January 12, 2010 Volume 2
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREYJ. ZARRILLO,
Plaintiffs,
VS.
ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMOND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Directory of the Department of Public Health and State Registrar of Vital Statistics; LINNETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O’CONNELL, in his official capacity as Clerk-Reporter for the County of Alameda; and, DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,
Defendants.
NO. C 09-2292-VRW
San Francisco, California
Tuesday
January 12, 2010
TRANSCRIPT OF COURT TRIAL PROCEEDINGS
Reported By: Katherine Powell Sullivan, CRR, CSR 5812
Debra L. Pas, CRR, CSR 11916
Official Reporters – U.S. District Court
APPEARANCES:
For Plaintiffs:
GIBSON, DUNN, & CRUTCHER LLP
1050 Connecticut Avenue N.W.
Washington , D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
MATTEW D. MCGILL, ESQUIRE
GIBSON, DUNN, & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE
GIBSON, DUNN, & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105-2933
BY: ETHAN D. DETTMER, JR., ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue, 7th Floor
New York, New York 10022
BY: JOSHUA I. SCHILLER, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
STEVEN C. HOLTZMAN, ESQUIRE
For Plaintiff-Intervenor:
CITY AND COUNTY OF SAN FRANCISCO
OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
San Francisco, California 94102-4682
BY: DENNIS J. HERRERA, CITY ATTORNEY
THERESE STEWART, DEPUTY CITY ATTRNEY
DANNY CHOU, DEPUTY CITY ATTORNEY
For Defendant Gov. Schwarzenegger:
MENNEMEIER, GLASSMAN & STROUD
980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: ANDREW WALTER STROUD, ESQUIRE
For Defendant Edmond G. Brown Jr.:
STATE ATTORNEY GENERALS OFFICE
455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102-7004
BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL
For Defendant-Intervenors:
COOPER & KIRK
1523 New Hampshire Avenue, N.W.
Washington, D.C., 20036
BY: CHARLES J. COOPER, ESQUIRE
DAVID THOMPSON, ESQUIRE
HOWARD C. NIELSON, JR., ESQUIRE
NICOLE MOSS, ESQUIRE
PETER PATTERSON, ESQUIRE
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
BY: BRIAN W. RAUM, SENIOR COUNSEL
JAMES A. CAMPBELL, ESQUIRE
For Defendant Dean C. Logan:
OFFICE OF LOS ANGELES COUNTY COUNSEL
500 West Temple Street, Room 652
Los Angeles, California 90012
BY: JUDY WHITEHURST, DEPUTY COUNTY COUNSEL
For Defendant Patrick O’Connell:
OFFICE OF ALAMEDA COUNTY COUNSEL
1221 Oak Street, Suite 450
Oakland, California 94612
BY: CLAUDE F. KOLM, DEPUTY COUNTY COUNSEL
MANUEL MARTINEZ, DEPUTY COUNTY COUNSEL
For Proposed Intervenor Imperial County, et al:
ADVOCATES FOR FAITH AND FREEDOM
24910 Las Brisas Road, Suite 110
Murrieta, California 92562
BY: JENNIFER L. MONK, ESQUIRE
----
PROCEEDINGS
JANUARY 12, 2010 8:36 A.M.
THE COURT: Very well. Good morning, Counsel.
(Counsel greet the Court.)
THE COURT: Let me ask that you enter your appearance
this morning by simply signing in with the clerk. And she will
provide that to the court reporter, so all who wish to enter an
appearance can have that recorded without the necessity of us
going through the litany that we have during these proceedings.
Now, one other point. Is Ms. Pachter, the attorney general's --
MR. BURNS: She is not here right now, Your Honor.
THE COURT: I beg your pardon?
MR. BURNS: She is not here right now.
THE COURT: All right. Well, I have entered an order this morning asking and setting a deadline for a response to the question that I asked her yesterday, of 5:00 p.m. on Thursday. And then would ask the proponents and plaintiffs to respond with whatever position they have on that question. Whether it has some bearing on the issue of standing that we discussed on Wednesday, I'm not sure. But at least that's a thought rolling around in the back of my mind. And with your able assistance, I'd like to be able to sort through that question.
MR. THOMPSON: Very well.
THE COURT: All right. I believe we are ready to continue the testimony of Ms. Cott.
MR. BOUTROUS: That's correct, Your Honor.
THE COURT: Very well. Would you bring her forward.
MR. BOUTROUS: Ms. Cott.
NANCY COTT, called as a witness for the Plaintiffs herein, having been previously duly sworn, was examined and testified further as follows:
THE COURT: And as you come to the stand, Ms. Cott,
let me remind you, you are still under oath. Do you understand
that?
THE WITNESS: Yes, Your Honor.
THE COURT: All right. Fine. The oath you took
yesterday applies to this testimony, as it did yesterday.
You may proceed, Mr. Boutrous.
MR. BOUTROUS: Thank you, Your Honor.
DIRECT EXAMINATION RESUMED
BY MR. BOUTROUS:
Q. Good morning, Professor Cott.
A. Good morning, Mr. Boutrous.
MR. BOUTROUS: Your Honor, before I proceed with the examination, one exhibit issue. I have conferred with Mr. Thompson, and the proponents do not have any objections to the select group of exhibits that were relied upon by Professor Cott in her testimony. So I would move that they be admitted into evidence.
THE COURT: Let's see. Those are exhibit numbers --
MR. BOUTROUS: I could list them off for the Court, if that would be helpful. In fact, I have a list.
THE COURT: All right. Why don't you just hand that list up to the court clerk.
MR. BOUTROUS: Yes.
THE COURT: And we'll take care of it.
(Plaintiffs' Exhibits 1308, 1309, 1314, 1316, 1317, 1319, 1322, 1324, 1325, 1326, 1327, 1328, 1334, 1335, 1746, 1750, received in evidence.)
MR. BOUTROUS: Thank you, Your Honor.
Your Honor, I would like to publish to the screen another demonstrative I created out of the transcript of Mr. Cooper's opening. And I have labeled it, "Proponents' Position 2." If we could publish that, please.
(Document displayed)
BY MR. BOUTROUS:
Q. Professor Cott, I have displayed on the screen one of Mr. Cooper's statements yesterday about the purpose of marriage. And I will read it for the record. Mr. Cooper said that:
"The purpose of the institution of marriage, the central purpose, is to promote
procreation and to channel naturally procreative sexual activity between men and women into stable and enduring unions ... it is the central and we would submit defining purpose of marriage."
In your work as a historian, have you examined the purposes of marriage in the United States?
A. Yes.
Q. Could you give me your views, as an expert in the history of marriage in the United States, as to that statement by Mr. Cooper in his opening statement.
A. I could.
Q. Would you do that for me.
A. Let me begin by saying, when I'm speaking of the purposes I mean from the point of view of the state that sets up and defines the terms of marriage.
And as I look at the history of the institution in our country, I would certainly agree that this is one of the purposes. But it is by no means the central or the defining purpose of marriage.
In fact, picking this out rather -- when I heard it yesterday, it rather reminded me of the story about the seven blind men and the elephant, in that each of them is feeling the animal at some side of it; and the one that feels the trunk
says, oh, this animal is just like a snake.
That is, marriage has many purposes. It is, as I mentioned yesterday, a capacious, complex institution. And the state's interest in having sexual activity between men and women channeled into stable unions is one of the purposes of marriage.
But I think that the larger understanding of marriage, from the state's point of view, and the larger purpose would put an emphasis on the household formation that marriage founds, and the stability of that household formation,
its contribution to social order, to economic benefit, to governance.
And I emphasize this because, as I said at the outside, it's important to recognize the extent to which marriage has been an institution of governance in our history.
Q. Let me ask you about that.
When you say "governance," how is marriage an
instrument of governance, when it's a union between two people?
How does that contribute to governance?
A. Looking at this historically, what I'm emphasizing here in
using that word is the regulatory purpose of marriage from the
state's point of view.
And long ago marriage had an important political governance purpose. It set up men as heads of households who would be responsible economically for their spouses and for any of their dependents, whether those were biological children, adopted children, stepchildren, slaves, apprentices, et cetera.
But the point of establishing marriage and giving certain benefits to it was to ensure that the sovereign would be able to govern the amorphous, large, variable population in smaller subunits which were households.
Now, that political governance purpose of marriage today is -- has shifted rather dramatically, because we no longer assume that a single head of household governs everyone below it. We have a much more individualized distribution of political power in our population, particularly since 1920, when women got the right to vote.
However, still today, the purpose of the state in licensing and incentivizing marriage is to create stable households in which the adults who reside there and are committed to one another by their own consents will support one
another as well as their dependents.
The institution of marriage has always been at least as much about supporting adults as it has been about supporting minors, children, as the proponents tend to emphasize the child's side.
Q. Has the ability or willingness to procreate ever been a litmus test or a test of any kind in terms of the validity of a marriage in the United States during our history?
A. No.
Q. And has -- as a historical matter, have there been – has it been recognized that there are other benefits, aside from child-rearing benefits from marriage?
A. Most definitely, from the point of view of the state as well as the point of view of the individuals who join it.
There has never been a requirement that a couple produce children in order to have a valid marriage. Of course, people beyond procreative age have always been allowed to marry. And known sterility or barrenness in a woman has never been a reason not to allow a marriage.
In fact, it's a surprise to many people to learn that George Washington, who is often called the father of our country, was sterile, and was known to be sterile because he was in a second marriage to a woman who had had children. And
after George Washington and she married, they had no children.
This was an advantage, in many people's minds, because he couldn't establish a hereditary monarchy when he became president.
But this is just a rather striking example of the extent to which procreative ability has never been a qualification for marriage. Nor has it been a ground – the lack of same has never been a ground for divorce.
Q. Now, as a historical matter, has there been a function of marriage, a purpose of marriage, that -- in terms of legitimating children?
A. Yes. This function is not at all as vigorous as it used to be in the longer past, when there was a much stricter line of moral judgment between heterosexual couples who were married and those who were not married, if they were engaging in sexual activity.
Certainly, the line between legitimacy and illegitimacy for any child born of a heterosexual couple was the line of marriage/nonmarriage.
And that was a very important function of -- particularly among the propertied, because of the lines of inheritance that would flow through legitimate children, and only problematically, or much less so, through so-called illegitimate children.
Now, today, in the 20th century, the tendency has been to remove that bright line in terms of the child's just desserts.
However, I believe it is still true in our family courts that the marital family's children has the presumption of all benefits that should flow to children; whereas, the unmarried couple's children has to prove their -- that they deserve these inheritance rights and other benefits of their parents.
Q. Yesterday you spoke about the social meaning of marriage. Does the legitimately factor in a broader sense have any connection to the social meaning of marriage, as it's developed in our history?
A. Yes.
Q. Could you describe in what way.
A. I think I would just say that the fact that the state is involved in granting these kinds of benefits and legitimacy to the marital family tends to lend a prestige, a status to that institution that no informal marriage has ever approximated.
MR. BOUTROUS: I would like to, Your Honor, display what I have labeled, "Proponents' Position 3," which is another statement taken from Mr. Cooper's opening statement, as a demonstrative, with the Court's permission.
THE COURT: Very well.
MR. BOUTROUS: Thank you, Your Honor.
(Document displayed.)
BY MR. BOUTROUS:
Q. Now, here, Professor Cott, I'll read this for the record.
Mr. Cooper said that:
"Across history and customs marriage is fundamentally a pro-child institution
between a man and a woman. Marriage aims to meet the child's need to be emotionally, morally practically and legally affiliated with the woman and man whose sexual union brought the child into the world."
In your view, from a historical perspective, is that a correct and complete description of the purposes of marriage?
A. No. I think it's a very partial description.
Q. And why is it only a partial description?
A. Well, as I look at the history, I see very little evidence that state authorities considered marriage from the point of view of its pro-child, particularly it's pro-biological-child advantages.
It's not that those advantages were absent. Not at all. But, rather, that the purpose of the state, as I began to say before, and the incentives given to marriage were much broader than this, in the aim to create stable and enduring unions between couples, and so that they would support one
another, whether or not they had children, and that they would support the broad range of their dependents. Biological children, but others.
In the longer history of the United States, what we now call blended families and often think of as a contemporary innovation, such families were extremely common in the past because of early death and remarriage.
And many, many families in the past, that were maritally based, included in them, among their dependents, stepchildren, nieces and nephews whose parents might be absent or dead, maiden aunts, unmarried sisters, aged parents.
And the establishment of marital unions and the expectation that the head of household -- or in the 20th century, as we moved toward the later 20th century, both heads of household -- would be responsible for these dependents, has been an extremely central, I would say, purpose of the state's incentivizing of the marriage institution.
Q. Does marriage today serve any purposes beyond the purposes that it served at the founding of our country?
A. I think that the purposes it serves today one can find roots of these through the past. But the emphasis has shifted, I think, in which purposes are more salient and which now have less emphasis.
Q. The -- yesterday we talked about the history of marriage as it related to slavery. I would like to ask you some questions, now, going back to that general topic concerning whether marriage laws in this country have always given members of the population equal access to the institution of marriage. Have marriage laws always treated citizens and other members of the population equally and fairly in this country?
A. No. I would say they have not.
Q. In addition to the restrictions on slaves marrying, do other restrictions come to mind?
A. Yes. And I think these are more directly relevant than the slave example, which I used simply to illustrate starkly how marriage is -- being able to marry is a sign that one has the basic civil rights and ability to consent.
But the restrictions on marriage that have played through American history are one major way in which I can show evidence that marriage rules have been used as a mode of governance.
And that was, as I mentioned yesterday, in dynamic tension with the extent to which marriage -- a marriage once formed is a zone of liberty for the partners within it. That, by the way, is the emphasis toward which, I think, modern
marriage has gone.
But on the restrictive examples, there are several I could mention. And the most plentiful are restrictions that as many as 41 states and territories had for significant periods of their history on marriage between a white person and a
person of color.
I use that phrase because while these laws originated in the colonies in the 17th century, with bars on marriage between whites and so-called negroes or mulattos, there were also bars in some states as early as the 17th century on
marriage between whites and Indians.
And these bars, nullifications, criminalizations -- different states treated it differently -- they -- these kinds of restrictions multiplied after the Civil War when emancipated slaves could now marry.
And while the slavery regime had controlled these marriages to a great extent -- there were laws in the antebellum era -- nonetheless, after 1865 these laws multiplied across the country.
And in California and other western states where there was considerable in migration of people from Asia, there were many laws with strange descriptive categories – I say "strange" from our contemporary point of view -- of Asian
ethnic or so-called racial groups, including Malays, Mongolians, Canacas, and, of course, Chinese and Japanese.
The marriage laws of California and Oregon, and a number of other western states, prohibited marriages between whites and persons of those descriptions. Now, these laws, of course, did not prevent any particular white or any particular Asian person from marrying totally. But they did prevent a white person who fell in love with an Asian from marrying that person. And, therefore, it was a limitation on partner. It was a limitation on choice.
And I want to add that legislators, in passing these laws, of course, hoped to reduce the number of them, of such relationships, preventing the marriages. They wanted to reduce the number of such relationships, since they could not end in marriage.
Q. Let me stop you and ask you about that.
A. Yeah.
Q. How did legislators and others who advocated these restrictions how did they justify their fairness and legitimacy in enacting them?
A. I'll answer that, but if I could just finish my previous sentence, please.
Q. Sure.
MR. BOUTROUS: Your Honor.
THE COURT: Well, it's handy to throw in a question now and then, Ms. Cott.
THE WITNESS: I'm sorry. Perhaps I was being too long-winded.
The point I wanted to make, really, was legislators knew these relationships were occurring. They simply did not want to give them the imprimatur of valid marriage. They wanted to make these relationships a second class sort of relationship, a sort of disfavored sort of relationship, and mark them that way by not giving them the full name and benefits of marriage.
BY MR. BOUTROUS:
Q. And, given that, how did they at the same time justify them to the people of the United States as necessary and legitimate laws and restrictions?
A. Well, they were usually justified as only natural that these laws were fulfilling God's plan that the races not mix.
Q. That these were obvious, and how could anyone object?
A. They were highly defended as absolutely within nature's and God's plan, that certain marriages were right and other marriages were obviously not right. And the legislators, while they, of course, were enacting the changes themselves, were citing – were rhetorically citing larger and higher reasons for their existence.
MR. BOUTROUS: Your Honor, I would like to publish one more statement from Mr. Cooper's opening, which I'm calling, "Proponents' Position number 4." With the Court's permission.
THE COURT: Very well.
MR. BOUTROUS: Thank you.
(Document displayed.)
BY MR. BOUTROUS:
Q. So, Professor Cott, in his opening statement Mr. Cooper declared that:
"Racial restrictions were never a definitional feature of the institution of
marriage."
In your expert view as a historian, does that statement accurately reflect our history?
A. No. I think it's inaccurate.
Q. Now, these restrictions, the racial restrictions, as you mention, were not limited to black and white citizens. I think you mentioned Asians.
Were there any particular restrictions that related to Asian-Americans and Chinese-Americans, or people from those areas who had -- were living here?
A. Yes. This is a complicated history. I'll try to be brief. There were a series of laws passed by Congress, from the 1880s on, to exclude Chinese laborers from entering the United States. Laborers were the great bulk of those who wanted to immigrate. However, at the time exclusion laws were passed, there were at least a hundred thousand or more Chinese men resident in the United States, who stayed. And there was the question of how they could find marriage partners, since there were very, very few Chinese women.
And, as I said, around the same time, many western states where most of these men lived passed laws preventing Chinese from marrying whites.
Now, that would seem to destine these Chinese men to bachelorhood, which many of them stayed in. However, of course, there were states where there were not Asian-white restrictions.
However, added to that, in 1907, as part of an immigration law, the federal government made a statement which became law that American women, native-born American citizens, upon marrying foreign men, or aliens in the language of immigration law, upon marrying aliens would lose their own
American citizenship.
I have to go into this. But this is another kind of restriction placed through marriage policy, in this case not law, because, of course, only the states really have the power to pass laws in marriage.
But this federal policy said that any American woman who married a foreigner would have to take his citizenship, and would lose her American citizenship, even if she was descended from the Mayflower.
Now, that was bad enough. But in the case of a woman marrying a German, let's say, if he wanted to become an American citizen, he could. He could go through the naturalization process. He could become an American citizen.
And she could, as his spouse, also become an American citizen. He was no longer an alien. But Chinese were regarded as aliens ineligible to citizenship. That is, not only did the U.S. exclude Chinese, and later Japanese and many other Asians, but they prevented those here from ever becoming citizens by naturalization.
Q. Was that a label that -- the phrase you just used, a label that was actually used, "aliens ineligible for citizenship"?
A. Yes. I believe, in fact, the State of California invented that phrase in order to designate those who could not own property in California without naming them racially. It was a way to designate exactly which group was meant, without a specifically racial designation.
And so if I can just finish that train of thought. So an American woman who married a Chinese man would not only lose her American citizenship, but would never be able to regain it unless he died. Or, I think, if she divorced him she could apply for naturalization.
Now, that what seems in retrospect amazing restriction on American women's citizenship rights because of who they married, was actually very strongly fought in the 1920s, once women got the right to vote. And it was lifted by
a federal act. It was changed in the '20s. Except, that the particular extra punishment for American women who married aliens ineligible to citizenship remained. And it was partially lifted for a very small group in the late '30s, but not really entirely lifted until the U.S. became an ally of China in World War II, and the seemliness of the great restrictions on Chinese citizenship and naturalization came to seem not very -- not very smart in terms of international alliances and relationships.
Q. As a historical matter, the institution of marriage has generally been regulated by states?
A. That is right.
Q. And so was it unusual for the federal government to weigh in on marriage the way it did regarding Chinese and Asians in the acts you described?
A. Well, of course, the federal government has the power over immigration and naturalization and matters of national citizenship.
And in setting this policy into the 1907 Immigration Act, it seems to me, this is one of these cases where the federal government wasn't really very circumspect in looking at how this would have an impact on people, and, really, whether it had the power to do so. Because the law rendered numbers of women stateless.
The United States government had no power to say, well, this woman is married to a Russian, a -- after the Bolshevik Revolution, the USSR did not follow the policy that an American -- that a woman would take her husband's citizenship.
So a woman who married somebody from the USSR in 1919, would be stateless. She would have lost her American citizenship, and she would not have gained citizenship in the Soviet Union.
And there were all sorts of anomalies as a result, and it was -- I think I can say, in retrospect, it was an extremely misguided policy in many ways. But it was an expression of policy that had a tremendous impact on marriage.
Q. Are you aware of any more recent examples in our history, where the federal government has inserted itself into the marriage relationships in this country?
A. Yes.
Q. Could you give me an example.
A. I think the major area where this has been the case is with respect to channeling benefits to Americans through the institution of marriage.
And a very great move in this direction was taken, of course, in the New Deal, when in the '30s the whole question of citizenship was amplified, and matters of social – social sufficiency, economic sufficiency, were seen as part of
citizenship. Not only the political right to vote.
And so in the major benefits that were designed and implemented through the Social Security Act, for instance, there was a marital advantage built in, a very distinct marital advantage for those who were married couples as compared to either single individuals or unmarried couples.
And since then, with the expansion of federal policies, et cetera, in the 20th century, the federal government has tended to use the institution of marriage and the marriage-based family as the conduit for benefits of many sorts.
Q. Do you, as a historian, see any parallels between the restrictions relating to race in our history in the institution of marriage, and the restrictions that now exist in California concerning individuals of the same gender who wish to marry the person of their choosing?
A. Yes, I do see parallels.
Q. Could you explain to me, as a historical matter, what parallels you see.
A. I think that the most direct parallel is that the racially-restrictive laws prevented individuals from having complete choice on whom they married, in a way that designated some groups as less worthy than other groups, and some marriages as less worthy than other marriages.
And it, as part of the same effort, the same direction, it meant that the informal unions between couples who made that choice would have less honor, less status, fewer benefits, and so on.
Q. Now, at some point, the racial restrictions and the limits on marrying persons across color lines were abolished, correct?
A. Yes.
Q. And when -- when that happened, were alarms sounded in the populace regarding what might happen to the institution of marriage?
A. Yes. These --
Q. Could you describe how people reacted, and the kind of arguments that were made at the time.
A. Yes. Of course, these were state laws. And the shifts and change in them, both the passage of them and the removal of them, there were a lot of cycles.
There was a big burst of these laws being passed in 1913, for instance. Even though one might think they were being seen to be overly restrictive, they recurred through American history.
In fact, it's quite striking that even though the U.S. Supreme Court, in 1923, first named the right to marry as a fundamental right, the very next year, in 1924, Virginia passed the most restrictive law in the nation about whites and
blacks marrying.
Now, there has always been -- just by the same token that these laws were defended as naturally-based and God's plan just being put into positive law, the efforts to undo them met extreme alarm among those who thought these laws were correct.
And while the question of the constitutionality of these laws could have come before the U.S. Supreme Court earlier than the Supreme Court did decide on that question, because this was thought to be such a hot-button issue and be such a matter of controversy, the U.S. Supreme Court approached it extremely cautiously, and did not take it -- although, they could have taken a case in 1955, which would have brought this issue before the nation, they waited until the case that was decided in 1967, which came from Virginia and from that extremely restrictive law passed in 1924.
So, yes, there have -- all along that history was -- the subject was extremely controversial, and the people who supported such laws saw these as very important definitional features of who could and should marry, and who could not and should not.
Q. Did proponents of those laws argue that the abolition of them would ruin the institution of marriage?
A. I don't know whether the word "ruin" was used. But, certainly, they assumed that should couples across the color line be admitted to marriage, that the institution would be degraded, that their own marriages would somehow be devalued.
Q. And, as a historical matter, in your view, were they correct or incorrect in those assumptions?
A. I think they were incorrect.
Q. Why is that?
A. Well, there has been no evidence that the institution of marriage has been become less popular because -- or less valued by people or by the state, even though couples needn't – white people can marry whoever they want. So that it doesn't seem, to me, to have been borne out in the history.
And I might also mention that even to date, the proportion of marriages that are across the color line in the United States remains rather small. It tripled in its percentage between -- I think, in the 1960s, it was about 2 percent of marriages were across the color line. And by the end of the 20th century, about 6 percent of marriages were across the color line.
Now, while that is a tripling of those marriages, it's also still a very, very small proportion of those marriages. And that's worth observing in terms of the alarm about how the change would affect the institution.
Q. Professor Cott, have marriage laws in the United States ever involved the state, the government, dictating the roles of spouses?
A. Yes, indeed.
Q. Could you tell -- was there -- is there a term for that role that the state played?
A. Well, marriage traditionally in the United States came from the common law. And the common law included a doctrine that was called "coverture" that described what marital roles and duties were.
Q. Why was it called "coverture"?
A. Well, this is a word from the Norman French, but it has to do with the fact that upon marriage the wife was covered, in effect, by her husband's legal and economic identity. And she -- she lost her independent legal and economic
individuality. Certainly not her personality, we know that from literature. But she lost her legal and economic individuality, which is really why Jane Doe became Mrs. John Smith. She no longer had her legal individuality as Jane Doe.
Q. How did society and the states justify that doctrine that took away a woman's individuality and individual status, in essence, once they became married?
A. Well, this was the marital bargain to which both spouses consented. And it was a reciprocal bargain in which the husband had certain very important and -- very important obligations that were enforced by the state.
His obligation was to support his wife, provide her with the basic material goods of life, and to do so for their dependents. And her part of the bargain was to serve and obey him, and to lend to him all of her property, and also enable him to take all of her earnings, and represent her in court or
in any sort of legal or economic transaction. And this was a highly-asymmetrical bargain that, to us today, appears to enforce inequality. And I think that judgment isn't unwarranted. But I do want to stress it was not
simply domination and submission. It was a mutual bargain, a reciprocal bargain joined by consent.
And it was the state, the common law and then the positive law that adopted the common law, that enforced those terms for the consensual bargain. The couple had to freely consent to it, but the state set the terms.
Q. Was it viewed as -- based on assumptions at the time, as sort of a natural division of labor between a man and a woman?
A. This asymmetricality had everything to do with the sexual division of labor. Because assumptions were, at the time, that men were suited to be providers, were suited for certain sorts of work; whereas, women, the weaker sex, were suited to be dependent, needed a stronger hand to guide them, support them
and protect them.
Women's work in the household was also extremely important. And the kinds of work that women did and were willing to do were the kinds of work that men would not do, like gardening and milking the cows. This was all very
socially conventional.
In other cultures, the sexual division of labor might be quite different, in terms of what was assigned to which sex. But the sexual division of labor underlay the formation of the marital household, and the reason that a man and a woman were seen to be necessary to form a marital household. So that
their complementary tasks and duties and talents would be put in synch and would enable the household to survive.
Q. So did the difference in sexes of marital couples have a connection to and explain, at least in part, what -- let me strike that and reframe it.
Did the sexual division of labor, does it explain in any manner the sexual differences in marital couples that we've seen through most of our history?
A. I think, yes.
Q. Could you just elaborate on that briefly.
A. Well, I think that with -- at a time period which extended over a very long period of time, and really until the 20th century, when the sexes were seen as so unsuited to the same type of work, and their -- the work of each sex was seen as so particular to the work of men on the one hand, the work of women on the other, yet both really were seen as crucial to human survival, and particularly to household sufficiency and flourishing, that this was an extremely important reason, from the state's point of view, to credit and create incentives for the formation of marital households where the population could live and be cared for.
Q. At some point in our history, did the sexual division of roles of spouses come to an end?
A. Well, in the law, not fully until the 1970s. But that was catching up, I think, with an overall change in the economy and society toward -- this is with the development of industrialization, move away from agrarian society, into a
society in which work is mechanized, takes place in factories and shops, and so on, that with the direction of social and economic change, as well as change in values about what is appropriate for each of the two sexes to do, the sexual
division of labor became far less rigid.
And this was -- certainly, beginning by the late 19th century, but through the 20th century and into our era, the sexual division of labor is no longer necessary for the kinds of work people do in the world.
