Liveblogging Prop 8 Trial: Day Two, Tuesday Morning (Eight)

Defendant-intervenors counsel Thompson resumes cross examination of Professor Cott, plaintiffs expert witness, after the break.

The Judge and the witness have now resumed their places, but we don’t have audio upstairs. The judge is issuing instructions, pleasantly, and perhaps has turned the audio off.

Audio on now.

Thompson: Direct you Tab 16, a CDC website about assisted reproductive technology (ART) "Approximately 1% of US infants were born using ART" Professor, is this true?
C: Not statistics I am familiar with.
T: Would you agree that population growth is no longer essential in the US?
C: Yes, not as essential as 200 years ago.
T: Direct you to DIX 1046, UN document on fertility. "A growing number of countries view their low birth rates with alarm: economic contraction, care for the elderly" Arfe you aware professor that the US birthrate is barely replacement?
C: Sounds about rtight, but immigration has always driven US population growth.
C: No, all immigration.
T: (New exhibit): Marriage is NOT like voting, something the govt gives you with the stroke of a pen. It fortifies and strengthens your realtionship. The law can’t give you the full power of marriage without community support?" Is that true?
C: I;ve maintained in my work that law and socieyu work togeth to recognize marriage.
T: Switching gears, to gender. Marriage uniquely and poerfuly recognizes differences between genders, reinforcing the gender order, right?
C: Yes
T Reads long piece about gender and marriage…..
C: I wrote that
T: And you agree with it?
C: Yes
T: The gender binary is the basis of humen thinking about orselves, correct? We can’t see osmeone with out seeing their gender?
C: Iw oudl say yes.
T: Now, about religion and marriage. Public authorities expected monogamy on a Christianmodel to prevail in the civic venue, yes?
C: In the past yess
T: In the past, the state has given people their conscience about how to behave in a marriage, based on the Christian fath?
C: YEs
T: That form of marriage rose from Christian marriage?
C: Yes, a distinction of christianity was monogamy, surrounded by polygamous cultures.
T: Page 61, line 5 of your depo you knew a lot about Jesus Christ.
"Jews were not monogamy, one of the distintive things about Jesus Christ and his apostiles was monogsamy"
C: Yes, historically, I used this a standin as Chreistian.
T: And our fouders used christianity when instroducing mariage law in America?
C: Yes, but I want to make clear that in the history of our own civilizations, that pre-Christian societies were not restricted to monogamy.
Walker questions: Are you distinhuishjing between Christian monogsmyu and some other kind?
C: No, but cultures wher Christianity sprung up were not monogamous.

(missed some here about restirctions)

T: Didn’t the restrictions on marriage between brother and sister arise from biblical law?
C: I can’t say,might be from common law.
T:Your depo, please, page 146: I asked what was the purpose and objection of the marriage laws to stop people from marrying close members of their family. Responds (in depo): I would say this was a biblical tenet, although the bible proscribes this.
C: I did not say one flowed from the other, I think there were multiple bases for restriction.
T: In MA, puritan religious values imbued culture, demanding fidelity of both parters and chastity fo rboth partners?
C: Are you reading me testimony?
T: Differnces between Catholic law and Puritans?

(gotcha moment, she claims not to have written about the 16th century puritans, he gets an article from 34 years ago — Cott says it is half a line in a thirty page article about divorce)

C: Mr THompson, I haven’t worked on this in thiry-four years, I would have to refresh my memory.
T: Fine, I will read you parts of the articel and you can tell me if you stand by it. (Compares canon law and puritan law on desertion as a ground for divorce) Didn’t the governor act under canon law?

C: No, my point was that they were parallel to canon law, not that they were adhered law.

T: Didn’t canon law govern their decisions as you said here?

C: I was citing authorities, a book written in the early 20th century, there’s been a lot more work done on colonial divorce, i have not returned to it, so i can’t say that it is still true.

T: At America’s founding, their was a broadly sharde understanding of the essentials of marriage?

C: Yes, coverture as I wrote there.

T: teh Christian understanding was filtered through legislation?

C: As to its essentials, yes: fideltiy,monogamy.

T: LAte 19th century, federal government enforced the meaning of marriage?

C: YEs, in Utah.

T: Weren’t there many changes to society while marriage remained essentially trhe same?

C: Yes, altough states controlled by black legislature changed definitions and restrictions onmarriage.

T: Let’s look at your book, INformal practices of marriage as white immigrant fanned out over america. Pregnancy or childbirth was the signal for people to consider themsleves married.

C: Often, but not always.

T: Do you know how many states have convenant marriage?

C: Two, I beleive, LA and Arkansas

T: Is this a change in marriage?

