Perry v. Schwarzenegger: day twelve summary

Timothy Kincaid

January 27th, 2010

Today David Boies continued his cross-examination of David Blankenhorn. It started with Blankenhorn saying that the children of gays and lesbians would almost certainly be benefited by their parents being able to marry, but that the rights of gays should take second place to the institution of marriage. It’s about “goods in conflict”; same-sex marriage is good but it should be sacrificed for the greater good (this idea always makes me think of the final Harry Potter book).

Blankenhorn agreed that same-sex marriage would provide a large number of benefits including more committed relationship, less promiscuity, higher living standards, reduced burden on the state, less prejudice and hate crimes, more scholarship and discussion on the value of marriage, an expansion of the American idea, and less heterosexual marital unhappiness due to gay people heterosexually marrying.

He even agreed that civil unions and domestic partnerships harmfully blur the distinctions of marriage.

But he believes that same-sex marriage will harm the institution of marriage. Boies asked him to indicate in his list of references which scholars make this claim, he included Alan Carlson from the Howard Center (an ultra-conservative think tank) and Maggie Gallagher. (It’s amazing how circular the anti-gay argument is. They all rely on each other for validation of their opinion with little to no actual research.)

Boies had Blankenhorn list his three “rules of the game” (essential structures of marriage): 1) rule of opposites, man and woman; 2) set of two; 3) sexual relationship.

When asked if there were exceptions to rule one prior to 50 years ago, he listed a tribe in Africa with possible man-boy temporary marriages as part of a warrior caste.

When asked about rule two, he admitted that previously to 100 years ago, 83% of societies were polygamous. But Blankenhorn doesn’t think that polygamy violates the rule of two because it is a bunch of separate one-man-one-woman marriages. (This is, I believe, a distinction without a difference. It is the fallback position for those who try and imply that marriage has always been the 1950s nuclear family in the face of incredulous historians.)

In referencing Blankenhorn’s third rule, Boies noted that the Supreme Court had already determined that incarcerated persons may marry without the presumption that they would ever have sex.

Boies then entered a report signed by Blankenhorn which listed six dimensions of marriage: legal contract, financial partnership, sacred promise, sexual union, personal bond, family making bond. Blankenhorn testified that both opposite-sex and same-sex couples can engage in these dimensions.

Boies asked Blankenhorn about what professional organizations have said. Blankenhorn answered that their lobbying boards (or leaders) were supportive of same-sex marriage. (He tried to imply a distinction between political opinions and research based opinions.) Boies referred him to the articles listed by the professional organizations supporting their views; Blankenhorn had read about ten percent of them.

Boise closed cross-examination by having Blankenhorn agree that he had written that there is no universal definition of marriage and that it is constantly evolving.

In re-direct, Cooper had Blankenhorn clarify that he sees the same-sex marriage issue as a choice between two goods, the good of dignity and respect for same-sex couples verses the good of children growing up in their biological family. And he sees the way to embrace these two goods in harmony is through domestic partnerships. (This is, I believe, their “rational basis” argument. The Pro-8 side is counting on the SCOTUS not recognizing gay people as a suspect class and therefore there only needing to be a rational basis for discrimination. And the belief, however mistaken, that biological parental marriage would be damaged by same-sex marriage would be the basis they have presented.)

And with that testimony ended.

There are still questions about compelling documents from the No on 8 campaign and if that happens, there may possibly be more testimony about these documents. The attorneys will present proposed findings of fact and findings of law by February 26.

Then the judge will consider all the testimony and all the documents and set a date for closing arguments.

I am very appreciative of the efforts of Courage Campaign and FireDogLake in liveblogging the entire trial and allowing for a timely summary. For those who want more accuracy and the absence of any inherent bias from either myself or the livebloggers, the American Foundation for Equal Rights has posted the official transcripts (there is a one-day delay).


January 27th, 2010

This is the text of the point that Blankenhorn disagreed with (#14) regarding “marriage lite” scenarios:

“14. Adopting gay marriage might slow down or stop altogether the legal proliferation of ‘marriage lite’ schemes such as civil unions and domestic partnerships, which can harmfully blur the distinctions between marriage and nonmarriage and can contribute (among straights as well as gays and lesbians) to nonmarital cohabitation. In this respect, gay marriage would make marriage, and marriage alone, society’s standard for socially approved committed relationships. An important likely result of such a development would be less nonmarital cohabitation that would otherwise have occurred.”

It’s a point brought up often by Rauch, and I think it’s far, far more intuitive a connection than Blankenhorn’s “deinstitutionalization” of marriage as a result of gay marriage.