And particularly after the Title VII of the Civil Rights Act, the assignment of spousal roles on the basis of very different proprieties for the sexual division of labor came to seem increasingly archaic. So that in the law in the 1970s, as part of the more widespread Women's Rights revolution, the states, really, by Supreme Court decisions, had to step out of this assignment of spousal roles by gender.
And this did not, however, in any way reduce the spouses' economic responsibility for one another and their bargain to support one another, which had always been reciprocal, though asymmetrical.
So that, currently, spousal roles are gender-neutral, in terms of the states' assignment of them; that both spouses are obligated to support one another, but they are not obligated to do one another with a specific emphasis on one
spouse being the provider and the other being the dependent.
Q. Do you believe, as an expert, that that move towards gender neutrality in spousal relationships is relevant in terms of the historical development of marriage as it relates to the marriage between individuals of the same gender?
A. It does seem to me quite relevant, yes.
Q. Why is it relevant?
A. Well, in the many years when the sexual division of labor and this assumption that the marital couple was a – an asymmetrical couple with a provider and a dependent, that was quite consistent with marriage between a man and a woman.
However, the more symmetrical and gender-neutral spousal roles have become in fact, I would say, in the social world and certainly in the law, the more that the marriage between couples of the same sex seems perfectly capable of fulfilling the purposes of marriage.
And as it stands today, individual couples are certainly free to have gender-asymmetrical roles if they prefer. But that's merely a matter of personal decision. It's not something the state prescribes. The coverture doctrine is
dead. It's something up to intimate decision-making.
And the presence in marriage, in valid marriage of a couple of the same sex fulfills all of the historical purposes of marriage that continue into the present day.
Q. When these changes in gender equality within the marital relationship occurred and began to occur, were there people in society who said that that would have a negative impact on the institution of marriage in this country?
A. Most definitely.
Q. Could you give me an overview of the kind of objections and concerns that were expressed on those issues.
A. Well, a century ago, or throughout the entire 19th century, when this became a controversial issue as certain state laws were passed that edged into reducing the coverture doctrine in its entirety, tremendous alarms were raised because the primacy of the husband as the legal and economic representative of the couple, and the protector and provider for his wife, was seen as absolutely essential to what marriage was. That asymmetry was seen as absolutely essential.
And while the initial ways of breaking into that, which were a series of laws that were passed to enable married women to have their own property and then their earnings, while these initial forays raised tremendous alarm, they were motivated, really, by concern -- economic concerns about families' economic stability.
They were not, in motivation on the part of the legislators, about women's equality and individuality. In fact, there were lots of assumptions that the model of marriage, provider/dependent, and so on, with all of its
implications about different sex roles, that these would persist.
But over time, and particularly as the Women's Rights movement and the Suffrage movement gained steam, and when women gained the vote -- which was, of course, a very important move towards their legal individuality -- the doctrine of coverture came to seem more and more archaic.
Still, because there were such alarms about it and such resistance to change in this what had been seen as quite an essential characteristic of marriage, it took a very, very long time before this trajectory of the removal of the state
from prescribing these rigid spousal roles was completed.
And, in fact, there are instances I could cite -- which I won't -- of how it recurred in certain decisions and policies in the early 20th century.
However, I think I'm fairly confident in saying that because of the Supreme Court decisions in the 1970s, that in terms of the law, that this quality of marriage has been removed to no apparent damage to the institution. And, in
fact, I think to the benefit of the institution.
Q. Let me ask you, in terms of historical trends in changes to the institution of marriage, do you see such trends? Has there been a trend or a trajectory, as marriage has developed and the laws have changed?
A. Well, this is never a straight line. I do think there has been an overall direction of change in the way marriage has been defined and understood, and regulated through the states.
And that is toward a greater symmetrical understanding of the two partners' roles in the marriage, greater equality of those two partners, and fewer restrictions on the choice of marital partner.
Therefore, the -- the overall emphasis I mentioned earlier, that certain of the emphases within the purposes of marriage had shifted, in terms of their gravity over time, and I think the shift has been toward reemphasizing the extent to which marriage choice and the zone of privacy and intimacy and familial harmony that marriage ideally should create has been the emphasis on that as a zone of liberty that it should be available to citizens has been more greatly emphasized.
Whereas, the aspect of marriage as a regulatory and governing institution, that -- in which the state is more prescriptive about who should and shouldn't marry, and what should go on in a marriage, the direction has been away from governance and toward liberty. Although, both characters still typify the
marriage institution as a whole.
Q. Do you have a view, based on your historical research and study, as to how those trends bear on the issue of whether individuals of the same gender should have the right to marry?
A. It does seem to me that that direction of change leans consistently toward -- toward the appropriateness of allowing same-sex couples to marry.
Q. Why is that?
A. Because if gender symmetry and equality and the couples' own definition of spousal roles are characteristic of marriage, then same-sex couples seem perfectly able to fulfill those roles.
There is no longer an expectation that the man-woman difference need found household, given that the sexual division of labor is no longer so pronounced in our society and isn't, I hope, a founding feature of our economy and how economic benefit is created.
And in all those respects, including the respect in which, importantly, I think, other restrictions on choice of marital partner, other restrictions that seem to have a constitutional question aroused in them, like race, these have been removed.
Of course, the state retains its right to restrict access to marriage, and still does in many other ways which are not controversial.
Q. You were aware -- and I want you to assume that the proponents' witness or witnesses have suggested that if the state authorizes individuals of the same sex to marry, that will damage the institution of marriage and perhaps cause -- well, you were aware of that, correct?
A. I am.
Q. Are you, as a historian, based on your study in your book, and in forming your opinions here, are you aware of any basis, empirical basis, to conclude that authorizing individuals of the same gender to marry would increase the divorce rate?
A. No, not aware.
Q. Are you aware of any evidence that would refute that assertion?
MR. THOMPSON: Objection, Your Honor. It's not only leading, but the witness was asked during her deposition whether she was an expert in the consequences of same-sex marriage. And she said:
"That seems to me an impossible question to answer."
And so, now, she is being asked the question she refused to answer during her deposition, and which is not in her report in any meaningful way.
MR. BOUTROUS: Your Honor, may I -- I'm sorry.
THE COURT: Mr. Boutrous.
MR. BOUTROUS: I'm sorry. I didn't mean to interrupt.
It is in her report, on page 5 of her rebuttal report. And on page 199 of her deposition, Mr. Thompson examined her on the issue of divorce in her home state.
THE COURT: Page 5?
MR. BOUTROUS: Page 5 of her rebuttal report.
THE COURT: But not in the deposition?
MR. BOUTROUS: It is in the deposition, on page 199. She was questioned about that, as well.
THE COURT: Let me take a look.
MR. BOUTROUS: Actually begins on 198, and then carries over.
THE COURT: It does appear this subject was explored, at least to some degree, in the deposition.
Let me overrule the objection and hear the testimony. And then, if necessary, you can review -- you can renew the objection by way of a motion to strike.
MR. THOMPSON: Thank you, Your Honor.
MR. BOUTROUS: Thank you, Your Honor.
THE WITNESS: Could you rephrase the question, please.
BY MR. BOUTROUS:
Q. Yes. Are you aware of any evidence, empirical evidence, that bears on the issue of whether a law allowing individuals of the same gender to marry would affect the divorce rate?
A. My only comment can come from observation of my home state of Massachusetts, which has had same-sex marriage for five years now. And this is, of course, only a correlation, but Massachusetts has the lowest divorce rate in the nation.
Q. And has it increased since marriage between individuals of the same sex has been recognized?
A. No. It has fluctuated but -- around a tenth of a percentage point. But, if anything, the direction has been down rather than up.
Q. Thank you.
To go back to something you mentioned a moment ago, what do you today, based on the collection of events that make up our history as a nation, view as the key defining characteristics of the institution of marriage in the United States?
A. First, of course, the consent of the two parties, which has been the basis for marriage since the era of the common law, the free consent of the two parties.
And I'll just add that in the United States, as compared to Europe, for centuries that consent has been presumed to rest on a love match, not on an arranged marriage.
So mutual consent between partners who freely choose each other, and their commitment to establish a continuing stable relationship as the foundation for a household in which they will economically support one another and their dependents, and enable themselves to compose a family.
Q. Do you believe that a law recognizing the ability of individuals of the same sex to marry would be consistent and would include those characteristics you have just identified as being defining?
A. Yes.
Q. Why?
A. It seems to me that couples of the same sex have expressed many of the same motivations as couples of different sex to marry and to establish stable households.
And, in that regard, especially in an era when families can have children that are not the result of biological procreation, and so many families do, that it seems to me same-sex couples fulfill the aims of marriage from the point of view of the state.
And, certainly, it's up to any partner – intimate pair to decide whether they wish to be married or not. But seems to me that by excluding same-sex couples from the ability to marry and engage in this highly-valued institution, that
society is actually denying itself another -- another resource for stability and social order.
MR. BOUTROUS: Your Honor, if I may just check with my colleagues, I think I may have covered the waterfront.
THE COURT: Very well.
(Pause)
MR. BOUTROUS: No further questions, Your Honor.
THE COURT: Very well. Mr. Thompson, you may cross-examine.
MR. THOMPSON: Thank you, Your Honor. We have some binders. May we approach the Court and the witness and pass out the binders?
THE COURT: Certainly. You may do so.
MR. THOMPSON: Thank you, Your Honor.
CROSS EXAMINATION
BY MR. THOMPSON:
Q. Good morning, Professor.
A. Good morning, Mr. Thompson.
Q. You don't consider yourself an expert in the history of marriage in countries outside the United States, correct?
A. Since I place a fairly high bar on what is expertise, the answer is yes.
Q. So you're not an expert in the history of marriage outside the United States?
A. Not in my own terms, no.
Q. And you are not familiar with the institution of marriage in the most populated countries on the planet, China and India, correct?
A. I'm somewhat familiar.
Q. Well, let's look at what you said in your deposition in the Iowa case. And that's tab 2 of your witness binder. And I would like to direct your attention to page 55, lines 12 through 14.
A. Page 55 is under tab 2; is that right?
Q. Yes.
A. I see. Oh, I need my reading glasses for this. Which page?
Q. 55. It's in the upper right-hand corner.
A. Uh-huh.
Q. And in line 12 you were asked:
"Are you familiar with the institution of marriage in the most populated countries on the planet, China and India?"
And you answered:
"No, not really. I mean, no."
The consequences of same-sex marriage is an
impossible question to answer. Yes or no?
A. You're asking me to say yes or no?
Q. I am.
A. Right. I believe no one predicts the future that accurately.
Q. And you're not an expert on marriage practices in ancient Greece, correct?
A. I am not an expert on that. I am somewhat familiar with it.
Q. You think gays and lesbians should have the right to marry, correct?
A. I have come to that view from my research and study of the history of marriage, yes.
Q. And you feel that you're somewhat between a neutral party and an advocate, correct?
A. I would call myself not an advocate, but someone who has come to a personal opinion as a result of my historical research and study of this matter of the history of marriage for quite a number of years now.
Q. Let's see what you said during your Iowa deposition. The next page, page 59, top of the page, lines 1 through 4. You said:
"So I feel I'm somewhat between a neutral party and an advocate, in that I feel I'm led by my particular historical expertise to feel that this is the direction."
Now, you've put in amicus briefs and signed on to amicus briefs in New York, New Jersey, and Washington State; is that correct?
A. Historians briefs, that is right.
Q. And you weren't compensated for your work in those cases, were you?
A. I was not.
Q. Okay. And you volunteered your time because you viewed this as an important civil rights issue, correct?
A. I volunteered my time because I think it's very important for historians to contribute to public-policy discussions.
Q. I'd like to direct your attention to tab 4 of your binder. And this is the Alternatives to Marriage Project. It's the annual report of 2002. And I'd like to direct your attention to page 13.
It's the upper right-hand column. It lists donors to this organization. And it lists a Nancy Cot. Is that you? Did you contribute to the Alternatives to Marriage Project?
A. It's possible. I don't recall. It's possible.
Q. Okay. Let's turn to page 4 of this report, to the mission statement of the Alternatives to Marriage Project. And it states that:
"This organization advocates for equality and fairness for unmarried people, including people who choose not to marry, cannot marry, or live together before marriage."
And you support that mission, don't you?
A. I do.
Q. And in the third sentence of that paragraph it states:
"We believe that marriage is only one of many acceptable family forms, and that society should recognize and support healthy relationships in all their diversity."
And you support that mission statement, don't you?
A. I do.
Q. And a polyamorphous family is one in which there are three or more adults who are in the family group; is that correct?
A. I don't know. At the time I signed this statement, I had never heard the term polyamory.
Q. Have you heard it since?
A. I have heard it since.
Q. What is your understanding of polyamory?
A. My understanding happens to come from an article that was in the Boston Globe about a week ago. And that was, really, my education on what it is. And, apparently, it's a network of people who are in multiple but stable relationships.
Q. And let's turn to page 6 of this annual report, to the final bullet point on the page, which reads -- and this was written, of course, between the -- before the Supreme Judicial Court of Massachusetts had ruled, so it's a little dated.
But it said:
"Same-sex couples are denied the right to marry in every state. Others are also unable to marry, including those in relationships of more than two people."
And, so, is it your understanding and do you support the concept that rights and benefits should be extended to polyamorphous families?
A. No.
Q. Did you support it at the time when you gave money to this organization?
A. I wasn't aware of it. I knew the couple – the heterosexual couple who founded this organization. They had started it around the time I was publishing my book.
And they were mainly interested and their organization was started to give credit to those heterosexuals who wanted to live in stable unions without marrying.
And I think the right to marry should be accompanied by an emphasis that one does not have to marry, if one doesn't want to. And it was from that angle that I supported this young heterosexual couple who had been pressured by their families to marry, and they didn't want to enter the institution.
Q. And turning to tab 6 in your binder, this is an Affirmation of Family Diversity. It's part of the Alternatives to Marriage Project.
And turning to the third page in your binder, behind tab 6, do you see second line that says, "Nancy Cott, History in American Studies, Yale University"?
A. It's not in my -- in my binder. No. I see the "View signatures here," but I don't see any names.
THE COURT: It's not in my binder either, Counsel.
MR. THOMPSON: Okay. Well, maybe we can pull that up on a screen.
BY MR. THOMPSON:
Q. But, regardless, do you recall this document and having signed on to it?
A. I do.
Q. You do?
A. I do.
Q. Okay. And you supported the contents of this documents, or you wouldn't have signed it?
A. Yes. That all healthy families should be supported by social views, yes.
Q. Okay. And you shared the concern that was referenced at the end of the first paragraph, "What worries us is the mistaken notion that marriage is the only acceptable relationship or family structure." You supported that view?
A. Yes, I did.
Q. And you think couples should keep a skeptical stance on marriage, correct?
A. I don't think I've ever made that point.
Q. Well --
A. Maybe I did. It's possible I said that somewhere, in passing.
Q. All right. Let's refresh your recollection, turning to behind tab 3.
This is an interview that you provided with a Priscilla Yamin. Do you remember this interview?
A. Vaguely.
Q. Okay. And turning to the fourth page of the interview. Just one paragraph. It's seven line down. Says, "I would also say couples should keep a skeptical stance on marriage."
Did you believe that at the time you made that statement?
A. I can't really recall. And this -- I never had an opportunity to check the transcript of the interview before she put it up on the Web. So I really can't affirm whether or not I said this at the time.
Q. Public authorities are very interested in making sure that as few people as possible are assigned to public sources of funds for their support, correct? Yes or no?
A. I think that tends to be the case, yes.
Q. Throughout American history, legislatures and courts, in other words the public apparatus in general, has been very, very interested in making sure that dependent children will be supported by their parents. Yes or no?
A. That has definitely been a motivation of state authorities, yes.
Q. One of the purposes of marriage today is to assign providers to care for dependents, including children, and to limit the public's liability to care for the vulnerable, correct?
A. Yes.
Q. And one of the purposes that marriage has served over this country's history is to create stable families, correct?
A. Yes. That's fair.
Q. Another purpose that marriage has served over this country's history is to assign providers to care for dependents, including the very young, correct?
A. Yes. You asked me that already.
Q. And one of the purposes of the institution of marriage is to ensure that children are raised by their natural mother and father, correct?
A. No, I wouldn't say that.
Q. Another one of the purposes that marriage has served over this country's history is to legitimate children, correct?
A. Yes. But, as I said, that legitimation function is less important now.
Q. You talked in your direct about laws prohibiting interracial marriage. Isn't it true that those laws required that children of an interracial couple be born out of wedlock?
A. In effect, it created illegitimate sex out of cross-racial relationships, yes.
Q. And illegitimate children, too?
A. Exactly, yes. Any results in children.
Q. And the laws banning interracial marriage created barriers to the establishment of legal ties connecting mother, father and child, correct?
A. I wouldn't say they created barriers to legal ties. They simply did not create legal ties or legal obligations the way that legal marriage did.
Q. Now, let's turn to the history of laws prohibiting interracial marriage.
The first slaves arrived in this country in 1619, correct?
A. I believe so.
Q. And the first law banning interracial marriage was in 1691, in Virginia, correct?
A. No, that is not correct.
Q. When was the first law banning interracial marriage in the United States?
A. Well, it wasn't phrased precisely with the word "marriage." But a law was passed in the colonial Chesapeake, in 1667, that punished shameful matches, as they said, between free white women and negroes. And that -- so "shameful
matches" were -- those were the words. But it's clear that the intent was to penalize and criminalize marriages.
Q. Now, let's look at the time of the founding of this country, in 1789, and at the original 13 states.
It's true that New York never has had a law prohibiting interracial marriage, correct?
A. I can't say I know absolutely for sure, but it's very plausible that it has never had one.
Q. And Pennsylvania has never had a law prohibiting interracial marriage, correct?
A. Frankly, I don't know this colony by colony.
Q. New Jersey has never had a law prohibiting interracial marriage, correct?
A. In the entire state's history?
Q. Correct.
A. Well, I haven't rechecked every state for the purposes of this report, so I can't confirm or disconfirm what you're saying about those three states.
Q. So you have no idea whether the majority of states at the founding of the country did not have a prohibition on interracial marriage?
A. That is an irrelevant question, really, because --
Q. On redirect you can give a speech. It's yes or no now.
A. Okay. Fine.
Q. So you don't know --
(Simultaneous colloquy.)
A. I don't know precisely how many of the original 13 colonies had such laws.
Q. Okay. But it's fair to say there was never a uniform legal prohibition on interracial marriage throughout the United States, correct?
A. It is true that there was never a time that a couple could not go to some state and marry across the color line. That's correct.
Q. And bans on marriage across the color lines were measures designed to maintain white supremacy, correct?
A. They were never seen so at the time they were passed. They were seen so in 1967, but not until then.
Q. Now, I'd like to ask you some questions about the importance of marriage to society.
In the western world, when you look at any new government that has been formed, especially through revolution, one of the first things that is done is the formulation of the marital policy that will accord with this form of government, correct?
THE COURT: First, you confined the witness's testimony to the United States. Now, you are going abroad.
MR. THOMPSON: Well, I would be happy to strike all of her testimony about anything outside the United States. That's fine. I appreciate that, Your Honor. I will focus a little more carefully on the United States.
BY MR. THOMPSON:
Q. The institution of marriage in the United States requires public affirmation, correct?
A. Public witness, public license, if that's what you mean. Public affirmation.
Q. Public affirmation?
A. The stamp of the state, yes.
Q. And as the courts consider whether to redefine marriage so that it is no longer the union of one man and one woman, you would agree that this is a very important point to mark in the evolution of marriage. Yes or no?
A. What is a very important point?
Q. As the courts consider whether to redefine marriage so it is no longer the union of one man and one woman, you would agree that this is a very important point to mark in the evolution of marriage, correct?
A. I think it's an important point.
Q. And although marriage has always been a changing institution, and one could point to earlier watersheds, perhaps there is none quite so explicit as this particular turning point. Correct?
A. One could argue about that.
Q. Well, you remember you gave an interview to NPR after -- when the Supreme Judicial Court -- supreme of Massachusetts, was poised to rule, do you recall that, in April of 2004?
A. I don't, in fact.
Q. All right. Well, I'd like to play you an excerpt from that. See if it refreshes your recollection.
THE CLERK: Counsel --
MR. THOMPSON: We need to switch, I think, the monitor.
THE CLERK: It is switched. What are we playing? Is it an admitted exhibit?
MR. THOMPSON: It is not an exhibit.
THE CLERK: Oh, okay.
MR. BOUTROUS: Your Honor, before it's played, we would just like to object and ask whether we are going to hear the whole interview. And we request that the entire interview be played, as opposed to some excerpt.
MR. THOMPSON: As the witness has proven, she is very eloquent and wholesome in her answers. I believe it's a 20-minute interview. But I just want to play it to refresh her recollection.
And on redirect we are happy to give you the link. You can listen to it at the break and play the whole thing on redirect, if you like.
THE COURT: Let's just see the portion of the interview that you are seeking to refresh the witness's recollection with.
MR. BOUTROUS: Your Honor, if I could just add one more objection.
This is something that was not disclosed to us and provided to us. That's why I don't have the link. So --
MR. THOMPSON: We --
THE COURT: I see. Well, let's just take this one step at a time.
Mr. Thompson, the portion of the interview that you wish to show to the witness.
MR. THOMPSON: Thank you, Your Honor. Okay. Now we're, I think, ready to go.
(Audio recording played in open court.)
THE COURT: We better start at the beginning. Let's start -- let's start at the beginning, with the volume, so that everybody can hear it, including the witness, most importantly.
(Laughter)
MR. THOMPSON: Thank you, Your Honor.
(Audio recording played in open court.)
BY MR. THOMPSON:
Q. All right. Does that refresh -- that was you --
MR. BOUTROUS: I'm going to object. That sounded like a good sentence. I would like to hear that next answer.
(Laughter)
THE COURT: Counsel, go ahead.
BY MR. THOMPSON:
Q. Professor, was that you -- was that your voice that we just played?
A. Yes.
Q. And did it refresh your recollection that you had done an NPR interview?
A. Yes.
Q. Okay. And do you agree with the statement you made there, which is, "One could point to earlier watersheds, but perhaps none quite so explicit as this particular turning point"? Do you agree with that statement?
A. As I said there, perhaps -- and that was how I responded to you -- that one could argue about this. But it's arguably a highly-distinctive turning point.
Q. As a historian, you do not assume that progress is the rule of history, correct?
A. That's correct.
Q. Marriage is a very complex institution, correct?
A. Indeed.
Q. There is a long, ongoing series of arguments among historians, competing theories about how we find the causes of any major phenomenon, correct?
A. Yes.
Q. Some historians prefer to weight ideas, correct?
A. True.
Q. Others prefer to weight economic factors, correct?
A. Yes.
Q. Some weigh pure contingency of how things occur, correct?
A. Give it more weight, yes.
Q. But to you, the most reasonable historical explanation gives some weight to all of these factors, so that none of them operates solely on its own, correct?
A. Yes.
Q. I'd like to turn your attention to tab 9 in your witness binder. This is DIX1434. It's a law review article from the Virginia Law Review, entitled, "We Will Get What We Asked for: Why Legalizing Gay and Lesbian Marriage Will Not 'Dismantle the Legal Structure of Gender in Every marriage.'" And it's authored by Nancy D. Polikoff. The UVA Law Review is a well-regarded publication?
A. I can't affirm or disconfirm that. I assume so, but I don't really know.
Q. And Nancy Polikoff is openly gay and an advocate for gay rights; is that correct?
A. I don't know.
Q. She is a professor at American University. Do you know that?
A. I'm not familiar with her.
Q. Okay. I would like to turn your attention to page 1536, to the second full paragraph, which reads:
"The only argument that has ever tempted me to support efforts to obtain lesbian and gay marriage is the contention that marriages between two men or two women would inherently transform the institution of marriage for all
people."
Is it true that there are some people who subscribe to the view that Professor Polikoff has articulated?
A. Certainly, she does, or she thinks there is. I --
MR. THOMPSON: Your Honor, we would move the admission of DIX1434.
MR. BOUTROUS: Objection, Your Honor. Irrelevant. Written by another person.
I don't see what bearing it has. The witness said she was not familiar with either the author or the article.
MR. THOMPSON: Your Honor, this goes to our -- one of our contentions that we have spoken to before, about legislative facts and the Ninth Circuit's ruling in Marshall vs. Sawyer, in which they said, "Legislative facts relate to public policy or questions of law."
And the Supreme Court, from Brown vs. Board of Education, to Roe vs. Wade, to Grutter, to Lawrence, in every one of those big-ticket cases, has looked at precisely these types of law review articles for the truth of the matter asserted.
And we maintain that all of this evidence, just as they wanted to move an entire book into the record, that we are entitled to put into the record in this court these types of articles and publications that pertain on a key issue, which is: What are the consequences, potentially, of same-sex
marriage? And -- yes.
(Laughter)
THE COURT: Well, the court certainly can take judicial notice of what's published in law reviews. And I can certainly do that.
This is a law review, however, written by another individual. The witness has stated that she is not familiar with either the article or the author. So I'll certainly take judicial notice of it. It can be included in the record, if you like. The record is as it is.
MR. THOMPSON: Thank you, Your Honor. And that's all
we're asking for.
THE COURT: Fine.
MR. THOMPSON: We appreciate that.
THE COURT: All right. That's going to be – we better have it marked. Previously marked?
MR. THOMPSON: It is marked, yes, Your Honor.
THE COURT: As Exhibit --
MR. THOMPSON: DIX1434.
THE COURT: 1434. All right. Very well.
MR. THOMPSON: And we'd like to turn your attention to the next tab, which is DIX1020. And this is an article in the Chapman Journal of Law & Policy. It's dated 2008/9 by a Jeffrey Redding.
BY MR. THOMPSON:
Q. Are you familiar with Professor Redding?
A. I have never heard of him.
Q. He taught at Harvard and Yale, so I thought perhaps you had overlapped. But he's now at the University of Saint Louis law school.
I would like to direct your attention to page 7 of this article, to the paragraph -- it's the third full paragraph from the bottom. And it reads:
"The gay and lesbian civil rights movement's insistence that 'marriage' is the proper province of secular states (instead of churches and temples) and its insistence that 'marriage' can incorporate fertile, same-sex couples (just as readily as it can sterile opposite-sex couples) is a further testament to this movement's deep-seated desire to challenge the conventional meaning of words and concepts."
Do you agree that allowing same-sex marriage would challenge the conventional meaning of marriage?
A. I believe it would amplify the conventional meaning of marriage.
MR. THOMPSON: Your Honor, we would ask the Court to take judicial notice of DIX1020.
THE COURT: Very well.
BY MR. THOMPSON:
Q. Turning to the next tab in your binder, Professor, which is DIX1033. And this is a book entitled, All of Our Families. New policies for a New Century. Published by the Oxford University Press. That's a pretty prestigious press; is it not?
A. Yes, it is.
Q. And turning to the fourth page of your binder, which is page 1 -- it has "144" at the bottom. Shows that this is an article by Judith Stacey, entitled, "Gay and Lesbian Families: Queer Like Us."
And Professor Stacey is a professor of sociology at NYU; is that right?
A. I know she is a professor of sociology. I'm not sure where she teaches right now.
Q. She is a supporter of gay and lesbian rights; is that right?
A. I don't know.
Q. Turning to page 155 of this document, she states, at the top of the page, in the first full paragraph:
"Despite the paucity of mainstream political enthusiasm for legalizing gay marriage, there are good reasons to believe that gays and lesbians will eventually win this right and to support their struggle to do so. Legitimizing gay and lesbian marriages would promote a democratic pluralist expansion of
the meaning, practice, and politics of family life in the United States, helping to supplant the destructive sanctity of The Family with respect for diverse and vibrant families."
Do you agree with Professor Stacey?
MR. BOUTROUS: Your Honor, I'm going to object again. This is just argument from --
THE COURT: I beg your pardon?
MR. BOUTROUS: I'm going to object.
This is simply argument from an article that does not have anything to do with Professor Cott.
THE COURT: I think it's appropriate for counsel to place before the witness propositions that have been – factual propositions of this kind, that have been asserted by individuals who have expressed views on the subject, and ask
whether or not she agrees or disagrees with the statement.
