January 27, 2010
By Julia Rosen
This is the last daily summary for a few weeks.
Here is the timeline we are looking at… Amicus briefs are due on February 3rd. Judge Walker is bringing the lawyers in to go over these briefs on Feburary 26th. He indicated as they were wrapping up today that at that time (the 26th) he will schedule the closing arguments. That likely means we will not have closing arguments until early March, with the ruling several weeks after that, depending on how long Judge Walker takes.
I know, the wait stinks, but I’d much rather Judge Walker be deliberative about this process and his ruling than it be rushed. No matter what way this goes, the wording in his ruling will influence what the appeals court and eventually the Supreme Court will say and do.
The hiatus does not mean we will be stopping around these parts. There will be fresh content throughout this break, so keep coming back and join in the comments.
By Rick Jacobs
It’s the last day for evidence in this trial. We’re still upstairs, in the 19th floor Ceremonial Courtroom. This morning, Teddy from FDL beat me to the room, but it’s pretty much our same little group. So far, there are about eight people here, with a few meandering in. I ran into AP’s Lisa Leff on the way into the building today.
Up on 19, we’ve formed a sort of community. Everyone is respectful of each other, even if we are not all on the same side. The Prop. 8 folks continue to sit in the jury box up here, behind me. I’m at the long plaintiff’s table, next to the projector that occasionally shows videos, slides and “demonstratives” from the trial room.
The other twelve foot long, blond wood table that would have been at home in a college library.
0834: The judge just entered.
Judge Walker: Good morning. Mr. Blankenhorn, you understand that you are still under oath.
Judge Walker: The oath that you took yesterday still applies?
Boies: Good morning Mr. Blankenhorn. I’m going to start with some things we agree on. You agree that marriage is a public good.
Boies: What is a public good?
DB: Benefits society..
Boies: Good for children and couples.
Boies: You believe it would benefit gay and lesbian couples and their children to allow same sex marriage?
DB: I believe it is likely to do that.
Boies: You believe it is almost certain to do that?
DB: Yes, I believe same sex marriage is almost certain to benefit gay and lesbian couples and their children.
Boies: Reads from B’s book. “If adopting same sex marriage would be likely to impede that goal, I’d be against it.” You believe that the rights of gays and lesbians should take second place to an existing institution?
DB: Read me the sentence again?
Boies: I’ll read the next sentence in which B says that if marriage will be sacrificed, I’d put gays and lesbians in second place.
Boies: To the degree that I must choose, with some anguish, I would choose children’s’ collective good and the institution of marriage…
DB: My entire book…
Boies: I’m not interested in your entire book.
DB: My book is about goods in conflict. (whines)
Boies: I thought you would agree with what I read (because they are your words).
DB: I do agree (whining again, like a little boy), but I am writing about goods in conflict. I do not believe that (gay marriage) is bad. Two “goods” in conflict.
Judge Walker: Let’s have a question and an answer.
Boies: I’m going to read from your chapter Goods in Conflict which is a sort of group think experiment in which you wrote things on a white board.
DB: I agree with substance of what you say, but it’s important …
Boies: Your honor would you instruct the witness to be responsive to my questions and not make statements no matter how important he thinks they are.
DB: I am making important points! I do not need those instructions!
Judge Walker: If this were a jury trial, the jury would be instructed to weigh the witness’s background and other factors. One of those factors is the witness’s demeanor. If the witness is not responsive to the questions, that affects the jury’s weighing of his testimony. I’m sure you would not want your testimony to be diminished by your demeanor. So please be responsive to the questions. Your counsel will have a chance to allow you to expand on points.
DB: Yes, your honor.
Boies: Read silently to yourself the 23 points that are listed in this chapter and tell me whether yes or no you agree with them.
DB: 1. – 7 yes. 8 and 9 no. 11
DB: 1 – 7 yes. 8 and 9 no. 11, 12 yes. 13. I don’t know. 14 no. 15 yes. 16, I don’t know. 17. No. 18 yes. 19. Yes. 20. I don’t know. 21. I don’t know. 22. Yes. 23. I don’t know.
