perry trial

BOMB: Following 1st Witness Disastrous Showing, Protect Marriage’s 2nd Witness Says Gay Marriage Is Good

When The Gays first learned that Ted Olson, uber-conservative and defender of George W. Bush’s presidency, would be taking the lead in Perry v. Schwarzenegger, the case to decide gay marriage at a federal level, many folks, including Gay Inc. leaders, were suspicious of his motives. Was this guy going to purposefully throw the trial by putting forth a bunk argument in favor of marriage equality, and effectively ruin the gay marriage fight for everyone else? But as Perry has proceeded (we’re now in Week 3), the opposite appears to be true: Not only is Olson (and co-counsel Boies) throwing down arguments that makes gay marriage seem like the only reasonable thing to allow, it’s the defendants at Protect Marriage that appear to be purposefully throwing their own case. The National Organization for Marriage should be pissed!

When the defense called professor Kenneth Miller as its first witness, the court played witness not only to a man whose credentials as an expert on anything are seriously in doubt, but that his own conclusions about gays and marriage weren’t based on his own independent research. And then, in a mind-blowing admission on the stand (during what ended up as a nine-hour cross-examination) he admitted that yes, the Defense of Marriage Act — which, like Prop 8, prohibits government recognition of same-sex marriage — is discriminatory.

If that weren’t enough, Protect Marriage’s second witness on the stand managed to further damage their case.

David Blankenhorn (pictured), founder of the Institute for American Values (how official sounding!) and supposedly one of the defense’s “best” expert witnesses, got on the stand and helped sink the defense’s case. Under cross-examination, he acknowledged that, not three years a go in a book he authored, he wrote that this country would be “more American on the day we permit same-sex marriage than we were on the day before.”

He also dropped a bomb on one of Protect Marriage’s core arguments: That only heterosexual marriage is healthy enough to raise children. On the stand, Blankenhorn admitted he didn’t know of any scientific studies that said children raised by gay parents were worse off than the children of hetero parents. Moreover, Blankenhorn also dismissed the idea that two adoptive parents (even of the heterosexual variety) were just as good as biological parents. “No sir, that’s not correct,” he told Boies on cross.

Which means Protect Marriage’s second witness, in arguing against gay marriage (but proving its normalcy at the same time), is heretofore recommending we ban adoption too, because that’s just not as healthy for kids as two heterosexual biological parents. Think we’re making a leap? Consider that Blankenhorn’s argument against gay marriage rests on the same facts: it’s not as good as heterosexual marriage. No wonder Judge Vaughn Walker almost nixed Blankenhorn’s status as an “expert” witness.

Worth noting: Blankenhorn’s name was most recently attached to this Times op-ed, co-authored with Maggie Gallagher debate challenger Jonathan Rauch, that argues civil unions should be legalized, and the M-word not used — only because it’s too controversial and isn’t a good enough compromise with religious conservatives. Not because there’s a reasonable argument against giving gays full marriage rights.

No surprise the American Foundation for Equal Rights, which is footing Olson-Boies’ bill, blasted an email out headlined, “PROP. 8 CASE HEADS TO END WITH DEFENDANTS’ OWN WITNESSES MAKING PLAINTIFFS’ CASE.”

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  • PADude

    Double ouch. Unfortunately, there’s still seems to be a good chance 4 or 5 Supremes will ignore it in favor of their own prejudices…

  • tinkerbell

    Mixed emotions: I feel we will win this case, win at the 9th circuit and then suffer a disaster at the Supreme Court level.

    We have 5 nazi ideologues on the Supreme Court who care nothing about the Constitution and what’s right and all about their ideological beliefs. Part of me feels that this lawsuit may realistically be about 10 years too early. The other part of me languishes the inertia, hatred and resistance we have felt with trying to go the legislative/ballot route to equality and says push ahead now.

    I’m just glad the law is not my field of expertise. I’ll take medical issues any day.

    That being said: Give them hell Boies/Olson!!!

  • rainfish2000

    I hope the case proceeds to SCOTUS and we have a positive “national” outcome — similar to Loving -v- Virginia. I also hope SCOTUS doesn’t limit its ruling (if pro-equality) to just California on the specifics of the case based on the aspects of the dual status of Married versus “Civil Unionized” same-sex couples alone. If that is the case, then I implore Ted Olson and Company to take on Kansas next.

    A few years ago, I wrote about our plight in my home state (the Land of OZ and the viper’s den of Fred Phelps) in an essay that has been published in several venues. If anyone is interested, it can be found on the link at the bottom of the page.

