Prop 8 On Trial

Blankenhorn testifies about marriage, scholarship, and soul-searching

David BlankenhornThe defense this week called the long-awaited David Blankenhorn, an expert who attorneys had promised would help articulate why traditional marriage should be protected as such.  Blankenhorn’s name was highlighted in the defense opening, and as one of only two defense witnesses, he seemed to shoulder many of the party’s evidentiary hopes.

However, by the time Blankenhorn finished at least seven hours of testimony on Wednesday, it was not clear that he had aided the defense cause.  Not only had he conceded several plaintiff points, including that same-sex marriage would potentially reduce the divorce rate.  He had also given the impression that his testimony was largely the fruit of deep soul-searching, not the articulation of scientific conclusions.

Watching Blankenhorn was fascinating, if only because he seemed to embody the personal struggle that many Americans are navigating with regard to same-sex marriage.  Blankenhorn seemed to have weathered reconciling his own mind, heart, and statements on the matter.  But in a peculiar stance for an expert witness, he offered the sincerity of his journey as proof of the persuasiveness of his conclusions.

For more on this unusual episode, read on.

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Attorneys give remarks and clues about arguments to come

Speaking to reporters after the close of testimony yesterday, plaintiff and defense attorneys summarized their takes on Perry v. Schwarzenegger thus far.  Their remarks might also give clues about how legal arguments will proceed in the coming months.  Here are some of their comments:

Plaintiff attorney David Boies:

“The American public has gotten a sense of what the facts are, and what we have done is lift the veil.  We have exposed the paucity of the arguments on the other side.  We’ve exposed publicly the fact that there simply is no basis for preventing gays and lesbians from getting married.  It doesn’t help anyone.  They’ve had an entire trial to come forward with a single witness who would testify that there was any harm, who would show any harm, and they could not do that.”

“The witnesses that they brought admitted that what was at work here [in passing Proposition 8] was a religious divide based on prejudice and stereotype and that there was no justification – none, zero – for depriving gays and lesbians from the right to marry.”

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Defense witness, on direct, describes gay political power

The Perry v. Schwarzenegger defense opened its case Monday with testimony from Claremont McKenna College Associate Professor Kenneth Miller, who contended that gay and lesbian Californians hold significant political power that belies their single-digit percentage of the population.

Miller is an attorney educated at Harvard Law School and now a specialist in the history of California and U.S. politics.  He focuses on the power of political groups, especially in direct elections, and summoned a number of rubrics to demonstrate the sway that California’s gay lobby holds.

First, he pointed to the fact that gay marriage proponents raised $43 million for the “No on 8” campaign, an amount that Miller said was “exceptionally rare” given that the election involved a social issue without corporate interests or backing.   Gay marriage opponents raised $40 million for the election.

Second, Miller pointed to a laundry list of political allies sympathetic to gay rights causes.  Miller said this list could include something as broad as the Democratic Party and reminded the court that nearly 61 percent of California’s voters supported Democratic presidential candidate Barack Obama in 2008.  This strong showing created the largest California margin in any presidential election since the days of Franklin Delano Roosevelt.  “This is a blue state.  That’s the way I would put it,” Miller said.

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