C: It’s a new form, not a changed form. Seems to me that it’s a restriction the couples place on themselves.

T: What is it?

C: I think the couple pledges never to divorce, is that what it is?

T: You tell us, you are the expert.

C: Yes, but it’s subsequent to my book. I think couples make a firmer commitment not to divorces.

T: would the state enforce that?

C: I guess, I don’t really know.

T: Did theLouisiana legislation reflect Christian moral principals?

C: I don’t know.

T: Have you reviewed testimnoy and debate during federal DOMA?

C: Some, not all

T: Did proponents of DoMA explain thier support of marriage as consisten with their religious values?

C: I don’t recall

T: Do you know if they supported DOMA because of their rspect for tradition>

C: INferred if not stated

T: Or was it motivated bty moral disapproval?

C: I don’t know

T: Don’t states allow gay men to marry lesbians? So isn’t the state not really prohibiting marriage based on sexual orientation, since gays and lesbians can ACTUALLY marry?

C: well, it has happened, yes

T: let’s look at page 52 of your Iowa testimony. You were asked: If you take Sexual orientation out of the quesiton, couldn’t two heterosiexual men to marry? YOu answered that the state has never prohibited homosexual men form marying women or lesbians from marrying men, correct?

C: Yes

T when CA became a state, marriage was between a man and a woman by tradition?

C: Influenced by civil law, preconceptions about marital roles, coverture, influenced by common law.

T: Coiverture was a bargain, reicprocal, osmething in it for both parties?

C: Yes

T: Was there ever a law that said women couldn’t work for pay?

C: Yes, but her wages belonged to her.

T: But not in CA law, correct, since there was commubity property? COverture had been significantly broken into by the time of CA’s founding?

C: Women had formal ttile to their property

(Questions about spousal roles, federal courts not actualy wher coverture was dismantled)

T: Let’s talk about the social meaning of marriage, is that how the public views marriage, correct>

C: Yes

T People believe the time to get married is when they want to have cjildren?

C: For heterosexual couples, perhaps.

T: But not homosexual couples?

C: I don’t know, don’t have data WHY homosexual couples DECIDE to marry.

T: Mutual love has always been a part of the social meaning, but nevr a legal requirement that people be in love?

C: Correct

T: Marriage means one has grown up?

C: PArt of the social meaning, one has settleddown

T: Economic partnership? Household> Romantic meanign? Broadcast all this time? In the public cultures?

YES to all

The socia meaning of marriage has conseqences but it is hard to measure them, right?


One way the social meaning changes is through social transformations? Economic transformation? Ideas? Ideologies? Technological?

Yes to all, esp with respect to tech of birth control

T: And the law?

C: Yes

T: Has morality been uncoupled from marriage?

C: If you’re quoting my work, whatI meant was that the state used to punish adultery or fornication by making marriage the only state-license place where sex could take place. We now have a broader and more flexible set of moralities about sex and marriage, so the state is no longer interested in punishing sex outside marriage. Marriage is held up as something other than a moral good.


(Oh I wish Marcy was here — she’ll be so sad to have missed the BLOWJOB segment of this trial!!!)

T: The public forgave the Clintons.

Please ask the witness to answer yes or no.

Walker, well counsel you brought up the CLintons. And you got an answer.

T: The public’s new undertsnding of marriage could be called "disestablishment"

(Sorry, this lawyer is asking really long questions and requiring YES or NO answers which makes liveblogging almost impossible)

Many questions about the rise of the New Right as a response to the disestablishment of marriage. Polygamy, has Americans view of marriage vastly changed?

Maybe not

Didn’t congressional debate undercut rthe idea thatAmericans idea of traditional marriage had changed or been disestablishment?


Quotes Congressman James Talent about marriage like silly putty, the marriage goes, the family goes, then we have none of the liberty and freedom Amreicans expect. He voiced the tension that had been present ever since marriage began being altered in the 19th century. Slippery slope, licensing polyhamy?

Yes, that was the testimony.

At Harvard, you taught a class in 2006 2007 called Men women and marriage, corect?


DIX 1032, syllabus includes Andrew Sullivan’s views on gay marriage.

Do you know of a better resource that carries a better resource than Andrew Sullivan’s book?

I can’t say it;s the best?

Can you name one that’s better?

I thought it was adequate, I can’t say it was the best.

Did you present that opposition to smae sex marriage was rooted in fear of gender differences disappearing?

In a part of one lecture in one class during the entire semester.

T: Goes on to discuss testimony in Vermont

C: AS part of the political sphere, yes.

T: You beleive there are changed circumstances that mean we should extend same sex couples marriage?

