While Judge Walker considers a motion to suppress (with cameras and sound off, courtroom cleared) and has lunch, we wait to resume at approximately 1:10 pm pacific time, presumably with Defendant-Intervenors’ Expert Witness David Blankenhorn.
Walker: We need a court reporter, Mr Cooper, before we begin.
Awaiting court reporter, Cooper and Walker appear ready to begin.
[I rode up in the elevator with David Boies from the cafeteria, and told him "I think that was a great morning." He replied, "Yes it was great, wasn’t it?" And I said "Thank you for that, I really enjoyed it." And he said, "Thank you very much, I did too."]
Cooper calls David Blankenhorn (sworn, says and spells name)
Cooper’s associate distributed binders.
Cooper: Please turn to Tab 1, your declaration, unnumbered page right behind page 25. Is that your CV?
B: Yes sir
C: Behind Tab A, your honor, exhibit DIX2693, just Mr Blankenhorn’s CV.
C: Background and edeucaiton
Harvard 1977 degree in social studies, and 1979 History, University od Warwick, MA in England, with distinction.
Year abroad, UNiversity of Warwick.
After UWarwick,what did you do?
VISTA, community organizer in Massachusetts. COntinued that in several different communities in MA and VA.
What kind of work?
Working and living in low income communities, our jobs were to create grassroots organiztions to advocate for reforms they thought were important.
What were some of the challenges?
You see them firsthand, seeing the weakened state of community and family institutions — especially how children were lving withuot their fathers — led me to my next round of work.
What was that?
In 1987 I started the Institute for American Values, a nonpartisan thinktank about marriage, children and wellbeing of community.
What is your role?
I am the President.
What is the work?
Commission research, hold conferences, signature product: Report to the Nation, an interdisciplinary team of scholars jointly release reportt and recommendations.
Subject matters focus on?
Fatherhood,marriage,child rearing, child well being, family structure.
DOes it produce regular piublications?
"State of Our Unions" is our annual report about marriage, and a regular report called "Why Marriage Matters"
What is that?
15 scholars work together very carefully on what they felt were the principal social sscience findings on marriage in America. As more research comes available, we will publish our third report.
Are you personally involved?
As principal writer and invesstigator, identify teams of scholars and work with them in a non-leadership capacity as they do their work.
Is there a subject matter you devote your personal efforts to?
Marriage, fatherhood, family structure.
Books you wrote?
"Fatherless America" about the consequences of having 35% of US children living apart from their fathers; serious social problem. 2007: "The Future of Marriage" looks at what happening to marriage today and how to strengthen it.
Let’s start with "Fatherless America." Describe your research.
Interviews with fathers in six different cities, transcripts were the basis of the book, and a literature review. Also I convened scholarly conferences or gatherings where commisioned papers were produced on father absence, furthered my thinking.
Did it receive commentary?
Widely and generally respectfully reviewed: NYT
Did you appear anywhere because of it?
Public speaking a universities and civic groups and elsewhere.
You said it was reviewed, Dr Michael Lamb reviewed it, right?
Yes, he disagreed with some of its findings and said some respectful things about it.
Cooper: Demonstrative NUmber One, is this what Dr Lamb said?
B: It is among the nicer things he said.
Cooper: I believe it is in evidence, confusion about its evidence number.
Walker: The witness’s book or Dr Lamb’s article?
C: The book
C: Now your other book, turn to Tab Two in your binder, whast is that?
B: Cover of my book The Future of Marriage, talks about what is happening to marriage, consequences of these trends.
C: How did you research and prepare to author this book?
B: Concentrated period of time immersed with some colleagues, to learn about marriage anthropologically acrtoss cultures, interdiscplinary group of three scholars to discuss the issue, accumuluted body of my collected information about this topic for the years I have been studying it.
C: How was it received>?
B: Got some attention, public speaking roles, in the book I said we should not adopt same sex marriage, so it got some attention for that.
[static is really bad right now; can’t really hear; the IT department needs to fix this system BADLY — NOW]
Cooper reads raves from Dale Carpenter (GOP lawyer) and Frances Fukuyama.
