(9 AM – promoted by TheMomCat)
It’s awkward times for bigots these days. With Perry v. Schwarzenegger, the federal Prop. 8 trial, it’s clear that the way gay issues are discussed is changing for the better. Homophobia is on trial.
Even the words we are using are different. There’s a well-known gay marriage campaign called “No H8.” No hate. The name itself implies that opposing gay marriage is hateful. This is where we are now in this country. Homophobes are required to define their positions and then defend them through facts, logic and empirical arguments.
This is not working out so well, to say the least.
Finally, when forced to confront their beliefs, witnesses have either dropped out, relied on dated stereotypes not based on facts, or converted mid-cross-examination.
Witness this exchange from a few minutes ago (Please excuse the length of this, it’s needed to explain the questioning:)
Here, “Boise” is Boies. The livebloggers are typing so quickly so forgive their typos. DB is Dr. David Blankenhorn, defense witness.)
Boise. Are you aware of any study that shows that children of gays and lesbians have different worse outcomes than straight?
B: No. May I add?
Boise: It is not okay for you to volunteer any information. You can give speeches when your counsel has you.
Boise: Have you given a lot of thought to DPs?
Boise: I asked you whether it was your view if DPs contribute to deinstitutionalize marriage? Yes, No. I don’t know.
B: Yes, they could.
Boise: Let’s try to get your view regardless of what you said before.
B: I believe it’s possible they could do so.
Boise: You say it’s possible. Anything is possible. Do you say it’s likely that they do so?
B: I believe
J: Counsel is entitled to an answer to his question. There’s a question and then an answer. That’s the way the process works.
Boise: Do you believe that DPs that are open to opposite sex couples are likely to speed deinstitutionalize of marriage.
Boise: How about only open to ss?
B: Significantly less likely to do so.
Boise: Opposite sex couples over 62?
B: Significantly less likely.
Boise. You know that ss couples are raising children?
B: Of course!
Boise: Hundreds of thousands?
B: I don’t know.
Boise: Did you attempt to find out how many?
Boise: Approximately how many?
B: I don’t know.
B: I believe that adoption of ss marriage would be likely to improve the well-being of gay and lesbian households and their children.
They have been growing rather impatient with this witness for awhile now because he clearly has no credibility. He won’t answer questions and when he does he contradicts himself. He is apparently blowing the defense’s case. He has just said that same sex marriage would be good for kids!
This is the Prop. 8 side’s witness.
Boies has destroyed this person’s credibility in half an hour. As the Courage Campaign’s Prop. 8 Trial Tracker has noted, “[Judge has completely stopped paying attention. This witness has ZERO credibility.]” This is so bad that the judge is tuning him out.
Here is another long exchange, leading up to that moment with the judge:
Boise: Have any of scholars you have relied on asserted that allowing same sex marriage would lower rate of hetero marriage.
DB: Safest answer is I don’t know, but I believe the answer is that some of them have.
Boise: In that case, I’ll ask you which ones?
DB: I thought you might. That’s why I was careful walking into it. (Harrumphs.)
Boise. Comes from those discussions.
DB: Mr. Glen talks about deinstitutionalization…
Boise: I need you to focus on the question. It’s a simple question.
DB: Not simple to me.
Judge Walker: Don’t argue with each other. Just ask a question and give an answer.
DB: I can answer the question.
Judge Walker: Than why don’t share your answer?
Boise asks question again.
DB: I believe that some of the scholars believe that permitting same sex marriage would lead to deinst of marriage. And goes on…
Judge Walker: Shall I take that as a “I don’t know?”
DB: With respect your honor, I do know the answer. I said it and I can repeat it.
Judge Walker: (Quite exasperated) The record is quite clear on what you said.
Boise. What scholars said that same sex marriage will lead to lower marriage rates?
DB: It will take me a few minutes to compose my memory.
Boise: Let’s be sure you know what is being asked. Which scholars that you have named with Cooper assert that deinstitutionalization of marriage will be hastened by same sex marriage and will lead to lower rates of hetero marriage.
DB: Professor Norville Glen said that. He’s one of the most distinguished family scholars.
The only other defense witness, Professor Kenneth Miller, was also eviscerated.
He tried to argue that gays are politically powerful (echoes of Antonin Scalia) and that one example of our power and institutionalized influence is the passing of the Hate Crimes bill and the fact that President Obama signed it.
To that, this exchange happened:
B: Are you familiar with Meagan’s law?
B: Provides punishment for people who perpetrate crimes against little girls.
B: Do you think that passage of that law showed the political power of little girls?
M: No, those who care about them.
I think Boies won that round.
Miller wrote articles he didn’t agree with, according to his testimony:
B: Reads from another article. “Popular view that courts should be lenient in judicial review for initiatives is 180 degrees off. … “When courts review initiatives, need to be more vigilant, not less.” “Courts are the only institutional filter, the check of first and last resort” in imitative process. Courts project against “majoritarian” rule. Did you believe this when you wrote it?
M: It’s compound statement. Which part?
B: All of it. You wrote it!
M: I did not agree with all of it.
B: You don’t say here that you are exploring the issue. You don’t say maybe this is right and maybe you don’t know?
M: Maybe I should have written it differently. Maybe courts should look at initiatives in the same way as laws passed by legislature.
Needless to say, everyone had a good laugh at his expense.
Miller then talked about religion for awhile. Boies asked him about different religions and their opinions on homosexuality. Different scripture readings. Miller ended up suggesting that religion played a huge part in the adoption of Prop. 8.
And then, in his capacity as an expert for the defense on the initiative process, he says that maybe it is appropriate for a judge to intervene to make sure rights aren’t taken away from a minority in the adoption of an initiative. Under the questioning of the Judge, who’s been very active in this process:
Judge Walker: You say it is never appropriate for judiciary to intervene in initiative process?
Judge Walker: When is it appropriate?
M: Only when it violates federal constitution.
Judge Walker: Who makes that determination?
M: This is the first time that it has gotten to federal court.
Judge Walker: You made an interesting comment. You said that it is sometimes appropriate for courts to intervene. When is that?
M: When there is a well-grounded constitutional principle violated by initiative. That’s my view. The Estridge-Kane brief deals with state constitution. Must be a well-rounded constitutional reason to check.
Judge Walker: So it is appropriate for judiciary to intervene?
To recap: gay marriage would provide stability, the arguments against gay marriage are primarily religious and hateful in nature, gays are a class that faces discrimination and are thus not politically powerful, and federal court has the right to weigh in to protect the rights of gays.
And that was from the DEFENSE witness.