And I think that's what counsel is doing. And I think it's an appropriate form of examination.
Very well. Proceed, Mr. Thompson.
MR. THOMPSON: Thank you, Your Honor. And we'd ask the Court to take judicial notice of DIX1033.
THE COURT: Very well.
BY MR. THOMPSON:
Q. Professor, turning to the next tab in your binder, which is tab 12, and this is entitled, "Ethics" --
THE COURT: I'm not sure you got an answer to the question with respect to 1033, Mr. Thompson.
(Laughter)
BY MR. THOMPSON:
Q. Do you agree with Professor Stacey's position?
A. The sentence that begins, "Legitimizing gay and lesbian marriages," is what you are asking about, on page 155?
Q. Yes. The one that will "supplant the destructive sanctity of the family."
A. This is a statement of her opinion. And I think that it's a plausible line of reasoning, but I -- it's a prediction. And so I -- I'm really rather neutral on it.
Q. Okay. Let's turn to tab 12, which is entitled, "Ethics In The Public Domain. Essays in the Morality of Law and Politics," by Joseph Raz.
And Professor Raz is a prominent philosopher; is that right?
A. I really do not know.
Q. This was published by the Oxford University Press. Do you see that at the bottom of this first page?
A. Clarendon Press in Oxford, yes.
Q. And turning your attention to page 23 of this article. Let me know when you're there.
A. Okay.
Q. And the first full paragraph, the last two sentences read:
"When people demand recognition of gay marriages, they usually mean to demand access to an existing good. In fact, they also ask for the transformation of that good. For there can be no doubt that the recognition of
gay marriages will affect as great a transformation in the nature of marriage as that from polygamists to monogamists, or from arranged to unarranged marriage."
Do you agree with that statement?
A. I do not.
MR. THOMPSON: Your Honor, we ask the Court to take judicial notice of DIX1444.
THE COURT: Very well.
BY MR. THOMPSON:
Q. Professor, I would like you to turn to your next tab in the binder, which is an article by E.J. Graff, entitled, "Retying the Knot," in The Nation. And it's DIX1445.
And do you know E.J. Graff?
A. I have been acquainted with her, briefly, in the past.
Q. She is at Brandeis University; is that right?
A. I don't know. I knew her 12, 14 years ago. And it's when she was not as Brandeis. But I don't know where she is now.
Q. Where was she when you knew her, if you recall?
A. She was a journalist, trying to write a book.
Q. And turning to the first sentence of this, it says:
"The right wing gets it: Same-sex marriage is a breathtakingly subversive idea."
Do you agree with that statement?
A. No.
MR. THOMPSON: All right. Your Honor, we ask the Court to take judicial notice of DIX-1445.
THE COURT: Very well.
BY MR. THOMPSON:
Q. And E.J. Graft is a supporter of the rights of gays and lesbians, is that correct?
A. I believe so. I'm not current with her thinking.
Q. You don't have any views on what are the factors that have affected the divorce rate in Massachusetts since same-sex marriage was legalized, correct?
A. Incorrect.
Q. All right. Let's look at your deposition page 199. It's behind tab one.
And are you there, Professor?
THE COURT: This the deposition in Iowa or the deposition here?
MR. THOMPSON: Sorry, your Honor. This is the one in this case, which is behind tab one.
I put it in the witness binder as well, so I was behind tab two and the deposition and the deposition in this case is behind tab one.
THE COURT: I beg your pardon. Thank you very much. 199?
MR. THOMPSON: Yes, your Honor.
BY MR. THOMPSON:
Q. And, Professor, do you see on line five where I asked --
A. I'm sorry. What page?
Q. 199.
A. 199, okay.
Q. On line five I asked you:
"QUESTION: What are the factors that have affected divorce rates in Massachusetts over the last five years, in your opinion?"
"Objection. Objection. Calls for speculation. Vague. Beyond the scope of
this report."
"ANSWER: I don't have any views on what are the factors that have affected the divorce rate in Massachusetts. I raised this in the report mainly because the reports I was rebutting seemed to connect frequency of divorce to -- in a group of negative factors affecting current social life, that they think a same-sex marriage would contribute further to. And so I mentioned that, not as a result of the fact that there is same-sex marriage, but just as a concomitant phenomenon that is worthy of notice."
You gave that testimony?
A. I did. I could clarify the difference between what I responded to you verbally and what is said here, but I can refrain from that as well.
Q. I would like to ask you to turn to tab 17 in your binder, which is DIX-1028. It's an article by Monte Stewart entitled "Marriage Facts." And I would like you, Professor, to turn to page 327, the first full paragraph.
It says:
"A fundamental purpose of marriage then is to situate heterosexual passion within a social institution that will, to the largest extent practical, assure that the consequences of procreative passion, namely children, begin and continue life with adequate private welfare. Although the immediate objects of the protective aspects of this private welfare purpose are the child, and the often
vulnerable mother, society itself is the ultimate beneficiary."
Do you agree that society itself is the ultimate beneficiary of marriage?
A. I think that's a very difficult question to answer "yes" or "no" without really giving my complete opinion.
The question is posed in such a way that I can't really answer it honestly "yes" or "no."
MR. THOMPSON: Your Honor, we would ask the Court to take judicial notice of DIX-1028.
THE COURT: Very well. And you were reading from page --
MR. THOMPSON: 327, your Honor.
THE COURT: Thank you.
MR. THOMPSON: Yes, sir.
BY MR. THOMPSON:
Q. Professor, I would like to direct your attention to tab 18 in your binder, which is DIX-1475. It's an article that appeared on September 19th, 2008 in the Los Angeles Times by our expert in this case, David Blankenhorn.
He starts by saying:
"I'm a liberal Democrat and I do not favor same-sex marriage. Do those positions sound contradictory? To me, they fit together."
And then turning to the second to last paragraph of this article, he states:
"Here is my reasoning. I reject homophobia and believe in the equal dignity of gay and lesbian love because I also believe with all my heart in the right of the child to the mother and father who made her. I believe that we, as a society, should seek to maintain and to strengthen the only human institution, marriage, that is specifically intended to safeguard that right and make it
real for our children."
Professor, is there any other social institution in this country as important to children as marriage?
A. I think families are important to children. They do not have to be marital families. They often are.
But I can't agree with the approach of Blankenhorn's statements here, which imply that the biological link between parents and children is a necessary foundation of marriage and why it's good for society.
Q. Do you think the biological connection between parents and children is irrelevant to the social well-being of children?
A. No, I do not think it's irrelevant.
Q. Okay.
A. I just don't think it's comprehensive in describing what is good for children.
Q. Now, I asked you whether you thought there was a social institution in this country as important to children as marriage and you answered, "Well, their families are important."
Do you consider families a social institution?
A. Yes, I do.
Q. Okay. And I would like to direct your attention back – I apologize for flipping around, but to tab 16 for a moment, which is from the CDC --
MR. THOMPSON: I should have said, your Honor, I ask that you take judicial notice of DIX-1475.
THE COURT: That will be fine.
MR. THOMPSON: Thank you, your Honor.
THE COURT: And I think the same for 1028.
MR. THOMPSON: Thank you, your Honor.
THE WITNESS: May I ask, Judge Walker --
THE COURT: All right. I think maybe this would be a good time to take a break.
THE WITNESS: I would like to have a break, please, your Honor.
THE COURT: That's not a bad idea. I suspect you are not the only one, Professor.
THE WITNESS: Thank you.
THE COURT: All right. Sorry for the interruption, counsel. Why don't we take until 10:30 and then we will resume with further cross-examination of this witness.
MR. THOMPSON: Thank you.
(Whereupon there was a recess in the proceedings from 10:17 a.m. until 10:40 a.m.)
THE COURT: Before we begin, and as the witness is coming to the stand, let me advise counsel, we are organizing all of the comments that have been received with respect to broadcasting or webcasting the proceedings. They are in the jury room. There are thousands of them. I don't know how to
make them part of the record, if we do at all. Some more, of course, are coming in today.
They are going to be available for your inspection and I appreciate the suggestions you have for how we handle them. There are quite a number. So I invite you to inspect them and to give your advice as to what we do with them. All right?
They are not quite ready, but they'll probably be ready, I would imagine, about the time we take our luncheon break or you can wait until the end of the day. Whatever your pleasure is.
All right. Mr. Thompson.
MR. THOMPSON: Thank you, your Honor.
BY MR. THOMPSON:
Q. Professor, I would like to direct your attention to tab 16 in your binder. And this is a document from the CDC website from 2004 entitled "Assistive Reproductive Technology," which is in the first sentence of the document is -- the shorthand is ART.
And then if you turn to the second page in the second full sentence it says:
"Approximately one percent of U.S. infants born in 2004 were conceived through ART."
Professor, is it your understanding that 99 percent of all children born in the United States are born of -- as a result of a procreative act between a man and a woman and not through ART?
A. These are not statistics that I've looked into at all.
MR. THOMPSON: Your Honor, we would ask the Court to take judicial notice of DIX-1049.
THE COURT: Very well.
BY MR. THOMPSON:
Q. Professor, turning to tab 19 -- I guess before we get there let me ask you: Do you agree population growth is no longer necessarily seen as so desirable?
A. Where?
Q. In the United States.
A. Not as so desirable as it was two centuries ago. Yes, that I believe is true.
Q. Okay. And directing your attention to the second page behind tab 19, this is a document entitled "Low Fertility: Can Governments Make a Difference?" by a gentleman who is at the United Nations dated April 2, 2004. It's DIX-1046.
And on the second page in the second full paragraph it states:
"A growing number of countries view their low birth rates with the resulting population decline and aging to be a serious crisis, jeopardizing the basic foundations of the nation and threatening its survival.
Economic growth and vitality, defense, and pensions and healthcare for the elderly, for example, are all areas of major concern."
Professor, do you know whether it's true that in the United States the birth rate is barely at the replacement rate?
A. I think it's approximately at the replacement rate. But, of course, in the United States immigration has always been a great source of our population growth. We have not relied strictly on reproduction.
Q. Illegal immigration?
A. No. Immigration that has been legal.
Q. Oh, I see.
A. Immigration that has been encouraged and legal through our history.
Q. Okay. And the birth rate has declined significantly from about 3.5 in the 1960's to about 2.1 today, is that correct?
A. I haven't reviewed these statistics recently. That sounds like it could be right, but I can't confirm.
MR. THOMPSON: Your Honor, we would ask the Court to take judicial notice of DIX-1046.
THE COURT: Very well.
BY MR. THOMPSON:
Q. Professor, I would like to ask you to turn your attention to tab 20. And this is an interview with Jonathan Rauch. Mr. Rauch is a prominent supporter of a gay rights, is he not?
A. I really don't know.
Q. Okay. We would -- and this is DIX-1035. I would like to direct your attention to the third page of this document, and in particular to the paragraph that's the fourth full paragraph. And it says:
"Marriage is not like voting, something the government just gives you at the stroke of a pen by fiat. Marriage must be a community institution to have its full power, which is to make couples actually closer. It actually fortifies and not just ratifies relationships. Your marriage has to be recognized by your community, your friends, your family, your kids' teachers, your coworkers, all of the people around you as a marriage with all of the expectations and social support that goes with that. The law can't give you that."
Is Mr. Rauch right that the law can't give you the full power of marriage without the community support?
A. I have maintained through my work that law and society work in a dynamic relation in the institution of marriage.
MR. THOMPSON: Your Honor, we would ask the Court to take judicial notice of DIX-1035.
THE COURT: Very well.
BY MR. THOMPSON:
Q. I would like to switch gears, Professor, to talk about marriage in gender and then marriage in religion.
First, marriage uniquely and powerfully influences the way differences between the sexes are conveyed and symbolized, correct?
A. I believe that has been true through most of our history, yes.
Q. So far as marriage is a public institution, it is the vehicle through which the apparatus of state can shape the gender order, correct?
A. Yes.
Q. The whole system of attribution and meaning we call gender relies on and to a great extent derives from the structuring provided by marriage, correct?
A. I wrote that.
Q. And you agree with it?
A. I do.
Q. Okay. And gender matters; that is, it matters that human beings do not appear as neuter individuals, correct?
A. Yes.
Q. Notions of gender are not constant, but are specific to time and place, correct?
A. Yes. I think what we attribute to gender specificity definitely is changing over time.
Q. But the gender binary of masculine and feminine is a basic classification in human thinking and appears in human usage in every culture, correct?
A. Yes.
Q. We can't really think about human beings without implicitly seeing them in gendered form, correct?
A. Yes.
Q. Now, let's turn to the role of religion and its relationship to marriage in the United States.
You said during direct that civil law has been supreme in the United States; do you remember that?
A. In validating marriages, yes.
Q. From the founding of the United States to the present day, assumptions about the importance of marriage and its appropriate form have been deeply implanted in public policy, correct?
A. Yes.
Q. Public authorities in the United States expected monogamy on a Christian model to prevail, correct?
A. In the past, yes.
Q. And it did, correct?
A. Yes. They -- yes.
Q. A commitment to monogamous marriage on a Christian model was lodged deep in American political theory, correct?
A. Yes.
Q. The great majority of colonists believed in basic tenets of Christian monogamy, correct?
A. Yes.
Q. In the history of this country, both the church and the state have regulated marriage in the sense of instilling people with conscience about what are the appropriate behaviors in marriage, correct?
A. Yes.
Q. Monogamy on a Christian model prevailed in part because of widespread Christian faith, correct?
A. Yes.
Q. The particular form of monogamous marriage that is supposed to be life long and involve sexual faithfulness between the partners and economic mutual support, that form of marriage arose first as a result of Christianity, correct?
A. I think that's a historical finding, yes, since in the many ancient world most everybody else was polygamous.
THE COURT: Maybe you could keep your voice up. That would be helpful.
THE WITNESS: Yes --
BY MR. THOMPSON:
Q. -- and one of the distinctive things about Jesus Christ and his Apostles' teachings was to pursue a single partner in marriage and not multiple partners, correct?
A. I know very little about Jesus Christ and his Apostles.
Q. You seemed to know a little bit more during your deposition. Let's look at page 61 of your deposition. It's behind tab one.
THE COURT: Page reference, counsel?
MR. THOMPSON: Page 61, line five, your Honor.
BY MR. THOMPSON:
Q. And you said, Professor, when I asked you:
"QUESTION: What do you mean by Christian monogamy?
"ANSWER: Well, if we look back to the era of the origins of Christianity – which originated, of course, among Jews – Jews were apparently not at that time a monogamous. Polygamy was accepted. And one of the distinctive things about Jesus Christ or his Apostles' teaching was to pursue a single partner in marriage and not multiple partners."
You stand by that testimony, right?
A. I do. And I was using Jesus Christ or his Apostles as a stand-in for the notion that this was a notion that began with Christianity; not that it was enforceable initially, but it was an innovation, is what I meant to imply here.
Q. The generation that founded the United States of America in 1789 subscribed to the basic tenets of Christian monogamy, correct?
A. Yes. But, again, I want to make it clear, since you're repeating my words outside of the larger context, that I'm using "Christian monogamy" there simply to emphasize that monogamy -- simply to emphasize monogamy, not to point to any other tenets of Christianity that might have been embraced or
not embraced.
THE COURT: Are you saying that there is a difference between Christian monogamy and some other form of monogamy?
THE WITNESS: No. I'm simply saying that monogamy in world history is attributable, so far as I am aware, to Christian precepts.
THE COURT: That pre-Christian societies did not either require monogamy or impose standards of monogamy; is that what you are saying?
THE WITNESS: As far as I am aware in the history of our own civilizations, that pre-Christian and, certainly, the early middle eastern arenas where Christianity arose, those areas were not restricted to the practice of monogamy, right.
THE COURT: You are talking about the western world, I assume?
THE WITNESS: Well, if we think of western civilization and the Judeo-Christian ethic that is broadly what characterizes our western civilization, Christianity was what introduced a restriction to a single partner for life as the marital regime.
BY MR. THOMPSON:
Q. And, Professor, one of the basic tenets of Christian monogamy was that marriage was between a man and a woman, correct?
A. That was assumed, yes.
Q. And to this day large segments of Americans accept the Christian conception of sexual fidelity in marriage, correct?
A. Yes. I do think the notion of sexual fidelity and marriage goes beyond Christianity, but, yes. You could put it -- I would agree with it the way you put it.
Q. In 1789 there were laws that prohibited brothers from marrying sisters, correct?
A. Probably, yes. There have typically been restrictions on close familial association for marriage.
Q. And this law reflected a biblical tenet, correct?
A. I can't say what it arose from of. It could have arisen equally from the common law.
Q. I would like to direct your attention to your deposition at page 136, line 25.
A. 136, you said?
Q. 136, Professor. And I asked you:
"QUESTION: What was the purpose that the prohibition on brothers marrying sisters, what purpose was served by that law?"
Various objections.
"ANSWER: Yeah, I can't really comment on the purpose. I don't know the intentions, the purposeful intentions of the legislatures."
"QUESTION: Do you know what the objective is of such laws?
"Objection. Asked and answered. Calls for speculation."
"ANSWER: What was your –
"QUESTION: The objective?
"ANSWER: Oh, the objective. To stop people from marrying close members of their family clearly.
"QUESTION: Well, that's tautological, but why wouldn't you have that objective.
"MS. BAXTER: Objection. Calls for speculation. Beyond the purpose of the
report.
"ANSWER: Well, I would simply say that this was a biblical tenet, that there were prohibited degrees of marriage and while the biblical prohibited degrees are very extensive and, interestingly, accordingly to a scholar of father/daughter incest, do not prevent the father from marrying his
daughter."
Do you stand by your testimony?
A. Well, as I said there, there were proscriptions and limits listed biblically about that, but I don't say here that it was clearly the ground from which those legislative rulings arose.
As I go on to say there, I mention the common law. Frankly, I -- I think there were multiple bases for the assumption that close members of families should – this was a restriction that the legislature thought was appropriate.
Q. In Massachusetts Puritan religious values strongly infused the English tradition? "Yes" or "no."
A. Certainly, in colonial Massachusetts.
Q. And Puritan ideology demanded fidelity of both partners, correct?
A. Yes.
Q. From the sixteenth century through the eighteenth, Puritan reformers advocated chastity before marriage and fidelity after for men as well as women, correct?
A. Did I say "reformers"? Are you reading my testimony or what?
Q. I don't have to tell you where you said it.
A. Well, there weren't Puritan reformers. They were Puritans from the beginning.
Puritans definitely believed in chastity before marriage and fidelity within it, that's clear.
Q. There were differences between Puritan theory and canon law, correct?
A. Puritans were radical Protestants. They did not believe in the Catholic teachings.
THE COURT: You are opening the door to the witness's testimony outside the United States.
MR. THOMPSON: That is true. The fifteenth century Puritans, I would concede -- sixteenth century Puritans, she did write an article on the sixteenth century Puritans --
THE WITNESS: No, I did not.
MR. THOMPSON: Oh, okay. Well --
THE WITNESS: I have never dealt with the Puritans before the seventeenth century.
BY MR. THOMPSON:
Q. Let's look at tab 24 of your binder, which is an article that you wrote 34 years ago, and it's called "Divorce and the Changing Status of Women in Eighteenth Century Massachusetts."
And let's turn to page 600.
And in the second sentence you said:
"From the sixteenth century through the eighteenth, Puritan reformers attacked the double standard by advocating chastity before marriage and dealt after for men as well as women."
Does that --
A. I'm sorry. What page and what line are you on?
Q. 600, second full sentence.
A. Well, I'm -- yeah. I'm actually talking about Puritans in England because there weren't any Puritans in Massachusetts in the sixteenth century.
Yeah, well it's a general comment. Right. It's hardly an article about Puritans in the sixteenth century.
Probably half of one line, a 30-page article.
Q. Well, let's take -- you would concede that there are differences between Puritan theory and canon law in eighteenth century Massachusetts, correct?
A. Particularly with regard to divorce, which was the subject of this article.
Q. And under canon law desertion was not even grounds for separate bed and board unless it was combined with cruelty, is that correct?
A. Gosh, Mr. Thompson, I haven't worked on this since the mid-1970's. I have to refresh my own memory about these matters.
Q. That would be fine. Let's do that together. Turn to page 608, if you would.
(Witness complied.)
Q. And you wrote -- and we can look at this together. I'll just read it and you can let me know if you stand by this or whether your research has changed your thinking on this.
But on page 608, fourth line down:
"In Puritan theory desertion warranted divorce. Under canon law, on the contrary, desertion was not even grounds for separate bed and board unless it was combined with cruelty. Excepting the Ferre and Fletcher cases, the governor and council acted as though canon law controlled their decisions
on desertion."
Does that reflect -- refresh your recollection that there were instances in which in Massachusetts the governor acted as though canon law were controlling?
A. I'm afraid that you misinterpret my comment there to mean that I literally thought they were following canon law. This was simply an artful way of saying they did not grant divorces on the basis of desertion unless cruelty
accompanied it.
The intent -- of course, I took this from another secondary source, "Howard's Matrimonial Institutions."
But my point was simply that they were enforcing a stricter -- a stricter standard for separation from bed and board. It didn't mean they were reading canon law and following it because they were canon law specialists.
Q. Well, in turning to the first sentence of the next paragraph where you say:
"Canon law, rather than Puritan precept, appears to have guided the decisions in cruelty cases as well."
A. I guess so. I guess I thought so then from the research that I was doing.
Q. And you stand by that, correct?
A. I -- I can't redo the research on the stand here, so I have no reason to think that what I said there was mistaken.
Although the authorities may have changed. I was citing -- I was citing a book, "Howard's Matrimonial Institutions" that was written quite awhile before that, I think, in the early twentieth century. It was a summary of various colonial laws on divorce.
Since the 1970's a lot more work has been done on colonial divorce and it's not an issue that I have returned to in my research in a detailed way. So I -- I can't say with absolutely certainty that in my scholarly opinion this is still correct because I haven't done the detailed research that would enable me to affirm that with great confidence.
Q. At the time of the founding, there was a broadly-shared understanding of the essentials of the institution of marriage, correct?
A. Broadly shared -- what was the word?
Q. At the time of the founding, there was a broadly-shared understanding of the essentials of the institution of marriage?
A. Yes. Yes, I agree.
Q. The most important was the unity of husband and wife, correct?
A. Yes. By "unity" I meant the doctrine of coverture, as I was discussing earlier.
Q. In the nineteenth century the Christian religious background of marriage was unquestionably present and prominent, correct?
A. In definitions of marriage and in common understandings of marriage, yes.
Q. The Christian religious background of marriage was adopted in and filtered through legislation, correct?
A. That is correct, if you understand me to mean that Christian background, in the very basic sense of its being monogamous, ideally life long and entailing sexual fidelity, yes.
Q. And by the end of the nineteenth century there was an alliance between national authority and Christian monogamous morality settled firmly in place, is that correct?
A. Well, I made that comment with respect to the long campaign that federal authorities took against polygamy as it was being practiced in Utah by the Mormons.
The single standard that the national authorities wanted to enforce was that of monogamy, and they had also supported it with respect to trying to support the marriages of emancipated slaves in the immediate post Civil War period.
Q. In the general sense, the social meaning of marriage did not greatly change from 1789 to 1868, correct?
A. Correct.
Q. There was actually a lot of legal change in the 15 years after the Civil War, correct?
A. With respect to the laws barring marriage across the color line, yes, there was a lot of change.
Q. And there was challenges to the prohibitions on marriages between blacks and whites in those years, correct?
A. Yes, on the basis of contractual freedom of the parties to marry.
Q. And some of those challenges were successful, at least temporarily, correct?
A. Very briefly in states that were controlled by black legislators.
Q. In the nineteenth century many Americans engaged in informal marriages, correct?
A. That is true.
Q. And pregnancy or child birth was the signal for a couple to consider themselves married, correct?
A. Not always. Sometimes.
Q. Well, let's look at Public Vows, your book, which has been admitted, page 31. It appears behind tab 31 in your binder.
A. Page 31, you said?
Q. Page 31. And it's the last paragraph and it reads in part:
"Informal practices continued as white immigrants fanned out to the south and west. Marriage frequently followed upon a sexual relationship between and man and a woman" --
That may be a typo. Is that a typo in the book?
A. Yes. I think you are right.
Q. Okay.
"...between a man and a woman proving fruitful, rather than preceding it:
Pregnancy or child birth was the signal for a couple to consider themselves married."
You believed that when you wrote these words, didn't you?
A. Well, as I said, frequently, yes. This part of the sentence that follows the -- the colon the -- also incorporates that "frequently adverse." I'm saying, yes, it often was, not always.
Q. One recent change in marriage has been the emergence of covenant marriage in certain states, correct?
A. I'm aware that it exists.
Q. Do you know how many states have covenant marriages?
A. I believe it's two.
Q. Which states?
A. Louisiana and Arkansas, I think.
Q. Any others?
A. I'm not sure.
Q. And covenant marriage represents a change in the institution of marriage in Louisiana and Arkansas, correct?
A. I'm not -- my understanding was that it provided an alternative sort of marriage to what had been available before covenant was authorized, an additional form of marriage.
Q. And in that sense it's a change to the institution of marriage to give couples that option, correct?
A. I really hadn't thought about how much of a change it is. It seemed to me that covenant marriage was more a restriction that the couple placed upon themselves by deciding for that option, rather than the standard option.
THE COURT: What is covenant marriage?
THE WITNESS: As I understand it, I think the couple pledges never to divorce, but I -- they pledge never to divorce, is that what it is?
BY MR. THOMPSON:
Q. Well, you're the expert.
A. Well, no. I mean, this is something that's happened in just the past few years that I didn't -- I think it hadn't even happened when I wrote my book and I never really followed up on it since I didn't see it as a major -- I don't know. I just didn't follow up on it.
So I -- my sense was that it was harder to get out of a covenant marriage than a standard marriage. And that was what the states had done, provide an option for spouses to say, "I want to join this even firmer commitment."
Q. And then the state would enforce that decision, correct?
A. Well, I assume so, in making it harder for them to divorce, if that -- I don't know what the specific provisions of covenant marriage are or whether there are any punitive measures of enforcement or exactly -- I don't know how it's
enforced.
Q. The legislation that inspired covenant marriage in Louisiana reflected Christian moral principles, is that right?
A. I don't know.
Q. Now, you have reviewed the Congressional testimony surrounding the Defense of Marriage Act in connection with writing your book, is that right?
A. Not all of it, but a bunch of it, yes.
Q. And Congressional debate on the Defense of Marriage Act reiterated long-lived official insistence on traditional marriage as a necessary pillar of the nation, correct?
A. Yes. Many of the proponents of the Defense of Marriage Act did.
Q. Did any of the proponents of the Defense of Marriage Act explain their support for the legislation by reference to their religious convictions?
A. I don't recall.
Q. You have read Edmund Burke's "Reflection on the French Revolution," haven't you?
A. If I did, it was an awfully long time ago.
Q. Do you know whether -- whether you read it or not, do you know that one of the things that Edmund Burke emphasized was a respect for tradition in that work?
A. I really can't say.
Q. Okay. Do you know whether any of the supporters of the Defense of Marriage Act supported the legislation because of a respect for tradition?
A. I assume they did. I think that could be inferred.
Q. Did you find evidence in the historical record suggesting that each and every supporter of the Defense of Marriage Act did so because of moral disapproval of gays and lesbians?
A. I don't know.
Q. In the United States a state has never prevented a man who is homosexually oriented from marrying a woman who, herself, is homosexually oriented, correct?
A. That's correct, so far as I know.
Q. And it's definitely happened that a gay man has married a lesbian, correct?
A. It has happened.
Q. And so in that sense, sexual orientation is not literally what the law is prescribing in marriage, correct?
MR. BOUTROUS: Object, your Honor. Calls for a legal conclusion.
THE COURT: Objection overruled.
A. Well, the man and the woman were able to marry, so that's all I can say.
BY MR. THOMPSON:
Q. Well, let's look at what you said during your Iowa deposition. Tab two, page 52.
A. My Iowa deposition is which tab?
Q. Tab two.
A. Somehow I'm only getting tab 35. I must be reversed. Tab two, page what?
Q. 52.
A. Page 52, okay.
Q. So if we start at line 13, you were asked:
"QUESTION: If you take sexual orientation out of the equation then, can you think of any reason the state may not want to permit two heterosexual men to marry each other?
