Lots of Argument, No Proof

SAN FRANCISCO – In the waning hours of the historic trial challenging the constitutionality of a state ban on same-sex marriage, the federal courtroom in San Francisco felt a little like a boxing arena.

After Yes on 8 attorney Charles Cooper massaged some testimony from his second, final, and reputedly best expert witness, David Blankenhorn, he sent him into the ring Tuesday with a man who has been dubbed as one of the best trial lawyers in the country, David Boies.

Boies had just that morning finished his almost nine hours-long cross-examination of defense expert Kenneth Miller, a cross-examination in which Boies had thrown into question both Miller’s credibility and purpose as a witness. But while Miller was somewhat timid in his responses to Boies’ blistering inquisition, Blankenhorn was defiant and combative.

Boies went after Blankenhorn’s credibility immediately, noting that he apparently had only one peer-reviewed article to his credit: a thesis on a labor dispute between cabinetmaker unions in Britain.

Although Blankenhorn was being offered as an expert witness on how same-sex marriages are detrimental to heterosexual marriages and children, Boies noted that Blankenhorn’s education had been in history.

”You’ve never taught a course in college,” said Boies, ”and you have no degree in psychology, psychiatry, sociology, anthropology.…”

”No,” said Blankenhorn, interrupting.

”And in preparation for this testimony, did you undertake any scientific study of what effects permitting same-sex marriages have been in any jurisdiction where same-sex marriages have been permitted?” asked Boies.

”No,” said Blankenhorn. And that’s about when Blankenhorn began to resist Boies’ punches. Rather than answer the yes-or-no questions that Boies posed, Blankenhorn began to try and give explanations for his points of view. But clearly some damage had already been done and, when time came for Judge Vaughn Walker to decide whether Blankenhorn could be qualified as an expert witness, it was clear the judge had some hesitation.

Walker noted that the U.S. Supreme Court’s guidance on whether someone can be qualified as an expert witness requires that the expert have ”specialized skills as opposed to the insights of an intelligent layperson.”

”If this were a jury trial,” said Walker, the decision ”might be a close one. But I will permit [the witness] to testify and weigh the testimony in light of his qualifications.”

Blankenhorn, who founded an organization called the Institute of American Values, was on the witness stand to help the defenders of California’s same-sex marriage ban define a rational governmental purpose for Proposition 8. He said the purpose was to provide to children the optimal environment of two biological parents who are married to each other.

”Marriage can look very different in different places and times,” said Blankenhorn, during questioning by Yes on 8 counsel Cooper, but he said ”it’s always doing this thing – so this thing must be pretty important, fundamental, at the species level, and is critical to society’s success.”

When Cooper asked him to clarify what ”this thing” is, Blankenhorn said it was ”the need for a child to know and be known by the two people – the biological parents — who are also the social and legal parents.” Family forms that stray from that configuration, he said, are not ”child centric” families but ”adult centric” ones.

When Cooper asked him whether he could find any animosity towards gay people to explain opposition to same-sex marriage, Blankenhorn said no and emphasized that he personally regrets and deplores homophobia in society ”and wish it would go away.”

Blankenhorn said that, in his efforts ”to understand and wrestle with the evidence of why marriage evolved” the way it has, he found no evidence of any “animus toward gay and lesbian people or that hatefulness toward homosexual persons.”

“I’m not saying no such evidence exists,” said Blankenhorn. “If such evidence exists, I want to know it. But I’ve looked for it and cannot find it.”

Blankenhorn showed no signs of homophobia or dislike for gay people himself and spoke frequently of his ”conversations” with national Freedom to Marry director Evan Wolfson and his co-authorship with openly gay journalist Jonathan Rausch. Blankenhorn and Rausch co-authored an essay in the New York Times last fall, suggesting that opponents and proponents of marriage equality make a ”deal.” They proposed the federal government agree to recognize civil unions with a broadly stated exception that no religious institution need recognize these unions ”against their will.”

But Blankenhorn repeatedly butted heads with Boies during cross-examination as Boies elicited testimony to show that Blankenhorn knew of no scientific studies showing that a child with same-sex parents had any worse outcome than a child with two straight biological parents and that Blankenhorn had no evidence that allowing same-sex couples to marry did anything to affect the rate of heterosexual marriage or divorce.

Cross-examination resumes Wednesday morning and counsel on both sides have indicated to Judge Vaughn that they think they can wrap up the case by noon. Cooper also indicated to the judge that the defense team would not attempt to bring to the witness stand Frank Schubert, the paid campaign manager for Yes on 8 and on the referendum in Maine, which overturned that state’s marriage equality law last November.

