Testimony ends in same-sex marriage trial
The “rule of opposites” has been a virtually unwavering principle of marriage throughout human history, an expert witness defending California’s ban on same-sex marriage testified in federal court in San Francisco Jan. 27, bringing testimony in the case came to an end.
“There are no or almost no exceptions to this principle that marriage is between a man and a woman,” David Blankenhorn, founder and president of the Institute for American Values, said in the final day of testimony in a trial on the constitutionality of Proposition 8, the 2008 voter initiative that defined state-sanctioned marriage as limited to a man and a woman.
Blankenhorn defended the historical basis of that definition as he underwent close cross-examination by David Boies, an attorney for same-sex couples who sued to have Prop 8 overturned as discriminatory.
Asked if he knows of any exceptions to his view on the opposite-sex foundation of marriage, Blankenhorn said he is aware of only one described in the scholarly literature. In that case, men and boys in an African warrior society would form relationships that some scholars have described as marriage, Blankenhorn said. But he said the relationships were ceremonial and that the boy tended to outgrow the role after an initiatory period and often would leave to marry a woman.
The other bedrock principles of marriage are a bond between two people and a sexual relationship, Blankenhorn said.
Boies asked the witness to explain passages in Blankenhorn’s 2007 book, “The Future of Marriage.”
“You write, ‘If adopting same-sex marriage is likely to be part of large societal shift, or if it seems likely that adopting same-sex marriage would not significantly undermine efforts to renew wider marriage culture, I’m confident most advocates would favor adoption. But if same-sex marriage would impede that larger goal, I would be against it.’”
The lawyer then asked, “What you are saying is you believe rights of gays and lesbians should take second place to the needs of existing social institutions?”
Blankenhorn answered, “The answer to your question is yes. I would only point out I was saying I understand and accept the validity of the argument of those who disagree with me.”
He added, “I’m one of those who doesn’t believe this is a case of good vs. bad. I believe there are valid arguments on both sides of the issue.”
Boies concluded his second day of questioning Blankenhorn by asking the witness if he agrees that marriage is constantly evolving and always changing, and that there is no single definition of marriage.
“I wrote those words,” Blankenhorn answered.
Questioned by pro-Prop 8 attorney Charles Cooper, Blankenhorn underlined his view that “goods in conflict” can co-exist harmoniously. Cooper submitted as evidence a New York Times essay where Blankenhorn and a co-writer argued for strong foundations for marriage and for domestic partnership as a way to peaceably resolve the culture war over the definition of marriage.
Blankenhorn, testifying the previous day as the principal expert witness for the Prop 8 defense, said the social foundation of marriage is greater than the legal issues surrounding it. He described marriage and domestic partnership as separate institutions. He said marriage predates law and “is not a creature of law.”
“The marital institution is differently purposed, is specifically purposed,” he said. “The purpose is to bring together the biological male and biological female to make it as likely as possible that they are the social and legal parents of the child. That’s the lodestar, that’s the distinctive and core contribution of the institution of marriage.”
Chief U.S. District Judge Vaughn Walker, presiding at the non-jury trial, said he will set a date for closing arguments after at least a 30-day hiatus to review the evidence.
“Obviously a fascinating case,” Walker said as he adjourned the courtroom. “Extremely well presented on both sides.”
In a statement released to the media, attorney Andrew Pugno, lead counsel for the Proposition 8 defense team, said “Today concluded the presentation of evidence in the federal trial, Perry v. Schwarzenegger, challenging Prop 8’s definition of marriage as only between a man and a woman.”
He said that the burden of proof to invalidate Prop 8 lies squarely with the plaintiffs. “They cannot win unless they prove that the voters were ‘irrational’ when they chose to preserve the traditional definition of marriage in our state,” said Pugno.
“The outcome of this case does not depend on whether the Prop 8 sponsors can prove that homosexual marriage will harm traditional marriage. The controlling legal issue is not whether homosexual marriage is good or bad, but rather whether the people have the right to decide what is best,” he said.
“The plaintiffs simply did not carry that burden.” Pugno added.
Pugno said that limiting marriage to its longstanding definition is rational because marriage benefits children, not just adults. “Whenever possible, it is best for a child to have both a mother and a father. And man-woman marriage is the only human relationship that can biologically serve that distinctive purpose. A same-sex relationship can never offer a child both a mother and father. It’s that simple,” he said.
Pugno said the plaintiffs called many expert witnesses to testify that allowing homosexual marriage would: help local governments raise more tax revenues, help gay and lesbian couples to accumulate greater wealth, and improve the self-esteem of homosexuals. But he said, “Those are political arguments for society to consider, not legal support for the claim that the U.S. Constitution contains the right to homosexual marriage.”
By Rick DelVecchio
From February 5, 2010 issue of Catholic San Francisco.
