Devil in the Details

SAN FRANCISCO — There is nothing like turning an opponent’s own words against him to both rile his emotions and destroy his position, and that was the work of attorney David Boies Wednesday morning.

Boies is one of the lead attorneys on a team challenging the constitutionality of California’s same-sex marriage ban in a U.S. district court here. And Wednesday was the twelfth and final day of the court proceeding in that case, Perry v. Schwarzenegger.

Boies’s mission was to tear down the claims by the pro-Proposition 8 supporters and, on this last day of the trial, he was finishing up his cross-examination of the second and final witness that attorneys defending the same-sex marriage ban brought to the court.

On the stand was David Blankenhorn, a man who clearly has a passion for reading, talking and writing about marriage. He founded the Institute of American Values, a private think tank, to do just that — with a particular focus on how same-sex marriage has an impact on heterosexual marriages.

But although Judge Vaughn Walker allowed the defense to put Blankenhorn on the stand as an ”expert witness,” Blankenhorn exhibited neither the depth of knowledge nor the experience that an expert witness must have to withstand cross-examination.

Both Tuesday and Wednesday, Boies took apart the defense’s claims about the purported harms of same-sex marriage. And as he did, Blankenhorn struggled to keep his composure and avoid giving testimony that contradicted the Yes on 8 team’s defense.

”Let me start with something I think we can agree on,” said Boies at the start of the morning, the resumption of cross-examination that had grown so contentious on Tuesday afternoon that the judge suggested it might benefit both sides to start fresh Wednesday morning.

”Marriage is an important public good,” said Boies.

”Yes, sir,” said Blankenhorn.

”And what do you mean by ‘public good’?” asked Boies, noting that it was a term that Blankenhorn used in some of his writings.

”It’s something that makes a contribution to society,” said Blankenhorn.

”And it benefits the participants and the children they raise, is that right?” asked Boies.

”Yes, sir,” said Blankenhorn.

”And do you believe that the legalization of marriage for gay and lesbian couples would benefit the gay and lesbian couples and their children?” asked Boies.

”I believe it would likely do so,” said Blankenhorn.

”Do you believe it would ‘likely’ do so or almost certainly do so?” asked Boies.

Blankenhorn hesitated and Boies pulled out a copy of Blankenhorn’s book, The Future of Marriage, and read aloud a sentence in which Blankenhorn wrote that marriage ”almost certainly” would benefit gay couples and their children.

”And you believe that the rights of gays and lesbians should take second place to the needs of an existing social institution, right?” asked Boies.

Again, Blankenhorn hesitated.

Boies read from Blankenhorn’s book: ”the rights of gays and lesbians should take second place to the needs of an existing social institution.”

”The answer is yes,” said Blankenhorn, who attempted to offer an explanation for writing.

Boies had Blankenhorn look down a list of 20 ”possible” benefits to society of same-sex marriage — ideas that appeared in Blankenhorn’s book. Blankenhorn insisted upon explaining that he had constructed the list in conversation with other parties interested in the issue, and he said he did not agree with all of them.

”You did not necessarily agree with every idea?” asked Boies. ”Which of any of these possible consequences do you agree with?” He had Blankenhorn go down the list, one by one, and identify whether he agreed or disagreed with each statement.

”I only wish to say that each of them,” said Blankenhorn, ”was a likely benefit, not a definite benefit.” The list, he said, was just ”an attempt to predict” the impact of same-sex marriage in the future.

Boies insisted he identify which points he agreed with and the volley between the two men soon deteriorated to the point where the judge attempted to intervene with some advice for Blankenhorn and Blankenhorn shot back to the judge, ”I don’t need instruction.” That drew a judicial warning.

Judge Walker gently but firmly advised Blankenhorn that, when a jury is instructed on how to view expert testimony, they are told ”to consider a witness’s background, training, expertise, testimony” and a number of other factors, ”and that includes the demeanor of the witness.”

”I’m sure,” said the judge, ”you would not want your demeanor on the stand to have negative consequences.” He advised Blankenhorn to answer only the questions Boies posed and to rely on the Yes on 8 attorneys to give him an opportunity to make explanations.

Over the course of the next three hours, Blankenhorn was continuously confronted with statements — many of them from his own writing. One stated that allowing gays to marry would probably lead to fewer divorces because there would be fewer closeted homosexuals marrying opposite sex spouses. Another stated that allowing gays to marry could mean more couples ”who might be interested in adoption and foster care,” thus leading to ”fewer children growing up in state institutions.”

Blankenhorn also acknowledged, under cross-examination, that he believe domestic partnerships and civil unions –what he referred to in his writings as ”marriage lite” – ”could blur” the distinction between marriage and non-marriage in a way that could be detrimental to marriage.

Boies brought up a paper in which Blankenhorn had asserted there were three ”rules” or essential characteristics of marriage: that it involved two people, that those two people were of the different sexes, and that the relationship was sexual. It was in examining support for these three rules that Blankenhorn seemed to become most rattled.

Boies asked him whether he was aware of any societies at any time in history for which there was no requirement that married partners be of different sex. Blankenhorn said no, but when pressed, he launched into a long and rambling discussion of a group of warrior men in Africa who, he said, paid gifts to parents in order to have sex with their young boys. Anthropologists, he said, often referred to this as ”marrying.” He could think of no other instances, and when Boies mentioned ancient Greece, Blankenhorn said he did not consider same-sex relationships in ancient Greece to be marriages.

Boies asked him whether he was aware of any other instances throughout history in which marriage was something other than two people. Blankenhorn jumped into yet another long, rambling response.

When Boies suggested that polygamy might be an example, noting that many societies have accepted polygamy, Blankenhorn insisted that a man who marries several women does not necessarily engage in polygamy. He said each time the man marries, it is a marriage between ”one man and one woman.”

And when Boies inquired about the existence of married couples in which a sexual relationship is not an expectation, Blankenhorn said he could think of no circumstances in which that would be the case. Boies noted that there had been U.S. Supreme Court decisions upholding the right of prisoners to marry, but Blankenhorn said he had no knowledge of such cases.

Boies finally read two statements and asked Blankenhorn whether he agreed with them. One statement said the institution of marriage is ”constantly evolving” and the other said that there is ”no single definition of marriage.”

Blankenhorn noted that he had written those words.

In closing the trial portion of the case, Judge Walker gave attorneys until February 26 to submit post-trial briefs. After that date, he reiterated, he would examine all the testimony and documents carefully in order to ask questions during closing arguments. Walker said he would set a date for closing arguments sometime after the briefs are due.

There has been considerable attention on this case, in part because of the participation of Boies and well-known conservative attorney Ted Olson, both uniting to challenge the anti-gay initiative. Many believe the case could end up in front of the U.S. Supreme Court and that the result could have both large and longstanding implications for the gay civil rights movement.

© 2010 by Keen News Service. All rights reserved.