Forcing the Spring: Inside the Fight for Marriage Equality (26 page)

Meanwhile, the proponents were talking about how their witnesses would not testify because they feared being harassed.

“We just sat there thinking, ‘Come on,’” Sandy said.

Kris had tried to adopt a “what will happen, will happen” attitude. But her attempt at fatalism was often overpowered by a single thought: “Please, God, don’t let anything happen.” She was tired of being scared. Hang in there, she told herself, after the courtroom intruder was removed. Just one more witness, and at least this phase of the case would all be over.

W
hen court resumed that afternoon, Chuck Cooper called his final witness.

Afterward, Olson and Boies would wonder aloud why Cooper had even bothered with someone who spent so much time extolling the many virtues of same-sex marriage that it was easy to forget that he was there to defend the voters’ decision to ban it.

Cooper would counter that his opponents had missed the entire point of the testimony. And the witness would recall the sheer exhilaration of his star turn on the stand, the “stroke to the ego” he had experienced “going head-to-head with a skilled interrogator” like Boies.

“
You know what I enjoyed?” David Blankenhorn said. “The combat.”

He did not have to wait long for it to commence. Blankenhorn was the founder of the Institute for American Values, a nonprofit dedicated to strengthening marriage, and he was there to rebut the testimony of the plaintiffs’ experts that no harm would come from allowing gays and lesbians to wed. But before Blankenhorn could proceed, Boies, as he had with Miller, challenged his qualifications to opine on those topics.

Boies began with Blankenhorn’s actual area of academic expertise—the Victorian cabinetmaker thesis that Chad’s team had dug up—then listed all the qualifications he lacked. He did not have a degree in sociology, anthropology,
psychiatry, or any other field relevant to the study of marriage, children, or families. He had never taught at a university.

“
Boies made a big thing that I was incompetent, that I couldn’t walk and chew gum at the same time,” Blankenhorn later recalled. “Peer review this, publish that—he just had a high ol’ time of it.”

Judge Walker made clear that Blankenhorn was a tougher call than the previous expert witness, Professor Miller. To his credit, Blankenhorn had written two books, one on fatherhood and another called
The Future of Marriage
. His views on same-sex marriage were frequently quoted in the press and he had testified before a congressional committee on the subject. And in the Ninth Circuit, where the trial was being held, the rules on expert testimony were fairly lax; there were no minimal academic requirements, for instance.

But experts must be informed by scientific or other specialized knowledge that gives them a command of the subject beyond what an informed layperson might have. In this case, Blankenhorn acknowledged that he had conducted no independent studies to test his contention that allowing same-sex marriage would have a deleterious societal impact. He was merely a “transmitter of the findings of eminent scholars,” as he described it in his deposition.

“I have just read articles and had conversations with people, and tried to be an informed person about it,” Blankenhorn told the court. “But that is really the extent of it.”

Walker decided to hear Blankenhorn out before rendering judgment on his qualifications. But “were this a jury trial, I think the question might be a close one,” he said.

Amir Tayrani, who had spent most of the trial back at the office looking through the transcripts with an eye toward the appeal, was in court that day to watch the action. “They might as well have got someone off the street,” he said to Kristina. “He’s going to get eviscerated up there.”

Kristina nodded her agreement. “Good times, good times!”

A Mississippi native, Blankenhorn had the accent and thundering cadence of a tent revivalist preacher, and he used both to ponderous effect during Cooper’s
direct examination. “How’s Pat Robertson doing in there?” joked Olson, who had left the courtroom to stretch his legs.

Blankenhorn saw himself as an anguished warrior in the debate over same-sex marriage, someone who had only reluctantly concluded that the rights of gays and lesbians must take a backseat to the needs of children. He had come to Cooper’s attention because he ran in the same circles as Maggie Gallagher, whose National Organization for Marriage was one of the driving forces behind Prop 8’s passage. She had worked at his Institute for American Values, but had struck out on her own because for years he had refused to involve himself in a gay marriage debate he viewed as divisive. Eventually, though,
the “issue just hunts you down,” as he later put it, “and you realize that silence is not an option.”

Blankenhorn had founded his nonprofit out of concern over the growing number of children being raised in fatherless households. Now he shared with the court his fear that allowing gays and lesbians to wed would further devalue an institution already weakened by the prevalence of out-of-wedlock births and no-fault divorce. Marriage, he told the court, is a “gift to children” that exists to “regulate filiation”—or, in plainer terms, to make it as likely as possible that that they are claimed and raised by the biological parents who brought them into the world. “That is the lodestar,” he said.

“Why does it matter whether the child is raised by his or her own biological parents?” Cooper asked.

“The scholars have given it a name, called ‘kin altruism,’” Blankenhorn said. “And it really means, you know, you care a lot about who you are related to. You care about your relatives. You care about who your parents are, who your child is. And you would be—they have measured this with great precision. You typically sacrifice more for people to whom you are related.”