"ANSWER: Let me just answer your question in another way. Another way to illustrate the point I was making about how that -- I was being literal is that the state has never prevented a man who is actually homosexually oriented from marrying a woman who, herself, is homosexually oriented; that is, that has definitely happened, that a gay man has married a lesbian. The state has never prevented that. So in that sense sexual orientation is not literally what the law is prescribing in marriage."
And you stand by that testimony, correct?
A. I do.
Q. Okay. Now, let's turn to the history of California and marriage. And when did California become a state?
A. 1851. 1850 or 1851, somewhere in there. I think the first constitution was '51, but I think the state may have been admitted the year before.
Q. In California in 1851 it was simply assumed that marriage would be between a man and woman, correct?
A. I would say so.
Q. And the overwhelming reason why it was assumed was because marriage had long been practiced in that form, correct?
A. Yes.
Q. And coverture was a creation of the English common law, correct?
A. That's right.
Q. California laws -- California's laws in 1851 were not derived from English common law, correct?
A. The laws of domestic relations you mean specifically?
Q. Yes.
A. They were certainly influenced by the civil law, but common law preconceptions and practices about marital roles were incorporated into that. They were not absent from California domestic relation law, despite its civil law lineage.
Q. In those common law states that maintained coverture, coverture was a bargain in which each spouse had a very important role the state enforced, correct?
A. Yes.
Q. Coverture would not have existed as long as it did were it not a bargain that was seen by those who participated in it as reciprocal, as having something in it for both parties, correct?
A. Correct.
Q. While coverture was in place, there were no statutes that ever said that only the husband can work and the wife can't, correct?
A. What do you mean by "work"? Work for pay?
Q. Let's take work for pay. There was never a law that said a woman couldn't work for pay?
A. That's correct, but under coverture her wages would go to her husband. She wouldn't own them.
Q. Under coverture a woman's personal and real property, whether acquired before or after the marriage, immediately became the property of her husband, correct?
A. Yes.
Q. But that was never the case in California, correct?
A. Under community property the wife retained title to her property, but the husband was, upon the marriage, the manager of that property and had the right to dispose of it and make the decisions.
So that the asymmetry of marital roles was still very much a part of the California community property system.
Q. By the time California became a state, coverture had already been significantly broken into by married women's property laws in various states, correct?
A. Significantly, but not -- not in such a way as to eviscerate by any means the institution.
It was simply that in many states by 1850 – although not that many by 1850, more by 1860 -- married women had formal title to their property, but all of the other elements of coverture remained very much in place.
Q. By the time California became a state, coverture had already been -- excuse me.
Before California became a state, the people of California were governed by Spanish law, correct?
A. I'm not sure precisely. I assume so. You know, before 1848, before the war, Mexico had the property and so I don't know exactly what governed between 1848 and 1850. I guess it was part of a U.S. territory.
Q. All right. And just so the record is clear, under civil law coverture did not exist, correct?
A. Coverture, as such, did not, but I don't think we should assume that that meant a vast difference in terms of the understanding of marriage as dictating quite different spousal roles, quite asymmetrical spousal roles.
Q. Federal Courts had very little role in the dismantling of coverture, correct?
A. That is correct.
Q. Fairly early in California's history, there were legal acknowledgments that a married woman had the right to keep her own property, correct?
A. Yes, it was fairly early.
Q. Now, let's talk about the social meaning of marriage, which is a term you used in your book and in your report. When you used the term "social meaning of marriage," you're referring to how the public views marriage, correct?
A. Yes, general societal understandings.
Q. And you -- it's your understanding that there is a very, very high proportion of people who believe that the time to get married is when you want to have children, correct?
A. I think that's generally true of heterosexual couples, yes.
Q. Is it different for homosexual couples?
A. I think the question would be more variable for -- I mean, I don't have any data, since same-sex couples have not been able to marry, when it is they make the choice to marry.
Q. Marriage has evolved into a civil institution through which the state formally recognizes and ennobles individual's choices to enter into long-term, committed, intimate relationships, correct?
A. Yes.
Q. But there is no requirement in law that a person who wishes to get married actually intends to have a long-term relationship, correct?
A. I don't think that marriage licensors inquire into intentions. I think that's accurate.
Q. Mutual love has always been a part of the social meaning of marriage in the United States, correct?
A. Part of the social meaning, never a precise requisite for entering the institution, but part of a social meaning indeed.
Q. Yeah, but there has never been a legal requirement that people be in love to get married, correct?
A. Not at all.
Q. Marriage, in your opinion, is a status which implies one's having grown up, is that correct?
A. I think that is part of the social meaning, that it is seen as a mark of adulthood, settling down.
Q. Another social meaning of marriage has been that it is the way to found a household, a living unit that is an economic partnership and that involves a commitment to one's partner, correct?
A. Yes.
Q. Marriage also has a whole set of romantic meanings for people, correct?
A. Yes.
Q. And this is broadcast to us all the time in our public culture, correct?
A. Yes.
Q. So the public culture has an impact on the social meaning of marriage, correct?
A. Yes, it does.
Q. The social meaning of marriage unquestionably has real world consequences, correct?
A. Social meaning exists in the real world, yes.
Q. And just so the record is clear, the social meaning of marriage unquestionably has real world consequences? "Yes" or "no."
A. Yes.
Q. That it is far easier to say that the social meaning of marriage has consequences than to measure the consequences, correct?
A. I'm going to say, yes.
Q. For the generality of people, the social meanings of marriage are highly influential in their own personal views of the institution, correct?
A. Yes.
Q. One way the social meaning of marriage changes is through actual social practices, correct?
A. Yes.
Q. Another way the social meaning of marriage changes is through economic transformations, correct?
A. Economic transformations have a great impact on the social meaning of marriage, yes.
Q. Another way the social meaning of marriage changes is through ideas and ideology, correct?
A. These things are all bound up together, yes.
Q. So that's a yes?
A. Yes.
Q. There are also technological reasons why the social meaning of marriage changes, correct?
A. Yes, specifically with -- with respect to the technology of birth control and other reproductive technologies.
Q. And the law very definitely has an impact on the social meaning of marriage, correct?
A. Yes.
Q. How a given person thinks about gay marriage, their own or others, it's usually quite affected by quite small scale factors; how they were brought up, who their friends are, what their religion is, what they have observed and their own personal experience, correct?
A. Yes.
Q. Now, let me ask you some questions about the state of marriage today.
In your opinion, morality has been uncoupled from marriage, correct?
A. If -- if you are quoting my work there, that was a statement made in a context in which I made the point that whereas in the past adultery and fornication were crimes that were punished by the state; that the state enforced those morally disapproved actions that -- in support of marriage, and in support of making marriage the only licensed legitimate place where sex could take place.
And I think what I was describing in making that claim about morality being uncoupled was that we have a much broader and more flexible set of social mores about sex, marriage and morality in the past couple of generations.
So that state regulations about marriage are no longer -- and the state enforcement of regulations are no longer principally interested in punishing sex that takes place outside of marriage. Rather, marriage is upheld for other
forms of social good and not the seemed to be moral goods that it was a principal conveyor of in the past. Morality, particularly with regard to sexual behavior.
Q. The public forgiveness of President Clinton's sexual misadventures can only be understood against the background of a generation's seismic shift in marriage practices, correct?
A. Yes. I was referring to the fact that the public tended to -- at least a majority of the public did not topple President Clinton from the presidency, even though his infidelities were made public because, I argued, the -- the
social meaning of marriage had moved toward assuming that spouses themselves are the best ones to decide on what is appropriate behavior within the marriage.
So that the public tended to see this as a matter between Hillary Clinton and Bill Clinton and not a matter that was something the state should judge.
MR. THOMPSON: Your Honor, I would request that the witness be instructed to answer the questions "yes" or "no" rather than give these long speeches.
THE COURT: Well, I think you got an answer.
MR. THOMPSON: I got an answer all right.
THE COURT: Follow up on it, but I don't know that we need to go into Bill and Hillary Clinton in any great depth.
(Laughter.)
BY MR. THOMPSON:
Q. At the twentieth century's close, marriage could no longer be considered a predictable venture, is that correct?
A. That's correct.
Q. Marriage, in part, marriage laws, in part, reflect concerns about population size, correct?
A. I'm sorry. Could you repeat that?
Q. Sure. Marriage laws, in part, reflect concerns about population size?
A. It's certainly a potential, yes, of marriage laws to be concerned about that.
Q. The alteration in the relationship between marriage and the state might be called disestablishment, correct? "Yes" or "no."
A. As a heuristic device, yes, it might.
Q. In the history of religion, the term disestablishment is sometimes used, correct?
A. It is a descriptive term in the history of religion.
Q. In some countries there is an established religion, and the ending of that special status is called disestablishment, correct?
A. Yes.
Q. Disestablishment did not mean that religious institutions disappeared, correct?
A. Correct.
Q. On the contrary, the consequence more often of disestablishment was that religious sex proliferated and no single model was any longer supported and enforced by the state, correct?
A. Yes.
Q. By analogy, one could argue that the particular model of marriage which was for so long the officially supported one has been disestablished, correct?
A. One could argue.
Q. Today plural marriages have bloomed in your opinion, correct?
A. Illegally, yes.
Q. And, in fact, in your opinion, marriage is now understood as a private choice today, correct?
A. A choice whether to marry or not to marry is understood as a private choice, yes.
Q. This stance has allowed hundreds and perhaps thousands of individuals to revive polygamy, correct?
A. I don't think it's that that has allowed it.
Q. Well, let's look at what you wrote in Public Vows. Page 213, tab 31.
THE COURT: Page reference, counsel?
MR. THOMPSON: 213, your Honor, tab 31.
A. I'm sorry. Tell me the page again please.
BY MR. THOMPSON:
Q. 213. You wrote in the first full paragraph in the second sentence:
"Couples who are not following the conventional model look for endorsement from like-minded communities and expect to be left alone by others whom they are not harming since marriage is understood as a private choice. This stance has allowed hundreds and perhaps thousands of fundamentalist Mormons in Utah and Arizona to revive polygamy."
Do you stand by that statement?
A. By this observation, yes.
Q. Okay. And the emergence in politics of the new right responded, in part, to the apparent disestablishment of traditional marriage, correct?
A. Yes.
Q. The new right makes a connection between the stability of conventional model of monogamy and the health of the nation, correct?
A. Yes.
Q. But, in your opinion, the resistance to same-sex marriage shows that the profound transformation of disestablishment has not taken place, correct?
A. Yes.
Q. In fact, if despite sweeping reformulations and intimate relations in the past quarter century, one can doubt whether most Americans's common sense about marriage has vastly changed?
A. Yes, I think that's correct.
Q. Congressional rhetoric on behalf of the defense of marriage undercut the idea that disestablishment of the traditional institution of marriage was well underway, correct?
A. Yes.
Q. The bill's supporters announced that traditional marriage was the fundamental building block of society, correct?
A. They did.
Q. The bill supporters also announced that nature and the Judeo-Christian moral tradition commanded or comported with traditional heterosexual marriage, correct?
A. They did.
Q. The bill's supporters maintained that traditional heterosexual marriage was the basis of civilization, correct?
A. They did.
Q. Congressman James Talent of Missouri declared:
"It is an act of hubris to believe that marriage can be infinitely malleable; that it can be pushed and pulled around like silly putty without destroying its essential stability."
He added:
"Marriage goes, then the family goes and if the family goes, we have none of the decency or ordered liberty which Americans have been brought up to enjoy and to appreciate."
And this pretty well summed up the predominant view among the bill's supporters, correct?
A. Yes.
Q. And marriage is not an infinitely elastic contract between two people, correct?
A. I can't answer that question.
Q. Well, let's look at the amicus brief that you signed onto, which appears behind tab 25. This is the amicus brief that was submitted to the Supreme Judicial Court of Massachusetts.
And you were a signatory to that brief, is that correct?
A. Let me look. This is the historian's brief?
Q. Yes, the professors of history of marriage.
A. Yes. I did sign this brief.
Q. Okay. And then let's turn to page 32. And the first sentence says:
"Twentieth century courts have made clear that marriage is not an infinitely elastic contract between two people."
Do you agree with that statement?
A. Okay. Yes. I'll agree with it. Not infinitely elastic.
Q. Congressman Talent, in the comments I just read, voiced a tension that had been present ever since legislators began altering the terms of marriage in the 1840's, correct?
A. Yes.
Q. And during the debate on the Defense of Marriage Act, the fear was expressed that licensing same-sex marriage would start a slippery slope to licensing polygamy, correct?
A. It was.
Q. Now, while you were at Harvard, you have taught a class entitled "Men, Women and Marriage," is that right?
A. Yes, I did.
Q. And you taught that class in 2006 or '07, is that right?
A. That sounds about right.
Q. And in that class you assigned some selections from a collection that Andrew Sullivan had put together that were documents relating to the same-sex marriage controversy, is that correct?
A. That sounds right.
MR. THOMPSON: Your Honor, we would like to move the admission or ask the Court to judicial notice of DIX-1032. We have provided copies to plaintiffs prior to trial and to the Court.
THE COURT: 1032?
MR. THOMPSON: Yes, your Honor.
THE COURT: Maybe you can connect that up to the witness.
MR. THOMPSON: Yes.
BY MR. THOMPSON:
Q. Did you know of a better collection of -- if someone wanted to look at the arguments for and against same-sex marriage as a policy matter, not as a legal matter, do you know of a better resource that captures fairly and accurately all of the different point of views than Andrew Sullivan's book?
A. I can't answer that. I know I chose it at the time because it was convenient. I assigned a few documents within it. It was handy.
I can't say that it's the best rendition of pro and con ideas. No, I can't affirm that.
Q. Well, can you name one that's better?
A. This is not a type of anthology I have researched lately. So I -- I just don't have the wherewithal to answer that.
Q. Okay. But when you were teaching your class at Harvard, you thought it was --
A. I thought it was adequate. Whether it was the best, I can't say.
Q. I see. And in your class you focused on the extent to which opposition to same-sex marriage seems to have been rooted in a fear of gender differentiation disappearing, is that right?
A. In a single lecture in the class I -- I believe I raised that as a theory of why opposition ran so deep.
Q. And you've testified before that the -- or provided a statement to the Vermont legislature when it was considering same-sex marriage?
A. Not exactly.
Q. Well, in the aftermath of the ruling of the Vermont Supreme Court requiring either civil unions or same-sex marriage, you provided some input, is that right?
A. Not to the legislature. To their joint judiciary committee.
Q. Okay. And so it was a committee of the legislature?
A. Yes.
Q. I see.
A. Of both houses.
Q. I see. When you testified or provided that statement in Vermont, the law that resulted was a compromise which gave something to the Catholics and other conservative groups and something to the LGBT community, correct?
A. It did state in its first line, "Marriage is between a man and a woman." And then it went on to grant a civil union arrangement that gave all the rights and benefits to same-sex couples, yes.
Q. And all of your teaching involves political history to some degree, correct?
A. It does.
Q. And the concept of political power is relevant to your classes, correct?
A. Yes.
Q. And you define political power as the capability to have one's wishes effectuated, correct?
A. In the political sphere, yes.
Q. Now, you believe that there are changed circumstances that have -- that support extending marriage to same-sex couples, correct?
A. I do.
Q. And in the nineteenth century marriage was confined to a man and a woman and not extended to same-sex couples as a matter of tradition, correct?
A. I don't believe anyone ever pressed for marriage, any couple of the same sex ever pressed for marriage, so the question was never defended.
Q. So it was -- marriage was maintained between a man and a woman in the nineteenth century as a matter of tradition, correct?
A. Of custom, yes.
Q. And at the time the homosexual as a person had not really been recognized as such, correct?
A. Correct. It was -- homosexual acts were recognized, but not the attribution of a different kind of personhood to someone because he or is she had homosexual desire or practiced homosexual acts.
Q. It wasn't until the twentieth century when sexuality as a mode of defining the very self of the person really came into the fore, correct?
A. Yes.
Q. And by the term "homosexual" today, you understand that term to mean a person who is erotically desirous of members of the same sex, correct?
A. Yes.
Q. And that's a big difference from the nineteenth century where gender presentation ruled interpretation of a person's behavior, not his desire, correct?
THE COURT: We have an objection.
MR. BOUTROUS: Objection, your Honor. I just wanted to have clarification as to whether counsel is talking about within the United States, these customs, or is he talking more broadly? He has been jumping around a little bit.
MR. THOMPSON: Oh, in the United States. My questions today pertain to that.
THE COURT: Very well. Can you answer?
A. Yes. I think speaking in broad scale that one can say that from centuries past when a person was judged by whether he looked masculine or she looked feminine, there has been a shift from that being the principal way of identifying someone's sexuality to recognizing desire and -- desire and motivation toward -- toward another individual, an individual of the same
sex or an individual of the other sex.
This is more definitive today in medical, psychological, social and cultural meanings of sexuality.
Q. In your opinion, there are -- excuse me.
One changing circumstance is acceptance of homosexuality and the recognition that discrimination against homosexuals is a form of discrimination and not simply a moral behavior, correct?
A. What was the beginning of that long question?
Q. Well, we're talking about the changed circumstances which you believe support extending the institution of marriage to same-sex couples, and one of those changed circumstances is the recognition, in your opinion, that discrimination against homosexuals is a form of discrimination in fact and not just a moral behavior, correct?
A. Yes.
Q. And there is considerable social survey evidence showing that among the young, discrimination against homosexuals is much less than it was in the past century, correct?
A. Yes.
Q. And another one of these changing circumstances is men's and women's gender roles that have made them, while not completely fungible, much more duplicative of one another in many arenas of life, correct?
A. Yes.
Q. And, in your opinion, these things together make up a series of changing circumstances that make same-sex marriage a very reasonable proposition, in fact, a very reasonable thing to enact, correct?
A. Yes.
Q. Now, let me ask you about gender differences. You're familiar with the concept of sex ratio, by which I mean the relative proportion of men and women in a given society?
A. Yes.
Q. And you are perfectly willing to grant that there might well be different rules when there is a scarcity of women as opposed to a scarcity of men, correct?
A. Different state rules or different customs? I'm not sure what you mean.
Q. Different customs.
A. Different customs, yeah.
Q. And, in fact, it's highly likely there would be difference in rules pertaining to sexual relations in a community where you had a relative scarcity of men, as opposed to a community where you had a relative scarcity of women, correct?
A. It's a reasonable hypothesis.
Q. Now, let's turn to no-fault divorce. The innovation of no-fault divorce indicated a major shift, correct?
A. Yes.
Q. The provision of divorce on more and more grounds has certainly changed marriage and changed people's expectations of marriage, correct?
A. Yes. This has been a long process, beginning in the nineteenth century. The provision of more grounds and no fault moved that significantly in the direction of letting the spouses themselves decide on the grounds.
Q. You can't identify in any complete way the effect of no-fault divorce, correct?
A. I think that's correct.
Q. And if you are attempting to assess whether no-fault divorce changed the relative standing of men and women within marriages that persisted, it would be extremely hard to discern the answer to that question, correct?
MR. BOUTROUS: Object, your Honor. Vague, confusing.
THE COURT: It is a little vague. Maybe you can sharpen it up.
MR. THOMPSON: Well, let me see if I'm quoting her or I'm quoting my bad question at the deposition.
BY MR. THOMPSON:
Q. It was page 174 of the deposition.
Let me just do it this way, Professor. Would you agree that from a societal perspective generally no-fault divorce changed the relative standing of men and women within marriage?
A. I don't know. I don't know.
Q. Okay. Do you believe that behavior is really infinitely malleable by social circumstances and by culture?
A. Just about infinitely, yes.
Q. With the sole exception of self preservation?
A. I think you have to accept that, yes.
MR. THOMPSON: Your Honor, may I consult with my colleagues for a brief moment? I think we are finished, but...
THE COURT: Very well. You may do so.
(Discussion held off the record amongst defense counsel.)
MR. THOMPSON: Your Honor, we have no further questions. Thank you, Professor.
THE COURT: Very well. Mr. Boutrous, any redirect?
MR. BOUTROUS: Yes, your Honor.
REDIRECT EXAMINATION
BY MR. BOUTROUS:
Q. Professor Cott, Mr. Thompson asked you some questions about your personal views of the issue of whether individuals of the same gender should be able to marry, and I would like to ask you a couple of questions on that, too.
First, when you began your research in connection with Public Vows and your inquiry into the history of marriage in the United States, I guess it was back in 1990, had you formed a view on whether same-sex marriage should be authorized or whether it was a -- constitutionally permissible?
A. I hadn't formed a view.
Q. And what -- what led you to the view that you hold today that -- concerning same-sex marriage?
A. It really was the research and thinking I did in writing the book. And initially what the advocacy of -- for marriage to be, allowed to same-sex couples, what that advocacy did, because it was going on beginning at the time, was to point me toward the great importance of the state in creating marriages and defining marriages.
And so it was a goad to my whole approach to focus on public vows, but I was really motivated to write the book because of my interest in the gender order between how men and women have understood their roles in society privately and publicly, and I was most interested in how marriage has been a vehicle for shaping that.
But it was through the -- through the period of the research and the writing that I learned a lot more about the history of marriage and, particularly, about the ways that marriage laws had been used punitively. I was -- this was
the -- really, a great shock to me, just how repeatedly with different groups, like Native Americans and blacks, of course, and Asians and women who made the bad choice to marry someone who was not an American at a certain period of time, the period of high immigration. I was -- I was really amazed at how these laws were used punitively and restrictively, yet, most of those restrictions had been gradually seen to be a bar on liberty and had been dismantled.
And this fed into my thinking about the question of marriage for couples of the same sex and, also, my research on the extent to which the state, as the third party to the bargain of marriage, had entered into the business of
prescribing spousal roles.
And so that history was very clear, what direction it had moved in, that the state had moved more and more out of that, allowing the couple involved in choosing one another and forming a marriage and household to decide themselves how they would allocate their respective duties.
And so it's those -- it was those things I came to see that moved me very solidly into the direction of, first, supporting the right of couples of the same sex to marry simply because I think it is a civil right to marry the partner of your choice.
Q. If your historical research during that period had led you to conclude that history and tradition in the United States and the changes in our history did not support the elimination of barriers to individuals of the same sex marrying, would you be here today testifying in support of the plaintiffs?
A. I don't think so, but I -- another thing I might mention is that in studying this history I was also really struck with the extent to which marriage has not been one thing, that it is a flexible institution.
And, in fact, what we -- the fact that it is so alive and vigorous today and so desirable a status and that couples of the same sex want to enter it is testimony to how far it has not been one static thing over time; that it has shed its attributes of inequality and it has shed most restrictions to entering this honored institution.
And I sometimes think of it as rather like our U.S. Constitution; that it has certainly essentials that remain the same, but it has been altered to adjust to changing circumstances so that it remains a very alive and vigorous institution today.
Q. Let me ask you about the elimination of the racial restrictions, coverture, the other discriminatory prohibitions you talked about. Did the elimination of those barriers to marriage change the social meaning of marriage?
A. I think they changed it in a very positive direction, and this is -- was particularly evident in the 1960's, 70's period of social turmoil over marriages and among -- about many other things and then the period after, in that there was a great deal of -- of negative sentiment voiced about the institution of marriage in the 1970's and many alternatives to marriage then, like, swinging -- and these were all among heterosexuals, but open marriage.
Many, many complaints about the injustices embodied in the institution of marriage and the ways that there ought to be alternatives to it that would be socially approved.
And after that there -- since then, I would say, particularly in the 80's and 90's, both because of groups on the right, like Focus On The Family, who have stressed all the benefits and advantages to society and the individuals of marriage and, also, importantly, because of the advocacy of same-sex couples to enter the institution, I think, in the past to 25 years that we don't see a critical perspective on marriage as the principal thing looming in its social meaning. We see a very highly valued and honored set of expectations about the institution.
And so I -- I think this -- this is another suggestion that by clearing away from the marriage institution its aspects of restriction and regulation and emphasizing the liberty aspects, the creation of a zone of intimacy that the partners choose, that these emphases within marriage and in the state's prescription of what marriage is have helped to give it new reverence in recent years as compared to, say, 40, 50 years ago, when it was really under fire.
Q. What did you mean in your book Public Vows when you spoke about this concept of disestablishment that Mr. Thompson raised with you a moment ago?
A. Well, I was using it as a heuristic device or a framework for thinking about research and suggesting, as I said in answer to him, that there might be an analogy to the disestablishment of religion, which was not bad for religion. It was actually quite good for religion in that many sects, like the Methodists and Baptists and so on, were able to flourish in addition to the standard Presbyterians and Congregationalists and so on.
What I really meant was that the established marriage that I had been tracking over 200 years in American history was that one that prescribed spousal roles; that put strong, bright lines of morality between extra-marital relationships and marital relationships and that imposed certain restrictions on access. And disestablishment would be to give a more flexible and amplified definition for the institution.
However, I -- I did say that when one looked at – I was looking at the national scene, so I looked at the Defense of Marriage Act and the strong prescription in the Defense of Marriage Act that marriage was only between a man and a woman, certainly made it clear that that feature of marriage was still
very much established.
And there was another federal law -- The Personal Responsibility and Work Act -- at the same time, which also put tremendous emphasis on marriage in a somewhat backward-looking way; that marriage was the way for a woman to be supported by her husband and that it was a very desirable institution in
society for that reason. It seemed to go back on the law, the constitutional law about gender asymmetry -- I'm sorry, about the gender symmetry and equality in the marital relationship.
But at any rate, I did conclude that the state's involvement in marriage, I think, is salutary. The question is, what is that investment going to be and what are those definitions going to be? And I think that judging on the basis
of the history, that an amplified understanding of the institution and what it can successfully accept, including the marriage of a couple of the same sex, seem to me very reasonable to assent to.
Q. Now, Mr. Thompson showed you, I believe it was under tab 18, the article by his own expert, Mr. Blankenhorn, in the Los Angeles Times. Do you recall that? Maybe you can turn to that.
A. There was something by Blankenhorn. Yes, it is number 18.
Q. And you recall from your work in this case, Mr. Blankenhorn has used the phrase "deinstitutionalization." Do you recall that?
A. Yes.
Q. And is disestablishment, the way you use the term, the same thing as deinstitutionalization as you understand Mr. Blankenhorn to be using that term?
A. I'm very puzzled by what is meant by disinstitutionalization in his usages, but I feel pretty sure that it is not what I mean by disestablishment, which, first of all, was not -- it was a -- as I said, a framework for thinking
about what change has been.
Q. And in the -- in the course of reviewing Mr. Blankenhorn's work and his statements, did you form any opinions about his methodology and his conclusions?
A. I would say, yes. I did have some assessments of his -- of his overall -- if not his method, which is unclear, of his conclusions and of his -- of the concerns that he brings forward.
Because it seems to me that insofar as I understand deinstitutionalization as a -- as something he posits as extremely negative, that it is a -- it is to render changes that have happened in the history of marriage that have preceded and have been brought about by things other than the advocacy for same-sex marriage; that is, there has been since the 1960's a rising -- there was a steeply rising divorce rate in the '60s in the United States. There -- since '60s we have
seen fewer couples marrying. And there has been an increase in births out of wedlock. But these seem to me the worrisome things that Mr. Blankenhorn would put under the category of deinstitutionalization.
And I want to make a larger -- you know, a historical observation there. Between 1965 and 1980, not only in the United States, but in all the industrialized world, from Europe to Japan, these indicators, the rate at which people married, the rate at which people divorced, one sank, you know, one rose, and the rate of out-of-wedlock pregnancies, these underwent very, very sharp shifts in all these countries within the space of 15 years.
It was a true demographic and cultural watershed and turning point in the history of the industrialized world in which, as -- and I'm citing the authority of a French demographer Pierre Rouselle on this, but he called it the "banalization of previous mores." That is, things that had formerly been thought outside the pale of respectability became respectable, acceptable, not worthy of comment among middle class people.
