January 27, 2010
The majority of the day was spent on finishing up the cross-examination of David Blankenhorn, an expert witness for the defendants. As he did yesterday, renowned attorney David Boies absolutely nailed the examination. Blankenhorn did nothing to help himself, fighting Boies’s yes-or-no questions at every turn even when Boies was simply laying a basic foundation with uncontroversial points. Blankenhorn’s defensive behavior verged on the histrionic, contrasting sharply with Boies’s calm, matter-of-fact approach. At one point, Judge Walker stepped in and instructed Blankenhorn to keep in mind that a fact-finder, meaning a judge or jury, can consider a witness’s demeanor when deciding how credible that witness is and how seriously to take his or her testimony. Although Judge Walker delivered it with great diplomacy and tact, this was a fairly sharp rebuke.
On cross, Boies established a couple of key points that gravely undermined Blankenhorn’s authority as an expert on marriage. First, Boies elicited testimony that Blankenhorn had not read many leading scholarly articles addressing the question of how society would be affected by allowing same-sex couples to marry. For example, of the dozens of articles cited in policy statements supporting marriage equality for same-sex couples by leading professional organizations, Blankenhorn admitted that he had read scarcely more than a handful. In contrast, all of the plaintiffs’ expert witnesses were demonstrably well-versed in the entire range of scholarly literature on the topics about which they testified.
Second, Boies elicited extensive testimony from Blankenhorn acknowledging that permitting same-sex couples to marry would “almost certainly” benefit those couples and their children. Blankenhorn also testified that the most important dimensions of marriage (as defined by Blankenhorn in one of his publications) are the same for same-sex and opposite-sex couples. In short, by the end of Blankenhorn’s cross, his own testimony had provided multiple powerful reasons to permit same-sex couples to marry, and his opposition to marriage equality seemed virtually inexplicable.
It has been an amazing two and a half weeks. This trial has been a truly historic moment for our community. It is the first time a federal court has heard, first hand, from real live witnesses, about the harm that the denial of marriage equality causes lesbians, gay men and their families every day. It’s also the first time a federal court has heard the arguments in favor of marriage equality presented live in court by an array of internationally renowned scholars who are truly experts in their respective fields.
What stands out the most after having seen all the witnesses on both sides is how overwhelmingly one-sided the evidence in this case turned out to be. The plaintiffs, represented by some of the most skilled attorneys in the country, laid out a well-crafted, meticulous case, backed by the testimony of half a dozen of the most respected historians, psychologists, economists, and political scientists who study marriage, sexual orientation, and child development. Using the Prop 8 proponents’ own outrageous and inflammatory words, ads, and emails, the plaintiffs powerfully demonstrated that Prop 8 was a direct product of hostility, fear-mongering, and demonization of lesbians and gay men. And through the deeply moving testimony of the plaintiffs and other members of our community, they proved beyond question that denying same-sex couples the right to marry causes great harm to LGBT people and their children.
Stacked up against this mountain of facts, scholarship, and science, the Prop 8 proponents – though represented by fine attorneys – were not able to come forward with a case of their own. Before trial, they dropped nearly every witness they had planned to present and relied entirely on two poorly qualified, ill-prepared expert witnesses, neither of whom was able to establish that banning same-sex couples from getting married has any rational or legitimate purpose relating to procreation, child rearing, tradition, or any of the other justifications that have been offered in the past in support of anti-gay discrimination. In fact, nearly all of the defendants’ experts agreed with the plaintiffs that marriage equality would benefit same-sex couples and their families in many real, tangible ways.
It should not have come as a surprise that the defense’s case turned out to be so weak. As our executive director Kate Kendell is fond of saying, the arguments against marriage equality have always been “all hat and no cattle.” This trial showed more powerfully than ever that there truly is no substance to the arguments of those who would deny equality to our families. It has been extremely gratifying to see those arguments aired out in public, before a smart, independent-minded judge, in a way that’s never been done before. It is a shame that the public was unable to see the trial in video, but the transcripts, available at http://www.equalrightsfoundation.org/our-work/hearing-transcripts/, are fascinating reading for anyone interested in learning more about this important chapter in our civil rights struggle.
Judge Walker will now take some time to review all the evidence that has been presented. The lawyers for both sides will return to court in a few weeks (on a date still to be determined) to present their closing arguments