Is this all Prop 8 defenders have got?

August 9, 2010

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.


Anonymous said... I don't

Anonymous said...

I don't know how Blankenhorn feels about gays.

But I do remember that he once said that single men would inevitably turn to violence, unless they married, became a priest, or a military officer. So I think we can conclude that there are at least some groups he is biased against.

Blankenhorn also apparently believes that the "de-institutionalization" of marriage will lead to losses for "vulnerable people". Does he include single people among these?

Because it is the institutionalization of marriage which causes harm among them. They're denied legal and financial benefits. Polls show that people are less likely to rent to them. Single men and single mothers are paid less than co-workers of similar experience.

Anonymous said... Divorce

Anonymous said...

Divorce is so prevalent in our culture that it raises an even more important question... Does our culture promote healthy marriage. I would answer "no." So it doesn't surprise me that the definition of marriage is changing.

The Rev. Canon James Newman

The Rev. Canon James Newman said...

Historically, single people have been perceived as a threat or at least somewhat societally de-stabilizing. Many marital rites cite the stability of society as one of the benefits of marriage. John Boswell noted that the religious propers for first marriages referred to stability, society, etc. whereas those both for subsequent marriages (after a spousal death) or those for same-gender rites (for spouses or "special friends") referred to love and mutuality.

The single person is a societal "wild card". He or she is not responsible to anyone (unless if in a society where a woman must be related to some man -- father, brother, husband, son). That responsibility to another can also cause one to ponder one's actions with reference to the larger family unit.

Gay people are the "other". In the Bible, they are one class of eunuch (see Matthew 19). That the New Testament embraces them is an amazing act of inclusion.

Blankenhorn's comments about single men recognize that need for commitment to some "other", whether that be in a marriage or in the church or the military. I would think that he and others would welcome same-gender marriage as a societal way to stabilize what otherwise might be and often has been a societal "wild card".

Anonymous said... One can

Anonymous said...

One can have a commitment to "the other" without being married, in the military, or part of the priesthood.

I am single, and I do indeed have responsibilities: To the family of my birth, to my employer, to society and its rules, to God, etc...

Yes, singles are perceived as destabilizing, as is anyone who is outside the mainstream. But that is nothing more than a stereotype, designed to coerce those outside the mainstream into line. Something, sadly, the Church has repeatedly gone along with.

As Richard Rohr once pointed out, the Church is usually on the wrong side of revolutions and reformations until after they've succeeded. said...

I wonder what you (or the judge) would think of something like Ross Douthat's recent case in the NYTimes:

If this newer order completely vanquishes the older marital ideal, then gay marriage will become not only acceptable but morally necessary. The lifelong commitment of a gay couple is more impressive than the serial monogamy of straights. And a culture in which weddings are optional celebrations of romantic love, only tangentially connected to procreation, has no business discriminating against the love of homosexuals.

But if we just accept this shift, we’re giving up on one of the great ideas of Western civilization: the celebration of lifelong heterosexual monogamy as a unique and indispensable estate. That ideal is still worth honoring, and still worth striving to preserve. And preserving it ultimately requires some public acknowledgment that heterosexual unions and gay relationships are different: similar in emotional commitment, but distinct both in their challenges and their potential fruit.


Palamas said... The

Palamas said...

The reason the defense didn't present much evidence is that not much was needed. The question before the court (if it had not been presided over by someone whose mind was made up before the trial started) would properly have been not, "does gay marriage do any harm?" but "is there a rational basis for the state's policy?" That there is such a rational basis cannot be doubted by anyone save the person who assumes that anything he or she disagrees with must therefore be "irrational."

As for the "evidence" cited by Judge Walker in his opinion, much of it is positively laughable. The "facts" section of the decision reads like a high school debate case put together on the "spread" theory: throw absolutely everything you can think of against the wall, on the assumption that your opponent won't be able to get to all of it, and won't be able in the limited time of a debate round to distinguish between what's important and what isn't. He repeatedly uses quotes from "experts" (those would be the witnesses he agrees with) that are not evidentiary but conclusory, and frequently nothing more than opinion. For example, political scientist Gary Segura, quoted extensively in the decision, states:

“[R]eligion is the chief obstacle for gay and lesbian political progress, and it’s the chief obstacle for a couple of reasons....[I]t’s difficult to think of a more powerful social entity in American society than the church....[I]t’s a very powerful organization, and in large measure they are arrayed against the interests of gays and lesbians."

Glad he thinks so. But his reasons are nonsense: 1) I have no problem thinking of a "more powerful social entity" in America: the academy, the media, business. So which of us is right? No way to know based on bald assertion, which is all Segura's quoted statement is. 2) Religion is not an "organization," it is made up of thousands of organizations, some of which support gay marriage. If this was supposed to be directed at the Catholic Church, let him say so.