B: Fukuyama is an internationally respected scholar, Carpenter says it is the best book against gay marriage even though he is an ardent proponent of gay marriage.
DIX956 (book) introduced.
Cooper: Demonstrative #3: Books you have co-edited
— Black Fathers in America
— THe Book of Marriage
— PRomises to Keep
— REbuilding the Nest
These are compilations of scholarly essays about the future of marriage.
Cooper: Have your books been peer-reviewed?
B: Over 50 citations in peer reviewed journals and seven reviews in peer reviewed journals: THe Journal of the American Family, Sociology of the Family.
C: Your book has been reviewed seven times and cited 50 times?
B: Yes it has been reviewed seven times and cited 50 times
[okay, we got it doods]
C: Cited in judicial decisions?
B: BOth by the Massachusetts and California’s Supreme Court
C: Commission on Families?
B: Appointed in 1993 by George HW Bush, served with chairman John Ashcroft.
C: Anything else
B: Family Reunion sponsored by VP Al GOre,I was one of a number of people asked to meet with his to develop the agenda the year its focus was on fatherhood.
C: Whast is the NAtional Fatherhood Initiative?
B: I founded that to raise consciousness and raise public opinion about the importance of fatherhood
C: Have you delivered lectures in academic settings?
B: Quite often over the years
B: Marriage, fatherhood, family structure
C: Panel discussions and debates on marriage and specifically same sex marriage?
B: Yes with some of the leading proponents of same sex marriage: Evan Wolfson, Andrew Sullivan, Adam Rausch
B: Well we call these conversations nowadays
C: Leg testimony?
C: Tender as expert on fatherhood, marriage, and family structure.
Walker: Very well, voir dire?
BOies: Good afternoon, my name is David Boies I rep the plaintiffs. You got a masters degree in history>
B: Comparitive labor history of cabinetmakers in london
B: Comparative labor history publuished in a peer review jounral
B: What is peer review
A: Reviewed by competent peers, submitted for changes and discussion
Q Other peer reviewed publication
A: Black Fathers, my co-edited books
Q: Anything else
A Well in my own organization we have instituted our own peer review system within my own group. All of our peer reviews are done by external people.
Q: They peer reviewed your work?
A: I thought you exempted things published by my organizations for reasons that you are implying, you would probably question the integirty of that process.
Q: So there were only two?
Q: And those two had nothing to do with marriage or same sex marriage?
Q have you taught a course in a college or univeristy on marriage, on fatherhood, on family structure?
A: No (to all)
Q: You understand that the subjects of anthro, psychology, sociology are iomportant to the sstudy of family sturcutre?
Q: You’ve never taught any courses in these
A: No, I told you everywhere I have ever worked, I never worked for a college or university
Q: and you;’ve never taught a course, is that true?
Q In prep for your testimony did you study the effects of same sex marriage where permitted?
A: Specificlly in prep for this testimony, no
Q: Independent of your testimony?
A: Well I hav eundertaken a study of that subject but I’m not sure it met you rdefinition of scientific.
Q: You did a study where it was permitted?
A: No, but let me explain —
Q: No let me get my answers first
Q: I am sure you’d like to answer questions I am not asking, and you’ll have a chance to do that with counsel. But I am asking: have you studied the effects of permittiong same sex marriage in the countries where it is permitted. Yes or No?
A: I don’t think I can answer that yes or no.
Q: Have you attempted to study the effects of same sex marriage where permitted. Do you understand my questions? If you don’t understand let me know?
A: I don;t understand
Q: You are aware there are jurisdications that permit same sex marriage?
A: I am so aware
Q: Hvae you done any studies subsequent to the iplementation of same se marriage where it is permitted?
A Yes, and —
Q: Great! Now that you’ve said Yes, I’ll continue. Which jurisdictions have your studied same sex marriage?
A: I’ve tried to pay attention to the evolution of this phenomenon of same sex marriage in Scandinavian countries and Massachusetts. But I have not collected data or studied, I have not done those things. I have read articles and talked with colleagues. I have not developed a methodology or a set of expert findings on this topic.