Blankenhorn omits the common premise of creating ‘marriage lite’ scenarios, those often not limited to gay couples (whether in part for political reasons to get them passed, to ease it for those conscientiously objected to recognizing gay relationships, or outright devaluing gay relationships as being comparable to straight relationships).


January 27th, 2010

Blankenhorn’s argument is essentially:

“Same-sex marriage benefits the children, encourages stronger relationships, and creates a healthier, happier, and safer society, but it should be illegal because I and a bunch of my friends say that it will harm heterosexual marriage in some intangible way that we can’t be bothered to prove or expound on.”

Wow. Just, wow.

Ben in Oakland

January 27th, 2010

Alex: in other words, all that is left is animus.

Thanks, blanky.


January 27th, 2010

Wow, Alex, that’s the best, pithy summary I’ve read!

“more scholarship and discussion on the value of marriage”
How profoundly self-serving is that?

I bristled when I saw the similar stuff in his book.

He’s made the first mistake of amateur anthropologists, maybe. He hasn’t gone out among the ‘natives’.


“By continuing to manage the Indian lands as ‘territories’ outside the normal channels of law, we will foster the debate that will on reinforce the vision of our Manifest Destiny.”


January 27th, 2010

“will on” s/b “will only”


January 27th, 2010

I was stunned by Blankenhorn’s total disregard for the court and the role that experts play there.

He had no idea that his purpose wasn’t just to be a wise guy, it was to bring evidence to support his conclusions and opinions. Even in the expert report he wrote, he was woefully ignorant about the need to back himself up with substantive, peer-reviewed documentation. As long has the documents he referenced were representative of the sources which had guided him in forming his opinions, he believed he was home free.

After the miserable performance on his first day, it defies explanation that he didn’t appear on the second day chastened by his own counsel, ready to cooperate.

One possible explanation, sorry I don’t remember where I saw it first, is that his cluelessness was by design, to feed the flames of supposed conservative Christian victimhood at the hands of mean gay-affirming people. Or, could future appeals be based on lawyerly malpractice?

A personal note: During my 1995 divorce trial in which my orientation was made an issue, the opposing attorney was similarly inept and unprepared. My attorney gave me kudos for being one of the most effective clients he’d had on the stand, but it was not so much about me, as that the opposing counsel was awful. I just didn’t expect to see something parallel fifteen years later in a much bigger trial.

Neon Genesis

January 27th, 2010

If the Prop 8 supporters are for domestic partnerships that give same-sex couples the same rights as heterosexual couples but without the title of marriage, then why doesn’t the U.S. legalize domestic partnerships in all 50 states? That’s one of the problems with the “civil unions but no same-sex marriage” argument. They don’t really mean it when they make it, otherwise civil unions would be legalized everywhere already. How long is this trial going to last? The suspense of waiting for the outcome is killing me.


January 28th, 2010

IANAL but my understanding is that the defense can’t argue for a mistrial based on inadequate defense – they are the ones who petitioned the court to act as the defense to begin with. They can’t now stand up and say “we want a new trial because we were incompetent” Besides, mistrials are only for criminal cases where there is a finding of guilt or innocence. This is a trial of fact. Each side is supposed to present facts and testimony and the judge then rules on a matter of law.


January 28th, 2010

I’m guessing that DB’s reply would be that he researched a definition and that’s pretty much most of what he had to do.

His definition of marriage looks data mined, to me.

I honestly think that some anthropology scholars need to look at how he is using the definitions he quotes.

There is too much in the picture that isn’t answered.

Because we are male and female, we have marriage, he reports. Does that mean if you are male or female, you must get married? Do you see the difference?

Marriage is cross-cultural, which he takes to mean it isn’t from religion, so he can’t be accused of repeating doctrine – one of his aims.

But aren’t most societies anthropologically deeply bound by religious notions in their marriage understanding, to the point that the meaning of the term in society is not to be found from analytical abstractions across societies?

Indeed, if we find that every society in a certain time period has only male-male or female-female footwashing, that doesn’t mean we understand the meaning of footwashing, in each of those societies. Indeed, we might draw the wrong conclusion that footwashing was “pro cleanliness”.

[Maybe my thinking is flawed there – I’m not an anthropologist by training.]

Do anthropologists agree with Blankenhorn’s prioritization of the purposes of marriage?

When you abstract and generalize, you may necessarily end up with wrongly suggested weightings that look quite a lot different than the priorities of any one society. Was “procreation” a priority in the societies over from which we draw some abstraction? By all accounts, economics and politics influence procreation, perhaps enough to suggest that other factors, not the form, are of equal or primary importance.

