Prop 8 Play Lets the Lack-of-Facts Shine Through (mostly)

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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:

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  • Curiously, almos the only SSM opponents I’ve ever gotten to agree to make predictions is David Blankenhorn.

    Yes, if 15 or 20 years from now, a reasonable assessment of the evidence shows (it can never “prove”) that SSM has had little or no impact on the the current (2011) trends driving the deinstitutionalization of marriage, then I will know that my concerns circa 2011 were misplaced, and I like to think that I will have the courage at that time to say so, at that time. The fact that I am an advocate (as I see myself) of equality for gay/lesbian persons, and the fact that I’ve never been possessed of absolute certainty, might make it easier for me to say this, if the evidence justifies it, but I like to think (about myself) that I would do it anyway.

    In context of that discussion, “the current (2011) trends driving the deinstitutionalization of marriage” I took to refer to measurements like the divorce rate, the number of children born into single-parent families, etc.

  • deiseach

    “the effect of same-sex marriage on heterosexual unions”

    The problem is that there isn’t much or indeed any data as yet, because there haven’t been same-sex unions/marriage around long enough or in a great enough quantity to generate data. It’s rather like the arguments about does divorce do more harm to children than parents staying together: in order to get that data, you have to permit easy divorce, and then twenty/thirty/fifty years down the line you do your studies.

    The problem with that is that (a) you are using human lives as test cases – if you do find that an unintended consequence of easy divorce is a bad effect on children, then you have a lot of damaged children that your social experiment is responsible for and (b) for every study saying “Yes, it does!/No, it doesn’t!” there is another one saying “No, it doesn’t!/Yes, it does!”

    Obviously, both sides are going to pick the studies that support their case. And another potential problem with permitting same-sex marriage (which I would class as a different beast to civil unions) is that suppose twenty years down the line, the decision is “No, same-sex marriage is having a deleterious effect, let’s go back to civil unions” – then there would be the same outcry as with Proposition 8, only even more heated. You would have heart-wrencing stories in the media about all the families being torn asunder now that they were no longer to be considered married; you would have arguments that gay people were being denied “a right they had previously enjoyed” and there would be accusations of homophobia and stripping of civil rights and lawsuits left, right and centre.

    Once you open the stable door, how do you keep the horse from bolting? Yes, maybe all the arguments about the bad effect legalising same-sex marriage would have are scare-mongering. But why not wait a little longer and see what happens in the places where it has been permitted? It would be a different matter if we were still in the days when cohabitation was a public scandal, but since there is no more stigma attached to ‘living in sin’, there is no pressing necessity for legal marriage in order to be with the one you love (the legal benefits are a different matter, but if you’re switching your argument between “How can you say no to Twu Wuv?” and “We’re not entitled to the same tax credits as married straight people!”, I say “Pick one and stick with it; by the way, cohabiting straight people aren’t entitled to the same tax credits, either”. Then again, I dislike having my emotions manipulated by heart-rending stories in the newspapers of lovely couples who are pillars of their community and are madly in love and have been together for twenty years but the mean ol’ heteronormatives won’t let them hire a hotel ballroom and have their friends throw confetti , so fact-based ‘this is how we are being disadvantaged’ cases work better with me.)

    • keddaw

      “It’s rather like the arguments about does divorce do more harm to children than parents staying together”

      Is it the job of the state to minimise harm to children? What if the harm to the adults is an order of magnitude greater than the harm to children caused by divorce?

      And likewise, is it the job of the state to regulate which people happily co-habiting and having sex are allowed to be protected by law and which aren’t, depending on their gender (or race, if you want to go back awhile)?

      • deiseach

        “(I)s it the job of the state to regulate which people happily co-habiting and having sex are allowed to be protected by law and which aren’t”

        Woo, boy, is that a bad argument to make, my friend, because let me remind you of all the “we don’t need a piece of paper to mean we’re committed to each other” arguments for Free Love (yes, I’m that old that I came in for the tail end of the ‘we don’t need to be married to live together’ era) and “Keep the state out of our bedrooms” and “It’s nobody’s business what consenting adults do in private” and “Domestic disputes are family matters and the police shouldn’t interfere”.