My point, again, is that this decision is not a legal document, but a political one, and an extraordinarily clumsy one at that. Far from advancing the cause of gay marriage, it will almost certainly cause a backlash if it is not overturned by the SCOTUS.

Travis Trott said... Yes,

Travis Trott said...

Yes, Palamas, the best way to discredit a decision you disagree with is to make gratuitous use of scare quotes.

On to David: I love the post except for the assumption in the third paragraph that children fare best with a biological mother and father, which you seem to affirm. I think the circumstances under which that would have been true are rapidly changing. The reasons for single motherhood, for example, may not be from poverty or hard circumstance, but in fact by choice. As the family unit's definition becomes more flexible, you may find that it's not the family make-up that determines a good situation, but the behaviors of that unit.

Palamas said... Hey,

Palamas said...

Hey, Travis, great argument you've got there. It wasn't a "scare quote," it was an example--one of dozens I could cite, but don't want to eat up CC's bandwidth. The example illustrated an argument that you ignore. Care to take it on, or do you prefer irrelevancies?

Andy said... The academy

Andy said...

The academy and the media are not singular in organizational purpose, either. And (having not read the decision), I have a sneaky feeling that this quote is part of a larger point that is the finding.

Do you disagree that religion(s) have been a major obstacle to same sex marriage?

Palamas said... Of course

Palamas said...

Of course not. But the quote doesn't say "a major obstacle," it says "the chief obstacle." That it is one of a number of factors is indisputable. That it is the most important one isn't. That's an opinion for which no evidence is given.

By the way, speaking of evidence, I ran across an interesting item this morning. Turns out I was wrong when I agreed that the defenders of Prop 8 didn't offer a lot of evidence--I got suckered by media reports in that regard. In fact, they presented a great deal of evidence, just not in the form of testimony, most of which the judge simply ignored. See

for the details.

David said... I think

David said...

I think Palamas is partly right that Judge Walker framed the question narrowly in a way congenial to him. But it has to be said that he saw a Constitutional issue at stake: the question was not whether Prop 8 was a properly enacted expression of voters' views, but whether it violated fundamental rights, like equal protection under the law. That question has to be faced.

I also agree there is something odd about Walker’s way of conducting a finding of “facts” about gay marriage. The “facts” of gay people being harmed by the inability to get married are not hard to enumerate—all you have to do is let gay people enumerate them. The “facts” of society being harmed by gay marriage turn out to be rather harder to enumerate. But as I said, I was surprised there wasn’t more social science evidence offered on that front.

As for Ross Douthat’s case for the “unique and indispensable estate “ of heterosexual monogamy, I read him, first of all, to be acknowledging that the weak state of traditional marriage is not the fault of gays—heterosexuals have already undermined it.

One response to his concern about the marriage ideal, at least from a Christian perspective, is to emphasize that the gay marriages ideal also needs to include being fruitful in the sense of nurturing the next generation, whatever form that takes, and being a place of hospitality for the vulnerable, etc.

Anonymous said... I

Anonymous said...

I wonder about the terms "commitment" and also "eunich" after reading all of this.
I read up on eunich... and I am wondering is this the term that people used for gay people back in the day?? Jesus does say that there are eunich's from birth but does this refer to someone who can not conceive or to someone who lacks genitals?
On commitment... that seems to be the real problem in marriages - someone knew that it would be a problem because they came up with the phrase to death do we part. Yes, divorce can be like death... but what about to have and to hold, in sickness or health, for richer or poorer? The whole point of marriage is not about having children really it is about commitment. So, it is clear to me that if we are going to redefine marriage to include same sex marriages.. we should also put a focus in our educational systems on relationships and what it means to be commited and why it is a good thing. Both heterosexual marriages and same sex relationships suffer hardships cause where there are 2...yeah there will be conflict...but our Christian faith says that if we come together in Christ 2 or more he present.

So... marriage is a coming together under the premise ( in the Christian church) that both parties are committed to Christ and to the marriage -basically a commitment under God's blessing. If we are trying to make marriage anything other than this and more of a convenience... we are indeed doing more harm than good.

Anonymous said... I guess

Anonymous said...

I guess I am trying to say that it is a bit watered down to say that "eunich" is a term meaning homosexual. And on the word commitment, I ask why get married at all... when we don't know who we are authentically? If you are in Christ... you are a new creation no longer living the ways of the world.

Anonymous said... I have

Anonymous said...

I have no problem with same sex marriages being legal -but I do have a problem when Christ centered churches want to put a blessing on these marriages. Love and compassion is the example Jesus had for his people but -when someone encountered Jesus they did not remain the same. Are same sex couples required to do pre-marital counseling? Just wondering.