Prop 8 Trial Day 11: Expertless Witnesses, Cringe-Worthy Testimony, And Slaveholders’ Rights

Here’s what I don’t understand about yesterday’s testimony — the defense couldn’t find anyone better? I mean, this trial is kind of a big deal, and there is no one less . . . embarrassing for the defense? No one better-credentialed, better-spoken, better at being less cringe-inducing?

If you like watching bigotry squirm, then you’re gonna love what David Boies did . . . .

Shannon Minter has been offering a great structure for each day’s testimony, and today is no different, so I am going to start with him:

The morning began with the conclusion of David Boies’s cross-examination of Professor Miller. Boies confronted Prof. Miller with several of Prof. Miller’s own earlier writings, which were highly critical of the ballot initiative process and particularly highlighted the risk that majorities will use the initiative process to target minority groups. Prof. Miller admitted that ballot measures can, and have, drawn upon anti-minority sentiment. Indeed, one of Prof. Miller’s own articles cited Proposition 22, the California initiative prohibiting marriage for same-sex couples that passed in 2000, as an example of such an anti-minority initiative.

Today was one of the most dramatic days of the trial, with startling admissions by the proponents’ two expert witnesses: Professor Kenneth Miller, testifying about the political power of gay people, and David Blankenhorn, testifying about the purposes of marriage.

Things did not go any better for Miller’s second day of testimony. From BTB:

Miller admitted that some people voted for Proposition 8 based on stereotypes, but he could not say to what extent.

Then it got unpleasant for Miller. He has a new book that came out in 2009 in which he argues that initiatives that disadvantage minorities “can easily tap into an anti-minority sentiment”. He even gave examples including initiatives directed towards restricting the rights of homosexuals. One of Miller’s examples of initiatives that tapped into anti-minority sentiment and disadvantaged homosexuals was Proposition 22, the original ban on gay marriage that was overturned by the California Supreme Court.

Miller argued in his book that courts needed to strictly scrutinize initiatives and not be lenient because their role was to protect minorities from such initiatives. He had written in an article that “Once this majority puts its preference into the state constitution, the legislature and state courts can’t take it out. Only federal courts are the remedy.”.

A year later, Miller “no longer believes” his own book. In fact, he “did not believe all of it” when he wrote it. (Miller has just torpedoed his own career.)

Uh oh! But it got even worse for Miller as Boies “got Miller to agree, as a social scientist, that ‘it is a general principle that it is undesirable for a religious majority to impose its views on a minority.’ While Miller was babbling trying to find an out for the religious oppression of gay people, Boies announced that he had no more questions.”

After Miller, the next, second, and last defense witness David Blankenhorn, president of the Institute for American Values. And then the bloodletting turned into bloodsport even as Blankenhorn was admitted as an expert witness:

Although Blankenhorn was being offered as an expert witness on how same-sex marriages are detrimental to heterosexual marriages and children, Boies noted that Blankenhorn’s education had been in history.

“You’ve never taught a course in college,” said Boies, “and you have no degree in psychology, psychiatry, sociology, anthropology.…”

“No,” said Blankenhorn, interrupting.

“And in preparation for this testimony, did you undertake any scientific study of what effects permitting same-sex marriages have been in any jurisdiction where same-sex marriages have been permitted?” asked Boies.

“No,” said Blankenhorn.

. . . Walker noted that the U.S. Supreme Court’s guidance on whether someone can be qualified as an expert witness requires that the expert have “specialized skills as opposed to the insights of an intelligent layperson.”

“If this were a jury trial,” said Walker, the decision “might be a close one. But I will permit [the witness] to testify and weigh the testimony in light of his qualifications.”

And, well, read on:

hat came when Boies began questioning Miller on whether there is a generally accepted view by political scientists that it is “undesirable” in this country for a religious majority to impose restrictions on a religious minority.

“In a general sense, that’s a principle that many political scientists would agree with,” said Miller, but he continued, suggesting that it might be argued that abolitionists had imposed their religious views on slaveholders, in early American history.

Boies seemed incredulous and pursued.

“And were slaveholders a minority that needed protection?” asked Boies.

Miller hesitated and squirmed; Boies pressed harder.

“You’re saying slaveholders may have had a religious basis for their views?” asked Boies.

Yes on 8 defense attorney David Thompson jumped up to object, but Judge Walker quickly shot him down.

Cover your eyes! It’s too much! So who can blame Blankenhorn for sulking:

At least a dozen times in the testimony, Mr. Blankenhorn refused to answer Mr. Boies when the lawyer posed a question and asked him to answer with a straightforward “Yes, no, or I don’t know.” Mr. Blankenhorn would say that there was no way to answer without extended clarification — even after Judge Walker instructed him to respond on several occasions.

. . . As the questioning devolved into bickering, Judge Walker put both hands in the air to stop the pair.

“Don’t argue with each other,” he said wearily, pointing to Mr. Boies and then to Mr. Blankenhorn. “Just ask a question and give an answer.”

. . . As another round of questioning broke down around 5 p.m., Judge Walker had had enough.
“I wonder whether in view of the hour that a good night’s sleep might help with this line of questioning,” the judge said.

At the end of it, the bruised and battered Blankenhorn pretty much capitulated, especially after these words from one of Blankenhorn’s own papers was uncovered: “We would be more American on the day we permitted same-sex marriage than the day before.”

Make it stop!

The Courage Campaign writes:

. . . you will notice that Blankenhorn is at times combative, and as Rick points out, a little “pastorly.” While he was perhaps more comfortable talking to crowds and in the witness stand than Prof. Miller, he also crumbled on cross-examination. How far did he stray from the defendants talking points? This far:

DB: I believe that adoption of same sex marriage would be likely to improve the well-being of gay and lesbian households and their children.

. . . At the end of the day, Blankenhorn is like a scared 7-year old who hasn’t studied for a history test. I almost expected his last answer to be Yeti or Santa Claus.

Oh, and if Blankenhorn’s name sounds familiar, it’s because of he is one of the co-authors of an NYT op-ed last year, calling for a compromise on gay marriage.

Testimony from Blankenhorn is expected to end today, and the defense is also expected to rest. Sounds like they could use it . . . .

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