        If we were starting from a flat basis of married people get X, Y and Z benefits that single people do not, whether or no they are cohabiting, then there is a lot of room to talk there. But the past forty years have happened, and the push for equality of treatment of women within marriage (i.e. not to be classed as ‘dependents’ on their husbands but to be assessed for tax and state benefits as an individual) and of cohabiting couples outside of marriage means that many of the disputes (e.g. the rights of children born out of wedlock to inherit or have a claim upon a parent’s estate) have been dragged through the courts and settled already.

        Now, as for “Is it the job of the state to minimise harm to children?”, we pretty much have answered that question ‘yes’ – I will refer you to this recent Irish court case .

        Suppose we, as the state, say “We don’t care what you do with or to your kids or what happens them.” Well, unless we’re willing to have children living on the streets and being abused and killed and starved, then we do have to get involved in minimising harm. Unless we have a spectacularly individualised and atomised society where every single person is a single unit and nothing that affects you is any of my business, then the state (which is no more than to say ‘the instrument of public will’) has duties to its citizens. Children are citizens too, unless you take the extreme view that they may be human animals, but do not attain to personhood (with its rights and responsibilities) until they meet a socially-determined criterion of sapince or self-hood. Therefore they are due the protection of the state as much as I am, or you are, if our well-being and life is threatened.

        As for the rights of the children versus the rights of the adults, I take the view that the children are the weaker entities and so the state has a preferential duty to protect the weaker.

        • keddaw

          “Woo, boy, is that [role of state] a bad argument to make, my friend…”

          Not for me. I am absolutely in favour of removing all state involvement in marriage. Any legal or financial benefits/responsibilities can, and should, be defined between any two, or more, consenting adults. And I agree with all of those quotes except the one where domestic incidents spill over into criminal activity.

          “many of the disputes … have been dragged through the courts and settled already.”

          Under the previous, prejudiced assumptions of what marriage was and should be by old, white, male judges. Same could have been said before inter-racial marriage became normalised.

          “I will refer you to this recent Irish court case .”

          And I refer you to this . I think that clearly shows that we rightly have a minimum standard of care for children but that there are limits on how much of an imposition that is on adults. Incidentally, I am fully against corporal punishment.

          “we do have to get involved in minimising harm.”

          Reducing, not minimising! We try to reduce the harm caused to children until it becomes unreasonable. i.e. It is unreasonable to force two parents to stay together for the sake of the child, the harm caused to the parents greatly outweighs the benefit (reduction in harm) to the child. If it was close we’d judge in favour of the child, but it isn’t.

          “[Children] do not attain to personhood (with its rights and responsibilities) until they meet a socially-determined criterion of sapince or self-hood.”

          Correct. It just happens to be set rather further back (i.e. in the womb) than is strictly necessary but that’s because it is much more harmful to deny rights than to give rights to something that shouldn’t have them. This continues through a child’s life though, driving, drinking, having sex, these are all rights that children are denied until “they meet a socially-determined criterion of sapience or self-hood.” In exchange for denial of those rights they also have a whole bunch of protections that adults do not.

          • deiseach

            Ah, yes, old white male judges. Never mind nations where the judges may have been old and male but not white?

            That’s a red herring, however, and I’ll agree with you on this one: I would love the state to be out of marriage – if that meant people would not then be running to the courts for settlement of disputes, which is then dragging the state back into it by the back door.

            I’m thinking of IVF and surrogacy, and how the science outran the law – all of a sudden, it was possible to have children ‘to order’, as it were, and any denial of the ‘right’ to have a child was portrayed as a cruel, heartless insult to the infertile (and possibly religiously-inspired piece of bigotry on top of that).