And it was that shift that I think is really behind the concerns that Professor Blankenhorn brings forward. And these shifts -- which have actually moderated since 1980. None of these indicators has continued to go up at the rate that it did suddenly zoom up -- I mean, the bad indicators, you know,
as it did between '65 and '80.
The divorce rate, in fact, in the United States, the rate of increase in the divorce rate plateaued in 1981. And while divorces continue, the numbers continue to rise, the rate of increase of divorce has plateaued for 25 years.
So the question of same-sex marriage, I think, is quite separate from the kinds of concerns about what I understand Mr. Blankenhorn to be concerned about with respect to deinstitutionalization.
I think it has more to do with changes that have occurred in heterosexual mores about love and sex outside of marriage than it does to do with the question of same-sex couples wanting to enter the marriage institution and gain its stability and its formal imprimatur.
Q. Mr. Thompson pointed you to page 199 of your deposition, which is under tab one. I would like you to turn to that, if you would.
And beginning on line two where he asked you the question about the Massachusetts divorce rates, you were not allowed to give the context and the full meaning of what you meant there.
Could you do that now?
A. Well, it really relates to exactly what I just said, in that I -- I think that the divorce rate question is very hard to answer in a period of simply five years, which is all there has been same-sex marriage in Massachusetts. And that's why I would -- I simply couldn't make a claim about that relation, but the divorce rate question is a long-term trend.
Q. Now, since we are talking about divorce, what in your view is the relevance of the no-fault divorce movement that swept the nation, the United States, in terms of the analysis of the issues in this case, in the Perry case?
A. I think it's -- very clearly that the passage of no-fault divorce here starting in California, of course, which was the first state and then sweeping through the states, and as well becoming the characteristic form of divorce in Europe, was an indication of the shift in -- in weight from the state to the couple with respect to the terms of marital performance. That, as I have said, spousal roles used to be dictated by the state. Now they are dictated by the couple themselves. There's no requirement that they do X or Y if they are one spouse or the other.
And similarly with divorce, that under the adversary regime that preceded the no-fault dispensation, one spouse had to accuse the other of a fault that the state had defined as the reason a marriage could be ended. And that led to – that was behind the times, in that many couples by the 20th century both knew that their marriage had broken down. One of them may not have committed the fault that the state defined, particularly in the State of New York, which only had the ground of adultery and, of course, is a very large and influential state. So couples would collude to present a fault before the Court. And this was -- the movement for no-fault divorce was, in fact, started by lawyers who thought this was very bad for the law; that peoples should be colluding and their lawyers should be colluding with them.
So no-fault divorce really set into actual practice what had been happening to a great extent behind the shadow of the adversary regime, and it represented that the state was no longer so interested in saying, Okay, this is -- this is what
breaks up a marriage; or if you are a husband, you have to do this; if you are a wife, you have to do that.
And that move, it underlines the fact that gender asymmetry, that specific performance of one marital role or another, is not what is in the law of marriage these days and seems to me to open the door to the appropriateness of a same-sex couple getting married.
Q. Does it reinforce that trend that you mentioned earlier relating to mutual consent and choice in terms of the person to whom you would be married?
A. Yes, in respect that the mutual consent and choice about the marriage ending is now part of the no-fault dispensation.
Q. When no-fault divorce swept the nation, were there alarm bells sounded concerning the effect that might have on the institution of marriage in this country?
A. I think at the time there were so many alarms raised about marriage between 1965 and 1980 that I'm not sure I could separate out the particular alarms by no-fault divorce – about no-fault divorce, but certainly it was never uncontroversial and any change in terms of marriage have always had their
points and their alarms.
MR. BOUTROUS: Your Honor, I probably have about 20 minutes more of questioning.
THE COURT: What's that?
MR. BOUTROUS: I have about 20 minute of additional questioning. I can do it now or if the Court would like to break now, whatever Court prefers.
THE COURT: Let's move along and maybe you can squeeze that 20 minutes down.
MR. BOUTROUS: Okay. I can take a hint.
BY MR. BOUTROUS:
Q. Professor Cott, once coverture ended in California and other places in the United States, did that put an end to the laws of marriage dictating spousal roles in this country?
A. Well, not entirely because coverture lent a very, very long shadow to the marriage relationship and the gender asymmetry of roles with respect to who was the expected provider in the family and who was the dependent was then
reinvigorated in the level -- at the level of federal policy with many new deal provisions, particularly Social Security, which gave special additional benefits to a married man when he got to the age of collecting his old age pension. If he had a wife, his wife would receive 50 percent of his -- his benefit that he would get as a single individual. This was a very definite material advantage to those married spouses as compared to single individuals.
And it was a very major step in what has become the federal channeling of benefits through the marital relationship. It was gender specific. It did not give -- even if a wife had been, and she could be in the 1930's, the principal
earner in her family and her husband had been her dependent, that was possible in real life, but by the time they aged, she would not be able to collect a spousal benefit for her dependent husband.
So those things were challenged in the 1970's and the Supreme Court found that those spousal assignments within the marriage institution were -- were unconstitutional.
But that, that was -- I would say that was a reinvigoration of certain expectations of coverture that gave asymmetrical roles and particularly gave the husband the role of the provider, the main agent of the family.
Q. And did those asymmetrical gender roles persist into the 70's?
A. Well, in the federal benefits, yes, most certainly.
Q. How about culturally from a historical perspective?
A. Well, I think that the cultural -- certainly, the state's role in assigning benefit to marriage itself, those material advantages is one of the -- one of the things that holds up the particular prestige that marriage has. It's in a reciprocal relation with the other cultural evaluations.
But, yes, I think that the -- all of these state benefits that prescribe a certain way of living tend to have cultural impacts and after the -- after the challenges in the mid-70's to the spouse specificity, the gender specificity of various federal benefits, I think it's been -- actually been a great benefit to that and has enabled wives who might want to support their husbands to be able to do that without thinking, Oh, well, if we did that, when we retired we would be at a great disadvantage.
Q. In your view as a matter of historical analysis, is the institution of family important to American society?
A. Yes, indeed.
Q. In your view, is the raising of children and responsible raising of children an important value in American society?
A. It is.
MR. THOMPSON: Objection, your Honor. Leading. We have been giving a lot of latitude, but this is bordering on testimony.
THE COURT: Objection overruled.
BY MR. BOUTROUS:
Q. Did you answer?
A. Yes, it is.
Q. In your view, would providing the ability – providing individuals of the same sex the ability to marry be consistent with those two American values?
A. Yes, I think it would be.
Q. Why?
A. I think it's clear that couples of the same sex are going to form intimate relationships and rear children of their own or adopted. And it seems to me to the public's interest for them to be able to do that in marital units that are recognized as such and honored as such and that's even without speaking about the individual dignity that being able to participate in marriage will impart to the individuals.
But from a social point of view, given the extent to which marriage benefits from the point of view of the state have been always about establishing continuity and stability in households and social order, it seems to me this is a direction that the state would want to go to pursue that aim.
Q. Mr. Thompson asked you some questions sprinkled throughout about polygamy, and I would like to ask you a few questions about that briefly.
On page 213 of Public Vows -- do you have that in front of you?
A. I think I do because I was looking at it before. I forget which number it was in the tab.
Q. Tab 31 I believe it was. Thank you. The top of 213, I believe, or the first full paragraph.
And Mr. Thompson had read the sentence about:
"This stance has allowed hundreds and perhaps thousands of Fundamentalist Mormons in Utah and Arizona to revive polygamy."
When you wrote that sentence, were you in any way endorsing polygamy?
A. Absolutely not.
Q. And were you suggesting in any way that it had become legal?
A. I'm just trying to find the spot. I was on 215, I think.
(Brief pause.)
A. Here we go.
Q. First full paragraph beginning with the word "Commuted."
A. No. Actually I say in the next sentence:
"The open practice of polygamy unprosecuted, although it is illegal as well as officially disapproved by the Church of the Latter Day Saints."
I think I was really pointing to the ways in which the -- most states do not prosecute behavior that is seen as private, even when it is formally against the law that; that is, I think probably many states still have adultery as a crime
on their laws.
I don't know for sure, but I think it has remained in many state's legal codes. But the states do not prosecute adultery, not in the state's motivation. An angry partner might but that's something else.
So what I really was emphasizing here was the extent to -- the extent to which marital behavior has become more -- you know, the state has given more latitude on marital behavior. I think this example -- personally, I think this is
an egregious example of state non-prosecution of something that is illegal and not at all in the tradition of American marriage.
Q. When you evaluate the sweep of history in America, is there anything that suggests to you that the recognition of the ability of individuals of the same gender to marry would somehow create a slippery slope or pave the way towards lawful polygamy?
A. I do not think so.
Q. Why not?
A. Well, monogamy, as I said yesterday, is not only – has not only come down to us through the common law and through its Christian background. It also has a political foundation in the American republic.
Yesterday when I was talking about the founder's emphasis on the consent and voluntary allegiance that they hoped for from the to-be citizens of the United States being analogized to the consent and voluntary allegiance in
monogamous marriage, they made an explicit contrast to polygamy, which in their political view could only be associated with despotism and non-consent, because in their -- in their eyes they couldn't imagine why a woman would agree to marry a man if he already had wives, that she must be being
coerced.
And through the long campaign against Mormon polygamy before Utah entered -- was allowed to enter the union, this theme of polygamy equaling despotism, whereas monogamy equal consent and free choice, was a political theme. And so I think that monogamy is very, very deeply engrained in the American political tradition, as well as having, certainly, a religious
background and a common law background, a more specific common law background.
Q. And what, in your view as a historian, the laws of incest -- Mr. Thompson referenced those -- have they served?
A. Well, as I understand it, these are some of the many hygienic -- thought to be hygienic or eugenic laws that manystates have put into their codes.
And, actually, hygienic laws have varied over time, usually in tune of what is thought to be scientific. In the period from the 1880's through to the 1930's with the rise of eugenics to very high status, there were very many laws put
into states saying that certain people considered feeble-minded couldn't marry or other characteristics and categories that we don't really use today or don't consider legitimate.
And, for instance, but -- on the question of first cousin marriage. These marriages were very highly thought of and were often the most status-filled marriages in the antebellum south for instance. It was a very common way for
rich families to consolidate their holdings over land, to have first cousins marry and not lose the family property to complete outsiders. But that -- then most of the states decided that first cousins shouldn't marry; that it was
eugenically ill advised.
So these things have shifted and the states, of course, do retain certain restrictions on marriage, particularly age of consent, age below which no marriage can be contracted.
Q. In your view, do laws allowing individuals of the same gender to marry suggest or jeopardize those other restrictions in any way?
A. I don't think so, no.
Q. Let me ask you one or two, I think, final questions.
As a historical matter, is there any basis for concluding that allowing individuals of the same gender to marry would affect population growth?
A. I don't see any reason for concluding that, no.
Q. Has there been a separation of church and state as to marriage in this country since its founding?
A. Yes.
Q. As a historical matter, does the fact that civil marriage borrowed and looked to some traditions from religion in formulating the law, does that make the institution of marriage in this country a religious institution?
A. Definitely not. We are a multi-religious society and our civil marriage serves to keep that harmonious society.
Different religions may place their requirements on marriages, but they are not superior to the civil law validation and authority over marriage.
Q. Are you, based on your study of history, a believer in the public institution of marriage?
A. I believe it's a very valuable institution.
Q. And do you think its value will be enhanced if individuals of the same gender are allowed to marry in this country?
A. I think that -- judging from the way their advocacy over the past 20 years has raised the status of the institution in many people's eyes, made them appreciate its benefits, I would expect that, yes, amplifying it to allow them entry would be very beneficial to the institution.
MR. BOUTROUS: Your Honor, I'm going to consult with my colleagues. Thank you.
THE COURT: All right.
(Discussion held off the record amongst plaintiffs' counsel.)
MR. BOUTROUS: Your Honor, I believe that's the end of my questioning. I just wanted to make sure, as a formal matter, that the exhibits on the list that I had presented the Court were admitted into evidence before Professor Cott steps down.
THE COURT: That's my understanding, along with those referred to by Mr. Thompson.
MR. BOUTROUS: Those were the judicial notice.
THE COURT: That's correct.
Let me ask, while you are on the stand, Professor, you described marriage as an instrument of government. How is it that the state, or government, became the principal formulator of the rules of this government rather than the governance being left up to contractual relations between the parties or private institutions?
THE WITNESS: Well, I think that simply -- let me put it this way.
Our marriage rules are inherited from the colonists, who originally were in this nation. And in both -- in both England and the common law and the civil law, there were long traditions of governmental authority over marriage.
Under the civil order they were not exclusive to the government. That is, for three, four centuries in Europe their great tussles between the church and the state over which of these authorities should control marriage because of the extent to which it was a governing vehicle.
But in all of the modern monarchies in Europe, the state one and, certainly, in the one most relevant to our institutions in the United States, in Britain the state retained control using the church as the ceremonial partner in
marriage.
The United States form, going up from the colonies, was even more decidedly toward the secular authority. I think it had a great deal to do with the fact that religious authority was very poorly established. Ecclesiastical authority of the Church of England was extremely poorly established in the early United States and there simply wasn't the biomass around to enter.
THE COURT: Is what you are saying the state regulation of marriage was not invented in the United States?
THE WITNESS: Oh, certainly not. Certainly not.
THE COURT: It came here as part of the heritage of those who settled in the United States.
THE WITNESS: Yes.
THE COURT: And what were the driving forces behind this growth of state regulation of marriage?
THE WITNESS: Well, I wouldn't say "growth." I would simply say that the -- the states were the ones who set the terms.
From the beginning, from the beginning, from colonial legislatures to state legislatures. I think what's – perhaps this will clarify --
THE COURT: But I understood you to say that the state's role in the United States was more expansive, more vigorous than it had been in Europe. Is that a fair --
THE WITNESS: No. It's simply that there was no contest between the state and church of anything like the proportion that the contest between monarchs and the Catholic church that occurred over centuries in Europe.
But not -- it's simply that there wasn't so much of a contest. It was civil authority. Not 100 percent, but, you know, majority percent from the beginning.
Maryland, for instance, was a more Catholic colony. It had more Ecclesiastical authority over marriage. Certainly, from the founding of the United States and establishment of state governments, as compared to colonial
legislatures under the British empire, in all the state governments secular authority over marriage was established and it was considered part of the police power; the power of the states over the health, safety and welfare of their population.
Marriage rules were seen as part of that police power and it's one of the reasons that they -- this power to regulate and define has remained at the state level and does -- by the Tenth Amendment is actually not part of federal power to prescribe, although federal policies on marriage have greatly affected marriage, the states have the right to define marital entry, exit, et cetera.
THE COURT: Was there some sort of vacuum that the state power was flowing into and filling? A vacuum because there was the absence of private regulation or regulation by private entities or institutions?
THE WITNESS: Well, in the Anglo American tradition, marriage has always been a matter for governance. It was -- certainly, it involved --
THE COURT: State governance. There is private governance and state governance. That's the distinction I'm trying to draw.
THE WITNESS: Okay, okay. Oh, okay. I apologize, your Honor.
When I use "governance," I am using it with respect to governmental authorities. And private contract is an essential to marriage. The contract of two parties to consent to marry one another.
But that contract to marry is not valid in our nation unless the state joins in as a third party and says, I credit your private contract.
That's what I meant in the very beginning by saying marriage is this unique public/private blend in that it requires private free consent, but it involves the public in monitoring and setting the terms of whether that consent creates merely an informal relationship or a valid marriage.
THE COURT: And what are those interests that the government has in this contract between the two marriage partners?
THE WITNESS: Well, I think the interests are, as I was suggesting. In bundling certain social rewards with the duties that are imposed on the couple by the state, in order to incentivize stable long-term household formation and care of the couple for one another.
The -- that reciprocal bargain in marriage, long ago when it was unequal and today, is one spouse takes up the obligation to support the other in marriage, and that is enforced by the state.
THE COURT: And you are saying in the absence of --
THE WITNESS: The --
THE COURT: And you are saying in the absence of that bargain, there are certain harms or externalities or social costs that flow and it's in the state's interests to regulate?
THE WITNESS: Yes. The state has always seen it as in its interest to regulate it, yes, and I think that interest continues.
THE COURT: Very well. Thank you, Professor Cott, for your testimony. You may step down.
(Witness excused.)
THE COURT: And why don't we take our luncheon break at this time. Be back and ready to go, if you can, at 1:30.
(Whereupon at 12:23 p.m.proceedings were adjourned for noon recess.)
THE COURT: Very well. We will soon be ready for our next witness. Let me just mention a couple of items.
With respect to the proposal for recording these proceedings and the local rule change, all of the responses that have been received are arrayed in the jury room. Counsel may inspect them.
I have filed those that came from organizations. These are lawyer organizations, I believe exclusively, but did not file the individual comments because of their numerosity.
I'll be pleased to receive whatever suggestions counsel have with respect to how we deal with those.
And with respect to a letter dated January 11, that I received from Mr. Cooper, concerning the seating arrangement and the direction that the camera is -- that is focusing on counsel, is pointed at, and he expressed concern that he and members of his team could be observed in the background conferring, I've seen the situation now that you're seated on
the other side of the table.
And I hope it's no disappointment to you, Mr. Cooper, but you cannot be observed.
(Laughter)
You are out of camera range. So you can consult with your colleagues without fear of being picked up on the camera.
All right. Mr. Boies, are you taking the next witness?
MR. BOIES: No, Your Honor.
The next witness is Professor George Chauncey. He is a witness that has some issues that are particular to the City and County of San Francisco, and also some issues that are broader.
In order to make the presentation most efficient, and avoid having multiple lawyers examine, each for separate parties, we've agreed that the counsel for the City and County of San Francisco will do the entire examination.
THE COURT: That will be fine.
I assume that's without objection, Mr. Thompson.
MR. THOMPSON: No objection, Your Honor.
THE COURT: All right. Ms. Stewart.
MS. STEWART: Thank you, Your Honor.
We would like to call the -- the plaintiffs and the plaintiff-intervenors would like to call Professor George Chauncey to the stand.
THE CLERK: Raise your right hand, please.
GEORGE CHAUNCEY, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do. THE CLERK: Thank you. State your name, please.
THE WITNESS: George Chauncey.
THE CLERK: And spell your last name.
THE WITNESS: C-h-a-u-n-c-e-y.
THE CLERK: And your first name.
THE WITNESS: George.
THE CLERK: Thank you.
DIRECT EXAMINATION
BY MS. STEWART:
Q. Good afternoon, Professor Chauncey.
You are here as an expert, and I'd like to start by asking you a little about the source and the nature of your expertise.
Would you tell us what academic degrees you hold.
A. Yes. I have a B.A., M.A., M.Phil, and Ph.D. in history, all from Yale University. The Ph.D. in 1989.
Q. What academic positions have you held?
A. I had a one-year postdoctoral fellowship at Rutgers University, and then a one-year assistant professorship at New York University.
And then I taught for 15 years at the University of Chicago. The first several years -- started as an assistant professor of history. And about the last ten years was a full professor of history.
And then three and a half years ago, I moved to Yale, where I'm a professor of history in American studies.
Q. Would you tell us about the books that you've authored or edited.
A. One is called Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940. That was published in 1994. Another is, Why Marriage: The History Shaping Today's Debate Over Gay Equality. It was published in 2004.
Also co-edited a book called Hidden from History, which was an early collection of essays in lesbian and gay history.
And I'm constantly -- currently working on finishing a book about post war gay culture in politics.
Q. Would you also tell us a little bit about the other kinds of academic publications you have authored.
A. Uhm, I've published something more than a dozen articles and scholarly journals and collections.
Q. And how about conference papers?
A. And I've given many conference papers and chaired sessions at the major professional meetings of the American Historical Association, Organization of American Historians, American Studies Association. And have been invited to give lectures across the United States, in Europe, Latin America, China, and Australia.
Q. Have you received any awards for your scholarly work?
A. Uhm, Gay New York, which was my dissertation at Yale, received two awards there. One was for the co-winner of the best -- prize for best dissertation in American history. And then it won the University's top dissertation prize for a dissertation in any department.
And, then, as a book it won two awards from the Organization of American Historians. One was for the first best book in any field of history. And the other was for the best book published in the previous two years in American
social history.
Won the Los Angeles book times -- sorry, the Los Angeles Times book prize, and a couple of other prizes.
Q. Would you tell us a little bit about the kinds of sources that you study in the work that you do in your research and writing and your teaching.
A. Well, as a social historian, I draw very widely on sources. So I've looked at court records, police records, probation department records, records of various private moral reform societies, records of gay organizations, social service agencies. I've also looked at diaries, correspondence.
I've interviewed -- actually, sort of lost track, but I think it's about 180 elderly gay men, about their experiences.
I've also looked at films, advertising, so forth. The sorts of things that I also teach in my teaching. Of course, I assign a range of studies by historians and other scholars, and then primary documents which would be drawn from all these fields, as well as films.
I often teach films in my classes, and teach students how to interpret them in the context of the historical period.
Q. And how about government or political materials?
A. Well, in addition to the records of the courts and the police I've mentioned, I've looked at Congressional records and reports, publications put out by mayors' offices, and their correspondence, and so forth.
Q. Would you just quickly describe for the Court the kinds of courses that you've taught, summarizing, given the 20-year history of your teaching?
A. Sure. Broadly, courses in 20th century American history. The broadest being a 2-semester lecture course of the United States since 1919.
And, then, more specialized courses on post World War II American culture in society, urban history, social history, the history of gender and sexuality. Lesbian and gay history is a lecture course and is a seminar.
MS. STEWART: Your Honor, we would like to offer Professor Chauncey in the subjects that he just described.
That is, in the history of -- 20th century U.S. history, broadly, but with specialization in gender and sexuality, and the social, cultural, and political history of lesbian and gay men, and their place in American society.
THE COURT: Mr. Thompson.
MR. THOMPSON: We have no objection, Your Honor.
THE COURT: Very well. You may proceed, Ms. Stewart.
BY MS. STEWART:
Q. Dr. Chauncey, before we go into the substance or the details, if you will, of your opinions, could you just give the Court a brief summary of the expert opinions that you're going to offer to the Court today.
A. Well, most broadly, I guess, my reading of the historical record is that lesbians and gay men have experienced widespread and acute discrimination from both public and private authorities over the course of the 20th century.
And that has continuing legacies and effects. This has been manifested in the criminalization of sexual intimacy and association; the discrimination in public accommodations, in employment; censorship of images about gay people and speech by gay activists; stereotyping and demonization of lesbians and gay men. And that all this has been drawn on and reinforced sustained patterns of prejudice and hostility.
Q. I'd like to turn, then, to the first of those things that you mentioned, criminalization. Could you tell us, give me an example of one of the major ways that gay people have been criminalized.
A. Well, the first obvious example would be sodomy laws. Although, there is a complicated history there. They were enacted in one form or another in the early American colonies.
Typically, they didn't specify homosexual conduct and only homosexual conduct. Though, some of the Puritan colonies did actually just quote Leviticus, prohibiting a man from lying with a man. But, very often, they prohibited a range of non-procreative forms of sexual course between men and men, me and women, men and animals in some cases.
They also didn't criminalize all forms of homosexual conduct. Relatively few of them criminalized female interactions, for instance.
But these laws were reformulated after independence; changed over the course of the late 19th century. They were enforced more in the colonial period; and then relatively little for some period after that.
Enforcement increased in the late 19th century. And, then, even then, they often focused on particular kinds -- certainly, some people who engaged in consensual homosexual relations were prosecuted. They typically went after sex with minors, sex involving violence, and so forth.
What's striking about the development of those laws over the course of the 20th century is that even though they were broadly construed, of course, they came to symbolize the criminalization of homosexual sex in particular.
Ironically, this was probably most striking in the Supreme Court's decision in Bowers v. Hardwick, where they were deciding about a Georgia statute, which actually criminalized anal and oral sex between men and women, heterosexuals, as well as homosexuals, and yet they describe that case as if it were simply bearing on homosexual sex. And I think that, broadly, that's been the way that sodomy has come to be understood.
And, of course, some of the laws did penalize just same sex. And in the 1960s, and especially '70s, as more and more states decriminalized sodomy as part of their general reform of the moral code, they -- several states actually enacted new legislation that specified homosexual conduct, such as the Texas statute.
Q. Were there other ways, besides the sodomy laws, that gay people have been criminalized, as you have used that term?
A. Well, beginning again, in the late 19th century, when you had the emergence of highly-developed and more visible lesbian and gay subcultures in large American cities, there was a stepped-up policing of those communities and people.
And the police began to enforce a range of laws that didn't specifically mention homosexuality, but could be used against -- I will just give you one example.
The disorderly conduct statute as, of course, a very broad rubric, could be used by the police and courts to penalize a wide range of behavior that they considered disorderly.
And in New York City, which I've studied -- although, there are comparable laws in California -- we can see that these laws began to be applied more and more to homosexuals.
(Reporter interrupts.)
Sorry. The disorderly conduct statute began to be applied more and more to homosexuals. And, actually, at some point, the police started registering disorderly conduct, parentheses, degenerate, in their own police record books.
And then in 1923 or '24, the New York state legislature specified as a form of disorderly conduct one person standing about in a public place for purposes of soliciting a man for unnatural sexual acts.
And so this law then was used both, certainly, to literally criminalize one man trying to pick up another man, to ask him to have sex, but was also used to arrest people who were found in a bar or a club, a restaurant. Sometimes it was used against people who were simply found at a gay party, in a private home.
And over the course of period from 1924 until 1966, when New York's mayor, John Lindsay, stopped the police from using entrapment to enforce this law, there were approximately 50,000 arrests under this charge.
And the -- the scale of this, I guess, came home to me when I -- at some point when I had interviewed 75 or a hundred gay men. Actually counted up and realized that half of them had been arrested at least once on a gay-related charge in their lives. And this was the most common charge. And so it
was a really a very pervasive form of policing.
Q. You mentioned New York. And I take it that was just an example. Did this happen elsewhere?
A. Yes. There was a similar law used in California. The vagrancy law was often used in California. And these sorts of laws, general-purpose laws, were sort of tailored to deal with homosexuals in a variety of states.
Q. What effects did the discrimination of gay people, of which you have given these examples, have on gay people?
A. Well, I think one effect was simply to register the society's disapproval of their behavior and make that abundantly clear.
And the idea -- especially this idea that sodomy laws were anti-homosexual laws, has been used in recent years to justify a range of forms of discrimination.
You couldn't let openly-gay soldiers serve in the military because what they do, what defines them in some sense as being homosexual, is a criminal offense. It was mobilized in some of the anti-gay-rights referenda of recent decades.
But it stood as a sign of social disapproval of homosexuals. And then, of course, it just had palpable effects on people's lives. As I said, it meant that a phenomenal number of people, at one point or another, ran across the law, and that they knew that the police were out there looking for them.
Q. Did some people -- did it affect their willingness to go out and be in public?
A. It did for some. There were certainly many very bold people who went out and about; went to gay meeting places; certainly, developed gay social networks and the like.
But, at times when there were police crackdowns -- and periodically these would happen in major cities, even small towns around the country -- and the heat was on, as it were, people were then much more likely to be careful about going out and associating, especially --
Q. What –
(Simultaneous colloquy.)
Q. -- if you did get arrested?
A. Well, one of the biggest fears -- disorderly conduct itself, of course, is not that significant. A misdemeanor.
But it -- it opened up much more consequential dangers to people. So that both the lawyers I've talked with, who represented men who had been charged this way, and some of the men I've interviewed, who faced these charges, all agree that their first concern was that the fact that they had been
arrested on this would lead the police to call their relatives to confirm their identity, call their landlord to confirm their address, call their employer to confirm their workplace.
And so the biggest fear, really, was that this would expose them as being gay, and that that would lead to much more significant social consequences: The loss of a job or a home or of social respect; rip ties with their family.
Q. And did it lead to those kinds of losses, in fact?
A. It certainly did sometimes, yes.
Q. You mentioned as the second topic or item that you were going to discuss today was discrimination, is the word I think that you used.
