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Religious Tolerance logo

Efforts to overturn California's anti SSM Prop. 8

Testimony at the federal trial:
Perry v. Schwarzenegger

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In this website, "SSM" is used as an acronym for "same-sex marriage."

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Testimony on 2010-JAN-11:

bulletOpening statements:

bulletTed Olson said that: "This case is about marriage and equality. Plaintiffs are being denied both the right to marry and the right to equality under the law. 8 [Marriage is "... one of the most vital personal rights" and a "basic civil right. ... In the words of the highest court in the land, marriage is the most important relationship in life and of fundamental importance to all individuals." 2

bulletCharles Cooper said that marriage had been limited to opposite-sex couples "... in virtually every society since early history." He said that the the central purpose of marriage is procreation. He also emphasized that Prop 8 was not motivated by "... ill-will nor animosity toward gays and lesbians, but by special regard for the institution of marriage. ... It is the purpose of marriage — the central purpose of marriage — to ensure, or at least encourage and to promote that when life is brought into being, it is by parents who are married and who take the responsibility of raising that child together." 2 The implication seems to be that same-sex parents, adopting parents, and perhaps others are incapable of taking on that responsibility.

bulletPersonal testimony by all four the plaintiffs:

bulletPlaintiff Jeffrey Zarillo, 36, a theatre company manager, was the first to testify. He said that he has been gay "as long as I can remember." He tearfully discussed his frustration at not being allowed to marry his partner of nine years. He believes that getting married would be the "logical next step." Zarillo, described his partner Paul Katami as "the love of my life."

bulletPaul Katami, 37, is a fitness consultant. He saw the main benefits of marriage to be the validation of their relationship by the community, and be a step towards raising children -- presumably by adoption. He said that the term: "Husband is definitive. It's something everyone understands. It also comes with a modicum of respect, that it's not temporal." He described how disturbed he was when the Prop. 8 campaign claimed that the measure was needed to protect children from persons with a homosexual orientation. He said: "It was so insulting. To think that you have to protect children from someone like me or Jeff. There's no recovering from that." 8

bulletKristin Perry, 45, of Berkeley has worked for two decades in child protection services. She realized as an adolescent that she was a lesbian and has lived her entire life feeling the effects of discrimination. She was married to another woman in 2004 only to have her marriage invalidated by court action. That reaffirmed her sense that she is "not good enough to bet married." She said:
"I've been in love with a woman for 10 years, and I don't have access to a word for it. ... In a store, people want to know if we are sisters or cousins or friends, and I have to decide every day if I want to come out wherever we go, if we are going to risk that negative reaction."
bulletSandra Stier, 47, is a county health care systems employee. She testified that she had been married to a man for 12 years and suffered through a difficult relationship until she realized she was a lesbian. When attorney Olson asked her how certain she is that she is gay, she replied:
"I'm convinced because at 47 I have fallen in love for the first time. It's a romantic attraction, a strong attraction, an emotional and intellectual bonding." She "thinks that the ability to marry: "... would change my life dramatically. I would feel more secure. I would feel more accepted. I would feel more pride. [Being able to marry] would provide me with a sense of inclusion in the social fabric of the society I live in. I would feel more respected by other people. I could hold my head up high in my family. My children could feel proud. I don't want anyone to feel our family isn't good enough." She feels that she is entitled to equal protection under the constitution and that the right to marry the person that she chooses should be her right. 8

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2009-JAN-12: The second day:

Nancy Cott, a U.S. history professor at Harvard, testified as an expert in the history of marriage in America on the first and mainly on the second day of the trial. She is the author of a book on marriage as a public institution titled: Public Vows. 5 Cott contradicted a statement made by one of the two leading attorneys for the defendants: Charles Cooper. He had said that states have a compelling interest to restrict marriage to heterosexual couples because of procreation. Cott said that marriage has also served an economic purpose, with spouses dividing tasks between them. She suggested that as the purposes of marriage have changed, the reasons to bar same-sex couples from marrying have dissipated. She said:

     "It seems to me that by excluding same-sex couples from the ability to marry and to engage in this institution, that society is actually denying itself another resource for stability and social growth."

In the topic of procreation, Cott said: "There has never been a requirement that a couple produce children to have a legitimate marriage." She pointed out that people beyond the age of procreation and people who are infertile are permitted to marry. She cited the case of President George Washington, who is often referred to as the father of the country. He married even though he was known to be sterile.

In response to questions from Ted Boutrous, a lawyer for the plaintiff, she said that marriage is something that most people strive for, "... at least since the rise of the novel in the 18th century. It is the principal happy ending in all of our tales." In response to a question by Boutros: "Have marriage laws always treated citizens in this country fairly?" Cott answered "no." Slaves could not marry legally. After the Civil War when slavery was abolished, marriage "restrictions multiplied." At least 41 states forbade marriages between whites and blacks at some time in their history. Many states prohibited marriage between whites and Asians. When these laws were passed, legislatures thought that the laws were only natural. She said: "These laws were fulfilling God's plan."

In 1907, a federal law was passed that stripped American women of their citizenship if they married "aliens." It was repealed in the 1920s. In 1967, the U.S. Supreme Court declared laws in 16 states that prohibited inter-racial marriage to be unconstitutional. She said that she has seen no evidence that marriage has been "degraded" in the past when marriage laws were relaxed to allow more couples to marry.

The article in Newsweek 6 that provided some of the above information had a few interesting comments posted by its readers.

