Some Thoughts About the Prop 8 Trial Tapes

Remember David Blankenhorn? People following news related to LGBT equality will likely recall he was the primary “expert” witnesses for the proponents of Prop 8 in Perry v. Schwarzenegger and that his testimony was an epic fail for the pro-Prop 8, anti-LGBT side.  Unfortunately, the vast majority of Americans probably have no idea who he is or what he said on the witness stand – and that’s exactly how the haters currently trying to block the release of the trial tapes want to keep it. Publicly releasing the tapes could help make David Blankenhorn a household name. And that would be a very good thing for everyone who seeks the advancement of equality.

Blankenhorn’s testimony needs to be widely viewed and analyzed not only because it so clearly and directly undermined the pro-Prop 8 argument but because it perfectly encapsulates the very anti-reasoning relied on by those who espouse – yet refuse responsibility for — bigotry. As the trial was unfolding, Berkeley law student Amanda Beck wrote that “watching Blankenhorn was fascinating, if only because he seemed to embody the personal struggle that many Americans are navigating with regard to same-sex marriage.” Indeed, Blankenhorn’s emphasis on his own personal feelings, especially his claim to believe in “the equal dignity of gay and lesbian love,” is precisely why his testimony was of such potential value  to Prop 8 proponents. He was never really there to offer a logically sound argument against marriage equality based on up-to-date, reliable evidence; there isn’t one. Instead, he was there to serve as what infamous anti-gay crusader Maggie Gallagher herself described as “the embodiment of how a person with not only no animus, but no disagreement with homosexuality, could nonetheless support Prop 8.”

Of course, this is impossible.

But what matters is that Blankenhorn was essentially selected as a living symbol of one of the last obstacles to LGBT equality: the Intelligent, Fair-Minded, Reasonable Liberal who nonetheless just “can’t” support full marriage equality. The existence of this figure is essential to upholding the underlying premise of so many anti-equality arguments: the idea that policies that discriminate against people based on sexual orientation (or race, or ethnicity…) are somehow not rooted in bigotry as long as the supports of these policies insist they are not bigots. What David Boies so expertly unraveled and exposed in his cross-examination of Blankenhorn was the comforting lie that only “bad” people are responsible for discrimination in our society.

Fortunately, even in the short time since the trial, the legitimacy of this position is being increasingly eroded in the public sphere. If released, the Prop 8 trial tapes have the potential to decisively reveal to the public at large the logical and ethical impossibility of coming to a “reasonable compromise” on LGBT rights. Seeing Blankenhorn on the witness stand, many citizens will be confronted with uncomfortable contradictions between their own proclaimed, abstract values of “tolerance” and the undeniably harmful realities of discriminatory policies. It is a teachable moment that none of us can afford to lose.