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reuters
prop 8 on trial
January 31, 2010

By Amanda Beck

The defense this week called the long-awaited David Blankenhorn, an expert who attorneys had promised would help articulate why traditional marriage should be protected as such.  Blankenhorn’s name was highlighted in the defense opening, and as one of only two defense witnesses, he seemed to shoulder many of the party’s evidentiary hopes.

However, by the time Blankenhorn finished at least seven hours of testimony on Wednesday, it was not clear that he had aided the defense cause.  Not only had he conceded several plaintiff points, including that same-sex marriage would potentially reduce the divorce rate.  He had also given the impression that his testimony was largely the fruit of deep soul-searching, not the articulation of scientific conclusions.

Watching Blankenhorn was fascinating, if only because he seemed to embody the personal struggle that many Americans are navigating with regard to same-sex marriage.  Blankenhorn seemed to have weathered reconciling his own mind, heart, and statements on the matter.  But in a peculiar stance for an expert witness, he offered the sincerity of his journey as proof of the persuasiveness of his conclusions.

For more on this unusual episode, read on.

MARRIAGE AS AN INSTITUTE FOR CHILDREN

Blankenhorn’s primary testimony was that marriage is a socially-approved, sexual relationship between a man and a woman.  He said this central feature appeared almost uniformly throughout human history and that almost every culture used marriage to fix a legal and social relationship between a child and her biological parents.  “We think of it as the gift we give to children,” Blankenhorn said.  “We say, ‘You, as a child, are being given this gift of being able to know and be known by the two people who brought you into this world.’”

Blankenhorn said he based his statements not upon religion but upon a consensus of leading scholars including Bronislaw Malinowski  and Claude Levi-Strauss, pillars of anthropology who wrote during the 1920’s and the 1950’s, respectively.  He also cited more recent scholars who describe marriage as a social institution designed to contain procreation.

Finally, Blankenhorn concluded that marriage had been “deinstitutionalized” in the last decades – that there had been a general loss of reverence for traditional marriage and its rules.  He pointed to the rise in out-of-wedlock births and unwed cohabitation as evidence of a growing lack of loyalty to marriage and said the institution would be further undermined if same-sex couples were allowed to marry.  Results might include higher rates of divorce, one-parent homes, and alternative family forms, including polygamy, Blankenhorn said.  However, he conceded that he had no evidence to support these predictions.  “I don’t think anyone here can say that they know from scientific study based on data… that this will happen,” Blankenhorn said.

BLANKENHORN AS META-WITNESS

However, no account of Blankenhorn’s testimony would be complete without a description of the trouble that seemed to follow him from the start.  Blankenhorn’s main points on direct examination were overshadowed by his questionable credentials, his demeanor, and the contradictory statements he made on the stand.

Indeed, observers might have considered it a bad omen when Chief Judge Vaughn Walker said, at the opening of Blankenhorn’s testimony, that he would allow Blankenhorn to continue even though the question of whether he qualified as an expert “might be a close one.”  Blankenhorn is the founder and president of the Institute for American Values, a non-partisan think tank that commissions studies on marriage, fatherhood, and family structure.  This organization published Blankenhorn’s two books on these topics, and one of them, Fatherless America, was reviewed widely in the popular press and in at least one professional journal.  However, Blankenhorn’s master’s degree is in the history of labor relations with particular focus on 19th century Britain.  He has never written a peer-reviewed article on the effects of same-sex marriage nor, by his own admission, studied any of the legal cases in which the United States Supreme Court has declared marriage a fundamental right.  No college or university has ever employed him to teach.

Perhaps more to the point, Blankenhorn’s testimony was not based on his own original research.  Instead, he seemed a kind of meta-witness who cited the research of other scholars either unwilling or unable to testify themselves.

This became an issue on cross-examination, when plaintiff attorney David Boies characterized Blankenhorn as a mere “transmitter,” repeating the conclusions of other researchers. “Well, now you’re putting words in my mouth,” Blankenhorn protested.  But when Boies prompted him to review his 2009 deposition transcript, Blankenhorn conceded a “gotcha moment,” because even he had described himself as “a transmitter of findings of eminent scholars.”  Blankenhorn clarified by saying that he had his own assertions, which he based on these findings, but ultimately he did not quibble with Boies’s premise:  That Blankenhorn’s alleged expertise did not stem from his own work.

The issue is an important one:  Courts allow expert testimony partly because the witness is subject to cross-examination, which identifies weaknesses in the scholar’s argument and gives him an opportunity to account for them.  But when one party calls a witness who simply relies on the findings of others, the opposing counsel cannot test these theories.

