{"id":2094,"date":"2012-03-04T14:28:21","date_gmt":"2012-03-04T19:28:21","guid":{"rendered":"http:\/\/www.patheos.com\/blogs\/unequallyyoked\/?p=2094"},"modified":"2012-12-09T22:30:36","modified_gmt":"2012-12-10T03:30:36","slug":"prop-8-play-lets-the-lack-of-facts-shine-through-mostly","status":"publish","type":"post","link":"https:\/\/www.patheos.com\/blogs\/unequallyyoked\/2012\/03\/prop-8-play-lets-the-lack-of-facts-shine-through-mostly.html","title":{"rendered":"Prop 8 Play Lets the Lack-of-Facts Shine Through (mostly)"},"content":{"rendered":"\n<\/head>

Remember you can vote once per day for the About.com Atheism Awards. \u00a0I\u2019m\u00a0one of five nominees for Best Atheist Blog<\/a>. \u00a0More details here<\/a>.<\/em><\/p>\n

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I\u2019m not sure which is the best example of the American Foundation for Equal Rights stacking the odds in their staged reading of 8<\/em><\/a> \u2013 a play sourced from the transcripts of the Prop 8 trial Perry v. Schwarzenegger<\/a><\/em>. \u00a0It might be the scene when the suave and gorgeous George Clooney (David Boies) cross-examines the John C. Reilly-looking\u00a0John C. Reilly as David Blankenhorn<\/a> \u2014 the sole witness for the Prop 8 defenders. \u00a0But it\u2019s probably the moment where, as Blankenhorn flounders, the camera cuts to Jane Lynch-playing-Maggie Gallagher baring her teeth in rage. \u00a0Maggie Gallagher didn\u2019t testify at the trial, and, for all I know, was never present, so this was nothing but\u00a0gratuitous.<\/p>\n

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Some of these choices remind me of the legal aphorisim: \u201cIf 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.\u201d 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.<\/p>\n

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 \u2014 that the existence of same-sex marriage would weaken straight people\u2019s commitment to\u00a0marriage. \u00a0That\u2019s where they lost.<\/p>\n

I remember reading the transcripts of<\/a> David Blankenhorn\u2019s testimony<\/a> during the original trial. \u00a0Blankenhorn, the only<\/em> 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. \u00a0He was essentially a human literature review. This was frustrating. \u00a0Ideally you cross-examine the relevant scholars and make them defend their own work, but the scholars wouldn\u2019t take the stand, so Blankenhorn was all we got. \u00a0And he didn\u2019t go very far in his testimony (inserted at the end of the post, since even the relevant excerpt is long).<\/p>\n

Blankenhorn and others are basically arguing that gay marriage is too big and risky a change to make. \u00a0But this kind of objection has to be linked to data, or it\u2019s a generic veto of any social change. \u00a0At 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\u2019s no explanation given of what kind of data we\u2019re waiting for, or why Massachusetts can be the test case, but California can\u2019t join in. \u00a0In these kinds of circumstances, I echo an exclamation of Sherlock Holmes, \u201cData, data, data! \u00a0I cannot make bricks without clay!\u201d \u00a0(I should really put that on a sampler).<\/p>\n

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If opponents to gay marriage want to be taken seriously, they have to put their money where their marriage rhetoric<\/a> is and start making predictions. \u00a0And if you\u2019re willing to do that, contact me about a guest post<\/a>. \u00a0That\u2019s why I really appreciated Matt Gerken\u2019s contributions to our recent debate on gay marriage<\/a>. \u00a0Matt gave<\/a> examples<\/a> of the kind of harm he expected gay marriage would do; it didn\u2019t all have to be in the language of social science and statistics. \u00a0And it turned out, a lot of the time we disagreed on what counted as harm.<\/p>\n

Blankenhorn and the Prop 8 team didn\u2019t do us that courtesy, and that omission is the clearest part of 8<\/em>. \u00a0No need to pound the table, when the other side neglects the facts.<\/p>\n

\u00a0<\/p>\n

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Boies\u2019s cross-examination of Blankenhorn, excerpted:<\/em><\/p>\n

Q.<\/strong> 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?
\nThat\u2019s \u201cyes,\u201d \u201cno,\u201d or \u201cI don\u2019t know.\u201d
\nA.<\/strong> I know the answer. I cannot answer you accurately if the only words I\u2019m allowed to choose from is \u201cyes\u201d or \u201cno.\u201d I can give you my answer very briefly in one sentence.
\nTHE COURT:<\/strong> If you know the answer, why don\u2019t you share it with us?
\nTHE WITNESS:<\/strong> I would be happy to, but he is only permitting me to give \u201cyes\u201d and \u201cno,\u201d and I cannot do that and be accurate.
\nTHE COURT:<\/strong> He is giving you three choices, \u201cyes,\u201d \u201cno,\u201d \u201cI don\u2019t know.\u201d
\nTHE WITNESS:<\/strong> But I do know. I do know the answer.
\nTHE COURT:<\/strong> Then is it \u201cyes\u201d or is it \u201cno\u201d?
\nTHE WITNESS:<\/strong> Your Honor, I can answer the question, but I cannot give an accurate answer if the only two choices I have are \u201cyes\u201d and \u201cno.\u201d I \u2014 if you give me a sentence, I can answer it. One sentence is all I\u2019m asking for.
\nTHE COURT:<\/strong> All right. Let\u2019s take a sentence. One sentence.
\nA.<\/strong> Can you ask me the question again, please.
\nQ.<\/strong> 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?
\nA. <\/strong>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 \u2014 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.
\nTHE COURT:<\/strong> If I were to take that as an \u201cI don\u2019t know\u201d would that be fair?
\nTHE WITNESS:<\/strong> With respect, your Honor, I would disagree with you.<\/p><\/blockquote>\n

8 will be available to watch on YouTube for the rest of the week. \u00a0Link below:<\/em><\/p>\n