WELCOME BACK we missed you, we love you, we’re glad you’re back. This is the last day of the trial where evidence (like witnesses) can be entered, and also the day we say goodbye to the man who has brought us such a bright and beautiful rainbow of feelings, Dr. David Blankenhorn. Does it feel like the last episode of Friends? Are you going to cry? I hope not. His cross-examination continues right… now!

If you’re a person of the future, catch up on the entire trial here: Judgment Daze. And look, we made it all the way to the end without Alex fixing the typo in the Judgment Graphic. However, it is good looking isn’t it? And as Alex has pointed out, they spell it that way in the UK.

Queerty was watching yesterday and they also found Blankenhorn to be a big disaster.

Part One:

Blankenhorn on Blankenhorn’s Feelings

This is pretty much more of what we did yesterday, asking Blankenhorn to tell us his feelings about marriage (since he is not actually an expert on anything and feelings are all he is qualified to talk about).

Boies begins by asking if marriage is or is not “a public good” – I remember this term from my Intro to Econ class, but I don’t think he means the same thing, because I think in that context it meant highways or something.

But Blankenhorn (I want to shorten his name so bad) (Blanky?) says it is indeed a public good, which means it “benefits society.”

The logical conclusion of this, and what Boies forces him to say out loud, is that it also benefits gay people and their families – “Yes, I believe same sex marriage is almost certain to benefit gay and lesbian couples and their children.”

ME TOO.

Now there is some confusing stuff where they are reading a really important but really specific sentence from the book, and because I’m writing this thirdhand I do not really know what the sentence is but apparently it has to do with throwing queers under the bus for “the greater good.” (Didn’t they say that in Star Trek? OMG WHAT IF HE IS A VULCAN) Reluctantly, Blankenhorn is like “Yeah, I said that.” Or more specifically, “To the degree that I must choose, with some anguish, I would choose children’s’ collective good and the institution of marriage…” I THOUGHT YOU SAID IT WASN’T AN INSTITUTION, IT WAS PEOPLE WHO LOVE EACH OTHER. Sorry. I hate him. He’s really pissy about having to say this out loud, though.

Boies: I thought you would agree with what I read (because they are your words).
Blankenhorn: I do agree (whining again, like a little boy), but I am writing about goods in conflict. I do not believe that (gay marriage) is bad. Two “goods” in conflict.

Who published this book? It sounds shitty. Two good things in conflict with each other is a dumb conflict, any English major can tell you this. Or anyone who’s been crucified by their Writing Workshop.

Also, Blankenhorn is so whiny. I think he might get put in timeout. Can you do that in court?

Boies: Your honor would you instruct the witness to be responsive to my questions and not make statements no matter how important he thinks they are.
Blankenhorn: I am making important points! I do not need those instructions!

Judge Walker: If this were a jury trial, the jury would be instructed to weigh the witness’s background and other factors. One of those factors is the witness’s demeanor. If the witness is not responsive to the questions, that affects the jury’s weighing of his testimony. I’m sure you would not want your testimony to be diminished by your demeanor. So please be responsive to the questions. Your counsel will have a chance to allow you to expand on points.

I’m going to be honest, I kind of imagine him having Stewie’s voice from Family Guy. And at the end of the trial, Lois will appear to give him a bottle of formula and he’ll spit up on her shoulder and then fall asleep.

They’re looking at a list of points that Blankenhorn apparently published in his book – I want to write them all here, but there are 23 of them, so I dunno. That’s Michael Jordan’s number.

We’re going through them one by one and talking about which ones Blankenhorn agrees with and which ones he doesn’t. Most people have to pay for therapy to talk about their feelings this much!

Let’s try to do this quickly. One statement that B agrees with is that “Marriage lite” schemes such as civil unions and domestic partnerships can harmfully blur the distinctions between marriage and non marriage.”

When we get into a discussion of where he found information to support this statement, he cites Maggie Gallagher and then gets all snippy about why she isn’t considered “a scholar.” She is very “intellectually serious,” he says. I would have called her beady-eyed and spiteful with a bad haircut, but I guess the beautiful thing about America is that we’re each entitled to our opinion on that.

Also dude, you went to Harvard. Man up!