"Gregography" seems to agree with the plaintiffs. He wrote a particularly interesting comment:

" 'Science'-based fear-mongering has been used for centuries to 'prove' that non-whites are inferior to whites and thus should not have the same rights and privileges as white people.  It's no different than what's being done here [with same-sex couples].  The US constitution and bill of rights put in place a system that protects the majority from voting away the rights of minorities, so traditionally in the US the granting of rights to minorities has been done by the courts in opposition to at-the-time popular sentiment.   When majority rule becomes mob rule, it's the place of the courts to step in and protect constitutional rights  - when equal rights have traditionally been denied. Anytime that more rights have been given to minorities, fearful conservatives protest that these changes will cause the collapse of society as we know it.   Considering that Massachusetts (which has had marriage equality on the books for five years) has the lowest or second lowest rate of divorce in the country (the highest being Texas and the Bible belt states) it's hard to see this destruction of the institution of marriage that was warned about. I believe the real driver here is not so much a desire to 'protect marriage' -- because the wide availability of divorce is provably and logically a much bigger threat -- but instead a fear that if same-sex relationships are treated the same as opposite-sex relationships by the government that the rationale for [other forms of] discrimination against gay people will be unsupportable." 6  

"Ilbert" appers to agree with the defendants:

"The issue is not whether slaves could marry, until after the Civil War, they were not citizens.  Marriage between men and women (regardless of race) has never been prohibited by any Christian, Jewish or secular doctrine (as opposed to religious and secular people being bigots), since as a matter of science there is no difference among men, or among women regardless of race.  So the fact that a black woman marries a white man is not a significant event because both are human and any prohibition allowing them not to marry is not based upon science.

However, women and men are different, to wit, two men together or two women together cannot have babies.  Marriage is based upon that simple issue.  At no time in the history of the world, until recently did anyone believe that men should be allowed to marry men or that women should be allowed to marry women.  We do not even know what impact that will have upon our society if it becomes pubic policy.  While that reality may be adopted by various legislatures around the country, I do not believe it is up to the Court to impose a new definition of 'marriage' up on the people.

Actually, many Christian churches have refused to marry couples -- and continue to refuse -- because they don't meet certain criteria: inter-racial couples, inter-faith couples, one spouse disabled in a way that would prevent conception, and probably others.

The defense played one of Cott's old radio interviews in which she had said that while the institution of marriage had seen watershed moments in the past, there was "perhaps none quite so explicit as" the current debate about legalizing SSM. Under cross-examination she conceded that she couldn't predict the consequences for society of legalizing same-sex marriage. 3,4

Of course, nobody can predict the future with precision. At the time of the testimony, the Netherlands had only legalized SSM for about 9 years, Ontario, Canada for 6.5, Massachusetts for 6 and all of Canada for 5. A recent study in Massachusetts showed no adverse effects of SSM. It may be reasonable to expect that the benefits of opposite-sex marriage -- better cardiovascular health, longer life, better immunity, fewer injuries due to accidents, fewer infections, less risky behavior, lower STD rates, etc. will be seen in same-sex marriages as well. This would make an interesting study.

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References used:

 The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Mitch Potter, "Same-sex legal team an unlikely union," Toronto Star, 2010-JAN-12, at: http://www.thestar.com/
  2. David Savage & Maura Dolan, "No gay marriage trial video," Chicago Tribune," 2010-JAN-12, at: http://www.chicagotribune.com/
  3. Lisa Leff & Paul Elias, "Historian testifies in gay marriage trial that procreation not sole reason for marriage," Associated Press, 2012-JAN-12, at: http://www.chicagotribune.com/
  4. "Children no requirement for marriage, trial told," AFP, 2010-JAN-12, at: http://www.google.com/
  5. Nancy F. Cott, "Public Vows: A history of marriage and the nation," Harvard University Press, (2002).  Read reviews or order this book safely from Amazon.com online book store. The price is $17.33 plus shipping, or the usual $9.99 for a Kindle version. Amazon.com reviewers gave the book 4.9 stars out of 5. Michael P. Chicago reviews this book on Amazon.com, writing:
    "Marriage may be ancient in origin, but Nancy Cott does an excellent job in the end of showing that 'marriage' in the U.S. did not simply grow organically from these ancient traditions, and that government is capable of altering the institution for its own purposes as it sees fit, regardless of what might truly best for society or the individuals in it. While Cott does not explore the impact of her findings on same-sex marriage in great detail, it is very enlightening to understand that debate in light of the changes in marital law over the past 200 years that Cott cleverly elucidates for the reader. Highly recommended for anyone who wants to understand the evolution of the institution of civil marriage in the United States.
  6. Eve Conant, "Gay marriage on trial: The relevance of slavery," Newsweek, 2009-JAN-12, at: http://blog.newsweek.com/
  7. "Marriage is good for your health," Associated Counselors & Therapists, at: http://www.beachpsych.com/
  8. Richard C. Paddock, "2 Couples Make Case for Gay Rights in Big Trial," Sphere, 2010-JAN-12, at: http://www.sphere.com/
  9. The above wording appears to be correct. However, a very popular distortion of his saying cites, in order: labor unions, Communists, Jews, and Catholics.
  10. Franklin H. Littell, "First They Came for the Jews," Christian Ethics Today, 2001-MAY-27, at: http://www.christianethicstoday.com/

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Home > "Hot" topics > Homosexuality > Couples > California > Attacking Prop. 8 > here

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Copyright © 2010 by Ontario Consultants on Religious Tolerance
Original posting: 2010-JAN-12
Latest update: 2010-JAN-12
Author: B.A. Robinson

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