And I wondered if you could describe the discrimination or give some examples of the discrimination that has been perpetrated on gay people.
A. Right. I was going to discuss discrimination in public accommodations and employment.
Start with public accommodations. Probably one of the most important instances of this was the fact that in 1933, with the repeal of prohibition, first New York state, and then successively many other states, issued regulations that prohibited bars from serving -- sorry, bars, restaurants cabarets, or anyplace with a liquor license, from serving drinks to lesbians or gay men, or allowing them to congregate on the premises.
And this, of course, just had a profound impact on lesbian and gay sociability for lesbians and gay men, as well as for heterosexuals.
Bars and restaurants were places to go to meet your friends, to socialize. But they were particularly important for lesbians and gay men, because they had to be so careful to hide their gay identities in so many of the social settings, at the workplace, often with their biological families, and so forth. So that they were really keen to find places where they could go and be more open, just socialize with people of their own kind.
And what it meant was that this criminalization meant that, a, when people went to a regular bar or restaurant, a normal bar or restaurant, they typically had to be very careful to hide the fact that they were gay, for fear of being
excluded.
And so they often sought out places that had decided that they could make money with the snitch market; would pay higher prices for drinks. So there were so few places where they could go and be open. But those places, to survive, had to pay bribes to the police, or often to organized criminal syndicates which had relationships with the police, or were even run by organized criminal syndicates.
So it meant that gay life was just inmeshed in a web of criminality because of the criminalization of gay and lesbian sociability.
Q. Did any of the bars sort of explicitly exclude people in light of the law? And how did they do that?
A. Well, they did it in a range of ways. Certainly, bartenders in a normal bar, quote/unquote, if they realized that someone was gay, could simply 86 them, as they put it; refuse to serve them a drink; tell them they are 86'd, they had to leave the bar. Which could be quite embarrassing.
I have interviewed people who have who had that experience in front of their friends, and found it really humiliating.
But, then, in the lesbian and gay bars themselves, particularly -- well, actually, not just in those. In bars in neighborhoods with a gay reputation, bar owners sometimes put a sign over the bar itself that would say -- I've heard various signs described, and seen them in the literature -- "If you are gay, please stay away." Or "It is against law to serve homosexuals. Please do not ask us to serve homosexuals."
And so this conveyed a very clear message to both gay and straight customers that homosexuals were a despised category to be excluded. And they were also part of the way the bars tried to protect themselves from the police, to show that they were being vigilant to exclude gay people.
Q. So how did the authorities enforce those laws?
A. Well, they -- the beauty of the liquor licensing and the licensing system was that it meant that a small business owner who ran a bar had to get a license to sell, or a restaurant, cabaret, had to get a license to sell liquor, and had to enforce the regulations imposed by whatever the liquor authority was; and knew that he or she always risked losing that license and really losing that investment if the liquor authority realized they were not enforcing those regulations.
So, first of all, the licensing system itself meant that every single bar had a staff that was trying to make sure the bar wouldn't get in trouble.
But, secondly, local patrolmen could step in periodically, would sort of look in, see what was happening in your place, make sure it wasn't disorderly.
And then the liquor authorities themselves had a staff of special investigators who would go undercover into restaurants and bars, and so forth, to just make sure that a range of regulations were being followed, including the prohibition against serving homosexuals. They, then, if they saw them, would report this. And this could lead to the closure of a place.
Q. Did other authorities besides the police, the local police or the liquor authorities, get involved in that policing effort?
A. Well, bars that were close to military bases, certainly in the big cities during the war, were also put under surveillance by a sort of coalition task force of military officials and police officials, because the military was quite keen to make sure that its sailors and soldiers weren't going to such places. So they joined with the police in investigating them; had their off-limits list; tried to get places closed. So other forces were brought in.
Q. So if you were police officer and you were enforcing this effort, or a military person, how did you know the bar was serving gay people?
A. Well, it's a good question. There were two major techniques used. One was to record, take note of an act of one man picking up another man. And it was usually a man in this case, since that was a sure sign that homosexuals were there.
So what the police and the liquor authority agents did, often, was to send plainclothes policemen into the bars, who would strike up conversations with customers, lead them on, and then, at some point, when an invitation was issued to leave the bar and go home, bring out the handcuffs and arrest them.
So that would lead to the arrest of the bar goer. And they would also be the best proof possible that homosexuals were at the bar. And so it would then be reported, and that would lead to proceedings to revoke the liquor license.
The other way that was used -- and I've seen this in a bunch of court records, where a bar has resisted, has tried to challenge the revocation of its license. The police would actually point to stereotypical gender behavior or cross-gender behavior that was associated with lesbians and gay men, and use that as evidence that a bar was patronized by them.
So, for instance, a police woman might report that she had seen two women dancing together, or women with short hair, or women who were wearing some articles of masculine clothing, or women who seemed to stagger, swager around a bar in a way that was more masculine than a woman should walk.
Or, likewise, they would point to men whose clothing was just a little too unconventional, a little too colorful, whose hair was too long, who addressed each other in effeminate ways.
The most startling example, to me, was sort of one of the signs the police officer gave that a bar was gay was that he had overheard two men talking about the opera; something that no real man would do in the 1950s.
(Laughter)
So there were just a range of ways that sort of unconventional behavior, gender behavior, stereotypically associated with lesbians and gay men was used to identify them.
I think it's actually a kind of striking thing, because it's one of the clearest examples of how the policing of homosexuality has often been used in a very specific legal sense, and then broadly and culturally, to police gender norms
so that, actually, people who went into bars, who behaved in unconventional ways, cross-gendered ways, could be suspected of being homosexual. And a bar might push them out for that very reason.
Q. Did any of the bars or restaurants who -- where the liquor authorities tried to enforce the law, resist or endeavor to fight the charge?
A. Yes. Some did. I'd have to say that most just closed quietly, because they realized that they weren't going to be able to beat this charge. But many did try, either by appealing to the liquor authority itself, or by going to the
courts.
Usually, the first line of defense was simply that they didn't know and they couldn't be expected to know that there were gay people there. Thus, the signs, "It's against the law." You know, "Don't ask us to break the law."
But, periodically, people did pose a challenge to the idea of this law, that you could actually discriminate against a class of people on the basis of their homosexual status.
And in both New York state and in California, in the 1950s, there were rulings by the states' highest court that invalidated that kind of discrimination.
So a famous case in California, the Black Cat Cafe, here in San Francisco, which lost its license, I think, around 1949, filed a suit. It got a state Supreme Court ruling in '51 that said, actually, you couldn't discriminate in this way.
And, then, for several years there are was relative peace and quiet for bars in San Francisco. And then the San Francisco Police Department started a campaign against homosexuals, '54, '55, sweeps of streets and parks, cracked
down on bars.
In '55, the state legislature circumvented that ruling by passing a law that outlawed bars or restaurants that became what it called resorts for sex perverts.
And the Alcoholic Beverage Commission, which was just then established, then launched a campaign against such bars and restaurants, which led to many more being closed.
Finally, there was another state Supreme Court ruling which said, no, they meant it; you couldn't do this. And, nonetheless, Mayor George Christopher, here in San Francisco, had had a tough reelection campaign in '59. And his opponent had charged that he had allowed San Francisco to become a mecca for homosexuals.
And he was so determined to show that wasn't true, that once he was reelected he launched a two-year-long campaign against gay life in the City. Which led to, by one historian's account, 40 to 60 arrests a week, and about a third of the bars being shut down.
Q. After the Supreme Court ruling?
A. After. After this ruling.
And after that, things slowed down in San Francisco. But there continued to be such raids in Los Angeles.
Q. So when did these sort of bar raids and, you know, this kind of activity end?
A. Well, they -- they continued periodically, even in places where they had been ruled unconstitutional.
I mean, most famously, of course, in 1969, the police raided the Stonewall Bar, in Greenwich Village, in New York, after in fact the courts had already ruled that it was legitimate to serve lesbians and gay men. In that case, they were going after mob-oriented bars.
These raids periodically happened, certainly in San Francisco and L.A., into the '60s and '70s. Later in L.A.
And, actually, last summer, in Fort Worth, Texas, the police went into a bar and arrested seven of the patrons. And there was quite a controversy about that.
So, obviously, the number of such events has dramatically fallen off, but it happened at very different rates across the country.
Q. So can you describe the effects of that practice of basically shutting down places where gay people gathered, on gay people?
A. Well, it -- it just meant, again, that they had -- it was one more way it was conveyed to them that they were a despised class of people and a group of outlaws in the eyes of the law; and that they had to take great care in protecting or keeping secret the fact that they were gay.
And I think -- and I've said this already, but it sort of more broadly helped -- not just for gay people, but sort of in the public at large, associated gay life with criminality.
There were periodically campaigns against gay bars.
And they often talked about the police corruption that was required to keep these bars going.
And instead of pointing to the criminalization of them as the predicate of that, they talked about gay bars as corrupters of the police. And it contributed to the growing sense on the part of many people that gay people were dangerous
and a part of the violent -- seedy, violent criminal underworld.
Q. So, earlier you mentioned you were going to talk about employment discrimination, and give some examples of that. Can you turn to that subject now?
A. Sure. I guess the first striking example I'd mention was in the military itself.
There had have been various regulations affecting homosexual conduct and homosexuals in the military before the second World War, but it was really at the beginning of the second World War that for the first time, facing the necessity of mobilizing literally millions of people very quickly to fight the war, that the military decided to absolutely exclude all homosexuals and to institute screening procedures that would keep homosexuals out.
And so this became a part of the induction process, the screening process for everyone who was volunteered or drafted to serve in the war.
Not surprisingly, they didn't ferret out many people, despite this policy. I think it was only five or six thousand. Most young gay people, like their heterosexual peers, were deeply concerned to defend the country in the face of
Japanese and German attacks. And they -- so they, you know, found ways. They were quite accustomed, at this point, finding how to pass as straight. So they got passed through.
And, of course, people in smaller towns were afraid that if their Selective Service Board learned that they were gay, word would spread very quickly to their families and neighbors about this. And so they were very concerned to keep that hidden.
But the military was sort of aware of this, and so it had various procedures in place to try to discover homosexuals, and discharged homosexuals during the war. And, actually, the discharges increased during the period of demobilization at the end of the war, when the manpower needs were not quite so pressing.
And this regulation, well, in one form or another, is continuing to the present day.
Q. So what happened to soldiers who had served but were discharged, at some point along the way, for being gay?
A. Well, first, of course, they faced the stigma of not serving their country, those who were not allowed into the military.
If you were a man of a certain age, and you weren't in the military or a critical defense industry, people really had questions about why you weren't. And so this was really humiliating to people.
And then people who were either kept out or were discharged -- actually, including people who had served in combat, who were discharged -- were then denied benefits under the GI Bill after the end of the war.
And, of course, the GI Bill was just a phenomenally important piece of social engineering in the post-war years.
It gave virtually an entire generation of young men privileged access to education, financial support for continuing their education, preferential access to jobs, help in buying a home.
A lot of the post war suburban building boom was financed through the GI Bill. It had profound consequences. And it meant that homosexuals who were kept out of the military, or discharged as homosexuals, were prohibited from getting those benefits, and so in many ways were kept from that citizenship right.
Q. And what about the several thousand that were ferreted out, I think is the word you used? I know you mentioned that they could be found out by family members or people in their towns, but did it affect their ability to, you know, sort of participate as Americans in any way in our society?
A. Well, you know, at sort of the most basic practical level, in the early days, especially after the war, people wanted to see your discharge papers when they were going to hire you, very often. And they would see that was what you were discharged for. And that was not a very good thing if you were looking for a job.
I think, in a way, it also had sort of a very -- well, and it certainly impressed upon people that they were being denied their membership in the community, their citizenship, really.
And I think, in some way, it really conveyed that to the whole country. I mean, the war was such an important moment in bringing people together, and bringing together people who had been really divided during the first World War.
There had been a lot of demonization of Catholics during the war, and a lot of antisemitism. In the first world war, that is.
And the second World War really brought this – I mean, think of the kind of classic movies that come out of World War II, where you've got the Jew from Brooklyn, and the Irish guy from Chicago, and the Italian from San Francisco.
And homosexuals were not a part of that group.There was a really profound way in which gay people were being excluded from the cultural image of the nation.
Q. And you said, I think, earlier that the policy has continued in one way or another to this day. But I wonder if you could explain what Don't Ask, Don't Tell, what that policy did.
A. Well, of course, President Clinton, as a candidate, had promised to repeal the prohibition on lesbians and gay men serving in the military.
And, then, when he assumed the presidency, there was such a firestorm of opposition to that, on the part of the leadership of the military and grassroots groups across thecountry, that he retreated from that, and produced a compromise: Don't Ask, Don't Tell. Which, theoretically, said that so long as gay people didn't tell the fact that they were gay, the military wouldn't go around anymore asking if they were.
In fact, it didn't quite work out that way. People were found out. And something like about 9500 people were discharged in the first decade of the policy of Don't Ask,Don't Tell.
Q. Were there -- let me just ask it this way. What were the effects on the country, of its exclusion of gay people from military service, either more
recently or in the past?
A. Well, as a number of people have pointed out, it – it meant that the country lost the services of patriotic citizens who wanted to join in the country's defense.
And so the -- you know, in some cases, those were quite important services.
There's been a lot of attention given, recently, to a number of people who have been discharged who were translators of Arabic. Something pretty important right now.
But, broadly, it meant that the country lost the services of large groups of people, and had the financial cost associated with that of recruiting people to take their place and training of people to take their place.
Q. I'd like to ask you, now, to look at the Plaintiffs' Exhibit that's marked 872, in your binder, if you would.
A. Would that be this binder?
Q. I think it would be --
A. This is Cott's Direct binder. These are Nancy Cott's binders?
UNIDENTIFIED SPEAKER: May I approach, Your Honor?
MS. STEWART: Have we given the Court -- sorry, Your Honor.
THE COURT: This is PX872?
MS. STEWART: Yes, Your Honor.
BY MS. STEWART:
Q. 872.
A. The thin one?
Q. In the fat binder.
A. Yes.
Q. Dr. Chauncey, are you familiar with this report?
A. Yes. This is a report by the U.S. Government Accountability Office, to Congressional requesters.
And it's titled, "Military Personnel Financial Cost and Loss of Critical Skills Due to the Department of Defense'sHomosexual Conduct Policy Cannot be Completely Estimated."
Q. Have you reviewed this report?
A. I have looked at this report.
Q. Does this report indicate at least some of the costs that the military incurred by virtue of the Don't Ask, Don't Tell policy?
A. Yes. It estimates that over the first ten-year period of enforcement of that policy, they estimated that it may have cost the Defense Department about $95 million in 2004 dollars, to recruit replacements for service members separated under the policy.
And then they estimated it cost approximately another 95 million to train their replacements.
MS. STEWART: Your Honor, I would like to move this document into evidence.
MR. THOMPSON: No objection, Your Honor.
THE COURT: 872 will be admitted.
(Plaintiffs' Exhibit 872 received in evidence.)
BY MS. STEWART:
Q. So, Professor Chauncey, besides the discrimination in employment in the military, was there other employment discrimination? Or can you give another example of employment discrimination that was significant in our country's history?
A. Well, after the second World War, the employment of homosexuals in the civilian sectors of employment also became a major issue.
And in 1950, Senator Joseph McCarthy announced that he knew the names not only -- or had a list of names not only of Communists in the State Department and other agencies, butof sex perverts.
This led to a couple of Congressional committees investigating this charge. And one of them, a standing committee, subcommittee which produced a report called, "On the Employment of Homosexuals and Other Sex Perverts in Government in 1950."
And this report surveyed, was based on investigation of the way the government was dealing with this problem, and took note of the fact that checking Civil Service Commission records, they found that since this had become more of an issue in 1947, two and a half years that they looked at, some 1,700 people had been prohibited from getting civilian jobs because it had been discovered that they were homosexual.
They were concerned that the procedures for identifying homosexuals were inadequate, and for ferreting them out and discharging them. So they recommended a tightening of procedures.
And in 1953, shortly after Dwight Eisenhower became president, one of his first executive orders decreed that civilian -- that homosexuals would be prohibited from civilian as well as military employment in the federal government.
And it actually also required private companies, which had contracts with the government, to ferret out and fire their homosexual employees.
Q. When -- well, first, let me ask you, how did the McCarthy senate's treatment of gay people in their investigation compare to their treatment of Communists?
A. Uhm, well, they -- they gave a lot of attention, of course, to Communists, and were quite concerned about Communist infiltration into the State Department in particular, and other agencies of the government.
But the historian who has done the closest study of this policy estimates that at the height of the McCarthy period in the 1950s, the State Department actually dismissed more suspected homosexuals than Communists.
Q. I'd like to ask you, Dr. Chauncey, to look at Plaintiffs' Exhibit 2337. I think it's towards the end of your binder. Can you identify that exhibit for the Court?
A. Yes.
THE COURT: 2337?
MS. STEWART: Yes, Your Honor.
THE WITNESS: Yes. This is the report I mentioned, "Employment of Homosexuals and Other Sex Perverts In Government."
MS. STEWART: Your Honor, I would like to move this document into evidence.
MR. THOMPSON: No objection, Your Honor.
THE COURT: 2337 is admitted.
(Plaintiffs' Exhibit 2337 received in evidence.)
BY MS. STEWART:
Q. Turning for a minute to the -- we'll come back to that one at a later point.
But I wanted to turn to President Eisenhower's executive order. I think you said it required that employees who were in the federal government, who were found to be gay, would be discharged. And I think -- did I understand, also not hiring?
A. Right.
Q. When did that policy end?
A. Uhm, that policy ended for most federal agencies in 1975, when President Carter rescinded that policy. Though, it continued to be in effect for some of the highly-sensitive intelligence agencies, and so forth.
And then it was only in the 1990s that President Clinton both ended the policy bearing on intelligence agencies,
and also prohibited discrimination in federal employment.
Q. Can you explain the difference between what President Carter did and what -- I mean --
A. Sure.
Q. Besides the scope.
A. Right. So, basically, President Carter said that federal agencies were no longer required to dismiss their homosexual employees or keep homosexuals from their employ. And, then, President Clinton enacted anti-discrimination order that they could not discriminate. So in that intervening period, agencies were not required to discriminate, but they could discriminate.
Q. Was the discrimination in public employment limited to the federal government?
A. No. There -- across the country, state governments took up this issue and, in a variety of ways, tried to institutionalize employment discrimination against lesbians and gay men.
Just give you one example. In the late '50s, state legislature had a legislative investigation committee which launched an investigation of homosexuals in the state university system, which eventually led to the firing of more than a dozen members of the faculty and other staff. And I think more than 300 people were interrogated over the course of that investigation, which lasted several years.
And so there were a variety of ways that this sort of campaign was carried on at the state level. And at the city level, I mean, I've seen in my own research that, for instance, the Welfare Department in New York City had to fire several of its welfare workers in the 1950s, when it was brought to their attention and they had been discovered as being gay.
Q. Did the mandated discrimination in the federal government or other government affect access to jobs for gay people in the private sector?
A. Well, as I said, President Eisenhower's executive order required private companies with government contracts to ferret out and fire their homosexual employees.
I would say that more broadly, though, gay people faced customary discrimination and a range of -- from a range of employers. And so it was -- the degree of – the enforcement of this varied from occupation to occupation and company to company. But, certainly, most people realized that they had to be very careful to hide their homosexuality at the workplace, for fear of losing their jobs.
Q. Did employment discrimination in any sector, private, public, federal, state, what have you, limit gay people's job choices, or channel them into particular professions?
A. Well, of course, we have no real statistical evidence to base this on. But I would say that, based on the interviews I've done, that, certainly, there were a good number of gay people who just took the risk and pursued the profession that they wanted or the line of work they wanted, and did what they needed to, to hide their identities at work.
But there were also a good number of people who just didn't want to risk that, and didn't want to have to put up with that. And so, in effect, sort of funneled into the kinds of low-status jobs where people were less likely to care that they were gay. Someone who was sort of stereotypically associated with gay people even today. But, being a waiter. Being a hair dresser. Taking on being a low-level clerical worker. Kinds of niches in the employment sector where people
felt they would be somewhat safer.
Q. So what were the effects of this widespread discrimination in employment on gay people generally?
A. Well, I guess I'd have to say that, broadly, it meant that gay life really was pushed underground, indeed, and sort of everything I've described so far.
And I think some people interpret that to mean that there was very little organized gay life at all. And that's simply not the case. There in fact were meeting places. There were parties in private apartments. People did have a gay social life. But they had to be very, very careful to hide it.
And although this had already been true earlier in the 20th century, most people didn't want to take this risk. It really increased the stakes for people. And so it meant that a -- they really became sort of a world within a world.
It was very secretive, had its own codes, so that people could talk with one another without alerting outsiders. Actually, the word "gay" itself is probably the best example of this. Gay liberationists in the 1970s were determined to bring gay people out of the closet. And so they used -- they called themselves gay liberationists.
But in the 1940s, and '50s, and early '60s, very few straight people realized that gay people, homosexuals, had given "gay" a sort of homosexual meaning.
So that a lesbian standing at the office watercooler could say to another woman that she had gone to a gay place the night before, had a gay time, met a gay gal, and really communicate quite a lot to the person she was talking to,
without worrying that someone next to her would overhear this and understand what was going on?
But it just meant that there was a level of secrecy required. Of course, this also meant that fewer heterosexuals, or relatively few heterosexuals, thought that they knew gay people.
And in the context of that is a variety of studies have shown sort of ignorance, lack of contact with people, has increased this prejudice.
So it's easier for demonic stereotypes to develop of gay people, given that real-living gay people had to be so careful to hide themselves.
Q. Did the -- or, I should say, has the discrimination in employment in the state and local public arena ended?
A. Uhm, no. It's not ended. It's -- certainly, I think it's clear that it has lessened since the 1950s. And there have been a series of laws passed at the local and state level that prohibit such discrimination.
There are a lot of complaints of such discrimination brought under those laws. But there's still -- I believe these are the right figures -- 20 states that do not prohibit discrimination in public employment. And another -- and 28 that don't prohibit it in private employment.
Q. The third area that you mentioned you would talk about today was censorship. And I'm wondering if you could explain what you mean when you said that gay people have been subject to censorship.
A. Well, one of the most significant examples of this would be the censorship of the representation of homosexuality in the movies.
In the early '30s, there was the mass censorship campaign, led by a group called the "Legion of Decency," led by Catholic leaders, with Jewish and Protestant support, which was concerned about what they considered to be the immorality of Hollywood films.
This was, of course, very early in the history of Hollywood and the film industry. And so they pressured the -- the Hollywood studios to enact some sort of censorship code, which it eventually did, in order to try to forestall federal censorship.
And, then, in 1934, under more pressure, they really started enforcing this code with the Production Code authority.
And this code imposed certain rules on how certain delicate issues would be dealt with: Crime, adultery. These could be represented, but in certain ways. Usually, crime had to pay, et cetera. The offender needed to be punished.
But there were certain things that they prohibited from being included in the movies at all. For instance, interracial relationships were absolutely forbidden from being represented. And lesbian and gay characters, or the discussion of homosexuality, or even, as the code put it, the inference of sex perversion was prohibited.
So that this meant that for a generation, until the code began to fall apart in the late '50s and early '60s, Hollywood films, the dominant medium of the mid 20th century,could not include gay characters, could not explore gay lives.
Q. You mentioned that the code was enforced, got more enforced, I think you said, in 1934?
A. '4.
Q. How was it enforced?
A. The Hollywood studios were required to submit their scripts to the Production Code administration, the Hays Office, which would review the scripts and bring to their attentionanything that they thought was problematic.
So there would often be a back and forth -- I've read some of these exchanges -- a back and forth between the studiosand the Production Code about exactly what could or could not be included. So it wasn't just a kind of general, informal regulation. It was very strictly managed.
Q. Did the Hays code affect television?
A. Uhm, the Hays code itself didn't. But, in some ways, there was even more concern about television in its early years.
Television expanded very rapidly into American homes in the early 1950s. But, in those days, way before cable, there were, you know, only a handful of networks. Most people had access to just two or three stations.
So there was a lot of concern about what it meant to bring that into the home, where children might see things that parents wouldn't necessarily be able to supervise.
So the television networks were actually much more constrained than even Hollywood, in dealing with certain issues. So that there were very few, very few characters who could even be hinted at as being gay, in the first several
decades of television.
And, you know, there began to be -- certainly, there were some, and some discussion of homosexuality that began to increase in the -- really, just in the 1980s.
And as recently as 1989 -- so just over 20 years ago -- a very popular TV series called Thirtysomething didactually have a scene written in, where it showed two men in bed together, with the sheets pulled up to here (indicating),
for about 15 seconds.
And this was so shocking, that various religious -- conservative religious organizations organized boycott threats.
And the sponsors withdrew from that segment. And a lot of local affiliates either didn't show it at all, or bumped it out of prime time, to midnight.
And that sort of briefly put a chilling effect on the inclusion of gay characters. But by the mid '90s, the numbers had begun to increase.
And as recently as 1996, there was so astonishing that Ellen Degeneres would come out as a lesbian as a character on her show and as a person, that it put her on the cover of Time Magazine.
This idea was so -- it's almost, for the young people who might hear this, probably unpossible to believe that this was the case. But this was sort of the way that for several generations that people just did not have gay characters in the major medium -- media of their culture.
Q. So how did that affect them? How did the censorship of gay people out of the movies and television affect them?
A. Well, it -- you know, it certainly meant that many young people growing up, young gay people, had no idea that there were other people like themselves in the world, who didn't see it in their families and their schools and neighbors, and didn't see it in the media.
It meant that older gay people didn't see themselves represented in the films, and were once again reminded of the fact that they were a despised category, to be excluded from the dominant media of the culture.
And, of course, some directors, some actors, used codes to try to suggest homosexuality, gay characters in themes in films especially, and so sophisticated people could read those codes and maybe guess at what was going on.
But it meant that, for most people, gay people were not a part of the media landscape, were not a part of the world that they knew.
So not only were they unlikely to realize that they knew gay people, because the people in their lives were so careful to hide themselves, but, also, they didn't have other ways on the screen to learn about gay life. And in that context, again, it was easier for more frightening stereotypes to emerge.
Q. So the fourth area that you mentioned you would give some examples of, I think you called it "demonization" or "stigmatization."
So what did you mean when you said that gay people have been demonized or stereotyped or stigmatized?
A. Well, like most outsider groups, there have been stereotypes associated with gay people. And, certainly, in the case of gay people as a really despised group, a range of groups have worked together to -- (inaudible) in a coordinated way, but have cumulatively served to develop stereotypical images of gay people.
There is -- certainly, many clergy in churches considered homosexuality to be a sin and preached against homosexuality. So people heard those sermons. And then, especially in the last generation, have led campaigns against
gay rights.
Doctors began to pay attention to questions of sex perversion in a more sustained way in the late 19th century, and sort of from the beginning assumed -- most of them assumed this to be a pathology. And they reinforced a range of stereotypes associated with gay people. Certainly, they were pathological, sick, something wrong with them, something wrong with their bodies.
A lot of the early medical literature in the late 19th and early 20th century focused on gender nonconformity as an essential component of sex perversion, and so talked about mannish women and effeminate men as the sort of quintessential emblems of homosexuals; and, indeed, thought that homosexuality was one sign of a more general gender inversion or reversal of
one's gender role.
And some doctors went on -- at a time when a good many doctors were arguing that it would be dangerous for a woman to take a job because it might hurt her reproductive capacities -- were arguing that women who wanted the vote, or women who smoked cigars, or women who engaged in strenuous
athletics somehow share the kind of pathology of inversion that lesbians did.
In the 1920s, Freudian theories became -- began to become more important, which thought less as a bodily issue, as homosexuality emerging out of the body, and more a psychological construct?
And Freud's American followers were actually more conservative than Freud himself. But they typically imagined homosexuality to be a sign of arrested development, that for a variety of reasons, a child's inability to identify with the right parent or some trauma, that they didn't go through the full developmental process to become heterosexuals and were stuck in a homosexual stage. And so this sort of image of homosexuals as immature became very powerful.
