still think it is a big gamble to base your case on the make up of the court some 1-2 years down the line.

I hope it gets beaten down in the end, but there's a curious academic part of me that hopes that THIS Supreme Court hears the case. If they are as Strict Constructionist as many say they are, then surely they can't find "one man, one woman" in the Constitution. It will be a test of the right of the SCOTUS's intellectual integrity.