As you recall, weeks one and two of the trial were spent with witness after expert witness testifying for the Prop 8 challengers, detailing the history of descrimination against gays and lesbians throughout the history of the U.S. and the church. We heard about the proponents of H8 colluding with churches, raising tens of millions of dollars while depicting us as pedophiles and threats to traditional marriage. The plaintiffs showed video produced by the pro-H8 side warning that same-sex marriage would lead to bestiality, pedophilia and incest and we heard each witness stand their ground under cross examination.
While this is by no means a slam dunk for our side, Boies and company have demonstrated that they've really done their homework. The defense, not so much.
On Monday, the defense called its first "expert" witness, Professor Keith Miller, who teaches political science at Claremont McKenna College. Dr. Miller's testimony consisted largely of asserting that gays and lesbians already have significant legal protection and political power in California and therefore do not need the benefit of marriage. He cited the numerous laws that protect gays and lesbians from workplace and housing discrimination as well as California's domestic partnership law. In essence, Miller says, we should be happy with our piecemeal civil rights and be grateful for what we have.
Under cross examination, however, Boise not only punched holes in most of Miller's assertions, but actually got Miller to agree with the plaintiffs, as reported by the L.A. Times:
During cross-examination, David Boies, an attorney for the challengers, got Miller to admit that the entities that support gay rights also support rights for other minorities.
Boies asked Miller for examples of official discrimination against gays. Miller mentioned the federal law banning openly gay people in the military.
Under further questioning, Miller cited a federal law that defines marriage as an opposite-sex relationship and California's marriage ban that was enacted as Proposition 8. "Looking at the institution of marriage, the state does treat heterosexual couples differently than same-sex couples," Miller said.
David Boies, who cross-examined Miller, read aloud written statements Miller made that said minorities were vulnerable to ballot initiatives, and federal courts needed to step in and protect them. One of the statements was from a paper Miller wrote in 2005.Boies also got Miller to admit, "At least some people voted for Proposition 8 on the basis of anti-gay stereotypes."
Tuesday's testimony for the defense came from David Blankenhorn, president of the Institute for American Values who testified that same-sex marriage would encourage polygamy bring about the "deinstitutionalization" of marriage. That's right folks, if you can't find the words to make your case, you just make up new words.
Boies once again rose to the occasion and tore Blankenhorn to shreds, getting him to admit that he has no academic credentials and that the work of others that he has used in the past to back up his homophobic statements was, in fact without merit. Boise even got Blankenhorn to contradict his own words in a book he wrote in 2007, where he said this country would be, "more American on the day we permit same-sex marriage than we were on the day before."
The L.A. Times wrote Tuesday that Blankenhorn "previously had feared domestic partnerships would both undermine marriage and discriminate against gays, but concluded that they were more legal arrangements than marriage.
More from the Times: Under cross examination by David Boies, an attorney for challengers of the ballot measure, Blankenhorn admitted he knew of no study showing that children reared from birth by same-sex couples fared worse than those raised by biological parents.
Blankenhorn also conceded that same-sex marriage would probably "improve the well-being of gay and lesbian households and their children."
I wish there had been cameras to record it. Based on the live blogging from Courage Campaign and Firedog Lake, it seemed like Boise was about to make Blankenhorn cry.
The defense is expected to rest today. Judge Walker will then use the next few weeks to review evidence and testimony. Court will then reconvene for closing arguments after which, Walker will render his verdict.
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