I’m not sure which is the best example of the American Foundation for Equal Rights stacking the odds in their staged reading of 8 – a play sourced from the transcripts of the Prop 8 trial Perry v. Schwarzenegger. It might be the scene when the suave and gorgeous George Clooney (David Boies) cross-examines the John C. Reilly-looking John C. Reilly as David Blankenhorn — the sole witness for the Prop 8 defenders. But it’s probably the moment where, as Blankenhorn flounders, the camera cuts to Jane Lynch-playing-Maggie Gallagher baring her teeth in rage. Maggie Gallagher didn’t testify at the trial, and, for all I know, was never present, so this was nothing but gratuitous.
Some of these choices remind me of the legal aphorisim: “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.” The mugging is a foolish choice, because the text of the play (the actual trial transcripts) makes it clear they could have stuck to pounding the facts.
Given that the referendum would deprive queer people of a right they had previously enjoyed, the Prop 8 defenders needed to show that the state had a compelling interest in excluding queer people from marriage — that the existence of same-sex marriage would weaken straight people’s commitment to marriage. That’s where they lost.
I remember reading the transcripts of David Blankenhorn’s testimony during the original trial. Blankenhorn, the only witness for the Prop 8 supporters, was admitted as an expert witness, but had done no research himself on the effect of same-sex marriage on heterosexual unions. He was essentially a human literature review. This was frustrating. Ideally you cross-examine the relevant scholars and make them defend their own work, but the scholars wouldn’t take the stand, so Blankenhorn was all we got. And he didn’t go very far in his testimony (inserted at the end of the post, since even the relevant excerpt is long).
Blankenhorn and others are basically arguing that gay marriage is too big and risky a change to make. But this kind of objection has to be linked to data, or it’s a generic veto of any social change. At one point in his testimony, Blankenhorn implied it would be prudent to keep gay marriage illegal in California until more time had passed and we could better judge its effects in Massachusetts, but there’s no explanation given of what kind of data we’re waiting for, or why Massachusetts can be the test case, but California can’t join in. In these kinds of circumstances, I echo an exclamation of Sherlock Holmes, “Data, data, data! I cannot make bricks without clay!” (I should really put that on a sampler).
If opponents to gay marriage want to be taken seriously, they have to put their money where their marriage rhetoric is and start making predictions. And if you’re willing to do that, contact me about a guest post. That’s why I really appreciated Matt Gerken’s contributions to our recent debate on gay marriage. Matt gave examples of the kind of harm he expected gay marriage would do; it didn’t all have to be in the language of social science and statistics. And it turned out, a lot of the time we disagreed on what counted as harm.
Blankenhorn and the Prop 8 team didn’t do us that courtesy, and that omission is the clearest part of 8. No need to pound the table, when the other side neglects the facts.
Boies’s cross-examination of Blankenhorn, excerpted:
Q. Let me try to make the question as simple as I can. Have any of the scholars that you have said you relied on said in words or in substance, okay, this permitting same-sex marriage will cause a reduction in heterosexual marriage?
That’s “yes,” “no,” or “I don’t know.”
A. I know the answer. I cannot answer you accurately if the only words I’m allowed to choose from is “yes” or “no.” I can give you my answer very briefly in one sentence.
THE COURT: If you know the answer, why don’t you share it with us?
THE WITNESS: I would be happy to, but he is only permitting me to give “yes” and “no,” and I cannot do that and be accurate.
THE COURT: He is giving you three choices, “yes,” “no,” “I don’t know.”
THE WITNESS: But I do know. I do know the answer.
THE COURT: Then is it “yes” or is it “no”?
THE WITNESS: Your Honor, I can answer the question, but I cannot give an accurate answer if the only two choices I have are “yes” and “no.” I — if you give me a sentence, I can answer it. One sentence is all I’m asking for.
THE COURT: All right. Let’s take a sentence. One sentence.
A. Can you ask me the question again, please.
Q. Yes, yes. Have any of the scholars who you say you relied on asserted, written, that they believe that permitting same-sex marriage will result in a reduction in the heterosexual marriage rate?
A. My answer is that I believe that some of the scholars I have cited have asserted that permitting same-sex marriage would contribute to the deinstitutionalization of marriage, one of the answer — one of the manifestations of which would be a lower marriage rate among heterosexuals. But I do not have sure knowledge that in the exact form of words you are asking me for they have made the direct assertion that permitting same-sex marriage would directly lower the marriage rate among heterosexuals.
THE COURT: If I were to take that as an “I don’t know” would that be fair?
THE WITNESS: With respect, your Honor, I would disagree with you.
8 will be available to watch on YouTube for the rest of the week. Link below: