Today’s court session in Courtroom 17 at the Philip Burton Courthouse in San Francisco features Plaintiffs’ Counsel David Boies resuming his cross examination of Defendant-Intervenors’ Expert Witness David Blankenhorn.
Because both the questioner and the witness have the same first initial of their last name, I will use a Q&A format (with possible interjections by Judge Vaughn Walker as ‘Walker’ or ‘W’) for this cross examination.
Questions for today’s testimony: Will Boies continue to require YES/NO/I DON’T KNOW answers to his questions? Will Blankenhorn adhere to counsel’s requirement for the format of his answers? Will Judge Walker intercede early on to instruct the witness, or wait for a request from Boies after some wrangling? Will a good night’s sleep, as Judge Walker prescribed for us all, will both counsel and witness approach today’s questioning (and, more importantly, answering) more constructively and, um, responsively.
Q: I am going to try to make things go a little better today, good morning Mr BLankenhorn. DO you beleive marriage is public good?
A: Yes I do
Q: And you believe that children benefit from their parents being married?
A: yes certainly
Q: And do you believe that children of G&L couples would benefit from their parents being married?
A: Well, I do think it would be better for them
Q: You absoulutely believe it would be better for children of same sex couples to have married parents?
Q: (reads from B’s book) You say the rights of G&L should take second place to the institution of marriage?
A: Point me to the sentence?
Q: Reads next sentence.) You wrote that?
Q: You still believe that?
A: Yes, I was trying to say — I was saying — I meant that I accpeted the validity of the arguments of those who disagreed with me, but my answer is yes.
Q: "With some anguish I would choose marriage as a public good over the rights of same sex couples."
A: Yes, and the whole purpose of my book —
Q: I’m not really interested in the purp —
A: I am exploring in these sentences the context of my arguments. I want you to understand —
W: LET’S HAVE A QUESTION AND AN ANSWER
Q: In your book, you list 20 possible benefits of marriage for same-sex couples.
A: Yes, working with advocates I tried to come up with the likely or possible beenefits, I enumerated those in my book in that chapter.
Q: Alright, turn to page 203, Tab 13. "Goods in conflict: consequences" is the heading. I’m going to ask you which of these YOU agree with, if any. This was a group thought experiment, you put down on a white board a lot of ideas FOR and against. You did not necessarily agree?
A: Well there was a process, but the substance of your statement is correct.
Q: Which of these positive consequence do you agree with?
A: I want to say that these consequences were likely, attempt to predict the future —
Q: You may important points to make —
A: I do actually
Q: But this is not a debate
A: I’m not trying to debate
Q: ASk Your honor to instruct the witness to listen to the questions.
WALKER: One thing we say to juries about expert witnesses is to listen to the witness, including the DEMEANOR of the witness, someetimes guaged by his responsiveness to questions. Because I am sure you would not want your demearnor to be a negative while you are on the stand, so please answer MrBoies questions as he asks them. Your counsel will have a chance to elicit further discusccion during redirect, but please answer responsively.
A: yes your honor. You want me to reasd them aloud? Or to myself?
Q: read them all to yourself — all 23 — and tell me the number you agree with.
A: Alright. Number 1, yes. Number 2, yes. Number 3, yes. Number 4, yes. Number 5, yes. Number 6, yes. Number 7, yes. Number 8, no. Number 9, no. Number 10, yes. Number 11, yes. Number 12, I don’t know. Number 13, no. Number 14, no. Number 15, yes. Number 16, I don’t know. Number 17, no. Number 18, yes. Number 19, yes. Number 20, I don’t know. Number 21, I don’t know. Number 22, yes. And Number 23, I don’t know.
\Q: Now I would like to identify this list, and publish it and go through it and discuss the ones you disagree with.