Boies: Thank you. I’d like to publish this list and go through it and both identify the ones you agree with and ask you some questions about the ones you don’t agree with.
(UP on screen)
1. Same sex marriage would meet the stated needs and desires of g and l who want to marry. In so doing it would improve the happiness and well being of many gay and lesbian and individuals, couples and family member.
2. Gay marriage would extend a wide range of the natural and practical benefits of marriage to many lesbian and gay couples and their children.
3. Extending the right to marry to ss couples would probably mean that a higher proportion of gays and lesbian would choose to enter into a commitment relationships.
4. Same sex marriage would make more gays and lesbians enter committed relationships.
5. Decrease promiscuity.
6. Same sex marriage would signify greater social acceptance of homosexual love and will increase the worth and validity of intimate relationships.
7. Gay marriage would be a victory for the worthy ideas of tolerance and include. It would likely decrease the number of those in society who tend to be treated warily as “other” and increase the number who are accepted as part of us. In that respect, gay marriage be a victory for and another key expansion of the American idea.
910. Gay marriage might contribute over time to t decline in anti gay prejudice as well as more specifically reduction in hate crimes.
11. Long one- basically would make homos more stable economically and therefore more likely to contribute to US.
15. Extending same sex marriage rights to would probably reduce the proportion of homosexuals who marry persons of the opposite sex and thus would likely reduce unhappy marriage to opposite sex couples.
18. By increasing the number of married couples who m be interned in adoption and foster care because same sex couples can have kids in their families.
19. Adopting same sex marriage would likely be accompanied by a side ranging and potentially valuable national discussion.
22. Gay marriage would probably expand the possibility and research on a variety of topics related to marriage and parenting.
Boies: Go back to number 14, with which you disagreed. Let me ask you if you agree with any part.
Reference here to “marriage lite” schemes such as civil unions and domestic partnerships, which can harmfully blur the distinctions between marriage and non marriage”
DB: I do believe, it is a concern of mine, one concern that needs to be taken into account, because cu and dp are similar to marriage so they could blur the distinction.
Boies: You are saying that marriage lite schemes such as civil unions and domestic partnerships are a concern because they could blur the distinction between marriage and non-marriage.
DB: Yes sir.
Boies: You understand that you were to list the documents you used to create your expert report?
DB: No sir. As I explained yesterday…
Boies: I do not want your explanation. I just want a yes or no.
Judge Walker: Perhaps if you showed the witness the expert report.
Boies: Shows report. Which of these show that same sex marriage would undermine hetero marriage.
DB: With proviso that most of these were written before the debate on same sex marriage arose, I can list these exhibits. 2, 3, 10, 24, 37 and that’s all.
Boies: With respect to number 10, who is this?
Boies: Not an anthropologist or
DB: One is by Maggie Gallagher. Who is Maggie Gallagher?
Boise: Who is Maggie Gallagher.
DB: Writer and organizer whose principal focus for the past four or five years has been to oppose gay marriage.
Boies: Do you believe she is a scholar?
DB: I do. She is an intellectually serious person.
Boies: Do you define scholar as intellectually serious?
DB: If you are quarreling over terms…
Boies: I’m not quarreling. You use term scholar a lot. What is it?
DB: Scholar is someone who is able and equipped to engage in serious discussion with one or more bodies of evidence and make rigorous arguments with one or more bodies of evidence. Good scholars operate with integrity and try to seek the truth of the matter.
Boies: One attribute is objectivity?
DB: In the sense that one must try to deal with objectivity, yes. Maggie Gallagher has a dual role. She’s a journalist and a partisan.
Boies: Has she published any peer-reviewed articles? Which ones?
DB: I don’t have her CV here. I can’t recall them here, but she has been in peer-reviewed journals.
Boies: Which ones of her peer-reviewed articles have you relied upon?
DB: I have read thousands of articles, hers included.
Boies: Which of Maggie Gallagher’s?
DB: You are putting words in my mouth.
Boies: On which of Maggie Gallagher’s peer-reviewed articles that rise to objectivity that you say scholars aspire to?
DB: None. I did not rely on any of her articles for my testimony here.