Q: Okay. I would object.
WALKER: The objection is that the witness is not qualified to opine on the topic of fatherhood, family structure, marriage and same sex marriage?
Cooper: The court can hear him, and can weigh.
Walker: The question is, do you want to add any foundation?
Cooper: No I do not.
Walker: Governed by opinion testimony and the cases the SCOTUS has laid down to govern such testimony. RElevant to the social sciences, the SCOTUS and Court of Appeal goes to whether the standards of intellectual rigor, whether the tesstimony is under the expert’s special skills versus and intelligent layperson, and whther the court can be assisted. With repsect to Mr Blankenhorn’s qualifications, in a jury trial it might be close thing. But since this is a bench trial, I will weigh his evidence myself. Therefore you mauy proceed. OBJECTION OVERRULED
Cooper: Mr Blankenhorn
B: Socially approved sexual relationship between a man and a woman.
Cooper: Based on?
B: Broad consenses finding based on scholars in anthropology who’ve studied marriage across culters/
Cooper What does marriage do?
B: Established relationship. Establishes parenthood of children of issue of a union.
C: based on?
B: Anthropology spanning across the modern era of scholarship.
C: Demonstrative Number Four
Cooper: I’m going to read these
OBJECTION: LEading, what are these statements?
Cooper: The plaintiff led there own witnesses, and we objected once and were told it was about pace.
Walker: Instead, why don’t you ask the question and the witness can answer.
Cooper: what is the primary purpose of marriage?
B: Solves the problem of sexual embodiment — tghe species division into male and female — and that problem’s primary consequence, sexual reproduction. THe man and the woman whose sexual union makes the child are also the social and legal parents of that child. Only one institution in the world brings together the three characteristics of parenthood: the social, the legal, and the biological. It is the gift we give a child: you get to know and be known by the people who brought you into the world. It’s about who the child is affiliated with.
B: If that need wasn’t there, we wouldn’t have the institution at all. THere are many dimensions, it evolves, it changes over time, but it always is organized, everywhere to achieve this goal: to give the child, to unite the biological social and legal dimensions of sexual reproduction for the child. That is what marriage is and does.
C: Marriage is cross cultural and exists everywhere?
B: Suggests just how important the need must be. Marriage can look very different in many different places. East West North South, 1000 years ago, it always does this thing. It must be critical at the species level, to our success as a species. It is fundamentally important in its singular nature.
C: "this thing"?
B: The need of the child to know and be known, the biological parents are also the social and legal parents of the child, as best we can.
C: Turn to tab three: ID this doc, please?
B: A book by Suzanne Frazier: The Rise of Sexual Experience, a noted anthropologist.
C: Second full graf, read the first three sentences.
B: "My own definition derives from others’ attempts to define in, as well as others’ ethnographics, using this definiation: marriage is a relationship within which a group socially approves of sexual intercourse and the birth and upbringing of children."
C: You rely on this? Why
B: Because of her prominence in the field and also its alignment with many other views within the field.
OBEJCTION: We want the whole book in.
Cooper: Tab 4
B: History of Marriage Systems, Rabina Squale,
C: read graf
B: "Through marriage children can assure they are born to a man and a wmona who will care for them after they are born.
C: Tab 5
B Kinsley Davis, distinguised scholar, intro chapter: "Granted that the unique trait is social recognition and approval, one must still ask approval of what? The answer is approval of a couple’s engagingin sexual intercourse and raising of children together."
C: Tab 6
B: Dictionary and training guide for anthropologists for young people from the most distinguished group in GB
"Marriage is to recognize that children are the legitimate offspring of the sexual coupling of a man and a woman."
C: Tab 7:
B: Human Family Systems, 1979, Philip Vandenburg, an anthropologist.
C: Page 46, last graf, four ssentences
B: MArriage is nevertheless the cultural codification of a biological pair bond. Its the social sanctification of sexual intercourse between and a man and a wmon.
Book called Sex Culture and Myth by Malinowski, widely and fairly viewed as the father of kinship studies in anthro.
