Prop 8 Trial Day 11: Fireworks

The testimony phase of the Prop 8 trial is likely to conclude on Wednesday, but it’s not going out with a whimper.

In what was the most contentious moment yet in the case, expert witness David Blankenhorn and plaintiffs’ attorney David Boies sparred as the former insisted on giving longer answers than “yes” or “no.” Boies cross-examination was intended to undermine Blankenhorn’s qualifications and his contention that because the purpose of heterosexual marriage was procreation, it’s in the state’s interest to protect it.

“If you change the definition of
the thing, it is hard to imagine how it would have no impact on the
thing,” Blankenhorn said, per Howard Mintz of the San Jose Mercury News.

It’s uncertain how much weight Judge Vaughn Walker will give to Blankenhorn’s testimony, as he had indicated that he too may not have allowed him as a witness had this been a jury trial. Blankenhorn is well known as the founder of the Institute for American Values, and has written numerous articles arguing against same-sex marriage. But he is not an academic, and Boies challenged his expertise on marriage.

Moreover, Blankenhorn apparently has been supportive of same-sex marriage in some of his writings, which mystified some observers in the courtroom. Mintz writes that Boies “confronted the
same-sex marriage foe with his own words in past writings, when he
decried bias against gays and lesbians and observed “we would be more
American on the day we permit same-sex marriage than the day before.”
Blankenhorn conceded he still believes those words. Boies moved on, but
it was a “say what?” moment in the trial, given Blankenhorn’s previous
two hours of testifying of the threat to traditional marriage posed by
gay marriage.”

Walker noted the tense nature of the proceedings in adjourning for the day, but debate didn’t end there.

Andrew Pugno, an attorney for, wrote on his blog that “outside the courtroom, the plaintiffs’ attorneys sharply criticized the
notion that redefining marriage to include homosexual relationships
would contribute to the deinstitutionalization of marriage.   That
argument, they said, is like saying that extending the right to vote to
women “deinstitutionalized” the voting process.
“Nice sound bite, but the analogy fails.  Securing women’s right to vote
didn’t do a thing to change the meaning and importance of voting.  By
contrast there is no doubt that re-defining marriage to include
homosexual relationships would ipso facto divorce the institution itself from its fundamental, biological foundation.  Nice try.”

Earlier in the day, Boies finished his cross examination of the defense’s only other witness so far, Prof. Kenneth Miller of Claremont McKenna, who testified on the rising political power of gays and lesbians. But Miller also acknowledged the strength of religious institutions in campaigning for Prop 8, perhaps adding fuel to plaintiffs arguments that the initiative was a case of a majority using the power of the electoral process to target a minority group.

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