[Blankenhorn is self-righteous and very, very self-important. He really believes that he is a big deal and that what he says matters even though he comes across as a sloppy amateur.]
Boies: Article by Norval Glen you identified.
DB: I believe you asked me to identify any articles that I used to come to my conclusions.
Boies: Which of these materials contain assertions that homosexual marriage will harm heterosexual marriage, if any?
DB: Does it have to say it in that exact form of words that you offered?
Boies: No in words or substance so that a reasonable reader could read or understand that homosexual marriage would weaken heterosexual marriage.
DB: The key word is “likely.” No one can predict the future with certainty.
Boies: Yes, Mr. Blankenhorn. Likely.
DB: I believe a reasonable reader reading these materials would agree that this author states or suggests that homo marriage is likely to weaken institution of marriage.
Boies: Difference between stated and suggested?
DB: Stated would mean unequivocal assertion. Suggested would mean a serious concern or belief that ss marriage would be likely to weaken hetero marriage.
Boies: Let’s take them separately.
DB: Laughing I was afraid that’s where we were going! (Ha Ha)
[Tam did not bother me. He’s just an inflexible old guy. Blankenhorn is sanctimonious and dangerous because he is infinitely flexible, likes to play with words and that can hurt people.]
DB: Number 3, Sinsky—opponent of ss marriage. I cannot speak with certainty
Boies: You understand that you cannot say that in this particular material that is cited here that she unmistakably communicates that ss marriage would undermine hetero marriage.
DB: I do not know if those exact words appear in the book Parity of the Sexes so we have to take her off the list. You are using an extremely narrow construction, which is your right.
Boies: You do understand that these are the works you listed?
DB: Of course!
Boies: Norval Glen trying to talk about substance of same sex marriage or the debate about ss marriage?
DB: I believe it is the latter.
Boies: So he’s concerned about the debate over same sex marriage will weaken marriage?
DB: I have not read this article in years, but this is more about the debate.
Boies: One of the thing he says is that legalizing same sex marriage would at most have a small effect on the percentage of fatherless children.
DB: Let me read it.
Boies: I understand, but do you see what I said?
DB: I do see it.
Boies: Take as much time as you like to review the context and let me know when you are ready.
DB: I’ve finished.
Boies: Do you agree that legalizing same sex marriage would have at most a small effect on the percentage of fatherless children.
DB: Do you want to know what he is saying?
Boies: I want to know what his words are, not what you think they are.
DB: That’s not what he means, but if you don’t want to know, that’s okay. (Pouting)
Boies: Do you agree with what he says here that there is no precedent for creating prohibition of family form.
DB: When I think of polygamy, and I’m no expert, it is prohibited because it is not a good form for children. Other forms that I’m not able to conjure now that have been prohibited, but I don’t remember.
Boies: You have said you are not an expert on polygamy, but do you know why it was prohibited in the US?
DB: I’m not an expert on polygamy.
Boies: Do you know any reasons?
DB: Not that I could state as a scholar.
Boies: You had said, The main rules of the game for the rules for marriage are three.
DB: You make it sound jocular.
Judge Walker: There is a question here, Mr. Blankenhorn.
DB: Do you wish me to stop my inquiry? I’ll stop if you want me to. I’m going for clarity.
[Blankenhorn is more interested in jousting and showing that he is smarter than he is in convincing the judge. The judge looks pretty disgusted at this point. Had Blankenhorn any credibility with any jurist, it is loss.]
DB: Yes! I was right! It came from an Nobel-prize winning economist! That’s why I footnoted it! (See, I told you so! I told you so!)
Boies: You have said that the rules of the game (of marriage) are three.
We are on break until 1050. I cannot adequately transcribe or describe what is going on. Mr. Blakenhorn is much more interested in winning small debating points than he is in being a good witness for his side, or for anyone. The judge admonished him gently by saying that his testimony will be weighed by his conduct as well as his expetise. He did not understand that. This is not good for them and it is good for us, but it’s bad for society to have a guy like this out there acting as a sanctimonious keeper of the truth on marriage. He wants to have it all ways; at end, he says he’d sacrifice the happiness and health of gay and lesbian families to maintain what sees as the essential institution of marriage.