Q: First point you agreed with that ssmarriage wouldimprove the happiness of many G&L individuals, couples, and gay community members. Then you agreed that it would extend the benefits of marriage to couples and their children. Then you agreed that a higher proportion of sscouples would enter into committed relationships. Then you agreed that more would enter into longterm relationships. Then you agreed that lesbians and (especially) gay men would be less promiscuous. Then you agreed that gay marriage would be a victory for the worthy ideal of tolerance. It would increase the number of those ‘accepted’ and would be a key expansion of the american idea.
Is that right?
Q: then you disgreed with 8 and 9?
Q: Then you agreed with 10, a decline in antigay prejudice and hate crimes against gays. THen, 11, because marriage is a wealth creating institution, extending marriage rights would lead to higher living standards and help reduce welfare costs by promoting family self-sufficency. Did I read those correctly?
Q: Number 12 you didn’t know, 13 & 14 you disagree with right?
Q:Number 15 says reduced marital unhappiness because gays wouldn’t marry persons of the opposite sex, you agreed with.
A: yes sir
NUmber 16 you don’t know and 17 you disagreed with.
NUmber 18 says loving families less fostering. 19 says widerangin and potentially valuable discussion of marriage and its value. 20 and 21 you don’t know?
A: yes sir
Q: 22 leads to more scholarship on marriage?
A: Oh absolutely sir (laughs alone)
Q: 23 You don’t know?
Q: let’s go back to number 14 about marriage rights schemes like DP will blur the lines between marriage and marriage-like entities. Do you believe that part?
A: No I don’t believe that part. Sying again that’s this is what’s likely.
Q: My qeuestion is: do you believe it is likely? CUs and DPs will harmfully blur the distinctions?
A: Well, I do believe it is a concern of mine =– it is one concern that needs to be taken into account. Because CU and DP are comparable to marriage, they might blur the distinction. I was basing my thought on your reading of the much longert part of it.
Q: let me see if I understnad it. DPs and CUs might well, could, harmfully blur the distinctions, you agree?
A: yes sir
Q: now turn to the doc in the beginning pocket of your binder. PX2332A. THis is a copy of this index of materials you considered and relied on in your expert report. Do you recognize it?
A: It is titled "MAterials COnsidered and RElied on"
Q: Is this your list?
A: Well I understood that I was to —
Q: No, Mr Blankenhorn, is this your list?
WALKER: Let’s look at the expert report itself and see.
B: (Find expert report PX2332A) That is what you attached to your report?
Q: Go down this list of materials. Tell me which of these materials assert that permitting gay marriage will adversely affect heterosexual marriage?
A: I’ll be happy to do my best. I can’t give you a precise answer, give you a judgment.
Q: Your best testimony, we can look it up.
A: Ask again please?
Q: Whether the materials have an assertion that permitting gay marriage will adversely affect heterosexual marriage?
A: (starts to scan list at 9:06, timing him now)
Q: Just tell me which materials assert what I am asking.
A: (deep sigh) (begins marking list with pen)
(Blankenhorn is left handed by the way)
A: Will the proviso that I can’t speak with absolute confidence, and the proviso that almost all of these materials were written before gay marriage was an issue, I will say 2, 3, 10, 13, 24, 27. And that’s all.
Q: Let me go through each of those. Certain declarations you’ve identified. 10 is a declaration of Alan C Carlson. Who is he?
A: Writer researcher written books on marriage, group he heads is a private conservative think tank in Illinois, The Howard Center, doctorate in history.
QL Not sociologist, anthropologist, psychologist?
Q: Another is number 24, by Maggie Gallagher. Who is she?
A: One of the leading opponents of gay marriage today, writer and organizer on gay marriage, leading a campaign making public arguments against gay marriage.
Q: Consider her a scholar as you have used that word?
A: Yes she is an intellectually serious person?
Q: And that’s what you mean by scholar?
A: Well if you want to quarrel over the meaning —
Q: NO, I DON"T EWANT TO QUARREL — I want to know whast you mean.
A: No, the definition of scholar is not an intellectually serious person.
Q: So when you use the word scholar what do you mean?
A: Someone who is able and equipped to engage seriously with intellectual competence with one or more bodies of evidence and to make rigorous argumnets about one or more bodies of evidence. THe ideals are to be — to have integrity, to want to seek the truth of the matter.
Q: Is one attribute objectivity?
A: Objectivity meaning trying to see and treat opposing points of view respectfully, you might call those aspirations objectitivity. Maggie has a dual role – she is a writer and scholar, and an activist and leader.
Q: Has she published peer-reviewed articles?
Q: What ones?
A: (really snotty now) I don’t have her CV in front of me!
Q: Can you recall one you have relied on?
A: I read them, they have shaped my views.
Q: What was the most recent peer-reviewed article by MGallagher you have relied on that was objective scholarship.
A: You are putting words in my mouth —
Q: Alright let me ask: What peer reviewed articles of Maggie Gallagher’s have you relied on?
A: That I have relied on here today?
Q: well that’s not my question, but why don’t you answer that first?
A: No, none of hers.
Q: Another of the six items, NOrville Glenn, the struggle for same sex marriage, Mr Cooper asked you about?
Q: Turn to that in MR Cooper’s book
A: Tell me the tab
Q: Tab 18
Q: now you said that Mr Glenn asserted that permitting gay and lesbian marriage would adversely affect heterosezual marriage, right?
A: You asked me a question, to identify any docments that I relied on any docs that asserted that, yes.
Q: I’m glad you clarified that. Now I want to go back to the question. The six items you IDd — I want to get it exactly — you thought this was material you thought the view of the author was that same sex marriage would weaken heterosexual marriage?
A: Yes that’s what I just said.
Q: Now a different question: Which of these six contain an assertion that permitting gay and lesbian marriage would harm heterosexual marriage. DO you understand the difference?
A: no i don’t
Q: You were giving me what the author beleives, I want to know what the author said…
A: Not in some book or article, but in this narrow list of articles I cited?
A: Well that’s a very narrow question — only these materials?
A: Does it have to say it in that exact form of words you have said?
Q: NO, but a reasonable reader would conclude —
A: The issue is always ‘likely’ Mr Boies, you are asking me to predict the future.
Q: I accept that, Mr uh
Q: Yes, I;m sorry Mr Blankenhorn.
Q: So that each of these six assert in word or substance that permitting gay and lesbian marriage will harm het marriage.
A: I believe , as you put it, that a reaosonable reader would think the author stated or suggested —
Q: Do those mean the same thing or differnt things?
Q: How are they different?
A: A statement is conclusively written; a suggestion that the author has a serious worry or concern that permitting same sex marriage would weaken het marriage as an institution.
Q: Let me ask ytou separately
A: I was afraid of that
Q: Yes I am predictable.
Q: Which of these six STATES that permitting same sex marriage would harm heterosexiual marriage?
A: Take number 13 off the list, he says deinstitutionalization would happen, but not harm. So take him off the list.
A: Also take number 27 off the list — Glenn says deinstitutionalization but not the specific form of words you are asking about, so let’s take him off the list.
A: Number 3, Agasinsky, I’ve read much of her work, she opposes gay marriage because it is deinstitutionalization, but I can’t say that in this book that she says in the form —
Q: Not the form, the exact reason we are taking her off this list because you cannot say that she unmistakably communicates —
A: Well I know with absolute certainty she opposes gay arriage but I do not know that your wording —
Q: You do understand that I am only asking YOU about the materials YOU relied upon?
A: Yes I do.
Q: Any others?
Q: Let me follow up on DIX716, Norville Glenn. You say he did state that permitting gay marriage would deinsti het marriage —
A: If you are going where I think you are, asking me to find the actual wording, I am not sure I can.
Q: First, a general point: AS you understand what Mr GLenn is doing in this article, is he trying to assert that gay marriage is a good idea, or is he concerned about the DEBATE about gay marriage?
A: The latter
Q: So he thinks the DEBATE about ss marriage could hurt heterosexual marriage?
A: I haven’t read this in several years, but I exerpted one graf from it for my report. This is an analysis of the DEBATE, not a polemic on one side or another.
Q: FOr example, he believes that legalization would have a small effect at most, on the number of fatherless children, right?
A: Coud you point that out?
Q: turn to page 20, second column, seventh line? "Legitimate — Making legal same sex marriage would have a small impact —
A: I am trying to read it
Q: DO YOU SEE IT?
A: I am trying to read it….
Q: I am asking if you see it.
A: YEs I do.
Q: Now take as much time as you need to read it.
A: (reads to self, lips surprisingly do not move)
A: I think he is saying —
Q: I am not asking what he thinks, I am asking if you are finished, because if you are, I have some questions.
A: Wouldn’t it help to know what he is tying to say here?
Q: Not what he’s trying to say here?
A: Well you’ll have a chance to do that on redirect.
Q: well the whole sentence says "Legitimating same sex marriage…
A: That’s not the point I was trying to make.
Q: But that is the complete sentence?
A: Yes sir, thast is the complete sentence.
Q: So would you agree that it would have a small effect on fatherless children, and ther is no precedent for prohibiting a family arrangement because it is less thanideal for children?
A: Well, polygamy is a family form present in the world, bad for children, prohibited here in the USA, for one reason it is less than ideal for children. I have less than perfect knowledhge would have to give this some thought…
Q: Speaking ofpolygamy, since you did, are you aaware of the reasons for prohhibiting it in the USSA?
A: I am not an expert on it.
Q: Are you aware of any reasons?
A: As an expert, no.
Q: Incidentally, you testified about your three rules about marriage?
A: I didn’t use that term
Q: Didn’t you use that when you spoke your views?
A: Well you are putting word in my mouth.
Q: Didn’t you characterize these three as rules of the game?
A: I think I put in in quotes, because I was citing Prof North. I’ll try to give you complete clarity.
Q: I would like to get complete clarity on this —
A: You make it sound jocular.
Q: I wasn’t trying to be jocular —
A: I am going for clarity here
WALKER LEANING WAY BACK IN CHAIR, STARING AT THE CEILING, CLEARLY LOSING PATIENCE
Walker: The question has been stated, Mr Blankenhorn…
A: I wish to clarify whether I’ve use the term rules of the game
Q: In your testimony, you said "the main rules of the game" — you SAID that in your testimon and in YOUR report, didn’t you?
A: (Looking throuhg report, riffling pages) Yes, I was correct, the phrase "rules of the game" comes from a Nobel prize winning economist, in his paper that won him the prize, and it is footnotes and in quotes
Q: I am not asking you where you got it, or in quotes. I want to know, is it your view there are three rules of the game in marriage?
A: I beleive there are three fundamental concepts, I refer them as rules sometimes.
Q: Because they are in this report you cited?
Q: You cited anthropology of human marriage as the source for these three rules.
A: You asked if I stated. It is what I believe.
Q" Okay, the scholars you relied on for your belief are WHO?
A: Would you like a comprehensive list?
Q: I would like the MOST IMPORTANT scholars you rely on for this view.
A: If you’ll let me collect my thoughts and make some notes…..
[WALKER UP FOR A STRETCH]
A: Would it be against procedure for me to consult a copy of my book?
Q: Putting on the record that you did not consult your book, as an expert, what are the scholars you think are most important in your mind, for this view that you rely on?
A: Well that’s a differnt question
Q: THE ONES YOU RELY ON
A:malinowsky and fortis.
Q: Now the three rules, state them,
A: MAy I just say — May I please say, from a NObel —
Q: No, I did not quote a Nobel winning economist. I asked whether it was YOUR VIEW
A: Very extended colloquy, so of course I recall it!
Q: I am asking YOUR VIEWS YOUR VIEWS YOUR VIEWS that there are three main rules of teh game. Not lightly —
A: YEs that is what I mean
Q: I do notmean it humorously
A: We can proceed then.
