Thursday, January 28, 2010

Prop 8 Trial: Blankenhorn's Testimony

While following the Prop 8 trial, I have been looking forward to seeing how both sides would handle the Prop 8 side's key expert witness David Blankenhorn, author of a relatively well-known book opposing same-sex marriage. Whilst Blankenhorn's book has a refreshingly respectful tone to it, numerous substantive issues can and have been taken with it.

One of my large issues with his book is that, after studying the topic of marriage for a mere one year, Blankenhorn nonetheless felt competent enough to dismiss entire bodies of work by actual anthropologists with little more than a wave of the hand. That's why, during admission as an expert witness, it was validating to see attorney David Boies get Blankenhorn to publicly admit that he has authored no peer-reviewed articles on same-sex marriage, that he has never taught a course on marriage/family/fatherhood in any college setting, that he only has a master's degree in history (with a thesis in comparative labor history), and that he has conducted no scientific study on the effects of same-sex marriage in those countries where it is legal. Furthermore, Blankenhorn's version of "study," by his own admission, seemed to be that he "talked to people and read about" the issue a whole bunch.

These facts about Blankenhorn's questionable expertise don't matter much to the "marriage defense" crowd, of course, as he says all the things that are "self-evident truths" to them. But in a courtroom, it is quite reasonable to object to such an expert's admission as an expert. When put next to the marriage equality side's experts, who were easily admitted, and who are noted scholars, professors, and PhD's Blankenhorn comes off looking a bit like a little boy carrying his baseball mitt to a big league game, perhaps hoping to catch a memento foul ball. While such underdog folksy folk narratives are quite compelling among the anti-elitist segments of the "marriage defense" crowd, or perhaps a jury, I predict it will be less so for Judge Walker.

Although Judge Walker let Blankenhorn testify, it was aptly noted that the standards for determining who counts as an expert are more lenient in non-jury trials, such as this one. Had this been a jury trial, his status as "expert" would have been quite questionable.

Unfortunately, we can pretty much cue the countdown until Maggie G and the rest of the "marriage defenders" start framing Boies' objection to Blankenhorn's expertise, and his cross examination, as bullying, elitist, and just yet another way "marriage defenders" are so incredibly persecuted.

During direct examination, Blankenhorn made many substantive conclusions about what marriage is (something along the lines of intercourse between a man and a woman that results in children) and cited cherry-picked statements by various other scholars supporting this view. As Rick Jacobs, liveblogging for the Courage Campaign noted, that by continually citing the original research of other scholars, the judge (and everyone else) was constantly reminded that Blankenhorn has not actually conducted original research of his own on this issue.

Aside from his continual citing of other people's work, in a bizarre statement that indicates an alarming ignorance of the Other Side, Blankenhorn said:

"I am not able to find any evidence that animus toward gay and lesbian people or hatefulness of homosexual persons is why they justified their participation in the marital institutions."

Holy strawman, Dorothy! I know of no LGBT person or equality advocate who is arguing that heterosexuals get married because they hate gay people. Is that really what Blankenhorn believes we think? What an incredibly strange claim.

Perhaps most damning to his credibility, marriage "expert" Blankenhorn admitted on cross that he had never read any court case that discussed marriage as a fundamental right. While it's true that Blankenhorn is not a constitutional scholar, and didn't claim to be, that's still quite an admission of ignorance coming from someone whose life work is to study marriage. In one of the most well-known Supreme Court cases ever, the Court said the following, about marriage:

"The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the 'basic civil rights of man' fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888)."

This right to marry, further, has been deemed so "fundamental," that even prisoners retain this right. Because, even though prisoners may be physically unable to make and raise babies with those they seek to marry, "inmate marriages, like others, are expressions of emotional support and public commitment" that may also have "spiritual significance" and evidence "personal dedication" to another person.

Blankenhorn's admission that he does not know this about our legal system, to me, perfectly demonstrates a key general difference between the equality side and the "marriage defense" side. Relying on emotional and self-evident arguments from the gut, many "marriage defenders"- even so-called expert ones who devote their professional lives to "defending marriage"- fail to learn or care about relevant legal issues surrounding marriage and constitutional rights.

Why would such things like rights matter, when one Just Knows that same-sex marriage is a really bad idea for society?

Many of the "marriage defenders" who aren't mired in homo-hatred rely on little more than sketchy evidence or bold predictions of future harm. They believe that their unsubstantiated and ignorant opinions are just as legitimate as the actual evidence that is presented by actual experts in the relevant fields of anthropology, psychology, and sociology. Relying on emotion and incompetence, they ignore all evidence that doesn't comport with what they already know which, as luck would have it, is pretty much everything.

Indeed, here's a particularly telling and damning snippet of the cross-examination of Blankenhorn:

"[Equality attorney David Boies]: Let me just ask you hopefully just two more quick areas. This is the review article you referred to previously published in Developmental and Behavioral Pediatrics?

David Blankenhorn: Lesbian Mothers, Gay Fathers and Their Children?

BO: Yes. Are you familiar with this document?

DB: I don’t believe so.

BO: There’s something here called an abstract. You are familiar with what an abstract is, are you not?

DB: Of course.

BO: Reads that children of same-sex couples are no different in developmental outcome than children of heterosexual couples. Do you know of this study and such other studies?

DB: Yes.

BO: NO singularly accepted universal definition of marriage. Marriage constantly evolving.

DB: Yes sir. I wrote those words in my book.

Boies: No further questions, your honor."

After stating over and over again about how gazillions of scholars conclude that marriage is about a man and a woman creating and raising children, Blankenhorn admits that there is no "universal definition of marriage." He then claimed to "know of" but not be "familiar with" a particular document that demonstrates that children of same-sex couples fare just as well as children of heterosexual couples; that is to say, in spite of "knowing" of such a study, he did apparently did not investigate further to become more "familiar" with it.


I wonder why that was. Perhaps the evidence didn't fit into his marriage book's narrative? Perhaps, in spite of such evidence, he Just Knows that study is somehow wrong?

You know, it is a real shame that this testimony, indeed this whole trial, was not televised. But, given the performance of the super-star "experts" of the "marriage defenders," it's entirely understandable as to why they objected so strenuously to an open and public airing of their very best arguments and most awesome experts.

(Note: Official transcripts can be found here.)

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