When we get into an argument about whether or not any of the other documents he cite actually support his claim at all, Blankenhorn gets very petulant, and finally backs down to “I believe a reasonable reader reading these materials would agree that this author states or suggests that homosexual marriage is likely to weaken institution of marriage.” Ok, “reasonable” like Maggie Gallagher? Because, um… I’m just saying, there are a lot of reasonable and literate people out there, and a lot of them disagree with you.

Now he’s equivocating between the terms “stated” and “suggested…” I’m just going to drop a little Rick Jacobs wisdom here, because I’m thinking the same thing but he’s putting it better than I could.

Tam did not bother me. He’s just an inflexible old guy. Blankenhorn is sanctimonious and dangerous because he is infinitely flexible, likes to play with words and that can hurt people.

YES. That is what is creeping me way the hell out about this dude. It’s true he’s not a very good witness, but 99% of what he does is outside a courtroom – and even though a smart lawyer and a smart judge can see that his ideas are made up, I’m not sure the average person can. I feel like this guy is really good at what he does, and what he does is Make Our Lives Miserable. He’s kind of in the same boat as Maggie Gallagher and Brian Brown, where their whole shtick really is being “reasonable” and “nice” and “wearing sweatervests” – I guess what I am saying is that if the anti-gay movement is working, and in some ways it is, it’s because of people like this guy. And so reading what he says word for word and thinking about him laughing on the witness stand is kind of giving me chills. ANYWAYS!

Mostly things are kind of devolving here, because Blankenhorn is getting whiny and doesn’t want to answer questions. I am confused about how he could have watched the previous 10 days of this case and not thought any of this was going to happen. Let me just show you the transcript, and you tell me if it makes any sense.

Boies: One of the thing he says is that legalizing same sex marriage would at most have a small effect on the percentage of fatherless children.

Blankenhorn: Let me read it.
Boies: I understand, but do you see what I said?
Blankenhorn: I do see it.
Boies: Take as much time as you like to review the context and let me know when you are ready.
Blankenhorn: I’ve finished.
Boies: Do you agree that legalizing same sex marriage would have at most a small effect on the percentage of fatherless children?
Blankenhorn: Do you want to know what he is saying?
Boies: I want to know what his words are, not what you think they are.
Blankenhorn: That’s not what he means, but if you don’t want to know, that’s okay. (Pouting)…
Judge Walker: There is a question here, Mr. Blankenhorn.
Blankenhorn: Do you wish me to stop my inquiry? I’ll stop if you want me to. I’m going for clarity… Yes! I was right! It came from an Nobel-prize winning economist! That’s why I footnoted it!

I have no idea what just happened. But I know that if I were his mom, he would not get any dessert tonight, because he is acting Very Spoiled. And so you know the actual content of what just happened, Boies asked if there’s any precedent for legislating family structure, and Blanksy was like “Well, we banned polygamy For The Children,” and Boies was like “Really? Are you an expert on polygamy? Do you know why it was banned?” and Blankenhorn was all “Nuh uh! I never said that! I don’t wanna!”

Blankenhorn keeps asking if he can consult his book, and really, guy, has anyone else had do to that? No, not even Miller. Boies is pushing him to talk about what he apparently references in his book as “the three rules of marriage” – Blankenhorn has been really unwilling to talk about it, but now we’re finally getting there. Apparently his three Golden Rules of marriage are:

+ A man and a woman (except he calls it “the rule of opposites,” how adorable!)
+ Marriage is between two people (and zero horses)
+ It is a sexual relationship.

These are, as he says, the “essential structures.” Ahaha, Boies just asked him if he’s aware that in other cultures the marriage structure isn’t limited to one man and one woman; Blankenhorn says he “hasn’t troubled himself to look at them.” Aw, he knows about Massachusetts. That’s cute. Boies asks him if he’s aware of any cases of same-sex structures prior to the last 50 years. (IT IS LIKE PULLING TEETH.) After much hemming and hawing, he says he can think of “one instance in a human group.” The one instance he is aware of is this:

“Society in Africa, it no longer happens this way, the men of this group lived in military barracks and the adult men would have sexual relationship with a young boy. Anthropologists translated this to marriage. The man would give gifts to the parents and the boy would be servant and sexual partner. The boy would outgrow this and then marry a woman. There was a period of time in warrior society, the males, as I say would like in a military type of barracks, the men would have a relationship with an adult child. It was not viewed as deviant. Kinship groups were accepted. Evan Richman (?) translated this as man-boy marriage, but said he uses word “advisedly.” Others talk about this in Ritualized Homosexuality, but it’s a phase of life that has a marriage-like quality to it. It’s transitory, and men go onto marry women.”