Q: Well I accpet that then. What are the three main rules that you believe define marriage?
A: First, rule of opposites, its man woman basis.
A: Two, there are two people
A: It is a sexual relationship
Q: With respect to the rules of marriage —
A: BY the way I am not saying these are the rules of all marriage, they are the three essential structure, that’s where we get into the —
Q: So, the three ESSENTIAL STRUCTURES of marriage, is that better?
A: yes much better
Q: So, the first is the rule of opposites?
Q: Are you aware of marriages in other societies that have not been limited to people of the opposite sex?
A: Well I am certainly aware that assertions have been made in the popular and infrequently scholarly press but I have troubled myself to try to understand such assertions but I have views about them which I am happy to share.
Q: Let me ask you: IN YOUR VIEW, are there examples in human history are ther marriages that do not comnply with the rules of opposites?
A: Well in MA ther are such marriages
Q: And Iowa, and Spain, and Connecticut, and Sweden —
A: Well sure I am perfectly aware of the context
Q: Let me ask you a pointed question. Are you aware of any instances of marriage prior to the last fifty years that were inconsistent with your first essential structure, the rules of opposites?
A: (deep sigh) There are two or three or four hard cases in the literature, if you’ll allow me to make the proviso that I am aware of two or three of four hard cases that require deep understanding, so my answer: to be very precise, I know scholars have debates about two or three or four examples, THERE ARE NO OR ALMOST NO EXCEPTIONS to this structural feature.
Q: Now you say no or almost no —
A: Trying to account for those hard cases
Q: I want to ask if you have an opinion whether or not prior to the last fifty years have there been marriages that violate your rule of opposites?
A: That is a very differnt question, two very different quesitons, oplease clarify which you want me to answer.
Q: I want to answer this: Is it your view (reading back question from court reporter exactly as stated)
A: So it’s the former, I won’t seek to answer the question whether there are any forms considered same sex marriages.
Q: Boies (laughs)
A: Not alughing matter
WALKER: HE IS NOT LAUGHING AT YOU
Q: You asked me to take my pick. (reads back question again from counsels table)
A; Okay, give me ten second to compose my thoughts.
A: MY answer is I can think of one human group where scholars agree that there might be an exception to this rule of opposites. I think there’s been on I think — not that one other person hasn’t asserted others — but my view is I know of one instance in which there may have been according to some scholars there may have been an eception.
Q: What is that?
A: A place in Africa, warrior group in barracks, adult men would have a sexual relationship with a young boy, the anthro’s would sometimes translate the word as marry. THe man would give presents to the young boy, the boy was to be a servant as well as a sexual partner. When the boy outgrew the homosexual relationship, he would often go on to marry a woman with a conventional marriage experiecne. This was recognizes in law and custom. In this highly warrior society, the males lived in barracks and had a marriage-like relationship with a male child. THis was not viweed as deviant or wrong and was an accepted part, kinship groups treated this as normal, the anthro who wrote about it called it "man-boy marriage" but he said "I use it advisedly" Perhaps there are other ritualized relationships between men and boys that are part ofinititiation, a transitory part of life, the boy usually goes on to marry a woman. BUt if we scour human history searching for an example that is an exception, this would be it.
Q: You said this was in Africa?
Q: In other cultures?
Q: In ancient greece?
A: That was not marriage. Scholars (referring to Africa) call this a marriage-line institution, prominent anthro Ray Kelly in Papua NG have a similar arrangement: boys of the group for a period of time in their boyhood have a sexual relationship with males. These people believe that a boy having sexual activity with a man contributes to his virility, makes him a better tribe member. MAsterful book Itoru Social Structure, but he makes clear this IS NOT MARRIAGE> It;’s part of social structure, with a mimicking quality, but only for a itme for the boys of the tribe.
Q: What I want to focus on is marriage. In all of human history, did you come across professor young who is an expert in this case?