Boies: Who are the principal scholars on whom you rely?
DB: Let me take a moment to make a note to myself as I collect my thoughts on that question.
[Walker stands up for a stretch, drapes arm over beige judge’s chair. Today is red tie with a sort of white polka dot pattern on a blue shirt.]
(Blankenhorn is left-handed, just FYI.)
DB: Would it be against procedure for me to consult a copy of my book to look at the index?
Boies: Putting on the record that you have not consulted your book and you don’t have a photographic memory, are there any writings or scholars on whom you rely?
DB: Malinowski and Fortis have influenced me deeply.
Boies: The three rules of the game….
DB: You keep saying that is my quote. It’s a Nobel-winning economist’s term.
Boies: No sir! I am not referring to the Nobel economist or anyone else. I am referring to what you said.
DB: The first is what you might call the rule of opposites, the customary man woman relationship.
Two, marriage is between two people.
I want to clarify that these three rules do not constitute the definition of marriage. I am saying that these are the essential structures.
Boies: Okay, structures. Are you aware of structures in other societies that have not been limited to opposite sex?
DB: I am certainly aware of assertions in the popular society and in some scholarly literature that such examples exist. I have not studied this, but I have troubled myself to look at this. Of course, Massachusetts.
Boies: Spain and Iowa and Sweden…
DB: Certainly in the localities of the last months and years. That’s what brings us here today.
Boies: Let me ask you if you are aware of any that violate your rule of opposites prior to the last 50 years?
DB: Two or three or four hard cases that require explanation, there are no or almost no exceptions to this rule, that marriage is between a man and woman. For me to be on the safe side, there are no or almost no exceptions to this structural feature of marriage.
Boies: You say no or almost no.
DB: I’m trying to account for the two or three hard cases.
Boies: And you probably know I’m going to ask you about that.
DB: Yes. (ha ha). Form of question is different. There are cases that prefigure traditional marriage. Which question do you want me to answer?
Boies: Repeats question.
DB: Mr. Boies, this is not a laughing matter. It’s very serious to me.
Judge Walker: Mr. Blankenhorn, Mr. Boies was not laughing at you. He was amused by the back and forth between you and many of us are.
DB: Okay. Let’s go!
Boies: Are there any that
DB: I can think of one instance in a human group that has been studied that some scholars believe and others disagree and it’s a hard case and there has been argument on both side, one case that is exception to this rule. I’m not saying no one else has asserted something. My view is that I know of one instance in a society in which there may have been, there…according to some scholars, may have been exception to this rule.
Society in Africa, it no longer happens this way, the men of this group lived in military barracks and the adult men would have sexual relationship with a young boy. Anthropologists translated this to marriage. The man would give gifts to the parents and the boy would be servant and sexual partner. The boy would outgrow this and then marry a woman. Period of time in warrior society, the males, as I say would like in a military type of barracks, the men would have a relationship with an adult child. Not viewed as deviant. Kinship groups accepted. Evan Richman (?) translated this as man-boy marriage, but said he uses word advisedly. Others talk about this in Ritualized Homosexuality, but it’s a phase of life that has marriage-like quality to it. Transitory and men go onto marry women.
This is a hard case. If we are searching out for an exception over time and space, this is most robust ethnographic example.
Boies: Anywhere else? Let’s pick ancient Greece.
DB: That was not marriage. Marriage-like relationships. Prominent anthropologist has found small society in Papua New Guinea where for period of time boys had sexual relationship with males. These people believe that a boy having a sexual activity with a man contribute to his virility and manliness. Runyon Kelly wrote about the Etoro Social Structure, although Kelly makes clear that this is not marriage. He understands that this has some mimicking quality of marriage for a period of time. Two or three years. He’s the finest scholar working in this field.
[His voice turns up, he’s so sanctifuckingmonious.]
Boies: Did you happen to run across Dr. Young in this case?
DB: Do I know her?
Boies: Expert in this case.
DB: All I know about her status as an expert is the thirty things you listed yesterday that I don’t have such as affiliation with university and so on.