C: Turn to page 11,first lines
B "We are thus led at all stages of our argument that the institution of marriage is purposed by the children, the needs and the dependence of the children.
C: Tab 9 (empty)
C: Tab 10
B: 1985 View From Afar, Claude Levi-Strauss, one of the giants of the field. "The family, based on a union more or less durable of two individuals of two persons of opposite sexes, seems to be a primary until within every culture regardless of anything else about the society.
C: Are these the only authorities you studied?
B: no, these are representative. Not every other person agrees, but these are representative of whast the leading people in the field about the definition of marriage. They all say the exact same thing about marriage.
[my colleague has looked up these books online; all were last published in the 1950s and 1960s without subsequent updates]
C: What do you conclude about the opposing view of marriage?
B: That marriage is primarily an adult private commitment
C: Tab 12
B: Beyond Conjugality, published in Canada in 2001 by lawyers. Purpose was to analyze and offer recommendations regarding marriage and family law in Canada.
C: Page 18, full graf, please read:
B: The state’s objectives underlying contemporary regulation of marriage relate primarily to facilitating private relationships. Legal rights and obligations.
C: This reflects the private adult commitment view?
B: Yes by prominent lawyers determined to say what they actually meant.
Cooper: That’s not always the case with lawyers.
Cooper: Tab 12
B: an article by prof crispin sarkwell at dickinson college from the Philadelphia Inquirer: Marriage is sometimes referred to as an institution. But that’s odd, the Dept of DEfense is an institution, as is UCLA> Marriage is a private commitment, an embodiment of love.
Cooper: Is this congruent with the previously referred to view?
Cooper Tab 13
B: "Case for Same Sex Marriage" by Prof Estrich, whose views were discussed today. He is at Yale
Cooper: Have you debated him?
B: yes I have
C: Page 11
B: "In today’s society marriage is primarily relational and not procreational."
C: Are there other exampples of this adult-centric view of marriage?
B: these are merely a few of the many many proposals of adult-centered marriage as a private thing?
C: Do you agree
B: No, I don’t. The private aspect is importnat, but I do not beleive it has ever been, in the history of societies, it has understood to be the heart, the soul, the core, the very center of marriage: that it is primarily a private adult commitment. That is not true in the history of humankind.
Cooper: What does that mean?
B: The feelings of obligation commmitment and love the parties feel toward one another. In many societies, this is minimal, this affeective dimension. Arranged, etc. In the US, affective dimension is what we celebrate on Valentines Day, but that isn’t how we understnad the institution. FIrst of all, they are incorreect, as a matter of our hisotry and our lives. Their assertion is what they wish would happen in the future, but if we look at accurate experience in human groups, it is just not thast way in our human history.
[strong feelings here, in his voice, he’s a true believer]
C: demonstrative about marriage and religion
B: If we start with the customary understanding of the relational nature of marriage, this concept is universal, this feature of marriage is not the creation of religion. It does not depend upon religion for its rational or its allegiance. It is not dependent on religion. MARRIAGE IS A NATURAL INSTITUTION, NOT A SUPERNATURAL ONE. It exists in monotheistic and pantheistic societies, yet in all these societies a man and a woman join in something called marriage.
B: Further, what I have just said is noncontroversial statement among scholars.
C: You don’t disagree that marriage is sacred to many religions?
B: Well of course, religion is a power ful influence in modern life, and it encompasses marriage. They are promising something to the higher power not just to each other. Religious officials are sometimes agents of the state, performing the marriages in their houses of worship. People use religion as the calling to live up to the vocation of religion to honor their marriage.
B: This is true not just across america but across the world. It is a religiously informed institution, but its man woman basis, I’m I’m um I’m I’m um I’m trying to convey it doesn’t come from religion, it comes from our natural basis. It is a natural human institution.
C: is the man woman institution based in anti-homosexual prejudices?
B: I do not. Homophobia is a real presence in our society, I’m pretty confident in many many other societies. I regret it and deplore it and wish it go away. As I sought to understand the meaning of marriage in other societies, now did it become institutionalized in law and custom, how those custordians of the institution have sought in words both written and oral its purposes abd goals, I am not able to find any evidence of any animus or hatefulness toward G&L was a central component of how they justified their pariticpation.