The situation was of even more concern with regard to Blankenhorn, who first quoted eminent anthropologists and then suggested that they would endorse his conclusion that same-sex marriage would lower the rate of traditional marriage.  However, none of Blankenhorn’s anthropological giants ever studied industrialized societies, legal institutions, or the use of Common Law in the United States.  Further, as Boies pointed out, few of the more modern scholars even mentioned same-sex relationships, much less articulated Blankenhorn’s conclusion about their harm to traditional marriage.

The situation left Boies to separate the work of Blankenhorn from testimony about his academic peers and predecessors, and afterward, it wasn’t clear what was left.

BLANKENHORN’S SOUL-SEARCHING

This led to another peculiarity in Blankenhorn’s testimony: Perhaps because he did not speak in detail about his own original research, his testimony lacked the authority of the plaintiffs’ expert witnesses.  Instead, his language was strangely self-referential.  For example, when he described the process that brought him from opposing domestic partnerships to favoring them, he did not recount a scientific study.  Instead, he described a personal “journey” and “exploration” that required him think about social discrimination.  “That was the big thing I had to grapple with in my own mind – to be able to look myself in the mirror,” Blankenhorn said.  He ultimately concluded that “it means a lot to me personally … that I have been able to understand this” but did not clarify what new information led him to reverse his professional opinion.

The personal nature of Blankenhorn’s testimony was also present in his tone.  Blankenhorn came off as well-spoken, well-read, and thoughtful.  But he could also be truculent when he felt that Boies denied him an opportunity to answer completely.  In one instance, Blankenhorn flatly declared that he would “not seek to answer” a question about same-sex marriage, because Boies declined to clarify the context.  This elicited laughter from the gallery, and when Blankenhorn began to protest earnestly that the issue was “no laughing matter,” a bemused Judge Walker suggested that Boies “try again.”

In essence, Blankenhorn presented an “aw, shucks” demeanor and seemed to hope that his sincerity, not just his claims to scientific knowledge, would convince the court of the soundness of his views.  On the stand, he deplored homophobia but, after “wrestling with the evidence,” could not say that discrimination had caused societies to limit marriage to opposite-sex couples.  If evidence of this exists, Blankenhorn said, “I want to know it.  But I’m telling you that I have looked for it, and I can’t find it.”

He also returned to painful earnestness when he could not resolve tensions in his positions.  For example, Blankenhorn believes that same-sex marriage will undermine traditional marriage and its protection of children.  But he also believes that same-sex marriage would likely improve the stability of same-sex couples, the welfare of their children, and further the American pursuit of equality.  “I’m one of those persons who do not believe that this issue is a case of good versus bad,” Blankenhorn concluded.  “I believe that there are valid arguments on both sides of the issue.”  He said his preference for confining same-sex couples to domestic partnerships was a judgment call that he made with some “anguish.”  And then, he left his reasoning at that.

POST-TESTIMONY SPIN

During Blankenhorn’s testimony, there were moments when the gallery watched him struggle to explain obvious contradictions, perhaps just as many Americans struggle to resolve their feelings and thoughts on same-sex marriage.  However, such ambivalence was surprising in an expert defense witness, called to describe the purpose of marriage through time and space and to show how same-sex marriage would hurt opposite-sex unions.  It was as if Blankenhorn’s effectiveness as an expert was hamstrung by his own conflicted conscience.

Defense attorney Andy Pugno later characterized Blankenhorn’s candidness as a sign of credible court testimony.   “He gave credit where credit was due to arguments on both sides of the debate,” Pugno said.  “And based on all of the evidence and all of the factors, this expert comes down on the side of traditional marriage.”

Indeed, it may be that aspects of Blankenhorn’s testimony will serve as a kind of Greek chorus for greater America, where nationwide polls show the country almost evenly split on the issue of gay marriage but substantially more in favor of civil unions.

However, from the gallery and from the plaintiffs’ perspective, there was considerable doubt about whether Blankenhorn was the most effective spokesperson for the defense.  At a post-trial press conference, plaintiff attorney Theodore Boutrous proclaimed that Blankenhorn himself had admitted key plaintiff positions, including that allowing same-sex couples to marry would benefit their children and reduce the number of unhappy marriages.

Boies also seemed satisfied that the defense experts had helped make the plaintiffs’ case.  “I think one of the most remarkable things about this trial was how much agreement there was among the witnesses,” Boies said, even if “it didn’t always start out that way.”

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