Tuesday, August 24, 2010

Jennifer Roback Morse Defends "Marriage Defender" David Blankenhorn

Jennifer Roback Morse, President and Founder of the Ruth Institute (which is a project of the National Organization for [Heterosexual] Marriage), has taken issue with Judge Walker's refusal to qualify David Blankenhorn as an expert in the Prop 8 trial. In a an underwhelming defense of him, she writes:

"Reading the judge’s opinion makes it clear that he defines 'expertise' so narrowly that no one but the plaintiffs’ witnesses could meet the definition of expert....But the Plaintiffs’ abuse of David Blankenhorn, and the Judge’s acquiescence in that abuse, was really something awful.

David has mastered an expansive amount of data from a variety of disciplines on the impact of fatherlessness on children, on the significance of family structure, and on the importance of marriage to society. More than any single individual, David brought the issue of fatherless families to the attention of the public. Given academic specialization, no one person could have produced all that material, which is the standard that the Judge seems to require."

First things first, note Morse's use of the word "abuse" in reference to civil legal proceedings. This "marriage defense" persecution complex has been a running theme with respect to Prop 8. Their side only produced 2 expert witnesses, they claimed, because all their other witnesses were too scared of retaliation to testify (or, like Morse herself, had participated in the Prop 8 campaign). Someone cut off the NOM summer tour bus in traffic, they claim, because of intolerance of the "marriage defense" position. And now, because two excellent attorneys took off the kid gloves and, unlike the media, demanded Blankenhorn prove that he's a professional who knows his stuff instead of merely taking his word for it just because he says he's one, that constitutes "abuse."

Second, if you read Morse's entire (short) post, note that Dr. Morse, an economist, in no way analyzes Judge Walker's opinion from a legal perspective. Her opinion is, essentially, that Judge Walker created an arbitrary, pulled-from-thin-air rule about what constitutes an expert precisely so it would exclude Blankenhorn from being one and include only the equality side's experts. Yet, Morse fails to acknowledge that it's not Judge Walker who "defines 'expertise' so narrowly.'" In fact, he doesn't define expert, in any legal sense, at all. It has been defined for him, by Congress and the Supreme Court.

I think an evidence discussion is in order.

The Federal Rules of Evidence govern the admissibility of evidence into a federal civil or criminal case. Under these rules, and generally speaking, witnesses may only testify on subjects about which they have, or claim to have, personal knowledge that they ascertained through their own senses. Personal knowledge is distinct from hearsay, which are statements that the witness has heard someone else say. Yes, hearsay has a quite specific legal definition and exceptions, which are the bane of many a 1L's existence, but the previous definition will suffice for purposes of this post. Experts, though, as opposed to lay witnesses, are allowed to testify using both opinion and hearsay, if they are testifying about matters in which they have expertise.

Rule 702 of the Federal Rules of Evidence specifically relates to the admissibility of expert testimony. It states:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

This broad rule, of course, raises additional questions, which complicates its actual application to specific cases. For instance, what makes a witness particularly qualified? What does it mean for the testimony to be a "product of reliable principles and methods"? Here, the Supreme Court has clarified, in the oft-cited Daubert v. Merrell Dow Pharmacy.

Under Daubert, in determining the admissibility of expert evidence, the judge must assess "whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Factors that support the argument that an alleged expert's reasoning or methodology are scientifically valid and applicable to the facts in a case include whether it has been tested using the scientific method, whether it has been peer-reviewed (not merely "published"), whether the techniques employed by the scientist have a known rate of error, and whether the reasoning or methodology are generally accepted among the relevant scientific community.

While an alleged expert does not have to meet each of these criteria, it is the judge's duty to act as gatekeeper "to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field."

Now, let's see how Judge Walker applied these standards, standards which he did not create (to correct Morse's misstatement) to Blankenhorn's testimony. All subsequent quotes are from
Walker's opinion
(PDF), unless otherwise indicated. First, Judge Walker noted that Blankenhorn offered testimony on "the definition of marriage, the ideal family structure and potential consequences of state recognition of marriage." On the definition of marriage, Blankenhorn offered two contradictory definitions, relying on the quotes of other scholars. As these definitions had already been entered into evidence, meaning Judge Walker could have just read them himself, Blankenhorn's opinion that these (contradictory) definitions constituted the meaning of marriage did not exactly embiggen the discourse. What he needed to do was demonstrate that he applied some sort of accepted methodology to arrive at his conclusion about the definition of marriage that was more than merely reading about the topic a whole bunch.

Blankenhorn also testified that his own investigation led him to believe that marriage has certain universal rules, such as the "rule of opposites." While Morse may be correct that Blankenhorn is knowledgeable about "an expansive amount of data from a variety of disciplines on the impact of fatherlessness on children, on the significance of family structure, and on the importance of marriage to society," the methodology he used to develop his definition of marriage is somewhere along the spectrum of non-existent to highly-questionable.