Regan DuCasse

January 28th, 2010

It figures.
When Boies asked DB about exceptions to rule one, DB answers ‘possible man boy temp marriages in a warrior caste’.

Is that a calculation to further the pedophile stereotype of gay men?

Apparently he missed the information and facts around ADULT same sex marriages in the last FIVE years in Western nations.

Here’s why these anti marriage equality orgs truly FROST me when it comes to their cred and concerns about ‘children’ or any other cultural aspect of damage around marriage and freedom to do so.

To this day, there are still child brides being sold to men up to three times their ages sometimes in near Eastern and African countries. These girls suffer from domestic violence, physical trauma and death from spousal rape and premature child bearing. They are denied educations, and if they reject marriage proposals or try to leave their husbands, often they are disfigured or murdered.

To say nothing of underage marriage laws still on the books in several states in America, which, I’ve noticed, that none of the anti equality faction are fighting to have reversed.

If all their time and money was put to the good use of advocating against child bride abuse and reversing the laws that still allow those under age 16 to marry, I’d believe they really WERE invested in making marriage what it should be.

NOM and all the rest are so FOS, I figures they are fighting a non enemy and hurting the wrong target.


January 28th, 2010


Blankenhorn seems to be confusing “common purpose” (anthropology) with “primary purpose” (social understanding/meaning). In his book, he notes that only 13 percent of Americans, in 1994 survey, agree that the primary purpose of marriage is to have children. p225-226

Regan, I completely agree, this is why I call some of them “white washed tombs”.

Not just child brides, either. See also the 2005 powerful movie, “Water” about the widows in India…

When reading these things, I always wonder what it would be like if gays, even with all their faults, were the ones with the political power and were passing judgment on the moral fitness of what they see of nongay marriage…

Doctor Science

January 28th, 2010

Amicus asked:
Do anthropologists agree with Blankenhorn’s prioritization of the purposes of marriage?

No. Anthropologists agree that *the* universal cross-cultural purpose of marriage is: [drum roll please]


Marriage is a way of cementing ties between adults who are not related by blood. It creates family-like relationships between people who are not genetically related.

Animals are perfectly capable of taking care of their children without being married, after all. Social animals will also take care of their sisters, cousins, aunts, and other blood relatives.

Marriage is uniquely human because of the way it ties unrelated adults together. In most societies, the ties between husband and wife are less important than the ties between the two families. And of course in societies with inheritable property, marriage is crucial in determining how that property is distributed.


January 28th, 2010

Amicus bring up a great point:

“But aren’t most societies anthropologically deeply bound by religious notions in their marriage understanding, to the point that the meaning of the term in society is not to be found from analytical abstractions across societies?”

Yes. Social phenomena are contingent. That’s why anthropologists have jobs. Otherwise there would be big book of rules that governed all cultures that they’d have figured out by now.

I’m not an anthropologist, but a scholar in training in rhetorically based science studies. We read some theory and do some methodology that comes from anthropology (some of the theorists I read are/were anthropologists), so I know a little about it (although I’m NOT in touch with the field as it is right now. . . there are anthropologists who write for journals that I bump into). I do not know what the current theoretical models those guys use are, but I do know that the notion that we can define a social phenomenon in a way that applies to every culture is pretty much the antithesis of anthropology.

Think about it for a sec. The POINT of anthropology is to understand how cultures organize themselves. The POINT of doing anthropological research is to discover the particular, contingent needs that a culture has and to figure out how that culture meets those needs. Certainly there are theories about behavior and social organization that have to be portable from one culture to another, but the kinds of questions that Anthropology traditionally answers are “how” questions that are addressed through qualitative research. “What’s that guy doing over there? Why’s he doing that?” If social institutions, behaviors, and cultural assumptions were the same across different cultures, what would be the value in having a discipline called anthropology?

My bigger point is that the very existence of a discipline called anthropology tends to invalidate the idea that ONE notion of marriage is THE right one for all of humanity. Traditional polygamous marriages seem remarkable unequal and exploitive to us, but we don’t live with the same exigencies that produced those marriage arrangements. I’m not saying that anthropology argues that we have to cave in to cultural relativism, but I am saying that anthropology suggests that the plurality and inventiveness social arrangements are there for good reasons, and we need to pay attention to those reasons before we go around messing with them. That SOUNDS like an anti-gay marriage argument, but it isn’t. Gay people live as spouses NOW, and there are many good reasons for this, many of which Blankenhorn explained from the witness stand (under duress). Legally recognizing those arrangements would certainly strengthen their benefits. The drawback is. . . what exactly?