So, he continued, “If you wanted what was best for the child, you would want that child—other things being equal, of course—you would want that child to be cared for by the two individuals who are most closely related to the child. And that would be the child’s mother and the child’s father.”

Concern about the “deinstitutionalization” of marriage and the potential impact that could have on children was, Cooper believed, reason enough for Californians to vote to ban gay couples from marrying—even if it never materialized. This was, in essence, his “I don’t know” and “science can’t say with the
kind of certainty required for setting constitutional precedents” defense, which he alluded to in a question aimed at inoculating his witness against charges that there was no definitive proof to back up his dire predictions.

“Mr. Blankenhorn, how confident are you that redefining marriage to include same-sex marriage, same-sex couples, would further the deinstitutionalization of marriage?”

“It’s impossible to be completely sure about a prediction of future events,” Blankenhorn answered. “But . . . if you change the definition of the thing, it’s hard to imagine how it could have no impact on the thing.”

Blankenhorn had studied Boies during his cross-examination of the defense’s previous witness, Kenneth Miller. He admired the way he always seemed to be reassessing the situation, searching in an unscripted way for a genuinely human interaction. But Blankenhorn was determined not to fall for the lawyer’s traps, and particularly not to be forced into giving the type of simplistic “yes, no, or I don’t know” answers the lawyer demanded to questions he considered to be far more complex. “
I wasn’t going to be bullied by him or anyone into choosing three words,” he said later.

The result was a confrontation that at times saw the two men shouting over one another, and the judge growing so exasperated by Blankenhorn’s repeated attempts to reframe Boies’s questions into ones more to his liking that at one point he said, “That’s how it works. There’s a question, and there’s an answer.”

In one representative exchange, first Boies, then Walker pressed Blankenhorn to say whether the long list of academics he had reeled off during his direct testimony actually agreed with him that allowing same-sex couples to marry would lower the rate of heterosexual marriage. “He is giving you three choices, ‘yes, no, or I don’t know,’” Judge Walker told Blankenhorn.

Repeated queries finally yielded this: “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.”

Boies treated Blankenhorn with deliberate disdain, his tone alternatively sneering and bullying, “like an abusive parent,” Yusef Robb said. He repeatedly
mispronounced the witness’s name, as if to say he could not be bothered with someone of his caliber, and neither should the court.

“Mr. Blanken
thorn
,” Boies would say.

“Horn!” the witness would protest. (Rob Reiner joked that either version sounded like a character out of a Groucho Marx movie.)

Boies even offered the witness a “gold star” when he managed a simple, declarative answer. It got so bad that Blankenhorn at one point complained that Boies was making fun of him.

“I don’t think he’s laughing at you,” Judge Walker said. “He’s amused at the back-and-forth. As I think many of us who are observing this are.”

By defining marriage as a union between a man and a woman and then arguing that allowing gays and lesbians to marry would deinstitutionalize it, Olson felt Cooper was playing a tautological game, like saying that the right to vote was deinstitutionalized when women were allowed into polling booths. He wanted Boies to deconstruct it by getting the witness to make concessions drawn directly from the Supreme Court’s prior marriage rulings that he could then use on appeal.

“Pull him back—get him to say that marriage is a fundamental right,” said Boutrous, conveying Olson’s wishes during one prep session. “And on deinstitutionalization, Ted was thinking, when blacks and whites were allowed to marry, did that deinstitutionalize marriage? How about when prisoners were allowed to marry?”

Boies agreed with Olson. “They are saying you shouldn’t make any change until you’ve had time to see whether there is any impact, but if everybody took their position then there would never be any change to study.”

But Blankenhorn’s stubborn evasiveness—“Your Honor, Your Honor, he keeps doing this!” Boies protested at one point—prevented the lawyer from eliciting some of the concessions that Olson most wanted.

Still, over the course of the cross-examination, Boies forced Blankenhorn to acknowledge that marriage “evolves over time,” is a “public good,” and that to the extent it was being deinstitutionalized, that was a phenomenon attributable to heterosexuals, not gays and lesbians. Blankenhorn also conceded that, notwithstanding his testimony about “kin altruism” and the superiority of the genetically related family, studies showed that adoptive parents can actually
outstrip biological parents in providing for their children because of the rigorous screening process they undergo.

But the moment that Boies would crow about for years to come, the moment in which he confronted Blankenhorn with words from his own book, words about how allowing gays and lesbians to marry would be a “victory for the worthy ideas of tolerance and inclusion,” was not quite the gotcha moment that it seemed.

In fact, as incredible as it might have seemed to Boies and Olson, it was Cooper’s entire reason for putting Blankenhorn on the stand.

If Cooper could have, he would have called the president of the United States. He was betting the case on the proposition that in a rational-basis world, “if I can point to a single nonbigoted person favoring Proposition 8, I have to win.”