            Then we started getting court cases about who is the natural mother (because the fuddy-duddy old laws never anticipated two or more women claiming to be the mothers of one child – you know, the genetic mother, who donated the ova, the surrogate who gestated the pregnancy and then the adoptive mother who took possession of the child), whose name goes on the birth certificate, what about if the surrogate decides mid-way through the pregnancy she can’t go through with it and wants an abortion, what if the couple who hired the surrogate change their minds and ask her to abort… you know, all the messy social stuff that nobody thought about before plunging into “I’ve got a clinic and an FRCOG, you’ve got your bank loan, let’s make a baby!”

            In fact, I think IVF is a very good prior example of innovation out-running experience here. Only now, some thirty-odd years since the first successful birth (and I remember the baby, Louise Brown, and her parents making the round of the chat shows over here to show off the wonder baby) are there enough children born by that method to see the possible health problems arising out of the method. And we’ve moved from the initial “how can anyone be so cruel as to deny the miracle of life to parents who are desperate for a child?” to proposals to use unwanted embryos in storage for embryonic stem-cell research because, you know, they’ll only have to be dumped anyway so you might as well get some use out of them.

            Also, please explain to me this sentence: “In exchange for denial of those rights they also have a whole bunch of protections that adults do not.” And would you exchange denial of right of personhood for a bunch of extra protections?

            My whole point is that, if personhood is not innate with our humanity, but a state that can be awarded and taken away by judicial or legislative fiat, why on earth should you or I think our personhood is inviolable, merely due to our chronological status? If I am not a person quahuman, but a person on the suffrance of my peers or of the state, then if it suits the state, I can be denied personhood or lose that status – and I doubt there are any extra ‘protections’ I would gain, seeing as how lack of personhood is argued as grounds for others to take life from the human non-person at their will.

          • keddaw

            Ignore the old white male thing, it was to show that in the old days the concept of inter-racial marriage and offspring was one the courts had never conceived of and were unprepared for and that we have, until very recently (probably even still) been under the patriarchal yoke.

            I’d hold off IVF-bashing as the potential for selecting healthy cells may outweigh any increase in health risks. Also, we need to see what they are – headline making 30% increases mean nothing if the original risk was 1 in a million.

            “would you exchange denial of right of personhood for a bunch of extra protections?”

            No, but with hindsight, I’d happily give up the right to drive at 5 for a full education!

            “…why on earth should you or I think our personhood is inviolable, merely due to our chronological status?”

            I don’t. Never claimed to. Everything I claim as a right is granted by other people, either as a state or as a more immediate group. And the point, as I showed with children, is that rights alter as we progress through life, they are granted and, with more difficulty, removed by the state in cases where someone is deemed mentally or physically incompetent to make decisions for themselves.

    • leahlibresco

      But this sounds like an argument against using human lives as test cases in all states. If it’s ok to make Massachusetts a guinea pig, why can’t California also be included in the test group?

      I’d love to see more public policy done as a matter of randomized trials and pilot problems, but that’s not how our politics work. LGBT reform shouldn’t go through a different process than everything else.

      • deiseach

        If we’re trying to see if substance A is a poison, is neutral, or is beneficial, why would we expose California to it as well as Massachusetts? No-one is making Massachusetts a guineapig, they’ve gone on this course themselves.

        I am of the cynical bent to say “Heterosexual marriage is already in such a degraded state, go ahead and permit it to same-sex couples” but the fact remains that we are embarking on a re-definition of marriage even more radical than the changes to date in marriage as an institution. If it were the case that all marriages were indeed nothing more than the business of those who chose to get married, as keddaw seems to be arguing, then I would say it doesn’t matter, but the reason the state got into the marriage business in the first place was precisely because of the tangles, legal and otherwise, that people got themselves into.

        A nd B, while blissfully in love, may be happy to say the state has no business in their private lives, but when A and B fall out of love and split up, suddenly we have the full force of the law being used to see that each gets his or her rights. Then A is very happy to see the state ruling on the pension entitlements, or who gets the house, or the division of the bill payments. And if A and B have children, then unless we’re willing to let the children suffer, the state gets involved to make sure that at the least they are fed, clothed and educated to a minimum standard until legally independent.