Let me get this straight. Homosexuality is a)outdated and backwards b)only exists naturally in “exotic” “primitive” places like Africa (also, where in Africa? The entire f*cking continent? It’s not a country! There are 53 different nations!) c) is temporary and d) is the same thing as pedophilia (is that what “adult child” means?). Is there anyone this anecdote is not offensive to?

Boies (very respectfully, I think) points out that like the exact same thing happened in Ancient Greece, but Blankenhorn snipes that that wasn’t marriage, that was “a marriage-like relationship.” Um, how is that any different from what we just talked about? Also, were you concerned we weren’t going to talk anymore about polygamy? If so, rest easy:

Boies: You are aware that there have been far more polygamous marriages than marriages of two people?
Blankenhorn: 83% of societies permit polygamy. It’s a very different issues as to how many marriages are polygamous. [pronoun?] 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.

WHAT THE FUCK? That variable he is totally willing to swap out at the drop of a hat but not gender? This is infuriating, because it means their “slippery slope” is not even a slope, it’s just, like, level, like a football field or something.

Apparently they’re not even concerned about polygamy? It’s not even actually a problem in their cracked-out the-Rapture-is-coming worldview? It was really just the gays the whole time, they were more upset about the queers than about one dude marrying eight women and having some of them be twelve? Can we be done now? Seriously? I feel like there must be some secret clause in legal proceedings that when someone says something this f*cking stupid, they automatically forfeit the case for their team. Like losing the Snitch. The polygamous Snitch.

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!

It is one of the saddest things in our generation that this was not televised. How many times would you watch that on loop? How many times? How many people would then auto-tune and remix it? I AM SO SAD ABOUT THIS YOU GUYS. We lost a national treasure the day that SCOTUS ban came down.

I don’t even want to recap this, I really want you to read all of this. Nothing I write is going to be this good.

Boies: Are there any cases of marriage without sexual relations?
Blankenhorn: You mean are there people who marry and don’t have intercourse?
Boies: I was not going to ask that, but since you did, let’s. That’s easy. The answer is yes?
Blankenhorn: I was going to say no. Hypothetically it’s possible that a prisoner could marry and not have sex because he is incarcerated. And maybe there are couples who do not like to have sex. It’s not a pattern (He yammers on and on.)
Boies: You are aware that there was Supreme Court case that allows prisoners to marry even though they cannot have sex?
Blankenhorn: Don’t put words in my mouth! I am not aware.

Speaking of sex and marriage, HE IS MARRIED. There is some woman on earth who has this man come home and expect her to have sex with him. Can you imagine that? Do you think he screams “Don’t put words in my mouth!” when he comes? Am I allowed to say that? This dude is weirding me out. Like, I get that he doesn’t know what he’s talking about, neither did any of the other defense witnesses, but this is the first dude to get angry at Boies because he doesn’t know what he’s talking about. It’s a little weird, yannow? Basically, this guy’s PMSing is hurting his side way more than his actual lack of knowledge, because it’s making him look crazy AND dumb. Like, he just seems genuinely outraged that he is expected to know any of the stuff he’s an “expert” on.

Boies: [This document] says marriage has at least six important dimensions. Do you agree with that?
Blankenhorn: That marriage has six dimensions? Oh my goodness. (Sigh) Do you want me to day on word-by-word basis that I agree with everything in the following two paragraphs I’d have to re read it. I signed the document, but I’d have to reread it.

We go through actual scholarly articles on the issue of same-sex marriages – you know, the ones endorsed by the American Psychological Association and other reputable organizations, the ones that say there is no rational way of thinking that same-sex marriage could hurt anyone – and Blankenhorn confirms that while he’s aware of them, he hasn’t read most of them. He sounds disaffected and bored just talking about them. I’m going to be honest, if he’s “looked for” anti-gay animus with the same gusto that he’s apparently “looked for” actual research on gays, I’m not surprised he hasn’t found it.

Boies: NO singularly accepted universal definition of marriage. Marriage constantly evolving.
Blankenhorn: Yes sir. I wrote those words in my book.
Boies: No further questions, your honor.