I too would love an actual anthropologists opinion. I suspect that my version of anthropology is more politically invested than people in that field would want. Although critical theory is certainly a thing in anthropology too. . .


January 28th, 2010

Dr. Science’s in laws comment is a great example of the kinds of social needs that we don’t think about that anthropology is designed to study. Although contemporary anthropology might have a broader view of kinship that that.

Timothy Kincaid

January 28th, 2010

Those interested in anthropology may wish to review the debate that BTB hosted between Glenn Stanton, director of Global Family Formation Studies at Focus On the Family, and Patrick Chapman, a biological anthropologist.

Chapman: Anthropologists recognize that same-sex marriage is one of the many legitimate forms of marriage practiced in cultures throughout the world. Stanton’s selective application of anthropology suggests to me that he is more concerned with Focus on the Family’s political agenda than promoting an honest, accurate, and representative definition for marriage.

Stanton: anthropologists do indeed recognize the fundamental nature of male and female in marriage and family across human cultures.

Chapman: anthropologists are inclusive of same-sex marriage because the central feature of marriage is the social and economic ties a marriage creates: biological sex does not matter. Historically same-sex marriage mirrored the gender relationships of heterosexual marriage. As modern marriage has become gender non-differentiated, so have same-sex marriages.

Stanton: there are no examples in past human experience, in any culture, of something looking like homosexual marriage where men as men and women as women are allowed to marry each other, regardless of what their “gender” might be.

Doctor Science

January 28th, 2010


My “in-laws” comment is paraphrased from Marriage, a History, by Stephanie Coontz. Most textbook anthropological definitions of marriage are both vague and sex-focused; most are also IMHO wrong. Speaking as an evolutionary biologist, the salient fact about marriage is that it is something animals don’t do — and animals are notoriously capable of having sex and bringing up their children without any legal structures. In-laws — what anthropologists call “affine relationships” — are uniquely human.

Timothy Kincaid:

Thanks for the link to that discussion. I consider Chapman’s analysis perfectly middle-of-the-road both anthropologically and historically.

Stanton IMHO unintentionally reveals his true issue with SSM: it undermines patriarchy. And in that sense he is quite correct: traditional marriage — the kind where women are property, or subservient, or at least have many fewer legal rights than men — *is* threatened by SSM. If two men (each with a complete set of legal rights) can marry, then marriage must be the union of two legally equal people — which means that women are legally equal to men. SSM is *obviously* and legally egalitarian, so it is a true threat to traditional, inegalitarian marriage.


January 28th, 2010

Doctor Science!?

Is that you Barry Young!?


January 29th, 2010

He never teases out these notions out, theoretically, well or fully. He has a four or five paragraph section on “universal and particular”, which might cover some of the stuff I noted above, yet it doesn’t really measure up. It’s the intellectual equivalent of verbal hypnotism.

Dr.S, few things.

Blankenhorn dismisses Coontz’s work out of hand: “..a clear example of glossing over marriage’s history in a way that is superficial and unsatisfying”. An opinion completely unargued. Again with the weighting/importance problem, he later has a one-liner, suggesting that “corporate kin groups are important…but ultimately they are more additive than foundational”.

Blankenhorn presents a whole series of definitions that confirm his notion, rather than any that disconfirm it, i.e. why my data-mining suspicions were aroused. However, he does seem to quote some powerful authorities, like the British Anthropological Assoc Field Manual, as best I recall, who have the most famous definition in history, he reports. Malinowski. I find your mention of seeking what is uniquely human about the endeavor at least as convincing as his standard of finding what is common.

We part ways the patriarchy, thing, I think. I’m rather persuaded by the view that nongays could continue in patriarchy, if they wanted to think about it that way for themselves, even if gays and lesbians started to marry.

At the end of the day, I suspect, at this early stage, that Blankenhorn’s is an earnest attempt that fails analytic rigour.

Let me put it in these terms, though.

He condescends, I find, to Andrew Sullivan, when describing him as tearing up.

Let me return the condescension, as a matter of instruction.

David tears up over the abandoned children, just not so much the gay ones. He wants them to be cherished. To do that, he ardently believes that people have to think about something larger than themselves, when having kids.

We agree.

Other than that, there is no there. there.


January 29th, 2010

oops, that posting got cut in half and there is no way to edit or delete. Here’s the first half:

The summaries of Day12 all have to be re-written. The transcripts are far richer than the liveblogs (when you read them, you’ll see why all the endless back-and-forth “clarification” couldn’t possibly summarized on-the-fly).