        For pete’s sake, does no-one listen to folksongs on here? They’re chock-full of deceived lovers left pregnant and abandoned and wandering the cold hills until the babe in their arms dies! That’s the reason the state says “We don’t care if you’re in love; we do make a minimum standard of legal requirements as to what marriage is and who takes care of the children”.

    • Patrick

      “(a) you are using human lives as test cases – if you do find that an unintended consequence of easy divorce is a bad effect on children, then you have a lot of damaged children that your social experiment is responsible for”

      Unless you put a lot of stock in the difference between action versus inaction in making moral decisions, that argument is reversible.

  • But why should one expect any negative effects on opposite-gender marriage?

    For instance, someone might as well say that same-gender marriage will make people commit suicide, or make the economy tank, or something like that. Someone might as well say that the opposite would be true.
    A question is whether keeping a ban on same-gender marriage is justifiable – or even obligatory -, given the clear negative effects for a good number of people (gay people). What are the good reasons to even suspect that opposite-gender marriage would be negatively affected, and in which ways will it be so? Would those reasons justify keeping the ban?

    For that matter, what if we were talking about interracial marriage?

    Someone might have made a similar argument, but there were clear reasons to accept it in the case of the US, even if there had been no constitutional considerations at play.

    • deiseach

      This is precisely why I would like to see the case set out for “What is marriage for? What is its purpose?”

      If marriage is just a domestic arrangement between two people, then why does the state involve itself in regulation? Why do we have laws forbidding bigamy, when we’re allowed laws forbidding adultery to lapse? Why do we put a minimum age on marriage?

      Because, like it or lump it, most of us live in families. Children are born in families. Children are the future adults and are citizens of each state, and the character of society is formed by the characters of those who comprise it. And unless we go back to ‘Victorian values’, where if you have a child and your lover says “I don’t want to support it” then you and the baby can sink or swim on your own, we are all affected by one another’s choices.

      Why did the state introduce social welfare payments for abandoned wives, single mothers, child benefit and the like? Why should we care about studies about women and poverty and women after divorce and the effects of single-parent families and ‘the threat of the underclass’?

      I think, in the controversy over same-sex marriage, we’re seeing the worst of both worlds: the argument simultaneously that marriage is (now) a personal union of romantic love for self-fulfillment of the individuals involved but also that marriage is a human right which should be guaranteed and protected and more – provided – by the wider society.

      On the one hand, who I choose to love and live with is nobody’s business but my own (and that of my partner). On the other hand, the state owes me not just recognition but legal provision of this right. I say you can’t argue both ways: if the state is to get involved in granting and protecting a right to a particular status, then the state has an interest in that status. If the state is to protect my freedom, the state has an interest in having free citizens and so it may well be worth engaging in a civil war over that very thing. Contrariwise, if the state is to keep its nose out of my bedroom, I cannot then invite the state to judge whether my partnership and the partnership of that other couple are of equal worth or value.