…and then Boies stepps onto the ray of golden sunlight that has appeared in the center of the courthouse and ascends directly into Heaven, where Jesus has a beer waiting for him.

That’s it for cross!

Part Two:

Last Words

Cooper the h8er has a few minutes left with this dude to salvage that weird, surreal reality-television-worthy set of inappropriate outbursts and childlike behavior. Good luck, bro.

Cooper reads from page 3 of Blankenhorn’s book that “Many thinkers, perhaps most notably Isaiah Berlin, points out that most choices are between good and good rather than good and bad. Concept of goods in conflict is central to my thinking. One good is dignity of all persons. Other is child’s birthright to mother. These goods are at least partially in conflict.”

Which is supposed to prove that just because Blankenhorn is okay with your children being taken away from you on a whim because you’re not married/their legal parent, that doesn’t mean he dislikes you, or thinks same-sex marriage is bad, or is homophobic. It’s just less good than the institution of marriage that Britney Spears, Charlie Sheen, and my parents got to uphold.

How can you argue with that? Blankenhorn talks for a while about his beautiful vision of the world in which we have domestic partnerships and he has marriage and we all meet for coffee and laugh over how silly and out of hand this whole mess got, and wipes a wistful tear from his eye. I throw up in my mouth a little, and then thankfully it’s over! This happens!

Cooper: And so I have no further questions.
Judge Walker: Thank you Mr. B, you may step down, thank you for your testimony.

Judge Walker: Any more witnesses?
Cooper: No further witnesses.

Part Three:

And Then They Came To The End

There is some Legal Talk after this, about which documents are being submitted when to who – apparently there are still some “motions to compel” standing, so someone is trying to force some people to testify and I guess if that works we might reconvene and start this circus up again, but for right now things seem pretty chilled out. I’ll paste the very last words of the trial here, because I am too dumb to know exactly what they mean and you can probably figure it out better yourself:

Judge Walker: Here’s what I’d like. I’d like to take time to go over this material. I don’t think at this time it’s helpful to have post-trial briefs. You may very well find it useful to submit your proposed findings of law tied to evidence. You’ve already submitted your proposed findings of law. I realize that you do have a lot of material to go through. I’ll be guided by your suggestion for amount of time you need.

I’d like to review those and then set a date for closing argument. Then I’ll probably tee up some questions that have come to the fore to give you the opportunity to address in closing arguments. I would like to leave the date open now. But when the time comes, I’ll have the clerk call both parties with a range of dates so that you can work that out with your schedule.

How long?

Boutrous: 30 days would be fine with us.
Cooper: 30 days should be adequate, your honor.
Judge Walker: Why don’t we set February 26th. Alright February 26th and probably by that time I’ll have a much better idea of closing argument schedule.

So… what does that mean? There is a sexy lesbian lawyer out there who could answer this better, but for now I’m just going to say that it means we’re done, and also not done. Judge needs to chill out for a while, get his shit together, try to get out much of the last few witnesses in therapy. So, about this time next month, we will still not be done, but… be closer to it? I’m sorry, this is turning out anticlimactic. But there’s good news! Do you want to know the good news?

I love Boies, and you love Boies, and we all scream for ice cream, and THERE’S A TSHIRT YOU GUYS. Apparently the Boies love was just as strong on the Trial Tracker website as on Autostraddle, and since they are working with, you know, a budget, they made a t-shirt just so we could express our feelings on this subject!

You don’t have to get one, BUT Valentine’s Day is coming and this would look hot on your girlfriend. And on you. Buy it for your girlfriend, take it off, and then you can wear it. A portion of the proceeds go to Courage Campaign, so this would be a nice way to thank them for being our #1 source on everything Prop h8 related. They request that if you ever run into David Boies while wearing it, you take a picture.

And that’s all, folks! It’s been fun! Autostraddle will obvs be updating you on any new developments in the case; meanwhile, I hope you got something out of this, even if it was only the inspiration to create your own LolTam images. Be safe, make good choices, we love you!

Also, you should donate to the Courage Campaign who made the Prop 8 Trial Tracker possible. Without them, this would not be possible.

DO IT FOR CAT CORA.

Before you go! Autostraddle runs on the reader support of our AF+ Members. If this article meant something to you today — if it informed you or made you smile or feel seen, will you consider joining AF and supporting the people who make this queer media site possible?

Join AF+!