C: Yes

T: and opposite sex marriage in America 19th century byu custom and tradition?


And at that time, people weren’t recognized as homosexual?

Yes, there were homosexual acts but not homosexual people, in the view of the time.

Now it means that a homozsexual person is one who is erotically desirous of a person of the same sex?

OBJECtION: United States only? YEs, that’s what I meant

Walker: Very well, you may answer.

C: A change from a person’s appearance as masculine or feminine to a recognition of desirouseness being the identification.,

T: One changing circumstsnce is the recognition that homosexual people should be discriominated against and not simply morally repugnant?

C: Yes

AMong the young, discrimination is much less?


Another changed circumstances, changes togender roles


You find same sex marriage to be a reasonable thing to enact?


About gender differences, you’re familiar with gender ratio in a society, and there might be different rules depending upon sex ratio?

Culturally or legally?

Would there be different rules if there were more men or more women?

That’s a reaosnable hypotheisis, yes

T: Lety’s turn to to divorce. No fault specifically. You can’t identify the complete effect of no fault divorce, can you?

that is correct

it would be very hard to discern the answer to the question, how married couples are affected when they stay married, by no fault divorce

OBJECTION: Can you aask shorter questions that are more clear, please???

Walker: Shorten it up.

Has no fault divorce changed the relative standing of men ands women in marriage

I don’t know

Do you beleive behavior is infinitely malleable?

Yes with the exception of self-preservation.

(Counsel wants to consult with colleagues, may be done with this witness. NO further questions.

Walker: Redirect, Boutrous?

B: Oh yes sir!

B: Thompson asked you your personal views about same-gender marriage. First, when you began your research, had you formed a view, in 1990?

C: I had not formed a view

B: What led you to your view now?

C: Through research, thinking, and writing the book, I came to the view. Seeing the advocacy, it pointed me to the great importance of the state’s role in valdating marriage. I was reallymotivated to write the book b/c of my interestr in the GENDER ORDER — most interested ins how marriage became a vehicle for shaping that.

Then I learned about hos marriage laws have been punitively — against Natives, Blacks, Asians, women who made the bad choice to marry someone not a citizen. These laws were restrictive and had been dismantled. THis fed into my thinking about marriage for couples oif the same sex. The state, as the THIRD PARTY, had entered into the buesinnes of assigning spousal roles intitally, but now has moved away from that, leaving marriage was a moreprivate zone.

That;s how I decided marriage was a civil right for all./

B: If your research led you to beleive marriage was not a civil right, would you be here testifying for the defendants?

C: No, Idon’t think so (laughs) What I realized was that marriage has not been static, it’s shed its attributes of inequality, shed it restrictions. It’s like our US CONstitution to adjust to changhing circumstances, it is alive.

B: Did elimination of racial barriers change the social meaning of marriage?

C: yes, in apositive direction.

(talks about the changing expectations we have of marriage, swinging by hets in the 1970s)

Creation of a zone of intimacy, and how the state has prescribed that, giving marriage new reverence compared to 40-50 years ago when marriage was losing value.

B: What is this disestablishment?

C: Analogy to religion, disestabnlishement was GOOD for religion, many new sects. So in American history, the disestablishment of marriage, fewer restrictions, choice of parters, gives a more flexibile and more amplified definition of marriage. I looked at DOMA, though, and found that the Man/Woman feature was strongly established but was sort of backward llooking, since it was about protecting women and providing for them economically. But I did conclude that the state’s involvement in marriage was salutary. An amplified understanding of the institution and what it can accept, including same-sex marriage.

B: recall the questions about BLenkenhorn’s article, he talked about disinstitutionalization? Is that the same as disestablishment?

C: I am puzzled, but I dont’ know what’s mesnt really,

B: Have you assesment of Blankenhorn’s method and concludsion?

C: Yes, insofar as I deinstitutionalization is to render changes that have preceded same-sex marriage. Since the 1960s there has been a stteplyu rising divorce rate, fewer couples marrying, increase in out of wedlock births. But these worrisome things are what deinstitutionalization Blankenhorn refers to. But these indicators — evrywhere not just america — sharp shifts in many countries, a watershed and turning point (cites a french demographer — things outside the pale became acceptable and unworthy of comment by middle class people)

C: I think it’s THAT shift, these shifts which have moderated, the rate has lessened. divorce rate increase has plateued for 25 years — since 1981. Doesn’t that have more to do with the heterosexual mores than to do with same sex couples wanting to enter marriage?

B: Mr Thompson pointed to page 199, line 2: about Massachusetts divorce rates please give the context THompson didn’t permti.