Boies: What percentage of marriages over the last 300 years have been limited to two people, in your judgment?
DB: The way that I and many other scholars have looked at this, almost all marriage is limited to two people. If I may cut to the chase, I believe that perhaps…I’m sorry I thought you wanted me to pause. If you want me to cut to chase and talk about polygamy and polyamorie.
Boies: You are aware that there have been far more polygamous marriages than marriages of two people?
DB: 83% of societies permit polygamy. Very different issues as to how many marriages are polygamous. Still have marriages between two people.
Boies. Is it your judgment that prior to the last 100 years in China and India there were many polygamous marriages?
DB: Yes, but I need to answer with another statement.
Boies: Keep it short.
DB: In those societies, men would still marry one woman at a time. A rich man would then marry other women, but each woman is a separate marriage, so it’s still one man and one woman.
[This is unbelievable.]
Boies: Are you aware of any marriages that take place with one man and more than one woman at the same time?
Boies: Is it your testimony that the only instances where woman marries more than one man is when woman marries two brothers?
DB: I can’t answer yes or no.
Boies: I’m just asking you if that is your testimony?
DB: If you’d let me answer instead of arguing, we’d be done. I just need 15 seconds.
DBoies: Go! (Looks at watch)
(Thirty seconds later)
DB: How’d I do?
Boies: Not bad!
Boies: If you have a man who marries five wives…
DB: He marries them one at a time. If he marries one wife, he has one. If he marries two he has two.
Boies: And if he marries five and all of his wives live, he has five.
Boies: Is that consistent with your rule of two?
DB: Based on the studies of the finest anthropologists, this fits the rule of two.
Boies: But you are just a transmitter. You don’t do the work.
DB: I am not a transmitter! Stop putting words in my mouth!
Boies: (Puts transcript of depo in front of him.)
DB: Gotcha moment! You are right! I did say that seven months ago in a deposition! Gotcha moment!
Boies: Not trying to get you, just addressing that you said I put words in your mouth.
(Reads more of depo that says
Boies: The third is sex.
DB: That’s a good subject!
Boies: I don’t want to fall into the trap of making sex boring.
DB: Maybe we can do that together!
[The biggest laugh of the whole trial. Even the judge blushed. This guy is just too much. He thinks he’s performing; he does not do his cause any good at all. He makes our cause good, but he’s such a strange man.]
Boies. Are there any cases of marriage without sexual relations?
DB: You mean are there people who marry and don’t have intercourse?
Boies: I was not going to ask that, but since you did, let’s. That’s easy. The answer is yes?
DB: I was going to say no. Hypothetically possible that a prisoner could marry and not have sex because he is incarcerated. And maybe there are couples who do not like to have sex. It’s not a pattern (He yammers on and on.)
Boies: You are aware that there was Supreme Court case that allows prisoners to marry even though they cannot have sex?
DB: Don’t put words in my mouth! I am not aware.
Boies: I had thought you were aware of that court case that said it is not constitutional to deprive a prisoner of the right to marry.
DB: I’m not a constitutional scholar.
Boies: Reads depo that says that “law has changed a lot on this. There is now law that allows” prisoners to marry. Not court case. The law on this has changed in recent decades and now there is growing law that allows prisoners to marry without sex.
DB: I did not know about specific court case. (Whining and whining). I know there is tendency on the part of some courts to allow marriage.
Boies: You know such marriage is not hypothetical?
DB: never said it was hypothetical!
Boies: The record will show what it shows. I’m just asking you a question.
DB: I have never read any court document that specifically focused on this topic. If I ever have, I have forgotten it. I don’t think I have. I have had conversations with lawyers. I believe there is a tendency to allow prisoners more freedom to marry than heretofore allowed.
Boies: In your study of marriage have you come across cases of the Supreme Court that discuss marriage as a fundamental right?
DB: By come across, do you mean read?
Boies: Let’s start with that.
DB: To the best of my knowledge, no.
Boies: Has anyone summarized for you cases of the Supreme Court that discuss fundamental right to marry?
DB: I believe the answer is yes because if you or someone else asked me if it had happened, I would say yes. I’d be happy if it were true.