[this guy should really be a fundies poet, he’s certainly not a scholar but he knows how to sing about marriage. I wonder if Boies will ask him about his own marriage(s)?]
Cooper; what about this affiliation nature?
B: Scientists call this kin altruism — scientists show you sacrifice more for people you’re related to, loan money, give up things, in humans we seem to care a lot about where we came from and about those who we relate to. So if there’s a child to be cared for, if you had your druthers, for this reason, for whast’s best for this child, you’d want that child to be cared for those most closely related to that child. And that’s how we have organized society for hundreds and thousands of years.
B: My own organization has been very committed to the other part too — outcomes for children. THere is a broad consensus among scolars in the field that the optimal environment for children is if they are raised from birth by their own natural mother who is married to their own natural father. Sometimes this isn’t possible, sometimes this family form fails, sometimes other forms succeed, scholars have spent much effort trying to tease this out
[see he uses non-scholarly phrases like ‘tease this out’ to describe scholarly work, something you really don’t expect from an actual scholar]
across the range of outcome measure, this family form is the best model from the child’s point of view.
Cooper: In that coinnection, go to tab 15
B: This is a summary research brief of group of scholars (three) from Child Trends (non partisan research group in DC) published in 2002: MArriage from a Childs Perspective. "Research clearly demonstrates that family structure matters to children. The best structure is a two-biologocial parent in a low-conflict marriages. There is value to children in promoting strong stable marriages between biologoical parents" I relied on this because the reputation of the Child Trends scholars.
Cooper: Tab 16
B: "Growing Up With A Single Parent," by Sarah MacLanahan, harvard University press, she teaches at Princeton. "WE have been studying this question for ten years, and the evidence is quite clear: children who grow up with only one bio parent don’t do as well as children who grow up with both bio parents, regardless of remarriage, race, religion, or age of parents."
C: Does the customary man/woman definition only benefit this child?
B: Certainly the child, but also the mother and the father and society. Mother doesn’t have to raise child along, connects him to the process of gerundivity (?) and society because it creates better children. It’s the highest level of human investment we can make in children; it shifts the odds in a dramatic way for children.
Cooper: Turning to deinstitutionalization: Take steps to dissolve or make less clear its rules, to disassemble its basic structures, and to seek to transfer from the public to the private realm. Becomes frail, its rules become thinner or go away. Becomes less comprehensible or clear, its structures less stable, can’t give it robust stabilty. It’s like a baseball team or a museum.
[yeah I don’t get it either, but he is waxing very poetical here about respect and high regard. maybe cubs fans can explain this part]
OF great valuye to scholars studying marriage, because of a marked process of deinstitutionalization of marriage, with great consequenece to children and marriages as a whole. It’s an absolutely pivotal concept we must understand if we are to come to the aid of marriage.
[ oh jeebus ]
Cooper: What are the manifestations of this process?
B: Out of wedlock childbearing, now at 38% in the US. That, over a five decade period, a very. dramatic. example.
Also, rate of divorce, USA has the highest divorce rate in the world, lessening loyalty to the institution. Nonmarital cohabitation, assisted reproductive technologies.
And [TA DA] last but not least the spread of the idea and the reality of same sex marriage is another aspect or manifestiation of this current trend of deinstitutionalization of marriage.
You know (laughs but no one else does) heterosexuals… THis just didn;t crop up when gays started marrying. But the process, the scholars tell us, the process of deinstitutionalization would be hastened by same sex marriage.
Cooper: Whast impact would same sex marriage have on deinst.
B: Hard to know, you are trying to predict the future. But I believe the effect will be to further deinstitutionalize marriage.
[it’s really great for this guy’s health that he and I are on separate floors today]
If you transfer this institution from a child centered institution to an adult-pleasure centered institution, you have erase, accomplished an erasure of the public institution.
Lots of people would like to reverse the trend, the evidence is quite compelling that same sex marriage would accelerate the deinstitutionalization of marrige.