A: Are you asking if I knowher?
A: Of course I knowher
Q: Have you talked to her about other societies with marriage that are inconsistent with your rule of opposite?
Q: But you know she’s an expert.
A: She’s affiliated with universities and teaches courses, but that’s all Iknow about her expertise.
Q: Lets go on to your rule two: Just Two People. Obviously there are exeptions, r3ight?
A: No sir
Q: What &age of marriages have been limited to TWO PEOPLE?
A: Almost all marriages are only two people. If I may cut to the chase, I believe — I thought you wanted me to pause? Are you talking about polyandry and polygamy? Whether that violates the rule of two?
Q: You recognize that over the last 100 years there have been mroe polygamous marriages than those that follow the rule of two.
A: I would be EXTREMELY SURPRISED if that were true.
Q: What societies are you aware of prior to the last 100 years that had polgymay as a regular form?
A: 83% of societies
Q: Had polygamy as a regular form?
A: No sir
Q: Prior to the last 100 years —
A: Over human history, 83% of societies permit polygamy.
Q: Because not all marriages are polygamous?
A: The overwhelming majority are polygamous.
Q: Well let’s take India and China. Is it your judgment that prior to the last 100 years the majority of marriages were not4 polygamous?
A: Could I just that —
Q: Do you understand the question?
A: Completely, the answer is YES
Q: Fine —
A: If I could just say one more sentence —
Q: Yes is fine, but —
A: What I want to say is that men with excess power maym arry more than one woman, but each marriage is between one man and one woman. There may be multiple marriages, but each of them is between one man and one woman.
Q: Are you aware of marriages more than one man and one woman?
A: Well that is polyandry, but history is long and many people have lived on earth, but I am not aware of one.
Q: Where more than two people are married
A: You mean where they all stand up together and mary at the same time.
Q: Yes, all get married at once I guess
A: I am unaware of any, I presume you have one, but I don’t know of it.
Q: Okay, let’s talk about where one man marries more than one woman at different times. Or woman marry more than one man —
A: We are back where we were yuesterday, it is not a YEs or No question. In the time we are arguing about this I could answer it —
Q: Wait, what question are you answering?
A: I was seeking to answer the question about whether I know about marriages where woman marries sequential men.
Q: Yes or NO?
A: NO, almost all examples —
Q: YES OR NO
A: If I had fifteen seconds —
A: (gives answer but it;s nonresponsive, it’s unusual he says)
A: How did I do?
Q: I want to ask you about the 83% of societies that permit polygamous forms. What percentage of marriages prior to 100 years were polygamous?
A: I am a little mebarased to tell you I don’t know
A: I reallyt don’t know
Q: I want to pursue whether polygamous marriages are consistent with your so-called rule of two —
A: We’re down to so-called?
Q: Well let me ask you question. IF a man has five wives —
A: No he has five marriages, each is one man one woman
Q: So is that consistent with your rule of two?
A: Scholars say yes
Q: You are transmitting the words of scholars?
A: You are putting words in my mouth
Q: No I am not
A: Yes I think you are
Q: Okay let’s look at your depo.
A: Well I was trying to base my arguments on scholarship. Other scholars have other views. Ethnographic scholars have made these arguments —
Q: Well I am just addressing whether I put words in your mouth. Just read page 300, you are basing your analuysis on highly regarded scholars —
A: THERE’S YOUR MOMENT, I SAID I AM A TRANSMITTER. GOTCHA! THIS IS YOUR MOMENT, I GUESS. If I may say it in my own words
Q: Let me read what you said: I am not making things up on my own, these are not my own conclusions, I AM A TRANSMITTER OF OTHERS" VIEWS. Did yougive that testimony under oath at your depo?