    (an excerpt)

    “We Are Married…. Let No One Put Asunder” by Bud Evans

    My spouse and I were married on September 13, 2004 in Vancouver, British Columbia, Canada. We have been together for more than thirty years. When we arrived back home in Kansas, the sky did not fall; dairy cows did not stop producing milk, and gravity was still intact — although common sense and common decency seemed to have left our segment of the planet under the seemingly endless Kansas prairie sky. Yes, we got the expected “Welcome Back Home to the Good ol’ USA!” reception alright to which we’ve sadly grown accustomed as Gay and Lesbian Americans.

    For months, the vile malevolent specter of our very own local home-grown Kansas State Anti-Equality “Heterosexuals Only” so-called Marriage Amendment hung over our heads like the shadowy silhouette of a cowardly mugger ready to strike in ambush from a dark alley. Finally, in early April 2005, a Kansas lynch-mob, drunk with power and prejudice, at last had their little necktie party and strung up our Bill of Rights in the public square of totalitarianism. Apparently, American neo-fascists aren’t satisfied with just being the insufferable bully on the international block, they must also have their pound of flesh at home too.

    So what is so surprising about this scenario? Obviously there is not enough conflict in the world, so malicious malcontents in Kansas, as well as throughout most of the US, feel the need to stir up the flames of division even more. All of this brings to mind my saddest and most sustained observation concerning the United States in general. It is in regard to her citizenry’s constantly evolving contempt for other Americans. Overall, it is Mankind’s greatest single flaw too. But in the USA it is the perversion of Christian fellowship and tolerance that is being twisted into a pseudo-religious/right-wing political dogma of dissimulation and group-hate which will be the next great stain on America.

    Political gay-bashing and religion-based bigotry has quickly become this new century’s equivalent of racism, gender inequality and ethnic strife. Fanatical homophobia has been effortlessly revived and poisonously retooled from the last century’s panoply of prejudices so eagerly embraced in these perpetually un-United States. Once again, the drama is much the same — only the characters on the stage are played by different actors

    (If you wish to read the rest of this essay, please click on the link below: )

  • Brian NJ

    Olson and Boise are fighting just as much for who we are as an American people.

    If there is no Lincoln in Oblahblah, at least we have real Americans in these two lawyer greats, fighting for and declaring our emancipation from Federal and state hate laws.

  • rf

    Sadly I agree that no matter how airtight this case is, if it goes to SCOTUS, we have a 50/50 shot at best (I think its about 20%). The one thing that will be interesting is that Scalia already apparently wrote that SSM is constitutional based on Lawrence (I ain’t no lawyer but I’z googled it). Although he also gave the green light to bestiality.
    I do have to believe that Olsen and Boies know better than we what their end game is. Possibly, they want their names attached to the movement so even if they don’t win (and Olsen doesn’t win all the time at scotus), they are laying foundation that they feel is critical to getting this done. Who knows, maybe they’re planning to do another case in 10 years which will push it over the top.

  • Kevin


    Tink, I tend to agree with you that we might be 10 years early, though I’m no lawyer. I put full faith in Boies and Olsen. They’re really the best of the best and they think they can win this. True, they have nothing personally to lose if the case is lost in the Supreme Court, but they also do want to win or they would not have filed the suit. They both have long careers of increasingly high profile cases and this would be a landmark decision to put a crowned jewel on their careers. If they thought this case should wait 10 years, they would have waited 10 years.

  • Mike in Asheville

    This is the same asshat who wrote a Pro Prop 8 opinion piece published in the LA Times just prior to the November 2008 election.

    While the Internet offers many to participate in current events, such as posting items here on Queerty, one shame is the toll taken on traditional media and the ever growing lack of quality review of contributed opinion pieces.

    In this case, the LA Times FAILED to expose that this man is anything but an expert in family/gay issues, and that he has a record of statements that, actually, reinforce the cause for marriage-equality.

    Glad this asshole is being exposed as the asshole bigot he is.

  • Chitown Kev

    You know…

    Even if we don’t win at SCOTUS, having all of this entered into federal court records, having other gay discrimination cases going on, having the solid documentation of the utter and vile bigotry of these people will do a lot for our cause.

  • romeo

    This is beginning to look like a set-up. Purposely losing the case here to insure that they can take it to the Supreme Court maybe? Maybe we need to research prior comments of certain Supremes (Like Scalia and Thomas). Correct me if I’m wrong, but even for the Supremes, a prior stated bias should mean they have to recuse (sic ?) themselves.