One of the problems with Blankenhorn’s work is that either he is not trained as a systematic thinker or his approach of shading a body of work leads him astray.

He admits there is no definition, but by the fifth chapter, he’s off to the races on a definition. Then we quibble about the word “definition”, I guess, to make that transition possible. Enter “structure” and “purpose” and “dimension” and “way of living” and a long list.

He makes a grand case for biology and sets up a ‘natural institution’, but he also finally admits marriage is ultimately an imposition by law, i.e. marriage is what we say it is.

He asserts that universality of form suggests a fundamental character but then quickly adds that fundamental isn’t fully descriptive.

He never teases out these notions out, theoretically, well or fully. He has a four or five paragraph section on “universal and particular”, which might cover some of the stuff I noted above, yet it doesn’t really measure up. It’s the intellectual equivalent of verbal hypnotism.


January 29th, 2010

Regan wrote, “To this day, there are still child brides being sold to men up to three times their ages sometimes in near Eastern and African countries.”

Referencing National Geographic February 2010 article, Polygamy in America: One Man, Five Wives, 46 Children (and 239 grandchildren). “Only men deemed ‘godly’ are permitted to enter into plural marriage by the church leader; those later judged unworthy can have their wives and children reassigned to other men”.

Sanctity of marriage? One-man-one-woman?

And with reference to Doctor Science’s comment that “And of course in societies with inheritable property, marriage is crucial in determining how that property is distributed”. I guess “property” sometimes includes wives. You are correct in your statement, of course, though it ignores the other rights and legal benefits that result from the artificial construct called ‘marriage’.

Doctor Science

January 29th, 2010


Sorry, I’m a different know-it-all.


Thank you for pointing to the transcript. Crikey, why was this guy one of the few witnesses for the defense? Didn’t they have anything better in their arsenal? I can see why people are comparing it to Dover, because there’s that same flavor of not having actually thought through how to express their views non-religiously.

I’m rather persuaded by the view that nongays could continue in patriarchy, if they wanted to think about it that way for themselves, even if gays and lesbians started to marry.

Of course some people will, but they will have to block themselves off more and more from the larger society. Right now, they can tell themselves “we’re the beleaguered oppressed minority” and “the majority really agrees with us” *at the same time*: conventional, yet rebellious. When SSM is legal and they can walk around seeing people being publically married who they can’t even pretend are supporting their gender norms, then they would have to settle for just being rebellious and counter-cultural. But these are emotionally very conventional and authoritarian people, so being counter-cultural makes them deeply unhappy.


January 29th, 2010

I’d be interested to test the thesis that marriage is the result of an evolutionary economic bargaining/maximization problem that humans do, with some constraints about human sexual desire. For instance, do animals get jealous?

I don’t believe that gay marriage will have the kind of social impact that some of the Left imagine (or even hope).

First, I don’t think nongays will look to gays to model their own relationships. If anything, it will be the other way around, because gays are raised by nongays, with rare exception.

My nieces and newphews understand that we’re the same, but different than their parents. They get it.

Yes, there is a new logical form, which is one of two, so it looks like 50%.

But, in reality there are 165,000 gay and lesbian couples in the last census. Even if it were to come to triple that in the next counting, that’s just not the kind of critical mass to “change everything”, on face.

There are probably more athiests married, right? Probably more nongay “swingers”, by number. Probably more married without children nongay couples. Probably more third marriages. Probably more late-in-life remarriages… Whatever comparison you’d like.

Going back to how I started, I’ll bet that it is the economic ascendancy of women that will change “patriarchy” more than anything gays or lesbians do. There was just an article in the news about so many women making more than their husbands, now, and how that has redefined roles. It may not be visible, but it probably has great sociological impact.


January 29th, 2010

btw, Tim, you are right that Boies et. al. were well prepped for Blankenhorn. At one point, he walks through 23 or so references on a sheet of paper. Since you never ask a courtoom question you don’t know the answer to, that means they looked, in detail, at all 23. What’s more, he was prepared with follow-on questions to any combination of “yes”, “no”, “I don’t know”.

Some of the blogs make a great deal of Blankenhorn’s lack of qualifications or his less-than-fluid cross-exam. But the greater truth is that a great deal of DB’s assertions were cut, severely.

What’s more, he doesn’t seem to realize that some of his assertions are positive in light of other arguments on the table. For example, no gay marriage in all of human history? Could be an example of the lack of political power of gays and lesbians in history …

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