Boies: Has anyone talked to you or have you read that Supreme Court said that prisoners have a fundamental right to marry.
DB: To the best of my knowledge, no.
Judge Walker: Shall we continue?
BO: Marriage Movement: A statement of Principles. Put out by Institute for American Values?
DB: Three orgs, but one was Inst.
BO: Did you read before trial and agree with it?
DB: Read it, but would have used different words if I had written it, but I agree with substance.
BO: Says marriage is in crisis?
DB: Not sure, but not surprised if it does.
BO: Shows that is says crisis and admits.
BO: Reasons given for marriage in crisis do not include homosexuality?
DB: 2000 document, but to best of my memory, does not mention homosexuality.
BO: Says marriage has at least six important dimensions. Do you agree with that?
DB: That marriage has six dimensions? Oh my goodness. (Sigh) Do you want me to day on word-by-word basis that I agree with everything in the following two paragraphs I’d have to re read it. I signed the document, but I’d have to reread it.
BO: Do you as a signatory of document that marriage has six important dimensions?
DB: Useful way to describe marriages dimensions.
BO: First is that marriage is a legal contract. Taking the current discussion of hetero and homo marriage, contract is same?
BO: Second important dimension is that marriage is a financial partnership.
DB: Same for hetero and homo.
BO: Sexual union, personal bond and commitment.
DB: All same.
BO: Sixth is family-making bond. Does this mean that the family-making bond only when two people or is this a way of establishing children?
DB: Pauses, and sighs. Could you repeat the question?
BO: Can both opposite and same sex raise children?
DB: yes. Important word there is “raise.”
BO: Yes. In that connection, let me ask you to turn to tab 9. Plaintiff’s 2898 Same Sex Marriage and Negative Externalities.
DB: Looking at article for the first time.
BO: Not familiar with either of the two authors?
DB: Sitting here right now, I don’t recall them.
BO: We ask that you take judicial notice of 2898.
Cooper: Makes a comment (inaudible up here).
Judge Walker: Fine.
BO: Objectives, Conclusions: The argument that ss marriage poses a negative externality on society cannot be rationally held. Many pols use rationale that ss marriage does pose a negative threat”
DB: Yes, I am aware of scholars that agree that ss marriage poses no threat as above. But many say the opposite and does not have to be tested because it is obvious on its face that marriage is between a man and a woman. They just know that.
BO: Have you looked at what associations of scholars have said about ss marriage?
DB: Not all ,but some.
BO: Do you know what American Psychoanalytic Association has said about same sex marriage?
DB: I am aware of what their lobbying organization says.
BO: Their lobbying organization?
DB: Their leaders, what their leadership says.
BO: Goes to what they say. APA in 1997 endorsed the following resolution, resolved that the state should not interfere with same gender couples who want to marry.
DB: Yes I was aware. I perfectly understand that many scholarly groups, the leadership, have endorsed same sex marriage as a policy matter.
BO: Asks him to indicate which articles in APA he’s read:
Bradford, Chan, Amato, Faulkner, Green I don’t know, Herek, House (no), Kirtzner (no) Glazer (I think), Kim (no I don’t think although I’m not sure), Meyer (no), Patterson, (I think so, I have read many of her articles), Peplow (?) (I don’ t think so), Williams (No).
BO: You did read Wake and Gallagher article and Patterson and pretty sure you read Peekolt/Glazer and Amato, Bloomstein and Schwartz.
DB: That’s the best answer I can give you right now.
BO: American Psychological Association?
DB: I know of endorsement. I have read excerpts, believe I read document when it came out in entirety but can’t say with absolute certainty.
BO: Have you read most of these?
DB: You mean more than 50%?
BO: Trying to figure out if faster to ask you ones you have or have not read?
DB: I think I have not read more than 51% of these documents.
BO: Which have you read?
DB: Most of these have not read. Some of these are duplicative of other list.
DB: Read: American Anthro Association. Estrich, Goodridge, I think Johnson. I think those few are it on this page.
BO: Both of Estrich articles that are here?