And then in the -- I think, in some ways the most dangerous stereotypes for homosexuals really developed between the 1930s and '50s, when there were a series of press and police campaigns that identified homosexuals as child
molesters. As not just effeminate queens you might laugh at but had no real reason to fear, but actually as hyper men who were unconstrained by women and who threatened the nation's children.
And this image was really driven home in a series of press campaigns around the country, usually sparked by some particularly awful murderer or attack on a child. Although, almost all of those attacks were men attacking girls. But
under the theories of the day, that ended up being something you could lay at the feet of homosexuals.
Q. So did this -- how did the -- let me just ask it this way. How did gay people go from being kinds of pathetic or amusing, or something like that, more sick, to being frightening?
A. Well, there's this sort of intellectual answer to that, this sort of intellectual theory. But I think probably – just to keep my answers a little bit briefer -- probably the important thing to stress here is the cultural process driving
this.
Again, a series of press campaigns against assault on children, which focused on sex perverts or sex deviants. And the homosexual emerged as the quintessential sex deviant.
And these campaigns took place in cities across the country, beginning in the late '30s, and then, really, with special force in the late '40s and early '50s.
And the national magazine literature chimed in. Governments responded to the outcry by the press and the people, by establishing special commissions to study the problem of what they usually called the deviated criminal sex
offender. Which came up with recommendations like indeterminate sentencing laws. So that someone who was convicted of such a range of offenses, was suspected of being a sex deviant, could be a sex psychopath, which was usually traditionally used, could be committed to psychiatric observation; if determined to be a sex psychopath, committed for an indeterminate sentence. So that they would be kept in a sort of prison slash mental institution until they had been cured of their pathology.
Very -- although, it was sort of the worst kinds of murderers and rapists who were kind of behind the impetus for this, in the end, most D.A.s didn't want to send those folks to a mental institution, so they went to prison. And it was
typically the more minor offenders who were sent to the mental institutions, and quite a lot of homosexuals amongst them.
And very quickly, actually, the doctors who were charged with curing them complained that they couldn't cure -- quote/unquote, cure homosexuals; they couldn't turn them into heterosexuals.
So this -- and, again, this was given the imprimatur of government officials. So it's hard to overstate the – the extent of the fear in the press campaigns on the part of many Americans, and the way this really built this image of homosexuals as child molesters.
Q. Was there any foundation to the charge?
A. Well, again, as I've said, in looking at the press coverage, it's really striking that most of the stories are actually about men attacking girls. There would not appear to be a basis for this charge.
Q. Would you take a look, for a moment, at the exhibit that's marked Plaintiffs' 851. It's in the big binder.
A. Yes.
Q. Would you just identify that for the Court.
A. This is an article that I wrote, called, "The Post War Sex Crime Panic."
Q. And could you look at the page that you pointed to me earlier. I think it's 171. And you were mentioning the press statements about this -- you know, perpetuating this idea.
Can you read into the record the press quote that you have referred to.
A. You're referring to the Coronet quote?
Q. Yes.
(Reporter interrupts.)
A. Sorry. This is a quote from an article published in Coronet Magazine, in the fall of 1950. Coronet was a very popular magazine that went into homes all over the country.
It published in this issue an article called, "New Moral Menace to our Youth."
(Reporter interrupts.)
"New Moral Menace to our Youth." And the section that I quoted in this article reads:
"Once a man assumes the role of homosexual, he often throws off all moral restraints. Some male sex deviants do not stop with infecting their often innocent partners. They descend through perversions to other forms of depravity, such as drug addiction, burglary, sadism, and even murder."
Q. How do you interpret that language?
A. Well, I think it's -- one, it's a sign of the way that sort of moral arguments and psychological arguments about homosexuality were merged here, as they often were, so that this is really an argument about depiction of homosexuals as subjects of moral decay.
So that when he throws off all moral restraints, once he breaks the bounds and is willing to become a homosexual, then he can do anything, if he does that.
And that they will go on to infect other people. So a sense of homosexuality as a disease. Not just a randomly contagious disease, but one in which the carriers infect other people with.
And this reference to infecting their often innocent partners, the term "innocent" pretty clearly indicates they are talking about children.
Q. Thank you.
MS. STEWART: Your Honor, I would like to move Exhibit 851 into evidence.
MR. THOMPSON: No objection, Your Honor.
THE COURT: 851 will be admitted.
(Plaintiffs' Exhibit 851 received in evidence.)
BY MS. STEWART:
Q. I think you mentioned earlier, Dr. Chauncey, that government played a role in perpetuating this idea, or in distributing it in any way. I would like you to look at the same exhibit, but this time the quote that I think you pointed me to on page 170.
A. Right. This is a statement by a Special Assistant Attorney General of California, made in 1949, that I've seen reprinted a number of places. It says:
"The sex pervert, in his more innocuous form, is too frequently regarded as merely a queer individual who never hurts anyone but himself. All too often, we lose sight of the fact that the homosexual is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims."
Q. How widely were these kinds -- I mean, you mentioned Coronet Magazine. But was this a message that was widely circulated?
A. Uhm, yes. As I said, these -- this particular quote I've seen reprinted in a number of places. But there were media campaigns. Many magazines published articles on this issue.
Local newspapers did.
And I actually think you sort of see in the A.G.'s quote here, the attorney general's quote, this sort of – his argument against an older understanding of homosexuals as being relatively innocuous. You might laugh at them or pity them, maybe worry about them. But, in fact, they are really dangerous and seducers.
Q. Did the messages -- you know, were they largely addressed to adults, or did they also reach the ears of children?
A. Well, they were mostly addressed to adults who were, of course, concerned, understandably concerned about the safety of their children, and were being taught to believe that homosexuals posed a threat to their children.
But this is also a time when school districts, in response to the growing concern about this, began issuing brochures to school children, warning them to avoid strangers, and that sort of thing. The sorts of things that are done
today, many of which we would all understand and support. But some of these really bred a fear of homosexuals in particular.
There was actually an educational film produced in 1961, I think, by a fellow who made a lot of educational films for the California school system, called, "Boys Beware," which was -- really, warned boys that they needed to be aware of homosexuals; that homosexuals couldn't be detected, and were
out to -- and were sick, and were out to infect people like them; and might lead to really very dangerous situations.
So, again, sort of focusing in on the danger that homosexuals posed.
Q. Dr. Chauncey, I want to ask you to look at and read from one more exhibit on this topic. And that is one we admitted earlier, 2337. It's that U.S. Senate report. And I think you pointed me earlier to page 4 of that report, as an example of this.
Can you find that and read that to the Court.
A. Right. Right. So the -- the report gave a variety of reasons to explain the unsuitability of sex perverts, quoting their language, which included their immaturity, instability, the fear that they were liable to blackmail, and so forth and so on.
And one of the arguments that they made was that they actually could endanger young people working in a government office. So, just to quote the paragraph to that effect: "Most of the authorities agree and our investigation has shown that the presence of a sex pervert in a government agency tends to have a corrosive influence upon his fellow employees. These perverts will frequently attempt to entice normal individuals to engage in perverted practices.
This is particularly true in the case of young and impressionable people who might come under the influence of a pervert. "Government officials have the responsibility of keeping this type of corrosive influence out of the agencies under their control. It is particularly important that the thousands of young men and women who are brought into federal jobs not be subjected to that type of influence while in the service of the government. One homosexual can pollute a government office."
Q. Dr. Chauncey, this is, as I think you testified earlier, a Senate subcommittee report for the U.S. Senate. Did it influence other government agencies?
A. Well, as I've said, they encouraged the tightening of procedures to regulate, to ferret out and dismiss homosexuals.
And then in 1950 -- sorry, 1953, President Eisenhower issued the order banning them altogether, systematically.
I guess, it seems to me, perhaps what's most significant about this is just the degree to which it's giving the imprimatur of senior government officials to these images of stereotypes of homosexuals.
Q. Was there state or -- I think, state legislative action in -- you know, in light of this sort of attitude of gay people as deviants or perverts?
A. Well, I believe I've talked about that already, but both the federal policies and then state policies that discriminated against employees.
Q. Uhm, when people were determined to be perverts within the course of this -- or as defined by this kind of report, did they end up in jail?
A. Well, they could. To say here, the -- I mean, this is, again, sort of one element of a wide range of things that I have discussed. And I've talked about the laws that have been put in place prohibiting gay people from assembling in public, bars and restaurants, and so forth.
In response to the local press campaigns, which then went -- really went national periodically, in the late '30s and late '40s and early '50s, there was a tremendous escalation of the enforcement of those regulations across the country. So that there was a tremendous escalation in the number of raids
on gay bars, on the arrest of gay people.
Certainly, in New York City the statistics jumped dramatically in the late '40s and early '50s, in response to these campaigns. You know, the police felt they needed to show that they were doing something to deal with these problems.
And cracking down on gay bars or interrogating the men who were on the list they often had developed, of homosexuals in the city, was one way of doing that.
And so people, you know, were under much greater risk. And at those moments many people did avoid going to those meeting places, for fear and it could have, really, life-changing effects on people.
I interviewed one person in New York, who was a librarian who worked at the New York Public Library, the huge marble building, Central Library at 42nd Street and Fifth Avenue. And he was arrested in one of these sweeps on a gay-related charge; spent a couple of days in jail.
And he told me the story of how when he returned to work, after being released from jail, he discovered that his employers had learned that he was gay. And his supervisor met him at the door, marched him down the hall, fired him publicly. Had him collect his personal effects, and marched him down the hall.
And he said that not only was it, of course, horrifying, the thought that he might lose his career, but that he -- he was humiliated by having all of his fellow workers, who he had known for years, come to the door and watch him be escorted out, knowing that he had been arrested on a homosexual charge. That sort of story happened many times.
Q. I want to ask you what you think the most enduring legacy is of the years that these sort of demonic stereotypes emerged on gay people or their place in our country.
A. Well, I guess, I think there are really two.
One is that the -- the growing crackdowns, police campaigns against gay life, the federal campaigns of soldiers and then civilian employees, actually led to the start of the very earliest gay rights movement or homophile movement, as it was called in the '40s and '50s.
So small groups of people -- there was a small group from New York. The best-known group started in Los Angeles and San Francisco, actually -- started to try to counteract this.
Now, of course, they remained very small for years. But we see the origins of the gay rights movement and the response to the systematic discrimination and demonization.
And I guess, on the other hand, I see the creation and then re-enforcement of a series of demonic images of homosexuals that stay with us today. And so the fear of homosexuals as child molesters or as recruiters continues to have -- play a role in debates over gay rights, and with particular attention to gay teachers, parents, and married couples, people who might have close contact with children.
Q. Another area you mentioned in your list of opinions that you were going to give today was that gay people have suffered sustained hostility and prejudice. And I wondered if you would give us an example of how hostility and prejudice have affected gay people.
A. Uhm, well, one would be the violence that many gay people face. And so the general hostility towards them, and prejudice towards them, which -- and for many years the sense that the police would do nothing to defend them, made them liable to violence of various kinds, if they were identified as gay.
Our evidence about this is sketchy for the earlier periods. But, certainly, I've heard stories, and other historians who have worked on this have been told stories of people being attacked when they were identified as gay.
And that, you know, we have more recently statistics. The FBI has been collecting hate crime statistics. And they show it averages about 1500 hate crimes a year, across the country, directed at lesbians and gay men, or people perceived to be gay.
There have been studies done in some of the big school systems. The California school system produced research that was analyzed, that estimated that 200,000 students in California's junior high schools and high schools are harassed for being gay or perceived for being gay, every year; that a good number of those harassed several times.
So that -- and then we, of course -- many of us are familiar with the most famous examples of this, a handful of incidents that have achieved -- have received a lot of media attention.
Matthew Shepard's murder in 1998, in Laramie, where he was met by a couple of guys who drove him out to the country and tied him to a post and pistolwhipped him, and left him to die, just a year and a half ago or so.
Larry Folks King, a 15-year-old student in a junior high school here in California, who was shot in his school's computer lab by a -- and killed by a boy who later explained that Larry had said he was attracted to him.
So that it's -- but these are the sort of very famous examples, and the studies that show how pervasive it is.
And so I would say that I think more than the policing, the official policing of gay life, it's that fear of vigilante violence that really affects the lives of many gay people.
When a gay couple walks down the street, if they have second thoughts about holding hands it's not really because they are afraid the police are going to come out, these days, and put the handcuffs around them. It's that they are afraid someone who sees them could harass them verbally or physically.
So I think that that -- the scope of that violence is one of the most powerful continuing effects of these campaigns of generating prejudice and hostility.
Q. I want to ask you to take a look at Exhibit -- Plaintiffs' Exhibit 873, and identify that for the Court, if you would.
A. These are hate crime statistics. I presume that these are the hate crime statistics produced by the FBI. They look like that. Although, it doesn't say on the first page that I have.
Q. Can you take a moment to look at it.
A. Yes.
Q. It appears that the first page is missing, and I'm not quite sure why.
A. Yes, but I see here in the introduction:
"In response to the passage of Hate Crime Statistics Act of 1990, the Attorney General designated the FBI's Uniform Crime Reporting Program to develop and implement a data collection system."
Q. If you look at the second page, or the page that's labeled "2," you see it appears to be dated 1998? Or at least it appears to be reporting on crimes in 1998?
A. Yes, 1998, uh-huh.
Q. And, then, I would also like you to look at the next exhibit, actually, 874, and tell me if you recognize that.
A. Yes. This is a document, "Safe Place to Learn Consequences of Harassment Based on Actual or Perceived Sexual Orientation and Gender Nonconformity, and Steps for Making Schools Safer."
So this is a document put out by the California State Schools Coalition, about the harassment.
Q. And is this the document from which you got that 200,000 figure?
A. Yes, this is, uh-huh.
Q. Do you recall whether 873 is the document from which you got your figure of 1500 or so?
A. Yes, this does look like that document, yes.
MS. STEWART: Your Honor, I would like to move those two exhibits, 873 and 874, into evidence.
MR. THOMPSON: Your Honor, I don't believe these were disclosed to us on Sunday night, in the e-mail. I'm not anticipating a problem.
Could they be provisionally admitted, and then at our next break, or in the morning, we could clarify whether we have an objection?
THE COURT: That will be fine.
MR. THOMPSON: Thank you, Your Honor.
MS. STEWART: I wish I could respond. I know we provided a pretty long list.
That's probably the best way to deal with it.
THE COURT: All right. Well, Mr. Thompson is quite properly allowing this matter to be worked out.
So how much longer do you have with this witness?
MS. STEWART: Your Honor -- I'm going to say about 45 minutes.
THE COURT: Okay. Maybe you can pick up the pace.
MS. STEWART: Okay. Will do.
MR. THOMPSON: Your Honor, Counsel has kindly showed me that they did disclose this. We have no objection.
THE COURT: Very well. Thank you, sir.
(Plaintiffs' Exhibits 873 and 874 received in evidence.)
THE WITNESS: Sorry, Your Honor. I will try to keep my answers shorter.
THE COURT: Well, if the questions are shorter and answers are shorter, why, we will just move it along.
(Laughter)
BY MS. STEWART:
Q. You described anti-gay violence as one example of a hostility and prejudice against gay people.
Can you give us one more example?
A. Yes. I think that the -- that the whole series of referendum initiatives we have seen since the mid to late '70s, over gay rights, are another example of continuing prejudice and hostility.
Maybe I should step back a second and try to briefly put this in larger historical context.
I've described the way that rules of secrecy/discretion really govern gay life in response to this discrimination and policing.
And part of what happened in the 1970s is that growing numbers of gay people decided to come out. And, indeed, the gay liberation movements in the 1970s shared the feeling of many other movements of that period, of African-American, Asian-Americans, other groups, that were searching for dignity as well as rights.
And more and more people felt that they really ought to have the rights to be openly gay. There are a variety of reasons for this. I won't go into those.
But that really set in stage a kind of confrontation, as they began advocating both the rights to be openly gay and antidiscrimination legislation to protect them.
And beginning in the 1970s, about 40 towns and cities enacted antidiscrimination laws. Another 40 did in the 1980s. And this very quickly produced a response. And the most famous, really, of that response was a
campaign called, "Save Our Children," in Dade County, Miami, Florida, in 1977, led my Anita Bryant, a famous Baptist singer, which was designed to overturn the local metro council's enactment or adding sexual orientation to the antidiscrimination law.
And this was a very effective campaign that – and its very name, "Save Our Children," revived -- drew on and revived these older stereotypes of homosexuals as child molesters, and led a successful campaign to overturn that.
And this inspired a series of campaigns in the late '70s and early '80s, and then another major round of campaigns in the late '80s and early '90s. So that the figures vary.
But let's say in the 20 years after, there were at least 60 of these campaigns, usually to overturn existing gay rights ordinances, and about three-quarters of which succeeded in doing so.
Q. Three-quarters of which succeeded in doing so?
A. Yes, in overturning gay rights ordinances.
Q. Have you looked at some of the historical records for the Save Our Children campaign?
A. Yes. And I teach about this campaign, and I have looked at some of those records.
Q. Can you take a look at Exhibit 1621, Plaintiffs' 1621, in your binder.
A. 1621?
Q. Yes. I think it's in your smaller binder, actually.
A. Okay.
MR. THOMPSON: Your Honor, we object to the witness testifying to this document. It was not listed as a material considered.
Plaintiffs also provided a supplemental list of materials considered, and I don't believe it was on that either.
MS. STEWART: Your Honor, two things. I think it was on the supplemental.
But, in any event, Professor Chauncey discussed the Save Our Children campaign at great length in his report and in his deposition, and was examined about it extensively.
And, you know, this is -- he did rely on a source which was a book that in turn quoted from this document, and thought that the Court ought to be provided with the original source document.
And another reason I think --
THE COURT: Well, but was the document identified to the proponents --
MS. STEWART: It was identified --
THE COURT: -- as being used with this witness in his direct examination?
MS. STEWART: Yes.
THE COURT: It was?
MS. STEWART: Yes.
MR. THOMPSON: Yes, Your Honor. We would admit, it wasn't within 48 hours. But leaving that to the side – they were a little late on that.
But the more important point is that, under Rule 26, they were obligated to provide us with the documents that he considered in connection with his report, so that my deposition could be thorough going on this issue.
THE COURT: I see.
MR. THOMPSON: And I did not get this document prior to his deposition. And my records reflect, I did not get notice of this until Sunday night.
And there are many documents that fall in this category. If it were just one, I would let it go. But I will be making this objection repeatedly, Your Honor.
MS. STEWART: I don't have that many more documents to introduce, so I'm not quite sure. First of all, it was disclosed. It was put on the --
THE COURT: I understand it was disclosed for the witness's trial testimony. But Counsel is saying it was not disclosed in connection with his -- with the witness's deposition; and, therefore, Mr. Thompson didn't have an opportunity to examine the witness concerning this document.
MS. STEWART: But, Your Honor, it was discussed in this book, Out for Good, which was a source cited in the report and provided quotes from the document.
And, furthermore, another reason the Court ought to give us a little leeway here, I think -- or at least I would request it -- is that the defendant-intervenors have refused to testify at all about their messaging in this case.
And connection with that, the Ninth Circuit suggested that we have our expert witnesses comment on their messaging.
And, very shortly, I intend to turn to that. But one way that Dr. Chauncey --
THE COURT: This is not part of the proponents' message –
(Simultaneous colloquy.)
MS. STEWART: Well, he's a historian, Your Honor. And so the way that it's appropriate for him to comment on messaging is comparative.
And, so, because he did testify in his deposition, and was cross-examined about the Save Our Children campaign, and it was -- that campaign was discussed in the report, and quoted from some of these materials -- actually, this document was in -- was quoted in the book, and referred to in the report -- I don't think there's any prejudice. And, certainly, Counsel can fully cross-examine him on it today or tomorrow.
THE COURT: I gather the book was identified in connection with the witness's deposition?
MS. STEWART: Yes, it was, Your Honor.
THE COURT: Well, that may be your way of referring to the content. But I'm going to sustain Counsel's objection.
MR. THOMPSON: Thank you, Your Honor.
BY MS. STEWART:
Q. Dr. Chauncey, I would like to ask you to look at Exhibit 864.
MS. STEWART: Your Honor, may I approach?
THE COURT: You may.
BY MS. STEWART:
Q. Dr. Chauncey, would you -- before we look at this exhibit, would you tell the Court generally about the themes that were used in the Save Our Children campaign that Anita Bryant led in 1977?
A. Yes. When they began the campaign their polling data showed that there was a margin of support for the anti-discrimination ordinance and that groups that they were worried would support it, they needed to persuade.
And so they decided to focus on some of what they argued were the consequences of allowing an anti-discrimination law to stand, and they focused particularly on the effects that this might have on children.
They made a variety of arguments, but two of them were that the simple tolerance of gay people -- or allowing gay people to be open, particularly if they were teachers or in other positions where they might interact with children, would allow them to serve role models -- as role models that would
encourage children to become homosexual themselves.
There was sort of -- there was a presumption here that sexual identity is unstable, that children are easily swayed to homosexuality, and that this would be a real danger.
And then they emphasized that point by drawing on the stereotypes, whose development I have described, to argue that homosexuals were child molesters and that, in effect, to allow this anti-discrimination ordinance to stand would be to release homosexual predators onto the children of Miami.
I would comment, also, they periodically would sort of say, We are willing to tolerate homosexuals so long as they don't flaunt their lifestyle, which was just basically to say so long as they aren't open about being gay.
So I think you get a sense there of the kind of conflict that was being set up in the 1970's as more gay people were insisting on their right to be openly gay and a pretty clear reaction against that.
Q. And was there discussion in the campaign materials about homosexuals threatening heterosexual people's rights or other people's rights or forcing themselves on people?
A. That's sort of aligned with the point I just made, the sort of sense that to allow gay people to be open, have these rights, would make them a protected class and would sort of force themselves on other people simply by being open.
Q. Dr. Chauncey, would you take a look at page 303 of Exhibit 64 to the book Out For Good. And look at the bottom of that page, the second to last paragraph, and read the language in quotes that is ascribed to Anita Bryant in connection with that campaign.
A. She is quoted here as saying:
"Some of the stories I can tell you of child recruitment and child abuse by homosexuals would turn your stomach."
Q. Would you also quote from the newspaper advertisement that's quoted further down in that paragraph?
A. (As read)
"This recruitment of our children is absolutely necessary for the survival and
growth of homosexuality, for since homosexuals cannot reproduce, they must
recruit, must freshen their ranks. And who qualifies as likely recruits, a 35-year-old father or mother of two" -- sorry. "Who qualifies as a likely recruit, a 35-year-old father or mother of two, or a teen-age boy or girl who is struggling, surging with sexual awareness?"
Q. And after you testified in deposition in this case, did you request that we seek to find the original article that you just quoted from?
A. Yes.
Q. And is that what exhibit -- the exhibit that was not admitted is?
A. I will have to check the footnotes to confirm that, but I believe that's the case.
MS. STEWART: Your Honor, while the witness is confirming that, I would like to offer Exhibit 1621 for judicial notice.
Even -- there is no question about the authenticity of the document, or at least that's what we have been told, and so I would request that the Court take judicial notice of the document.
MR. THOMPSON: We have no objection, your Honor.
THE COURT: Very well.
BY MS. STEWART:
Q. Dr. Chauncey, just to make it easier, if you look at --
A. Yes. The quote I read you from the newspaper is from the article.
Q. Would you take a look as well at the -- I'm sorry. Going back to Out For Good, the Exhibit 864, the top of page 304, and read the material quoted from the Miami Herald advertisement that's at that part of the book?
A. Okay. So this is from an ad. It reads:
"There is no human right to corrupt our children. Many parents are confused and don't know the real dangers posed by many homosexuals and perceive them as all being gentle, non-aggressive types.
"The other side of the homosexual coin is a hair-raising pattern of recruitment and outright seduction and molestation, a growing pattern that predictably will intensify if society approves laws bringing legitimacy to the sexually perverted."
Q. Dr. Chauncey, would you turn to page 306 of Out For Good and read the language quoted from Anita Bryant in the bottom paragraph about the middle of that paragraph?
Well actually -- yes. It begins, "Homosexuality is a conduct."
A. (As read)
"Homosexuality is a conduct, a choice, a way of life. And if you choose to have a lifestyle as such, then you're going to have to live with the consequences. It's not a sickness, but a sin."
Q. Last, Dr. Chauncey, would you take a look at page 308 of Out For Good, and take a look at the bottom of that page and read the language that Anita Bryant is quoted as saying in her written victory statement to her audience?
A. She is quoted as saying:
"Tonight the laws of God and the cultural values of man have been vindicated. I thank God for the strength he has given me and I thank my fellow citizens who join me in what at first was a walk through the wilderness,
the people of Dade County. The normal majority have said enough, enough, enough. They voted to repeal an obnoxious assault on our moral values despite our community's reputation as one of the most liberal areas in the country."
Q. Professor Chauncey, did the Save Our Children campaign have an impact outside Dade County, Florida?
A. Yes. The success of the campaign inspired other groups around the country to start referendum campaigns to revoke anti-discrimination laws bearing on homosexuality.
There was a series of campaigns, St. Paul, Eugene, California, in the late 70's and early 80's. Two of them were unsuccessful. One, the Brinks initiative here in California, one in Seattle when the others passed.
And then, as I think I said before, over the next 20 years or so there were dozens of such campaigns designed primarily to overturn such anti-discrimination laws, but sometimes to engage in other -- to in other ways restrict homosexuals.
Q. Professor Chauncey, when we started today, you expressed your expert opinion that the history of discrimination that you have recounted has had continuing effects today. And I want to wrap up by talking a little bit about the Proposition 8 campaign.
Are you familiar with the initiative called Proposition 8?
A. I am.
Q. And how do you understand the purpose and effect of Proposition 8?
A. It was a proposed vote on a proposed amendment to the California constitution, which would have restricted marriage to a man and a woman. And it was put on the ballot in response to the California State Supreme Court's decision that gay couples did have marriage rights, and it passed and did take those rights away.
Q. And is this Proposition 8, this measure, representative of the history that you have described of a large number of direct democracy campaigns that are hostile to gay people?
A. I do think as a historian that the wave of campaigns that we have seen against gay marriage rights in the last decade are, in effect, the latest stage and cycle of anti-gay rights campaigns of a sort that I have been describing; that they continue with a similar intent and use some of the same imagery.
Q. And have you reviewed some of the materials that advocated the passage of Prop 8?
A. I have.
Q. And do you believe that some of the stereotyped images of gay people that you have described today can be seen in those materials?
A. I do.
Q. And is one of the things that you reviewed today the Official Voter Guide?
A. Yes, I did review that.
Q. I'm going to ask you to read a few passages from that. Would you turn to Plaintiffs' Exhibit 1, which I believe is in your skinny binder.
A. It's here. Yes.
Q. And if you would turn to the argument in favor --
THE COURT: I believe Exhibit No. 1 is in evidence, isn't it?
MS. STEWART: Yes, it is, your Honor.
BY MS. STEWART:
Q. ...the argument in favor of Proposition 8 on -- well, the page is marked 56, I think, of the ballot pamphlet.
A. Right. It would have been 56 from the Voter Guide.
Q. Would you start by reading the text of the seventh paragraph that begins, "It protects our children"? It's the paragraph after the --
A. (As read)
"It protects our children from being taught in public schools that" -- sorry. I'll go more slowly.
"It protects our children from being taught in public schools that same-sex marriage is the same as traditional marriage."
Q. Would you also now read the first full paragraph in the right-hand column that begins, "We should not accept"?
A. Okay. I would actually like to read the next paragraph, following the one I just read.
Q. Okay.
A. (As read)
"Proposition 8 protects marriage as an essential institution of society. While
death, divorce or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father."
And then to go the passage you mentioned.
"We should not accept a Court decision that may result in public schools teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn't be forced on us against our will."
Q. And then would you read the passage, the second sentence of the paragraph after the one you just read?"
A. (As read)
"However, while gays have the right to their private lives" --
Q. I'm sorry. The sentence immediately above that.
A. Okay.
"Proposition 8 does not take away any of those rights and does not interfere with gays living the lifestyle they choose."