Indeed, Judge Walker noted that Blankenhorn's interest in marriage is evident, but that there is nothing in the record that demonstrates that he has investigated the topic with the “'same level of intellectual rigor' characterizing the practice of anthropologists, sociologists or psychologists." He did not explain his methodology, instead having created his definition of marriage by citing the works of others and ignoring evidence that contradicted his "universal rules." That he didn't use much, if any, generally accepted methodology underscores the fact that his perhaps non-existent "methodology" hasn't been peer-reviewed by experts in the field of sociology or anthropology.

Blankenhorn also claimed that "a body of evidence supports the conclusion that children raised by their married, biological parents do better on average than children raised in other environments" and cited studies comparing married, biological parents to single parents, unmarried mothers, step families and cohabitating parents. However, as "marriage defenders" are wont to do, he failed to consider studies that compared children raised by their biological parents to children raised by two non-biological adoptive parents or to parents who conceived using donors, thus failing to establish that a biological connection between parent and child "is a significant variable for child outcomes."

Finally, he claimed that the recognition of same-sex marriage would result in the "deinstitutionalization of marriage," having a host of negative consequences on society. However, Judge Walker concluded that Blankenhorn presented "no credible evidence" for this assertion. For instance, his book The Future of Marriage predicted some of the consequences of same-sex marriage, but these predictions were the result of a "group thought experiment in which an idea was written down if someone thought of it." Again, not exactly a process that would be generally accepted in research methodology. And again, these conclusions, while published in Blankenhorn's book, were not peer-reviewed.

When confronted with an actual study at trial that concluded that “laws permitting same-sex marriage or civil unions have no adverse effect on marriage, divorce, and abortion rates, the percent of children born out of wedlock, or the percent of households with children under 18 headed by women," Blankenhorn admitted that he wasn't even familiar with the study. He then proceeded to dismiss it anyway, sort of demonstrating that his mind was possibly closed to the scientific pursuit of knowledge.

In short, Judge Walker observed that Blankenhorn's testimony consisted of his own conclusions that he drew from reading the scholarly works of other people or by having "group thought experiments," while ignoring contradictory scholarly information. This methodology, if it could be considered that at all, falls well below the Daubert standard. Furthermore, while he does have an MA in social history (having studied labor history), he does not have a PhD, and his training is not in the fields of sociology, psychology, or anthropology- all fields quite relevant to the subjects of his testimony. This is not elitist or abusive to note, it is the judge's job to ensure that the trier of fact bases all conclusions upon reliable evidence.

Ultimately, with these facts in mind, Judge Walker found that Blankenhonr's testimony was "unreliable" and "entitled to essentially no weight." That is, his testimony did not characterize the intellectual rigor that would be expected of an expert in the fields relevant to his testimony.

As a note of comparison to one of the equality side's nine expert witnesses, let's look at Professor Letitia Anne Peplau. Peplau is a psychologist who holds a PhD, she's a professor, and is also a researcher with a focus on social psychology, personal relationships, sexuality, and gender. She has written or edited 10 books and has written over 120 peer-reviewed articles. Judge Walker deemed her to be qualified to testify about couple relationships and the similarities between same-sex and heterosexual couples. The "marriage defense" side had no objection to qualifying her as an expert. Had she attempted to testify about, say, the economic impact of same-sex marriage, she would not have been considered an expert. An expert's tesimony must be relevant to their field of expertise.

Decisions to qualify an expert are not arbitrary, and are dependent upon the reliability of an expert witness and her methodology, not her conclusions.

All things considered, let's see what Morse tells her fans:

"Nothing in this opinion causes my respect for David Blankenhorn to waver in the slightest. On the contrary, I find him more admirable than ever. His breadth of knowledge essentially took the Plaintiffs the combined efforts of 9 witnesses to counter."

Nope. Not even close. To many legal commentators, equality attorneys Olson and Boies, in combination with their 9 highly-qualified expert witnesses showed up like the New York Yankees taking on the Bad News Bears, leaving many pundits questioning why "marriage defense" attorney Chuck Cooper didn't draft big-time sluggers who would at least give us a ball game. One correspondent wrote that the "marriage defenders" brought a "pathetically weak" case, whose "feeble responses to straightforward questions" made them, at times, look "ridiculous and foolish." Even conservative, anti-gay Liberty Counsel expressed concern about the dearth of witnesses the "marriage defense" side was presenting.

Sure, I can grant that some might see the evidence as less of a landslide, but no serious follower of Perry would suggest that 9 experts were needed to somehow counteract David Blankenhorn's intellectual brawn. Indeed, because Blankenhorn failed to meet the legal standard of an expert, the evidentiary score was essentially equality 9, "marriage defenders" 0.

Why this need for professional "marriage defenders" to constantly frame the message, coddling the ever-dwindling numbers of "marriage defending" Americans by convincing them that they're not bigots, gay people are the real haters, and that the "marriage defense" professionals are super-stars? Maybe when stripped to its core, the "marriage defense" position is empty of solid, reliable evidence, and as long as that reality can be hidden from the masses, the longer the "marriage defense" movement can be $ustained.

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