Boies also wrapped up Tuesday his blistering cross-examination of the defense’s only other witness, professor Kenneth P. Miller.

Miller, who was on the stand both Monday and Tuesday, was called by the legal team defending the Yes on 8 campaign to explain how gays are a politically powerful minority. Should the judge agree with that assessment, the defense might need to demonstrate only a simple rational reason for having Proposition 8 treat gays differently from straight couples when it comes to marriage licenses.

Boies challenged Miller’s credentials as an expert on gay political power and challenged the simple logic and consistency of his views. Where Miller claimed gays benefited from the power gained from forming coalitions with a number of powerful groups — including organized labor — Boies confronted him with exit polls showing that 56 percent of households with a member of organized labor in them supported Proposition 8.

He asked Miller about a survey that found that 88 percent of adults would vote for a qualified woman candidate, 87 percent for a qualified Hispanic, 72 percent for a qualified Mormon, 57 percent for a candidate who had been married three times, but only 55 percent would vote for a qualified homosexual candidate.

”Does this tell you something about discrimination against homosexuals in this country,” asked Boies. ”Yes or no.”

”It’s a data point,” said Miller, clearly resisting giving testimony that disputed the defense team’s contention regarding power.

Miller, like Blankenhorn frequently resisted giving direct answers to Boies’ questions and that eventually provoked an indirect admonishment from Judge Walker. That came when Boies began questioning Miller on whether there is a generally accepted view by political scientists that it is ”undesirable” in this country for a religious majority to impose restrictions on a religious minority.

”In a general sense, that’s a principle that many political scientists would agree with,” said Miller, but he continued, suggesting that it might be argued that abolitionists had imposed their religious views on slaveholders, in early American history.

Boies seemed incredulous and pursued.

”And were slaveholders a minority that needed protection?” asked Boies.

Miller hesitated and squirmed; Boies pressed harder.

”You’re saying slaveholders may have had a religious basis for their views?” asked Boies.

Yes on 8 defense attorney David Thompson jumped up to object, but Judge Walker quickly shot him down.

”Counsel is attempting to inquire [as to] the witness’ comment,” said Walker. ”If the witness would respond directly to a question, he might not have to.”

Thompson tried to continue his objection, but Walker cut him off with a blunt, ”Overruled.”

Boies continued.

”As an expert in political science,” he said, ”is it not the generally held view by political scientists that it is not appropriate for a majority religion to impose its views on a religious minority?”

Miller rambled briefly in qualifying his remarks then conceded, ”probably a majority of political scientists would agree.”

Following Boies’ cross-examination, Judge Walker invited a representative from Attorney General Jerry Brown’s office to question Miller concerning the defense’s contention that the Attorney General’s office had used its power to help opponents of Proposition 8, including in the formation of the language of the measure. Apparently not satisfied by the exchange, Judge Walker jumped in.

”Can an attorney general do more than provide a neutral title and summary” of a ballot measure, asked the judge.

”In different states…” started Miller, but the judge cut him off.

”We’re talking about California,” he said.

”I’m not aware of any time when the attorney general has done more,” said Miller.

”That’s not the question,” bristled the judge. ”Can the attorney general do more” as a matter of authority, he asked.

Miller allowed that the attorney general could ”publically oppose” a measure, but the judge clearly saw that as yet another evasion of the question.

”So, you don’t know, that it?” quipped the judge.

The question of the attorney general’s role appears to be an important one for Judge Walker. On the opening day of the trial, he inquired of attorneys whether they thought the attorney general had the power to keep an unconstitutional measure off the ballot from the start.

Boies also questioned Miller about Miller’s statements suggesting that his views had changed over time about initiatives that target minorities. Boies had brought out a 2009 article in which Miller had stated that such initiatives actually undermine democracy.

On re-direct, defense attorney David Thompson gave Miller a chance to explain that his views had changed and he now has a ”more favorable view” of such initiatives. Miller said he now believes they ”can provide a check on judicial activism,” especially when courts are ”expanding rights beyond what the people want.”

”Are you saying that it is never appropriate for the judiciary to intervene in the initiative process?” asked Judge Walker.

”No,” said Miller.

”Then, when is it appropriate?” asked Walker.

”Whenever the initiative …violates…the federal constitution,” said Miller.

”And who makes that determination?” asked Walker.

”It’s a question,” said Miller, ”for the courts to decide.”

© 2010 by Keen News Service. All rights reserved.