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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."

Testimony on 2010-JAN-11:

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  

"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.

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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