  • Jason Davis

    I hope that the lawyers call Gov. Schwarzenegger to the stand as a rebuttal whiteness. Giving the fact that he refused to defend the case in the first place, and he is in favor a full equal marriage rights. I think it would make for a great nail, in the coffin.

  • Paula


    i’m trying very, very hard not to think about that :-(

    i sometimes wonder why we even have supreme court hearings, since everyone can almost always predict what the outcome will be, and it rarely seems to be based on the facts of the case…


  • Jason

    I’m with Romeo, it seems as though the proponents of Prop 8 want to lose so that it will go before the supreme court, where they know they will have a much better chance of winning. Its very disheartening to think that 5 judges will not follow the constitution but their own prejudice.

  • PADude

    @Paula: Because in a reasonable, thoughtful, insightful world, which the Founders envisioned for America (or at least hoped for), they’d rule purely on constitutionality and the vote would be 9-0 in our favor.

    I don’t think they saw the current mess coming any more than I can predict what things will be in 2220.

    @Jason: I don’t think so…or it’s a really bad move on their part. So far, the testimony is so weak that any Supreme Court will have to obviously follow its prejudices to vote against it. I’m sure not a lawyer, but I can’t see the thinnest thread they could use to reasonably leverage this over the overwhelming incompetence of the H8 Marriage side.

    And if they do that, I think there’s going to be Hell to pay (more than there already is). We’re furious with Obama, ticked off at Congress, and now we’ll be rabid at the Supreme Court. So will all our allies…who comprise a heck of a lot more than a piddling 4% of the nation.

  • Sam

    Okay, Olsen/Boies are doing a better job than I thought they would and the opposition is screwing up right and left. That said, those of you who are all “they wouldn’t do it if they couldn’t win” or “they know better than us” need to remember: THEY ARE GETTING PAID. By Rob Reiner and other Hollywood hotshots. That’s not pocket change.

    If you were them, would YOU turn down a paycheck to work on a super high profile case, just because you weren’t 100% sure that you could win it? I’m not saying that they’re not supporters or that they’re not going to try as hard as they can. I’m just saying that I don’t think they’re anymore sure of the outcome than we are.

  • 1EqualityUSA

    Blankenhorn looks like a character out of a movie. If the Supreme Court musters up 5 votes against equality, it’s just that much more evident that oppression of gays extends to the very top. We will be equal someday, but burden of proof will need to play itself out.

  • greenluv1322

    Boys there is never a %100 chance you will win a case. In every case there are two sides. I should know, I am a lawyer. Sometimes you win sometimes you lose. Also, I think that it is too early to predict what the SCOTUS will do when Judge Walker hasn’t made a ruling. Actually they haven’t even done closing arguments. So chill guys this is closer than anyone could have imagined just three weeks ago.

  • Deanna

    Is it possible that the proponents case is so bad that when they lose, and it is appealed, that the appeal is denied. This would then leave this away from SCOTUS, and just be a local thing with no power on other states?

    What would that mean?


  • Steve

    If I understand correctly, there are two major elements in the decision that Judge Walker will write for this case. One will be the “findings of fact”. The second will be “finding of law”.

    Whatever findings of fact he writes will be the final version, not subject to appeal. There are no new “facts” introduced during appeals. The appeals courts have to base their decisions on the facts of the case that are found by the district court.

    The findings of law are the subject of the appeals. The appeals are all about whether or not the law was correctly applied to the facts. Of course, Judge Walker is going to make every effort to get this part right, so that the appeals courts will not find any fault with his findings of law.

    The plaintiffs proposed findings of fact are in a document available at the AFER web site:
    Very interesting reading. If I understand correctly, many of the proposed findings are exactly what is required to invoke specific precedent case law. If Judge Walker finds that all of those facts were proved, it could be very advantageous during the appeals.

    Additional findings of fact and findings of law may be proposed by both plaintiffs and defendants, before the judge makes his decision. In the mean time, the trial isn’t even over. The final arguments aren’t even scheduled yet. The final arguments will probably happen in a month or two. Then, the trial phase will be over.

    (Disclaimer: IANAL)

  • TommyOC

    Keep in mind that the SCOTUS case could go another unanticipated way… it’s possible SCOTUS may not take the case up at all. They could decide the case was judged fairly and soundly and that there is no cause for appeal.

    It would also send the clear signal that while the court’s majority agrees with equality for gays, they don’t want to go on record for it. Which means they will have to some day. But for the time, the 9th Court ruling would stand.

  • Freddie

    “They could decide the case was judged fairly and soundly and that there is no cause for appeal.

    And monkeys might also fly out Scalia’s ass, but I’ll believe that when I see it.

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