Q. And then read the sentence you were about to read.
A. (As read)
"However, while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else."
Q. Could you explain how you believe the messages in these arguments reflect the stereotypes whose historical origins you have already discussed today?
A. Well, I think, in part, they certainly are premised on the notion of the inferiority of gay people, gay people in their relationships.
So to argue that the best situation for a child is to be raised by a married mother and father is to argue that a married heterosexual couple was superior to a gay couple.
So it continues the long history that I have described, which is presumed the inferiority of gay people.
And then it focuses on children, not calling them child molester -- gay people child molesters and so forth, but warning that we should not teach our kids that gay marriage is okay; that it shouldn't be forced on us against our will.
In effect, that we should not be told that gay marriage, in effect, gay equality, which I think is linked to the openness of gay people on their call for the full
recognition of their rights that other people enjoy, their right to be public in their relationships, that we shouldn't have to expose our kids to that.
And this sort of image, it shouldn't be forced on us against our will and it evokes that -- the fears of the aggressiveness of the sexual -- and the society, that they do not have the rights to -- however, while gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.
Again, they have the rights to do what they want to their own, just don't make us take note of it. So their rights to be open about who -- who they are and about their relationships is less important than our rights and not have to
recognize them.
Q. And in that Voter Guide on several -- in several places uses the language "protects our children." How do you interpret that language?
A. Well, you have to ask the question, protect against what?
And it evokes, for me, the language of saving our children, the need to protect children from exposure to homosexuality; not just from exposure to homosexuals as presumed child molesters, but protecting them from exposure, from the idea of openly gay people.
Q. I would like to ask you to look now at -- sorry. Give me a moment.
Let me do this. Professor Chauncey, have you reviewed any the television ads that were broadcast in California in support of Proposition 8?
A. I have.
Q. Do you believe the messages in those campaign ads reflect the stereotypes whose history you have described?
A. Umm, I think they do. I mean, they're certainly more polite than the ads that Anita Bryant used 30 years ago.
It's a sign, I think, of how the place of gay people in American society has changed and what one can say in polite society about gay people has changed.
But I guess I was especially struck by -- I think those ads in general focused -- what their focus in protecting their children, the concern about people of faith, religious institutions somehow being harmed by the recognition of gay
marriage are in them.
But what I suppose is most striking to me is the image of the little girl who comes in to tell her mom in the kitchen that that day she read a book in school called King and King, and she learned that a prince can marry a prince and
maybe I can marry a princess.
And so here I think you have got a pretty strong echo of this idea that simple exposure to gay people and their relationships is going to somehow lead a generation of young kids to become gay.
MS. STEWART: Your Honor, I would like to show some of the short video ads, the ones that are marked Exhibits 29, 99, 91, 15 and 16.
(Brief pause.)
MS. STEWART: Your Honor, I will offer in evidence all five of them, to the extent they are not already admitted.
I think one or two of them may already have been admitted yesterday.
(Discussion held off the record amongst plaintiffs' counsel.)
MS. STEWART: 99 and 15 are in, your Honor.
THE COURT: Under a different number?
MS. STEWART: No, same number.
THE COURT: All right. So 15 and 91 are in.
MS. STEWART: 99. Sorry, your Honor.
THE COURT: 99, I'm sorry. And you are offering?
MS. STEWART: 29, 91 and 16.
THE COURT: Hearing no objection.
MR. THOMPSON: Your Honor, we don't anticipate any objection, but could we just see the ads and then we will say "no objection" once we see them?
MS. STEWART: That would be fine with me, your Honor.
(Videotapes played in open court.)
MR. THOMPSON: Your Honor, having seen the videos, we have no objection to their being admitted.
THE COURT: Very well. 15, 16, 29, 91 -- well, those four are admitted.
(Plaintiffs' Exhibits 15, 16, 29, 91 received in evidence)
BY MS. STEWART:
Q. What are some of the key messages being communicated in these ads that you think reflect the history of discrimination you have discussed with us today?
A. Well, again, the sense that the inequality of gay people and their relationships; that marriage will convey equal status to gay people and their relationships.
The fear of something being forced on people, which certainly animated many of the referendum campaigns that I've mentioned, designed to put it to a popular vote, popular resistance to something being imposed on them by legislators for the courts.
And this focus on children, I think, is the most striking thing; that we have to protect our children from exposure to the idea of gay marriage, which was a sign of the full equality of gay people and of our recognition of them.
And, certainly, the implication, as I said, in that ad that such exposure could actually lead children who have unstable sexual identities to become gay --
Q. I would like to --
A. -- the fear of that.
I mean, there clearly, the underlying message here is something about the -- the undesirability of homosexuality, that we don't want our children to become this way.
Q. Thank you.
I would like to just quickly have you look at two print ads and then we will be about ready to wrap this up.
I would like you to look at Exhibits 1763, which I -- I'm hoping our tech people can put on the screen.
MR. THOMPSON: Your Honor, we object to Dr. Chauncey testifying to this document. We do not object to its being admitted into evidence, but this was not disclosed in his expert report as material considered.
THE COURT: Ms. Stewart?
MS. STEWART: Your Honor, it's correct that it was not. He had not yet seen it at the time. We were still getting discovery from the plaintiffs at that time.
And so much of the written material -- I can't say for certain that this one came before or after, but the material we were getting from the plaintiffs was coming in quite late.
MR. THOMPSON: Your Honor, I can say definitively, and this was in the first production well before the expert report was due on October 2nd.
THE COURT: The objection is this was not disclosed at the time the witness was deposed?
MR. THOMPSON: Yes, your Honor. And it would violate Rule 26, when this was in possession of the plaintiffs before his report was due, for him then to come into court now and for the first time offer his opinions on it.
MS. STEWART: Your Honor, if I might.
Again, the Ninth Circuit indicated quite late, that is in December -- and its decision wasn't even final until January 4th -- that we should use our experts to talk about messaging.
These are two exhibits. I'm just about done here.
But I think that because the delay in the plaintiffs producing their evidence and their refusal to talk about them led the -- to the understanding that we would need experts solely to comment on the messaging or at least it would be unlikely we would be able to get the plaintiffs to comment on them.
THE COURT: When did this particular document come into your possession?
MS. STEWART: That I don't know, your Honor, because the volume came at us fast and furious, but maybe one of my colleagues can answer the question.
MR. THOMPSON: It was in the first production.
MS. STEWART: What about the 1775?
THE COURT: When was that first production?
MR. THOMPSON: Your Honor, I know that the second production was September 18th. So I know it was before September 18th, and the expert reports were due on October 2nd.
And I would further add, your Honor, that they did a supplemental production of materials considered and this was not part of it.
So this is totally the first time that we – other than on Sunday night when we not the laundry list of documents that we had any idea that Professor Chauncey was going to testify about this.
THE COURT: Well, this is a little different in that this is a document that appears to have been produced by your client.
MR. THOMPSON: Yes, your Honor, but I --
THE COURT: It's unlike the Miami Herald article of 1977.
MR. THOMPSON: Your Honor, I have known about this document. We are proud of this document. We don't have a problem with it being admitted into evidence.
What we do have a problem with is under Rule 26 a witness coming in, never having disclosed it in his expert report, never having given any indication in the report he would opine on it, my not being able to depose him on it and
now he comes in, you know, trying to speak to it.
MS. STEWART: Your Honor, it's not deep. Professor Chauncey discussed at length in his report and in his deposition the messaging.
These are both simple documents, simple message.
And, you know, it's going to take less than a minute probably to get through this testimony. I don't think that this --
THE COURT: I'm not sure that's an argument for getting it in.
But inasmuch as this is a document of the defendant-intervenors and in view of your description and, I think, an accurate one of the Ninth Circuit's initial holding with respect to the scope of expert testimony, I think since the document is coming in, since it is a document of the proponents, that it's not unfair to permit the witness to testify about it and his conclusions concerning the document.
And so the objection will be overruled with respect to 1763.
MS. STEWART: And, your Honor, can -- 1775 is similar, although I think it may have been produced later.
THE COURT: Same circumstances?
MR. THOMPSON: Your Honor, there are the same circumstances. I won't repeat my objection, but we do have an issue about authenticity, which we may be able to resolve and we may be willing to let it come in provisionally.
But this is a photocopy and I have no idea whether this is actually a Protect Marriage -- you can see from the quality of it, it could have been digitally altered. It's not like the first document, which is one of ours.
THE COURT: Subject to an authenticity objection, then, you may proceed with 1775. And 1763 will be admitted.
(Plaintiffs' Exhibit 1763 received in evidence)
BY MS. STEWART:
Q. Dr. Chauncey, if you could just look at 1775 --
A. Seventy-four?
Q. Five.
A. Five.
Q. Can you describe the --
THE COURT: Well, have you asked him about 1763?
MS. STEWART: I know. I'm going to do them in reverse order, if that's all right.
THE COURT: I'm sorry. That's all right. It's your witness.
BY MS. STEWART:
Q. Dr. Chauncey, can you read the language of this sign into the record?
A. Yes. It says: "Yes On 8. Protect Marriage. You have the power to protect your children." Gives the website, ProtectMarriage.com.
Q. And what does the photograph depict?
A. It depicts what is presumably a married couple with their child. And so we see here, again, the indication of protecting marriage, the need to protect your children.
The question is, what are we protecting our children from? Actually, the image we see, the mother and father, in fact, protecting the child on either side of the child and expressing love for that child.
I mean, in many ways it's a wonderful image, but, again, it implies the inferiority of a same-sex couple with holding a similar child, and the -- the need to protect children from the exposure, I take it, to the idea of gay marriage and idea of gay equality.
Q. Dr. Chauncey, can you now look at Exhibit 1763?
MR. THOMPSON: And, your Honor, I have conferred with my client, who has confirmed this is not an authentic ProtectMarriage.com document.
So unlike the one that they are turning to now, which we have no objection as to authenticity, we do have an authenticity objection to the document that was just discussed.
MS. STEWART: Your Honor, if you would indulge me, what I would like to do is tomorrow provide you with the information about the document. Perhaps I can resolve with counsel the authenticity without even taking it up with the Court.
THE COURT: All right. We will see if there is a foundation for 1775.
BY MS. STEWART:
Q. And, Dr. Chauncey, would you read into the record the language of the -- what appears to be a flyer that is 1763?
A. Right. It says: "Yes On 8. Protect Marriage. Restoring marriage and protecting California children. You can help. Visit our website or call us for more information. www.ProtectMarriage.com," and a phone number.
Q. And can you describe the images on the page?
A. Well, there's both a graphic image at the top that shows dimensional graphics. A heterosexual couple, both holding up a banner saying "Protect Marriage" and implicitly protecting their children, standing on either side of their children. Then a series of photographs of happy heterosexual families.
THE COURT: How do you know they're heterosexual?
THE WITNESS: Okay. Let me say, mixed sex families.
BY MS. STEWART:
Q. Perhaps opposite sex would be --
A. Opposite sex families.
(Laughter.)
A. I don't know, but I think that's the implication of the picture in the context of the campaign. And I -- I believe that that's what's meant to be conveyed here.
And so, again, it's this reiteration of protecting California's children. What are we protecting them from? We are protecting them from exposure to gay people, gay people and the idea of gay equality and the full recognition of gay
relationships and the equality of gay relationships.
Q. Thank you.
Professor Chauncey, I have one more question and then I want to simply do some housekeeping and move into evidence some of your sources.
And the question is: Have you written about the parallels between from the religious debates over segregation and the religious debates over same-sex marriage? And if so, could you describe those parallels?
A. Well, that's a very delicate question and I hope I will be alert enough after two hours and 15 minutes of this to give you the answer I would like. Obviously, people of strong religious principle have supported Prop 8, organized Prop 8 to protect their vision of marriage, their understanding of what marriage should be.
Often their feelings are driven by deeply-held religious beliefs. We -- we tend to think of all the argument on the marriage debate as being on that side of the marriage debate and all the argument on the debate over civil rights in the 1940's, 50's and 60's as being on the other side because of the prominence of Reverend Martin Luther King and the black churches and the civil rights campaign.
But what's, I guess, striking to me is that – and many other historians have commented on this, written about this, is that, in fact, during the civil rights era, very many southern white Christians believed very deeply and sincerely that segregation was part of God's will for humankind.
Reverend Jerry Falwell himself preached a sermon in 1958 criticizing the Supreme Court's Brown v Board of Education decision as going against God's will and warning, actually, that it could lead to interracial marriage, which was then sort of the ultimate sign of black and white equality.
And so, I guess, I just want to suggest here that there are -- people hold their beliefs very deeply, and they read scripture by their own lights. You know, as we see in history, their interpretations of that scripture change over time.
And that in the -- I'm just struck by the degree to which religious arguments were mobilized in the 1950's to argue that -- against interracial marriage and integration as against God's will in a way that arguments have been mobilized in this campaign and the other -- many of the other campaigns I have described since Anita Bryant's argue that we need to do this because homosexuality itself or gay people or the recognition of gay people, the recognition of their equality, is against God's will.
Q. Thank you, Professor Chauncey.
Before we let you go, I would just like to ask you what the major sources were that you relied on today. And to speed things along here -- meaning the articles and books and other sources that you relied on for your testimony – your Honor, I would like to move some of those items into evidence.
Dr. Chauncey prepared a list for us, which might make it easier than reading the list of sources into the record, but I leave it to your Honor whether he would prefer it the other way.
THE COURT: I trust you have disclosed the list to Mr. Thompson?
MS. STEWART: We have not -- I mean, all of the documents on it were disclosed on Monday night and previously and.
MR. THOMPSON: Your Honor, may I propose that we look at the list overnight, and I'm sure we will be able to agree to things.
MS. STEWART: That would be fine.
THE COURT: You took the words out of my mouth, Mr. Thompson. Issues.
MS. STEWART: Thank you, your Honor. Then we will have that little bit of housekeeping in the morning or -- well, your Honor, you tell me your pleasure.
THE COURT: I think Mr. Thompson can get started. He has got 10 minutes or so and he looks like he's ready.
MR. THOMPSON: Let's roll.
THE COURT: All right. Cross examine, Mr. Thompson. I'll cut you off in 10 minutes or thereabouts, so find a spot in that vicinity and we will take our recess for the day at that point, but make it a convenient point in your
cross-examination.
MR. THOMPSON: May I approach, your Honor?
THE COURT: Certainly you may.
(Whereupon, a binder was tendered to the witness.)
CROSS EXAMINATION
BY MR. THOMPSON:
Q. Good afternoon, Professor.
A. Good afternoon.
Q. Just a little bit of background. You have donated money to the Lambda Legal Defense in the past, is that right?
A. I have in the past.
Q. And you have also donated money in the past to the Gay and Lesbian Advocates and Defenders, is that right?
A. I have in the past.
Q. And you strongly support the right of same-sex couples to have access to the institution of marriage, is that correct?
A. I do support the right of same-sex couples to have the right to marriage.
Q. And do you recall that the University of Chicago Magazine did a profile on you? It was -- it's Tab 4 in your binder and it's entitled "Moment of Decision." "Chicago Professor George Chauncey has spent a fair portion of his life fighting for civil liberties. His latest battle, historical scholarship."
Do you remember this article?
A. I do remember this article.
Q. And then --
A. Yes.
Q. And on the last page of the article it ends:
"George Chauncey is beyond question an advocate." And do you believe that to be true?
A. Excuse me. Where does it say that?
Q. The last line of the article. It says:
"George Chauncey is beyond question an advocate."
A. Umm, actually, I almost said this when you read the first line as well, the subtitle in this. This is journalist characterization and one that I would resist. I like the second line there, that "He is beyond question a historian's historian." So that, yes, I like that line.
(Laughter.)
Q. You get the bitter with the sweet.
A. So I would say that, yes, I do support the right of gay couples to marriage. And I distinguish that from my historical scholarship, which I have been very careful to try to be as accurate to the historical record as I can be.
Q. Now, I would like to go over some definitional issues with you.
When you use the term "homosexual" as a noun, you would be referring to people with identities which have primary erotic and emotional attraction to people of the same sex, is that right?
A. I wouldn't necessarily say "identities." People who have a primary erotic and emotional attraction to people of the same sex.
Q. Well, let's look at your deposition in this case, which is behind tab two and page 48, line 23. Let me know when you are there, Professor.
(Brief pause.)
A. Sorry, that was 48?
Q. 48, and let's actually start at line 16 to get the full context. I asked you:
"QUESTION: What do you mean by the term homosexual as you used it?
"ANSWER: Well, I" --
A. I'm sorry, I haven't found it.
Q. Oh, sorry.
A. Sorry. I was... Very odd way they paginate here on these condensed. So line 16?
Q. 16, yes, sir. I asked:
"QUESTION: So what do you mean by the term homosexual as you used it?"
And you answered:
"ANSWER: Well, in that context as I just used it I was using it objectively,
substantively to refer to sexual relations between people of the same sex."
"QUESTION: Can that word have a different meaning in a different context?
"ANSWER: Well, homosexual as a noun used to refer to -- usually would be used to refer to people with identities" -- and I believe this is -- "which have primary erotic and emotional attraction to people of the same sex."
You gave that testimony, right?
A. What I said here is that homosexual as a noun is --
THE COURT: The question is: Did you give that testimony?
THE WITNESS: Yes, sir, I did.
BY MR. THOMPSON:
Q. Homosexual as an adjective can describe sexual relations of people of the same sex even where one of them would not identify as a homosexual, correct?
A. Yes. I did write that, yes. I did say that.
Q. And most historians now would argue that categories of sexual difference that were available to people changed over time, correct?
A. Yes. Most historians would argue that.
Q. And although the gay male world of the prewar years was remarkably visible and integrated into the straight world. It was a world very different from our own, is that right?
A. I did write that, yes.
Q. Okay. Only in the 1930's, 40's and 50's did the now conventional division of men based on the sex of their partners replace the division of men based on their imaginary gender status as the hegemonic way of understanding sexuality, correct?
A. I was referring there particularly to men in immigrant communities, working class communities.
So as I show in another point in the book those sorts of identities had emerged earlier in middle class culture, so that broadly there is a shift in that period.
Q. And by the "book" you mean Gay New York?
A. Yes, Gay New York.
Q. And the ascendancy of the term "gay" reflected a reorganization of sexual categories, correct?
A. Yes.
Q. There was a transition from an early twentieth century culture divided into queers and men on the basis of gender status to a late twentieth century culture divided into homosexuals and heterosexuals on the basis of sexual object choice, correct?
A. Yes.
Q. Any such taxonomy is necessarily inadequate as a measure of sexual behavior, correct?
A. Yes, I did write that.
Q. The most striking difference between the dominant sexual culture of the early twentieth century and that of our own era is the degree to which the earlier culture permitted men to engage in sexual relations with other men, often on a regular basis, without requiring them to regard themselves or to be
regarded as gay, correct?
A. Yes. And here, again, I am generalizing for purposes of the introduction, I believe, to the particular groups of people I will talk about later in the book. They were different from other groups.
Q. And there were many men involved in same-sex relationships at that time who were also on intimate terms with women and went on to marry them, correct?
A. Yes.
Q. You would agree that whether homosexuality is good or bad, chosen or determined, natural or unnatural, is in the realm relief ideology and the subject to contestation, correct?
A. I did write that.
Q. And you agree with it?
A. Yes.
Q. And we are living in a time when a previously dominant ideological position that homosexuality is immoral or pathological faces a powerful and increasingly successful challenge from an alternative ideology which regards
homosexuality as neutral, healthy or even good, correct?
A. Yes, I did say that that ideology faced an increasingly powerful challenge.
MR. THOMPSON: Your Honor, I would suggest that this is a natural breaking point.
THE COURT: All right. Then that's fine. We will do our little housekeeping tomorrow morning.
Any matters to take up before we adjourn this afternoon?
MR. BOUTROUS: Your Honor, I had two matters, procedural matters, if I may.
THE COURT: Very well.
MR. BOUTROUS: The first issue, your Honor, relates to the motion we filed today. It's an administrative motion to file several documents under seal.
The only reason we filed them under seal was to put them before the Court to get the Court's guidance. They were produced pursuant to Magistrate Judge Spero's order compelling production of documents from the defendant-intervenors. They are documents that we believe are relevant.
We would like to use them with our witnesses, but they were produced pursuant to the attorneys' eyes protective order. As far as I can tell, there is absolutely no basis for covering them under the protective order and we would like to use them with our witnesses.
And since Mr. Thompson has been such a stickler for disclosure, I would note that we may not end up be being able to give quite as much notice as to these documents because we just received them and they should have been produced many, many months ago.
So I guess my question is how -- the best way the Court would like to resolve questions relating to documents we are just getting. They are producing them under a protective order.
Whether it makes sense to have Magistrate Judge Spero take a look first tomorrow while we are here in trial. Really, just wanted to get the Court's guidance.
THE COURT: Do you have any views, Mr. Thompson, or Mr. Cooper?
MR. COOPER: Your Honor, we really don't have any views to present to the Court on this very recently raised issue at this moment.
We will try to study on this issue this evening and have some views, at least half baked, for you in the morning.
THE COURT: I'm sure they will be fully baked.
(Laughter.)
THE COURT: At this juncture and since we may very well confront this problem going forward, would it delay matters to refer this back to the magistrate rather than for us to take it up right here, because you are planning to use or going to be using these documents, if you are permitted to,
with witnesses on the stand?
MR. BOUTROUS: It may delay matters, your Honor. And it's -- we are moving, I think, at a nice pace, but there are witnesses coming up that I think we want to use these documents.
I've looked at the documents. I can't say anything in detail right now because they are still under seal, but the burden, as the Court knows, is significant to sealed documents and there is -- these are documents that -- these are the
external documents that were sent beyond the core group as defined by the Ninth Circuit and by Judge Spero, who gave an even broader interpretation to the core group, I think, than was mandated.
And so these documents cannot in any way be deemed the kind of confidential protected information. And we really would like to use them. In fact, there are all kinds of issues I think they are directly relevant to based on today's testimony. So whatever the speediest manner we can do it in.
THE COURT: Which witness do you plan to use these documents with?
MR. BOUTROUS: I will certainly be using them with Professor Segura, who will probably come up possibly towards the -- on Friday, but more likely on Tuesday. And so that's probably the most likely, but it may be some of our witnesses earlier.
We are still just reviewing the documents and I think there are probably some more documents that may come up with the witnesses later this week.
THE COURT: It might be helpful if I were to see those documents so I had some idea of what it you are talking about.
And I assume that's without objection, Mr. Cooper?
MR. COOPER: Of course, your Honor. And I believe they have been filed with the Court under seal --
THE COURT: I see.
MR. COOPER: -- and they are available to the Court to review.
As I say, I think I'm correct in saying these came to us yesterday and I think it was late yesterday. But in any event we are -- we are looking at them and trying to assess them.
I think that I agree with Mr. Boutrous that sending this back to Magistrate Judge Spero very well might delay things that if we dealt with them here -- and we will have to deal with them on a document-by-document basis -- some may not be objectionable, and I'm not sure the ones he submitted are objectionable, but some others certainly may be objectionable or at least documents that we believe ought to be protected by some kind of protective order and remain under seal, even if they are ultimately available to the Court for its review.
So we will just have to, I think, prepare our thoughts on this for tomorrow morning.
THE COURT: You say these have already been filed, filed under seal. Do you have a docket number?
MR. BOUTROUS: Your Honor, I think we do. In fact, I -- actually, we didn't -- the electronic version, because we filed them under seal, we couldn't file the documents, but we provided your staff with the sealed versions, two copies.
THE COURT: So I can take a look at those documents and have some idea of what it is you are talking about and that will help me figure out what would be an appropriate way to proceed.
MR. COOPER: And while we are on this subject, it might be well to deal with another matter like the one I – we opened our trial with, which is to place on the record for purposes of preservation again an objection to the introduction
and admissibility of these -- the documents of this ilk that are being now produced on a rolling basis to the -- to the plaintiffs pursuant to Magistrate Judge Spero's order, but that we do believe -- and notwithstanding the Ninth Circuit's decision, we do believe qualify for a First Amendment privilege
and, also, are irrelevant.
We would like to place that objection, again, to preserve it and ask that it be continuing in nature, again, so I don't have to interrupt the progress of the trial every time a document is offered of this kind or a question is asked of a
witness that would elicit information that we believe is of this kind.
And if we could have that, your Honor, we would be content.
MR. BOIES: Yes. We have no objection.
THE COURT: I beg your pardon, Mr. Boies?
MR. BOIES: We have no objection actually.
THE COURT: All right. Continuing objection is noted, and I will take a look at these documents.
And, counsel, have a pleasant evening.
MR. BOUTROUS: And, your Honor, I had one more. This is one is even less controversial.
Amicus briefs, we have had a number of additional requests about filing them and we wanted to just get clarification if the Court would accept them. We were going to propose a deadline of seven days after the end of the trial, applications for amicus briefs on both sides.
THE COURT: I certainly would support a deadline for the filing of amicus briefs.
(Laughter.)
THE COURT: I gather, Mr. Cooper, you would also support a deadline of filing amicus briefs.
MR. COOPER: Your Honor, I would -- apparently, a number of amicus parties who would support our side of the case filed amicus briefs a couple days ago. So I would propose a deadline of yesterday.
(Laughter.)
MR. COOPER: But I would certainly support the deadline that Mr. Boutrous has articulated, yes.
THE COURT: All right. Well, that will be fine.
Seven days after the conclusion of the presentation of evidence.
MR. BOUTROUS: Thank you, your Honor.
THE COURT: Anything else?
MR. MARTINEZ: Yes, your Honor.
THE COURT: Oh, you are?
MR. MARTINEZ: Manuel Martinez. I'm representing two parties today. Normally I represent Defendant Patrick O'Connell, Clerk-Recorder for County of Alameda.
I'm also standing in as a friend of Defendant Dean Logan, Los Angeles County Registrar-Recorder/County Clerk.
THE COURT: What county? What is the second county?
MR. MARTINEZ: Los Angeles County.
The reason I rise, your Honor, is just simply to bring it to the Court's attention that two motions with stipulations signed by all the parties were filed last Thursday regarding the attendance of Alameda County and Los Angeles
County. I just want to put it on the Court's table.
THE COURT: I have already signed that.
MR. MARTINEZ: Thank you, your Honor. I appreciate that.
THE COURT: All right. See you tomorrow, 8:30.
(Whereupon at 4:09 p.m. further proceedings in the above-entitled cause was adjourned until Wednesday, January 13, 2010 at 8:30 a.m.)
----
I N D E X
PLAINTIFF'S WITNESSES PAGE VOL.
COTT, NANCY
Direct Examination Resumed by Mr. Boutrous 218 2
Cross Examination by Mr. Thompson 253 2
Redirect Examination by Mr. Boutrous 328 2
CHAUNCEY, GEORGE
(SWORN) 356 2
Direct Examination by Ms. Stewart 357 2
Cross Examination by Mr. Thompson 442 2
----
E X H I B I T S
PLAINTIFFS' EXHIBITS IDEN VOL. EVID VOL.
15, 16, 29, 91 431 2
851 401 2
872 383 2
873 412 2
874 412 2
1308 219 2
1309 219 2
1314 219 2
1316 219 2
1317 219 2
1319 219 2
1322 219 2
1324 219 2
1325 219 2
1326 219 2
1327 219 2
1328 219 2
1334 219 2
1335 219 2
1746 219 2
1750 219 2
1763 436 2
2337 385 2
CERTIFICATE OF REPORTERS
We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS,
Official Reporters for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C 09-2292 VRW, Kristin M. Perry vs. Arnold Schwarzenegger, in his official capacity as Governor of California, were reported by us, certified shorthand reporters, and were thereafter transcribed under our direction into typewriting; that the foregoing is a full, complete and true record of said proceedings at the time of filing.
/s/ Katherine Powell Sullivan
________________________________
Katherine Powell Sullivan, CSR #5812, RPR, CRR
U.S. Court Reporter
/s/ Debra L. Pas
________________________________
Debra L. Pas, CSR #11916, RMR CRR
Tuesday, January 12, 2010
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