Prop 8 Trial! Day 11 Summary

Prop 8 Trial Day 11 Summary, from Howard Mintz:

2:45 p.m.: Prop 8 witness says marriage a natural institution not driven by religion

Proposition 8 witness David Blankenhorn is continuing to air his opinion that marriage is designed for child-raising, and that it is a natural institution developed through history and culture, not one driven by religion. Blankenhorn rejected the contention that marriage is simply a private adult relationship. “I do not believe that is consistent with the human record,” he said.

Proposition 8 attorney Charles Cooper asked Blankenhorn whether a belief in marriage being solely designed for a union between a man and a woman is the result of “anti-homosexual prejudice.” Blankenhorn insisted there is no evidence of that. “I looked for it, and I can’t find it.”

It is a safe prediction that plaintiffs attorney David Boies has found it and will grill Blankenhorn on the topic during cross-examination.

2 p.m.: Expert says marriage a “socially approved sexual relationship between a man and a woman.”

Proposition 8 attorney Charles Cooper did not wait long to get to the point in his questioning of his witness, David Blankenhorn, who is testifying on the purpose of marriage and the importance of procreation to the institution. “What is marriage?” Cooper asked. “A socially approved sexual relationship between a man and a woman,” Blankenhorn replied.

“What does marriage do?” Cooper continued. “The most important thing it does is regulate affiliation. It establishes who are the child’s legal and social parents,” Blankenhorn said. He then insisted reproduction is a “primary purpose” of marriage.

Plaintiffs attorney David Boies had objected to Blankenhorn being an expert on the subject of marriage and procreation, noting that he has a master’s degree in labor history and has never taught on marriage-related issues. Judge Vaughn Walker ruled against Boies, although he didn’t exactly give Blankenhorn’s qualifications a ringing endorsement. “Were this a jury trial,” the judge said, “the question might be a close one.” Walker is hearing the case without a jury.

1:23 p.m.: Prop 8 witness to talk about importance of procreation to marriage

The Proposition 8 trial is now resuming with testimony from the defense’s second, and perhaps final, witness, David Blankenhorn, founder and president of the Institute for American Values. Blankenhorn is being called to the stand to testify on the importance of procreation to the institution of marriage. This is a hotly contested component of the same-sex marriage debate. Supporters of Proposition 8 insist that same-sex marriage would undermine traditional heterosexual marriage and its purpose of procreation. Gay marriage advocates, in short, consider this argument weak both legally and socially, stressing that scores of heterosexual couples marry without having children and that having children is not a prerequisite of marriage.

The subtext is that the plaintiffs insist that Proposition 8 is fueled by bias against gays and lesbians and has not legitimate purpose. Defenders of the law use procreation as one argument that the gay marriage ban does have a purpose that is not discriminatory.

To underscore the importance of the issue to the Proposition 8 legal team, lead defense attorney Charles Cooper is handling the questioning of Blankenhorn.

12:07 p.m.: Judge asks question about judicial intervention

Kenneth Miller, the Proposition 8 defense’s first witness, is done with his testimony. The Claremont McKenna College political science professor spent a full day on the witness stand, arguing that the political might of gays and lesbians is on the upswing. Proposition 8 lawyers put him on the stand to refute the testimony of a plaintiffs expert who maintains that gays and lesbians remain vulnerable in the political process and need greater legal protections.

At the end of Miller’s testimony, Chief U.S. District Judge Vaughn Walker interjected a few questions related to his role in evaluating the constitutionality of a voter-approved ballot initiative. Miller had mentioned that ballot initiatives were popularized to offset “judicial activism.” The judge asked: “Are you saying it is never appropriate for judges to intervene in the initiative process?” No, Miller replied.

“What I’m trying to tease out is what are the circumstances” for judicial intervention? Walker asked. Miller replied that judges should step in when established constitutional principles are violated by an initiative.

