Direct and cross examination of witnesses concluded yesterday in the federal trial on the constitutionality of Proposition 8. It will be some time before Judge Walker issues his ruling.
Amicus briefs are due on February 3rd and will be argued on Feburary 26th. At that time, the Court will schedule closing arguments.
Plaintiff's attorney David Boies conducted a vigorous cross examination of the defenses' expert witnesses, who admitted that banning gay marriage is harmful to gay couples and their children. Yesterday concluded with the cross-examination and rebuttal for Dr. David Blankenhorn. The Courage Campaign's Brian Leubitz summarized a number of stunning admissions.
An interesting exchange was chronicled in the Courage Campaign's trial blog, which gave an account of the proceedings as they took place. It had to do with polygamy and his "two person" test for marriage (part of a three-pronged test):
BOIES (plaintiff's attorney): What percentage of marriages over the last 300 years have been limited to two people, in your judgment?
BLANKENHORN (Prop 8 proponents' expert): 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?
BLANKENHORN: 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?
BLANKENHORN: Yes, but I need to answer with another statement.
BOIES: Keep it short.
BLANKENHORN: 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. [emphasis added]
BOIES: Are you aware of any marriages that take place with one man and more than one woman at the same time?
BLANKENHORN: No.
BOIES: Is it your testimony that the only instances where woman marries more than one man is when woman marries two brothers?
BLANKENHORN: I can't answer yes or no.
BOIES: I'm just asking you if that is your testimony?
BLANKENHORN: If you'd let me answer instead of arguing, we'd be done. I just need 15 seconds.
BOIES: Go! (Looks at watch)
(Everyone laughs)
(Thirty seconds later)
BLANKENHORN: How'd I do?
BOIES: Not bad! If you have a man who marries five wives…
BLANKENHORN: 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.
BLANKENHORN: Yes.
BOIES: Is that consistent with your rule of two?
BLANKENHORN: 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.
BLANKENHORN: I am not a transmitter! Stop putting words in my mouth!
BOIES: (Puts transcript of depo in front of him.)
BLANKENHORN: 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.
Official transcripts are available at The American Foundation for Equal Rights website. Keen News Service published a comprehensive summary of the cross examination.
The defense, ProtectMarriage.com, had an entirely different take. Its attorney, Anthony Pugno, blogged that marriage is the only human relationship that is a biological one, traditionally between one man and one woman for the creation of offspring.
Plaintiff's attorneys Ted Olson and David Boies held a press conference after the hearing:
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