A cantankerous back-and-forth continued Tuesday as David Boies, a lawyer for the plaintiffs in Perry v. Schwarzenegger, and Kenneth Miller, a professor of government at Claremont McKenna and one of just two witnesses for the defense, debated how much political power gay men and lesbians have, both in California and beyond.
Professor Miller’s testimony earlier this week appeared to be an attempt to refute statements of a plaintiff’s witness who said that gays and lesbians need legal protection because they are politically vulnerable.
If he seemed flustered at the start of Mr. Boies’s cross examination on Monday afternoon, Professor Miller had grown placid by Tuesday morning, as if accustomed to the waves of dogged, tetchy questions that kept coming from the seasoned trial lawyer.
Mr. Boies challenged Professor Miller’s earlier assertion that church groups largely supported same-sex marriage. Dr. Miller based his claim on the position of the California Coalition of Churches on the issue, saying that it was a part of the coalition’s legislative agenda in the “last few years” to support homosexual unions.
Under pressure from Mr. Boies, Professor Miller conceded that Catholics, which comprise 30 percent of all Californians, Southern Baptists, the third largest religious group in the state after evangelical Christians, and Orthodox Jews, all have scriptural bases to oppose gay marriage as sinful.
Mr. Boies then read from an internal e-mail by Ron Prentice, the head of ProtectMarriage.com, in which Mr. Prentice called the grassroots campaign for Proposition 8 the “largest church response ever in California,” with 300 churches distributing petitions for signatures.
“Do you have an opinion about whether churches in favor of Proposition 8 provided most of the institutional support for the Proposition 8 campaign?” Mr. Boies asked.
Professor Miller asked Mr. Boies to clarify the definition of institutional support.
Instead, Mr. Boies read an excerpt that he said was from a 2009 peer-reviewed paper by Professor Miller.
“Churches and religious organizations provided most of Proposition 8’s institutional support, with Catholics, Evangelicals, and Mormons leading the way,” Mr. Boies read. “Bishops and evangelical pastors” raised funds and members of the Church of Jesus Christ of Latter-Day Saints, who make up two percent of the national population, organized a “massive” campaign at the countrywide level, Mr. Boies read.
“You believed that then and you still do?” Mr. Boies asked. Professor Miller said he did.
When Mr. Boies asked again if primary institutional support for the proposition were churches and religious institutions, Professor Miller said, “primary, probably not,” but “grassroots” campaigns were more significant.
Mr. Boies said, “Now, you do know that religion was critical in determining voter attitudes.”
Professor Miller responded that he thought it was true for some voters but not all. Mr. Boies continued reading from Professor Miller’s paper, in which he said that many scholars were perplexed as to how California could overwhelming vote Democratic yet support Proposition 8.
“You then answer that question,” Mr. Boies said, and continued reading: “ ‘Why and how this contradiction can be explained, by examining the religious characteristics of Democratic voters.’ ”
Update | 4:58 p.m. While the testimony of Kenneth Miller, a professor of government at Claremont-McKenna College, sputtered during the morning session in the face of questioning from the plaintiffs’ lawyer, David Boies, the demeanor of the first witness for the defense after the break provided a noticeable contrast.
David Blankenhorn, the founder of the Institute for American Values in New York, delivered a long and carefully-worded thesis about the role and origins of marriage that drew heavily from the field of anthropology.
Mr. Blankenhorn, a native of Mississippi mindful of enunciating his syllables and answering “yes, sir” and “no, sir” to questions from both Mr. Boies and the defense lawyer, Charles J. Cooper, set out his concept of marriage as a biological and social institution central to child rearing and an institution that derived its power not from any religious sanction but from the innate importance of the nuclear family.
But Mr. Boies quickly made sure to point out the witness’s lack of formal academic qualifications as an anthropologist.
Mr. Blankenhorn holds a bachelor’s degree from Harvard and a masters’ degree in social history from the University of Warwick in Coventry, England. But compared to the academic experts presenting by the opposing side, with their Ph.D. degrees, published scholarly works and prestigious posts, his curriculum vitae was considerably shorter.
Still, Mr. Cooper noted that among Mr. Blankenhorn’s other qualifications, Michael Lamb, the Cambridge psychologist who was one of the plaintiffs’ key witness last week, once wrote a gushing review for his 1995 book “Fatherless America.” The presiding Judge, Vaughn R,Walker allowed Mr. Blankenhorn to testify, saying he would take into account his qualifications when deliberating upon the evidence.
Mr. Blankenhorn argued that across cultures and time, marriage is a universal social institution — “universal in the midst diversity,” he said — because it is a mechanism naturally formed in the interest of children ...
Given his view that marriage was a natural product of “the human record” and “universal,” Mr. Blankenhorn said he doubted that the passage of Proposition 8 was driven by “anti-homosexual prejudice” and offered a secular explanation.
“I’m not able to find that animus or that hatefulness toward homosexual persons,” Mr. Blankenhorn said. “I am not able to find that that is a central component of how they understood their activity, their commitment to the marital institution.”
Mr. Blankenhorn said he feared legalizing same-sex unions would erode and “deinstitutionalize” marriage, which would ultimately harm children.
“The optimal environment for children is if they’re raised from birth by their own natural mother who is married to their own natural father,” Mr. Blankenhorn said. [of course he assumes it's the mother who "raises" the child.]
Update | 7:08 p.m. With David Blankenhorn still on the stand, David Boies again handled the cross-examination for the plaintiffs. But the seasoned lawyer who comfortably controlled the courtroom in the morning session quickly encountered an uncooperative witness who ground the proceedings to a halt.
At least a dozen times in the testimony, Mr. Blankenhorn refused to answer Mr. Boies when the lawyer posed a question and asked him to answer with a straightforward “Yes, no, or I don’t know.” Mr. Blankenhorn would say that there was no way to answer without extended clarification — even after Judge Walker instructed him to respond on several occasions.
During a typical exchange, Mr. Boies asked the witness if any of the scholars he has relied on had “asserted that allowing same sex marriage would lower the rate of heterosexual marriage.”
Mr. Blankenhorn replied that the “safest answer is I don’t know,” before adding, “But I believe the answer is that some of them have.”
Mr. Boies then asked Mr. Blankenhorn to name the scholars, but the witness refused.
As the questioning devolved into bickering, Judge Walker put both hands in the air to stop the pair.
“Don’t argue with each other,” he said wearily, pointing to Mr. Boies and then to Mr. Blankenhorn. “Just ask a question and give an answer.”
Beyond the acrimony, the general outline of debate remained clear: Mr. Boies attempted to undermine Mr. Blankenhorn’s arguments that homosexual unions hurt heterosexual marriages and have a negative effect on children.
As Mr. Boies progressed through the long list of works that Mr. Blankenhorn had cited in his arguments, few of the papers appeared to specifically link same sex-marriage with the “deinstitutionalization” of marriage.
As another round of questioning broke down around 5 p.m., Judge Walker had had enough. “I wonder whether in view of the hour that a good night’s sleep might help with this line of questioning,” the judge said.
Charles Cooper, a defense lawyer, said that Frank Schubert, a strategist for the Proposition 8 campaign, would not be called to testify and the defense is thus expected to rest by noon on Wednesday.