      • The state involves itself in many regulations of many activities, many kinds of contracts, and so on. There are labor laws, anti-monopoly laws, traffic laws, and a zillion other laws.
        One can argue for regulating marriage on many accounts, like preventing all sorts of abuse – like abuse of children, requiring a minimum age – to the fact that, well, many people seem to want to have a social recognition in that form, so why remove it?
        As for not having it both ways, there is a difference between whether the state has an interest in regulating certain relations between two people and, granting that it does have an interest in regulation some straight relationships, whether it’s acceptable not to grant same-gender couples similar options.
        In any event, legal regulation of all marriages is not what is at stake in the same-gender marriage debate, since there is no serious prospect that no marriages would be regulating.
        The realistic options in the US and other countries, at least for the foreseeable future, are clear: either same-gender marriages are banned, or they are not (well, plus the more or less intermediate option of not allowing them, but recognizing those celebrated legally in other jurisdictions, but that’s usually a transition period).
        In some cases, judges have to decide on constitutional grounds. In other cases, the decision appears to come down (unless there is a ruling that changes things later) to lawmakers and/or voters, who have of course more leeway on the reasons they use to make their assessment.
        But there’s never someone who has to decide, whether in a vote or a ruling, whether to struck down marriage laws altogether. That is simply not a realistic option today, in any country or American state.
        As for families, when you say that most children live in families, that is true, but families take different forms. Many children do not live with their mother and father. Many live with one of them (for instance), or with one of them plus her or his spouse and/or partner.
        Many children are raised one or two by gay parents, regardless of whether their parents are allowed to marry, or whether they’re even recognized as parents – those children still see them and love them as parents, and vice versa.
        Keeping a ban on same-gender marriage is not the same as banning gay people or gay couples from having children and/or from raising children. That can happen, does happen, and will happen in a number of ways.
        For instance, a bisexual mother can have a child with a man who becomes an absent father, and then start a relationship with a gay woman, both of whom raise the child.
        Alternatively, a lesbian couple can raise a child that one of them gives birth to, through artificial insemination.
        Or a gay woman can adopt a child, and then she and her partner raise the child as their kid, even if they’re not allowed to marry each other, or to legally adopt it together.
        That’s not going to stop happening if no legal recognition is given to those couples or adoptions, though it’s possible that those children will have a more difficult time, with other children mocking them and saying they do not have parents, or that the couple raising them are not allowed to marry because what they do is immoral, or whatever.
        Regarding bigamy, adultery, polygamy, etc., those are other issues that can be discussed separately, but also are not realistically on the table at the present day in the US.
        The questions at hand is not whether, say, banning bigamy but not divorce, or not criminalizing adultery are good laws, but issues such as whether lawmakers and voters should vote in favor or against same-gender marriage, or whether judges should struck down certain bans on them – of course, those issues are decided on different grounds.
        Back to the matter at hand, one question is: what’s the interest of the state to ban same-gender marriage? We know that a ban has a negative effect on many gay people and the children they raise. Do why have any good reasons to believe that allowing same-gender marriages (which clearly will improve some things) will have such a negative effect on some other social aspects that voters, lawmakers, or whoever has to decide should wait and see?
        It seems that there is no good reason, at least at this point and in the US, or – for that matter -, in many other countries. On the other hand, if there were a risk of a civil war over it, then actually that might be a good reason to keep a ban. There are freedoms whose suppression justifies going to war, and freedom whose suppression does not justify going to war, and so that would be another matter. However, there is no such risk, in the US or any other Western country, so that’s not a variable to take into consideration.

        Side note: there is another issue involved, in the context of the US: it’s possible to make a case that it’s unconstitutional to allow only opposite gender marriage, as it would be a case of arbitrary gender discrimination (e.g., a woman is banned from marrying a woman, whereas a man is allowed to marry a woman, and vice versa), but I do not know that any court has to make a decision on a case like that, or what the result of such a case would be. Usually, court cases are based on other constitutional rights, not on the issue of gender discrimination.

  • Jack Dixon

    Regardless of whether you are a heterosexual or homosexual couple, you find you have built a life together, share the same living space, furniture, and your lives and property have become co-owned. One finds that it important one day for security reasons, for the government to recognize your union under the law as being considered “next of kin”. Without this, a couple is vulnerable to having ones property taken away by the other spouses biological family in case of death of one of the spouses. You won’t get to make important medical decisions for your spouse if your union wasn’t recognized by that state. This has nothing to do with children or the marriages of anyone else. In most cases, homosexuals have been living together as married couples for years and years and the sky has not fallen. The only difference is that these couples do not have the government recognized next of kin status that would protect themselves and their property during the bad times. It certainly is not fair. Homosexuals are not asking for their unions to be blessed by god or the church, but they are wanting their unions to be recognized by the government and the law so that their lives and property together can not be in question by those who would seek to usurp that union. In a free country, we as citizens should have the right to choose who we plan to spend the rest of our lives with, we should be about to share ownership with those we have chosen to love without the fear that others will try to legally take it away.