At Fannie’s Room, discussing the courts’ most recent dealing with the issue of whether the tapes of the Prop 8 trial should be publicly released, Fannie writes:
What this opinion says, if you read it, is not that the recordings must remain sealed because the witnesses in support of Prop 8 are so very scared of same-sex marriage supporters. Indeed, as key Prop 8 witness David Blankenhorn admitted to me in conversation at Family Scholars Blog, he “never felt physically threatened” because of his testimony and he didn’t even seem to be aware that the Prop 8 legal team was putting forth the narrative that witnesses like him were Too Scared To Testify. (Fun Fact: Check out Page 18 of The American Foundation for Equal Rights’ brief! (PDF) I love that part of a blog conversation that I provoked is part of the official Prop 8 record! #bragging).
What the 9th Circuit opinion says, if you read it, is that Judge Walker said that he was only going to use the recordings in his own chambers and that he should therefore be held to that. To not hold Judge Walker to his assurance would, in fact, harm the integrity of the judiciary. What do I think? I think the tapes should have never been sealed in the first place, and that the US Supreme Court erred in saying that the trial could not be broadcast live, because I strongly question the accuracy and truthfulness of the claim that the broadcast had to be hidden from the public in order to somehow protect the Prop 8 witnesses, who were already relatively-public figures in the anti-SSM movement. I also think many professional opponents of same-sex marriage are petrified of the recordings going viral, mostly because their arguments, witnesses, and substantive points were pretty well walloped by the pro-equality attorneys and experts.
Just a couple of comments. First, I’m not really following this issue, and, personally, don’t really have a dog in the fight. (Fannie says, apparently with surprise, that I “didn’t seem to be aware … “ Well, that’s because I wasn’t aware, and am still today pretty much, not aware. I don’t even particularly want to be aware.)
Second, it’s true, as I said to Fannie on the Family Scholars blog, that I never felt physically threatened or intimidated, prior to, during, or after my testimony. Never, not all.
Third, I know first-hand that a number of tenured professors who have published in peer-reviewed journals, etc., etc. had agreed to testify at the trial about their work and about their conclusions on this issue, and were set to do so, but then backed out when Judge Walker said that (in violation of his court’s own rules) he was going to put the whole thing on TV. Why did they withdraw? I don’t know. Maybe they just lost their nerve. Maybe they were worried about their jobs, or about the reactions of their peers, or about being harrassed on the Internet. Maybe they just didn’t want to be part of a TV circus, reminiscent of the O.J. trial. I did not ask and really do not know.
Bu I do know that the consequences of this development were non-trivial, since as a result, Boise and company were then able to tell anyone who would listen (and trust me, plenty of people listened) that no “real” experts were testifying on the marriage issue, only the untenured half-wit David Blankenhorn. This mattered. And yes, I knew all of this ahead of time, but I testified anyway, because I don’t believe in allowing oneself to be coerced or frightened into silence, or in backing down from doing what you think is the right thing because it might cause you some problems.
Finally, Fannie implies that people like me are “petrified” of the public being able to know what was said at the trial because knowing what was actually said would show that David Blankenhorn and the other witness got “walloped” by Boise and company. I will just say, speaking personally, that not only is this thesis inaccurate, it is the exact opposite of the truth. I am not here going to do what Boise has done — run around, after the fact, telling everyone how well he did and what a big hero he is — but will simply say that, on the (only) issues that have ever mattered to me, which are the questions related to “What is marriage,” Boise in my opinion did not “wallop” or discredit anything I said. Not one thing. Yes, he called me a lot of names, and he got plenty of journalists and advocates to join in on the fun. But on substance — on what he actually asked me about marriage and what I actually said in response — I am absolutely satisfied with what happened; in fact, it’s nearly the only thing in this entire business that I AM satisfied about; and thus I am absolutely content to let all of it, on a SUBSTANTIVE level, speak for itself. The word “petrified,” in other words, at least in my case, is about an inaccurate a word as it would be possible to use, when it comes to anyone, and in particular anyone of good will, knowing what he and I actually said to one another during those two days.
P.S. In any case, do people really need to wait for tapes? Isn’t a transcript available? (I’m not sure, I’m just assuming — as I said, I am not following this dispute among the lawyers.) And also, for entertainment, there is always the play, isn’t there, and I guess, eventually, the movie?