C: you sai dother scholars think this [crap] too? Tab 17
B: Andrew Churl, prominent family sociologist "the Deinstitutionalization of Marriage" he is a proponent of same sex marriage. "The most recent development of the deinst of marriage is the movement to legalize same sex marriage."
Cooper have your relied on this authority, DIX49 (offered ad admitted)
C: Document behind Tab 18, please?
[gotta step away from this guy’s bogus documents about how it’s all the gays’ fault the hetero marriages are collapsing — brb]
Cooper: Consequences of same sex marriage?
B: well, it will become unacceptable to speak publicly about the value to a child of being brought up with a father. Being able to say a child needs its mother and father — when that becomes impermissable, we lose something precious.
OBJECTION: (can’t hear)
Walker: Are you getting close to the end?
Cooper: Getting close, yourhonor.
Cooper: What impact on family forms and structures?
B: Further mainstreaming and making acceptable these alternative family forms.
C: And what impact?
B: Canada struck the term ‘natural parent’ from law to the term ‘legal parent’ — agrowing trend toward a society where child won’t be raised by her natural parent. Increasing likelihood of child raised in a family form other than with her two natural parents. Could be apossibility of more public willingness to consider family forms such as polygamy
C: Basis of your concern about that?
B: Not in the interests of women and society, we have some history with this. The concept that marriage involves only two people is one of its weakest rule. Scholars and journals are considering polygamy and polyandry, as this part of it comes under attack.
C: Why does redefinition of marriage as adult centered lead to accptance of polygamy.
B: Because man/woman customary basis reinforces the tradition of TWO. With once pillar gone, the other becomes less defensible.
Last subject, Blankenhorn, your position on domestic partnerships.
B: I support them, they could be part of a humane compromise where on the one hand we protect marriage and allow it to continue its unique status while on the other extending its protections to same sex couples. I so stated in an article I co-authored with J Rausch last year. He is visiting schiolar at Brookings, prominent proponet of same sex marriage.
C: when was this aritcle?
C: HAve you always held this view?
B: no, I’ve come full circle on this view. I really hadn’t thought about it very much. I hadn’t given it careful consideration’
[BECAUSE IT DOESN’T AFFECT YOU, DOUCHEBAG]
Jonathan Rausch called me out in a debate, called me childish and wrong, he was also evolving his position on that topic, he challenged me to consider more carefully this idea. I told him I would and I did, with him personally and other leaders who were prosamesex marriage. I devoted lots of time to the topic, and I endorsed CP or CUs in the NYT with him.
C: Why had’t you thought about it carefully untilthen>?
B: I didn’t think I had to. Myinstinctive feeling was thast if you set up a comparable institution to marriage, also open to opposite sex couples, poeple would be at the smorgasbord, weakening marital institution, so I was personally suspicious.
B: The other reason was that the proponents of same sex marriage were vociferous in their denunciation of DP or CU: demeaning, unequal. I accpted that view and repeated it: "back of the bus, discriminatory, unfair!"
[ jeebus this guy….]
Then I thought about it deeply and carefully for more than two years. I still worry that DPs could possibly have a weakening effect on the marital institution, but should do it anyway because of other issues involved. I have satisfied myslef on this issue of fairness. "Is it unjust to have a DP program" — that was the core journy and exploration i have taken on this issue. My thinking now: the core principle we can hold out for our understanding is that marriage is larger than the sum of its legal incidence.
When we say the word marriage it performs a huge role, it has a huge powerful potent role much greater than its legal incidence. It predates law. We look to law to recognize and support law. We don’t understand it only in refernce to its legal incidence.
[now he is talking about lodestars, distinctive contributions….]
DP is differently purposed, with respect to parenthood particularly, this lodestar…
Discriminatory and morally wrong to call two things that are the same different names.
[read that again, please, we are yelling in the ceremonial courtroom now]
I had to work this out to my satisfication, it means a lot to me personally,we can have a compromise here, we can have a humane compromise.
BREAK FOR TEN MINUTES, WILL RESUME ANOTHER THREAD FOR BOIES CROSS