What was remarkable about the overturning of Proposition 8—California’s
ban on same-sex marriage—was the weakness of the case mounted by the
defense. At times during the proceedings, Judge Vaughn Walker had to
ask the legal team in charge of defending the proposition, in effect:
“Haven’t you got something better than this?”
The defense called
only two expert witnesses, and only one addressed some of the
substantive arguments that are made against same-sex marriage. That
witness was David Blankenhorn, founder and president of the Institute
for American Values. For his troubles, Blankenhorn was branded a bigot
and ignoramus by some commentators, like Frank Rich of the New York Times.
More important, he was witheringly dismissed by Judge Walker, who
declared that Blankenhorn was no expert and that he offered no credible
It’s unfair to call Blankenhorn a bigot or an
ignoramus. He is a thoughtful guy who operates with the far-from-crazy
intuition that children fare better in families in which there is both
a mother and a father, preferably a biological mother and father. His
reflections are fueled by research on how children are hampered growing
up with a single mother and no father. Blankenhorn has also been
influenced by the work of Don Browning, the late, esteemed ethicist at
the University of Chicago Divinity School, no bigot and no ignoramus.
worried that marriage is being “de-institutionalized” in our
time—becoming less of an economic and social institution and more of a
private arrangement based on feelings. He argued that approval of
same-sex marriage would further that movement, which would ultimately
undermine protections for children and other vulnerable people. That,
at least, was the basis for Browning’s “liberal case against same-sex marriage” (pdf).
(and Browning’s) arguments are somewhat nuanced. They are a mix of
intuitions and extrapolations from social science. Whatever they are,
Walker had no trouble eviscerating them.
For example, the judge observed
(pdf) that “Blankenhorn gave absolutely no explanation why
manifestations of the deinstitutionalization of marriage would be
exacerbated (and not, for example, ameliorated) by the presence of
marriage for same-sex couples.” When Blankenhorn declared that same-sex
marriage is “symptom and cause” of the de-instutionalization of
marriage, Walker dismissed that remark as a “tautology.”
claimed that children fare better when raised by their married,
biological parents, but Walker noted that the study Blankenhorn relied
on compared children raised by married, biological parents “with
children raised by single parents, unmarried mothers, step families and
cohabiting parents.” In other words, the study he cited did not even
purport to compare biological parents with nonbiological parents, much
less compare opposite-sex couples with same-sex couples.
science evidence is not the last word in moral argument. But it is
likely to be crucial in secular courts, especially before judges like
Walker, who was interested in whether there is any concrete evidence
that same-sex marriage inflicts harm.