The judge has taken the daily lunch break. Proposition 8 defenders are now expected to call David Blankenhorn, who will testify on the importance of procreation to marriage.

11:41 a.m.: Tense exchange between prof and plaintiffs’ attorney

Plaintiffs attorney David Boies has finished cross-examining Proposition 8 expert witness Kenneth Miller, called to assert that gays and lesbians have gained political clout and conflict plaintiffs experts who’ve characterized gays and lesbians as vulnerable in the political process.

Boies and Miller had a series of tense exchanges, the lawyer impatient with indirect answers and Miller frustrated by attempts to cut off longer explanations. In the end, Boies tried to make the point that powerful religious organizations used Proposition 8 to “impose their will on a religious minority” and deny same-sex couples the right to wed. Miller would only concede that a religious majority should generally not be able to use the law to deprive a minority of rights, steering clear of anything specific to Proposition 8.

Attorney General Jerry Brown’s office made a quick appearance at that point, as Chief Judge Vaughn Walker asked whether a deputy wanted to respond to a claim in Miller’s testimony that the attorney general can act as a check to legal deprivations in the ballot initiative process. Brown, of course, has argued that Proposition 8 is unconstitutional, remaining on the sidelines during the trial, even though the state is a defendant. Deputy Attorney General Tamara Pachter asked Miller whether there is any other role in the process for an attorney general other than writing the neutral ballot language; the political-science professor said he was not aware of one.

Walker then asked Miller whether an attorney general “can do more” than just write the ballot language, a question apparently aimed at whether the state’s top lawyer can evaluate a measure’s constitutionality before it goes to the voters. Miller had no information on the topic.

Proposition 8 attorney David Thompson is questioning Miller under redirect.

10:52 a.m.: Cross-examination of prof continues

Plaintiffs attorney David Boies is hammering away at Proposition 8 expert Kenneth Miller on the professor’s assertion yesterday that churches could be counted among the political allies gays and lesbians have in the political process. Miller, a Claremont McKenna College professor, is on the stand to maintain that gays and lesbians are accumulating political power, trying to refute the plaintiffs’ argument that in fact gays and lesbians remain politically powerless and vulnerable to discrimination in the political process as a result. Miller listed a host of political figures and others who go to bat for gay and lesbian rights, and included some of California’s churches in that category.

But Boies has put Miller on the spot when it comes to Proposition 8, citing the fact that the two largest churches in the state, by far (Roman Catholic and evangelical Christians), not only supported a ban on same-sex marriage, but were leading movers in the Proposition 8 campaign. Boies also noted the crucial role of the Mormon church. Overall, Boies asked Miller, didn’t religious organizations support Proposition 8 in a way that dwarfed the role of churches that sided with the No on Proposition 8 campaign? Weren’t religious attitudes “critical” in the push to pass Proposition 8?

Miller tepidly conceded each point, calling religious attitudes a “factor” in the vote. With “caveats,” he also acknowledged that religious groups played a more substantial role in supporting the gay marriage ban.

The cross-examination continues.

9:46 a.m.: Prof’s writing: Initiatives can be used to repeal benefits for minority groups

Kenneth Miller, a Claremont McKenna professor and expert for the Proposition 8 defense, continues to face the cross-examination of plaintiffs attorney David Boies. Boies has been focusing on past writings and research Miller has done on the ballot initiative process, confronting him with some past observations he’s made about the impact of such measures on minority groups. In particular, Miller has written that initiatives can be used to circumvent legislatures to get issues before voters, and that it has been used in various instances to repeal benefits for minority groups.

Proposition 8’s next witness is expected to be David Blankenhorn, who is supposed to testify on the importance of procreation to marriage.

8:47 a.m.: Claremont McKenna professor back on the stand

Kenneth Miller, a Claremont McKenna College professor and the Proposition 8 team’s first witness, will back on the stand. Plaintiffs attorney David Boies is cross-examining Miller, who has testified that gays and lesbians have been gaining political clout.


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