DB: No sir. Just his book. I’m sorry, it was a law review article. I’ve also read his books, but what’s listed here is article.
BO: You would have read four or perhaps five of the references here?
DB: I think that’s fair, yes sir.
The epic cross of Mr. Blankenhorn by the masterful David Boies continues.
DB: Badgett is someone whose articles I have read, but not sure of this particular article.
BO: Offer as evidence.
Cooper: No objection.
DB: I’ve read several of her articles and I appreciate the integrity of those articles. She’s obviously taken a position opposite of my own on almost every question, but she’s a good thinker.
Judge Walker: You got your answer.
BO: Amato article, move it in?
Judge Walker: Yes.
BO: This is an article in which Amato investigates how children in households with both bio parents differ with children from someone else.
DB: You are reading that from a summary.
BO: You’ve read the whole thing?
BO: Do you have current recollection of methodology?
DB: Well he used population survey to compare outcome differences comparing children of continuously married vs. others. Makes policy recommendation at end.
BO: Not asking you to summarize or give book report. Just want two questions. Compares children of bio vs. not.
DB: Not really.
BO: Let me read from very second paragraph of document. Amato begins by comparing children of bio in two parent with one parent.
BO: Do you see that?
DB: Yes sir (defeated)
BO: He’s putting adoptive parents in same category as bio?
DB: Yes sir
BO: Have you stated that it’s important for unmarried women give their babies up for adoption to married couples?
DB: With respect to teenage girls, I may have been part of a study that made such a recommendation.
BO: May I have just a moment, Your Honor?
Judge Walker: Very well.
(Boies, Boutrous and Cooper conferring)
BO: Your Honor, we agree on documents to be admitted.
Cooper: With exception of one document by Mr. Prentice.
Judge Walker: Do you have a number?
Judge Walker: Very well, we’ll number it later.
[So this means we still may finish today!]
BO: Let me just ask you hopefully just two more quick areas. This is the review article you referred to previously published in Developmental and Behavioral Pediatrics?
DB: Lesbian Mothers, Gay Fathers and Their Children?
BO: Yes. Are you familiar with this document?
DB: I don’t believe so.
BO: There’s something here called an abstract. You are familiar with what an abstract is, are you not?
DB: Of course.
BO: Reads that children of ss no different in developmental outcome that hetero. Do you know of this study and such other studies?
BO: NO singularly accepted universal definition of marriage. Marriage constantly evolving.
DB: Yes sir. I wrote those words in my book.
Boies: No further questions, your honor.
Cooper: Should be relatively short.
Cooper: Gives him his entire book, which had already been admitted. You recall that Mr. Boies read from your book about ss marriage. Now I want to read from page three of your book.
From his book:
Many thinkers, perhaps most notably Isaiah Berlin, points out that most choices are between good and good rather than good and bad. Concept of goods in conflict is central to my thinking. One good is dignity of all persons. Other is child’s birthright to mother. These goods are at least partially in conflict. Point of this book.
Cooper: Recall colloquy with Mr. Boies in which you would choose customary marriage over same sex marriage although you would be anguished?
Cooper: Page 22 of your book
In case of same sex marriage, one priority is needs of ss couples. Needs for acceptance and respect. Other priority is need for as many children as possible grow up in bio family. To degree we can embrace both in harmony, want to do that.
Cooper: Can these be embraced in harmony?
Cooper: Is that domestic partnership?
DB: Yes. That’s my own conclusion.
Cooper: Did you talk of this yesterday about your journey on this that culminated in NYT article?
DB: Yes sir, in which you endorse domestic partnerships and same sex marriage?
Cooper: No further questions. Want to put that article into evidence.
Cooper: And so I have no further questions.
Judge Walker: Thank you Mr. B, you may step down, thank you for your testimony.
Judge Walker: Any more witnesses?
Cooper: No further witnesses.
Thompson: Proffer of documents including official campaign speeches of Protect Marriage. Plaintiffs have not objected.
Judge Walker: Very well.
Thompson: We now have a number for the document under seal we discussed before.
Judge Walker: And that’s admitted without objection?
Thompson: Have made counter designations of Mr. Tam’s testimony and depo?