C: Well it goes to what I said esarlier. I couldn’s make a correlation but there is a long term trend.

T What is the relevance of no fault divorce to the Perry case, this case?

C: CA was the first state, it was an indication of the shift in weight fromm the state to the couple in terms of marital performance. State used to dictate marital roles, there’s no state requirement that spouse do X or Y. Spouse previously had to accuse th eother of a fault defined by the state. In the 20th century, manh times couples realized their marriage was over evern if neither party had committed the state-defined fault, so people had to collude to invent adultery evidence, for instande. This was BAD for the law, bad for society, for people to haev to lie to get divorced.

B: Does this go mutual consent of partner, ending or beginning a marriage?

C: YEs

B: WEre ther alarms about no fault divorce?

C: There were LOTS of alarms being sounded about marriage between 1965 and 1985, not sure I can tease out the no fault alarms.

(Counsel: I have about 20 minutes more, should we break now [12:03])

Walker: Press on, squeeze your 20 minutes into 10 please.

B: I can take a hint.

B: talk about Social security materal advantage to married people?

C: The marital relationship was privileged in Social Security, but a high-earning wife wasn’t allowed to have her low-esrning husband claim spouse beneefits: it was gender specific until challenged in the 1970s. the state’s role iin assigning benefits to marriage holds up the prestige marriage has in our culture. It is the state’s imprimatur that gives it additional cultural significance.

B: Will giving same sex couples the right to marry enforce the american values of family and child reatring?

C: Yes, because it’s clear same sex couples will form unions, households, we want them legitimized by the state, it makes us and tehm more secure and stable.

B: Thompson asked you about Tab 31, page 213, full graf about revivial of polyghamy. In that sentence were you endorsing polygamy?

Absultely not.

B: Were you saying it was becomng legal?

C: No, I pointed out it was still illegal, still frfowned on by the Mormon CHurch. But I was pointing tht many states don’t prosecute private behavior in marriage anymore. Mamy statee have adultery laws, but don’t prosecute it. Polygamy is an egregious ewxample of the state not prosecuting marriage.

B; Woul trhere be a slippery slope from legalizing gay marriage to polygamy?

C: NO, because monogamy has a political component. The analogy of teh new American Republic to marriage actually explicitly uses polygamy to represnet despotism — and through the long campaign aghiansdt polygamy it was analogized to depsotism, for what woman could or would consent to marry a man who had a wife already?

B: Please talk about the laws restricting marriage in American.

C: These were called hygenic or eugenic laws. Feeble-mindedness. While in the antibellum south, first cousin marriages allowed families preserved wealth adn were highlt valued, then statres decided it was unwise. Age, etc.

B: Would same-sex marriage challenge theseother restrictions?

C: NO I don’t think so.

B: Would same sex marriage threaten population growth?

C: I don’t think so.

B: Has there been a distinction between civil marriage and religious marriage in America?

C: Yes, and ours is a multi-religious society.

B: Do you believe in marriage as a valuable institution?

C: YEs I do

B: Will samesex marriage benefit the institution of marriage?

C: Yes, it would be beneficial, their sturggle to attain same sex marriage has helped society to understand the benefits and advantages conveyed by marriage.

No further quesitons, please be sure exhibits are entered.

Walker: You describe narriage as an instrument of govt? How is it that the govt became the principal formulator of the rules of this institution instead of like contract law?

C: Our marriage laws are inherited from our colonial founders, who derived them from civil and canon law. There were great tussles in Europe before our founding over marriage, the state won. THe church was the ceremonial partner, but the state rules marriage. US was even more secular. There was no ecclesiastical authority in the US.

Walker: State regulation of marriage was not invented in the US? We inherited it? What were the driving forces behind the growth of these regulations?

C: Yes, but thter was no contest here like there was in Europe. Church and state struggled over marriage in europe. FOr instance, Maryland being a Catholic colony had more church control over marriage. But when the US was founded, it was seen as part of the health and civil regulation of the population.

Walker: Wasn;t there some sort of vacuum the state power was going into, without regulation by the private realm?

(Discussion of what "state" means or "governance")

C: Married partes can’t enter into marriage without a state partner, uniquly among contracts.

Walker: What are the sstate’s interests, then, in marriage?

C: Bundling the stability, care of the couple for one another, security, economic obligations. That is enforced by the state.

Walker: In the absence of that bargain, there are externalities and deficits, and it’s in the interest of the state to ragulate?

C: Yes, the state has a high interest in ensuring the couple cares for and is responsible for one another.

Walker: Very well, thank you Professor, you may step down. Let’s break for lunch now.

(I will start a new afternoon thread at 1:30 when court resumes)

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