Q: So is it your judgement that a man married to five women —
A: Each with a separate ceremony with a separate I DO —
Q: Yes, is it your testimony that a man who has one wife and then another wife, and then another wifem and then another wife and then another wife and then antoher wife — that is consistent with your rule of two>? YES OR NO
A: yes, acofrding to malinowski —
Q: Go to third rule, sex
A: That is an intersting subeject
Q: I don’t want to fall into the trap of making sewx boring
A: MAybe together we canmake it intersting
(COURTROOM DOUBLED OVER IN LAUGHTEER)
Q: Are you aware of marriages that violate your third rule, that ther is sex?
A: I can answer this other question. The presumption of sex is foundational. Failure to consummate is grounds for divorce. That’s why we have terms like the marriage bed, consummating the marriage.
Q: Are you aware of married couples who don’t have sex?
A: Are there married couples who have never had intercourse? Well, I suppose if he’s incarcerated, and then gets married but can’t have conjugal relations, I ghuess it;s possible or likely he will not have had sexual relations until he’s released or has a conjugal visit. Or you might have an example of a couple who don’t want sex, but want to marry, I’ve never met one, I’m not aware of any pattern of this, but HYPOTHETICALLY
Q: These aren’t hyupotheticals, the example of a court case of the incarcerated person —
A: Why would you try to put words in my mouth?
Q: Because you have previously cited this exact example when SCOTUS ruled that incarcerated persons could marry even if they couldn’t have sex —
A: I have no recollection whatsoever of such a case. Someone might have mentioned it.
Q: I don’t want hypotheticals
A: I’m not a studenet of this case, I am not aware, I dont know whast you are talking about.
Q: Are you aware — not hypothetiocals — of any marriages that violate your rule of sex.
A: No sir. May I just clarify — you are saking me if I am aware of a single married couple thast has not consummated their marriage through intercourse> Is that your question?
Q: No, my question was (reads question back)
A: Individual couples?
Q: Let me approach it this way?
A: I am not aware of such a couple
Q: Turn to page 258 of your depo.
Q: Line 13: you are asked if people are free not to have sex in marriage. Now courts accept marriage without any possibility of sexual intercourse.
A: That’s just whast I said in my answer
Q: This is not hypothetical?
A: I didn’t use the word hypothetical — I said (whining loudly about what many courts allow.) I have a level of knowledge, I kknow prisoers can marry, but can’t consummate it until they are released. I am not aeware of specfic sourt cases, although there’s my level of knowledge.
Q: Growing permission on the part of courts to permit marriage when intercourse can’t happen, that’s not hypothetical, is it?
A: Well I didn’t say…
Q: They can’t have sex, r3ight?
A: I would have to consult experts to see if there was a humanbeing somewhere who is married, in prison for life, and no conjugal visits, then there would be such a person, perhaps.
Q:Depo you say, the law has changed and growing permission on the part of courts to accept marriage where intercourse can’t happen, for example…. That is your testimony?
A: That’s what I said
Q: And you testify that you never looked at a court case about this?
A: I never looked at a court document to the best of my recollection that is specifically focused on this topic. If I had, I have forgotten it. I have had conversations with people that freedom is aloowed to prsioners to marry even if they can’t —
Q: In your studuy of marriage, have you come across cases in the SCOTUS that talk about the right of marriage as a fundamental human right? YES OR NO
A: By ‘come across’ do you mean read?
Q: Let’s start with that.
A: No, to the best of my recollection
Q: Has anyone summarized for you any cases about the fundamental right to marry?
A: I beleive yes, because if someone were to ask me if SCOTUS used the term fundamental right to marry, I would say I beleive I would say SCOTUS has said there is such a right, I would not be surprised if it was true, I would be happy —
Q: I’m not asking if you are surprised or happy, I am asking if you are AWARE. Does it refresh your recollection that someone has talked to you about the fundamental right to marry at SCOTUS?
A: To the best of my recollection, no —
Q: Thank you.
WALKER: BREak, resume at five minutes past the hour.
I WILL START A NEW LIVEBLOG FOR THE NEXT SESSION AFTER THE BREAK.