BO: We’d like to review by end of week.
Thompson: No objection.
Judge Walker: Very well.
Thompson: Motions to compel are still in force and if those are enforced from campaigns we may want to admit other documents and call other witnesses.
Judge Walker: We have issued request for response from those three organizations and should have response by Friday.
BO: 2332A by Blankenhorn needs to be in record.
Judge Walker: Hearing no objection?
Judge Walker: Very well.
BO: Defendant’s 956 is in evidence, which is already in evidence.
Judge Walker: We’ll simply not that those are same book with two numbers.
Boutrous: Now have official copies of two docs from Library of Congress which was IRS letter of 1971 and letter to Matachine Society. We stipulated they were in Library of Congress.
Judge Walker: Very well.
Boutrous: We’d like to be able to review and supplement documents that we just got that are claimed under privilege.
Judge Walker: Okay.
Thompson: Another document number switch.
Judge Walker: do you intend to call any rebuttal witnesses?
Judge Walker: Some loose ends. One is notice to compel that plaintiffs seek. On the way.
Motion to withdraw by Dr. Tam.
Motion by Imperial County to intervene has been briefed .
Both remain to be ruled on by the court.
Boutrous: Do you recall those?
Well, its noon and it’s over. I just had a person from Gibson Dunn come up and thank me for the blog. That means a whole, whole lot. And nice young man from Australia.
Now, our work really begins. Now we have to spread the substance of this trial everywhere.
And sooner than later, we need to thank AFER, Chad Griffin, Bruce Cohen, Kristina Schacke, Yusef Robb, Amanda Crumley, Rob and Michelle Reiner, Ted Olson, Ted Boutrous, David Boies and all of the partners, associates, colleagues and staff of Boies and Gibson Dunn.
Hopefully, we’ll hear from them soon.
We fully expect and hope that the wonderful, brave plaintiffs will be out front more and more.
Thank you to Eden, Julia, Robert, Sarah, Andy and the entire Courage staff, as well as Brian, Paul, Caitlin, Jennifer, and Laura for blogging their excellent trial analysis posts.
And finally, thank you. Thank you to the community of Trial Trackers that has formed in the comment threads. All and each.
More soon! Stay tuned…
Boutrous: We have documents. Will keep them and not submit them to court unless court wants them.
Judge Walker: We have enough.
Boutrous: Court said relatively brief Amicus Briefs within seven days of presentation of evidence.
Cooper: we have no strident opposition to that, but think that court has enough to chew on, but we’d like to submit our own papers in response.
Judge Walker: Obviously. We’ll set a deadline for next Wednesday Feb. 3 to file applications for Amicus Briefs and either grant or deny as appropriate. Will set a fifteen-page limitation and will provide ample opportunity for response by parties. I will agree with Mr. Cooper that the record is abundant and I doubt that we’ll get much from these, but one never knows, so we’ll leave the door open.
Judge Walker: Here’s what I’d like. I’d like to take time to go over this material. I don’t think at this time it’s helpful to have post-trial briefs. You may very well find it useful to submit your proposed findings of law tied to evidence. You’ve already submitted your proposed findings of law. I realize that you do have a lot of material to go through. I’ll be guided by your suggestion for amount of time you need.
I’d like to review those and then set a date for closing argument. Then I’ll probably tee up some questions that have come to the fore to give you the opportunity to address in closing arguments. I would like to leave the date open now. But when the time comes, I’ll have the clerk call both parties with a range of dates so that you can work that out with your schedule.
Boutrous: 30 days would be fine with us.
Cooper: 30 days should be adequate, your honor.
Judge Walker: Why don’t we set February 26th. Alright February 26th and probably by that time I’ll have a much better idea of closing argument schedule.
Boutrous: On behalf of plaintiffs, want to thank court for making this easy.
Judge Walker: I want to extend my thanks to the lawyers for both sides for an extremely interesting, well-presented case. Obviously old hands, but I was struck by the expertise of the younger colleagues both in the courtroom and behind the scenes. The older hands should be very pleased. I’d just like to take a moment to congratulate you and tell you all personally (goes into courtroom to shake hands).