Rick Jacobs from Courage Campaign continues his coverage of the California Supreme Court trial of the constitutionality of Prop 8 that began on Monday, January 11, in San Francisco, CA.
For the recap of Day 1: http://aaronendre.com/2010/01/12/the-most-important-u-s-court-trial-in-recent-times/
Day 2, (Tuesday, January 12, 2009) begins below, courtesy of http://prop8trialtracker.com.
Liveblogging Day 2: Daily Summary
Plaintiffs attorney Theodore Boutrous quoting a statement made by the proponents:
And 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 enduring unions… it is the central and we would submit defining purpose of marriage.
Professor Cott: Procreation is one of the purposes of marriage. The larger purpose of marriage from the state’s perspective is the ordering of the household, the contribution to stability and governance. It’s important to recognize that marriage has been an instrument of governance.
How does that contribute to governance?
Prof: Looking at this historically, it’s the regulatory purpose of marriage. Husbands were economically responsible for their family/spouse. The point of marriage was so the sovereign could govern in smaller units, the household. We no longer assume that the single head of household has all the power, especially since 1920 when omen got the right to vote. The institution of marriage has always been as much about supporting adults as it has been minors. The proponents emphasize the minors’.
TB: Have there been other benefits than child rearing (to marriage)?
Prof: There has never been a requirement that a couple must produce children in order to have a marriage. Couples beyond the procreative age were always allowed to marry. Sterility has never been a bar to marriage. George Washington, the father of our country, was known to be sterile, which was considered an advantage because he could not create a dynasty.
Prof: the line between legitimacy and illegitimacy was marriage. This had an effect on property, inheritance and the like. In the 20th century, there has been a removal of that bright line. However, in family courts, unmarried couples’ children have to prove that they deserve a piece of the parents’ inheritance, while children of married couples do not have to prove that.
The fact that the state is involved in granting these kinds of benefits and legitimacy to the marriage institution grants prestige and legitimacy that other forms of relationships never achieve.
Boutrous puts up another statement from the opening statement of the proponents:
Across history and customs marriage is fundamentally a pro-childe 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 the man whose sexual union brought the children to the world.
Prof: Very incomplete description of marriage. In the history of the US, blended families that we now see as modern were around all along. Step children, nieces and nephews whose parents died, aunts, ageing sisters, parents all lived together. Heads of households were responsible for these dependents. (The point is that “family” is a broad term and always has been, unlike what Prop. 8 wants you to believe).
Prof: (Returns to the questions about restrictions from marriage, including slaves before emancipation.) The most plentiful example is the restriction 41 states had of marriage between whites and people of color. There were bars in some states as early as the 17th century between whites and Indians, not just “Negroes” and “mullatos.” Post-1865, these laws actually multiplied across the country. In California, with a considerable in-migration of Asian so-called ethnic groups, the marriage laws here and Oregon prohibited marriages between whites and people of the foregoing description. The laws did not totally prohibit those people from marrying, but they did prohibit a white person who fell in love with an Asian from marrying. (Asians could marry Asians, apparently, which is so generous of our state!) Legislatures knew these relationships were occurring; they wanted to make them second-class.
(Judge teases Prof. Cott to humor Boutrous by letting him ask a question now and then.)
Boutrous puts up another quote from Prop. 8’s opening:
“Racial restrictions were never a definitional feature of the institution of marriage.”
Is this true?
Professor Nancy Cott: No. There were many restrictive laws the prohibited Asians from entering the US. At the time the restriction laws were passed, there were already 100,000 or more Asian men in the west of the US, but there were very few Asian women. The restrictions against marrying white women made these men permanent bachelors. In 1907, a US restriction in law said that any American woman who married a foreigner would have to take his citizenship and lose her citizenship “even if she descended from the Mayflower.” A German, for example, could become a citizen through naturalization. But Asians were never eligible for citizenship. California invented this concept of Asians never being eligible for citizenship. If an American woman married an Asian, she could never again become an American citizenship.
This would be highly fought. In the 1920s. This was only lifted much later on when it became a problem for the US in its international relationships.
In setting this policy into the 1907 immigration act, the federal government was not very circumspect in how this had an impact on people. The law rendered a number of women stateless. The US law had now ability to say that a woman who married someone from the USSR in 1919 would be stateless. She’d have lost her US citizenship and could not gain USSR citizenship. Misguided policy but had a huge impact on marriage.
There were marital advantages built into social security. Since then, the federal government has continued to use the institution of marriage as a conduit for federal rights and benefits.
Parallels between these restrictions and same-sex marriage restrictions exist.
At some point after restrictions on inter racial marriage were lifted, what happened?
Prof: Big burst of these restrictive laws passed post-1913. In 1923, when the Supreme Court first opined on marriage as a right were followed in 1924 by the most restrictive interracial marriage law in Virginia in 1924. US Supreme Court could have taken interracial marriage case as early as 1955, took one only in 1967, which came from Virginia and that extremely restrictive law. The court could have acted earlier; it did not.
Did proponents argue that removal of these laws would ruin the institution of marriage?
Prof: I’m not sure what they argued in that way, but they did say that interracial marriage would degrade their own marriages and make marriage less popular. There is no evidence that any of this happened. Marriage as an institution did not decline. And even now, only 6% of marriages are across the color line, up from 2%. So while the number tripled, it’s still really small.
Prof: Marriage fell into the common law view of “coverture” which was the French that meant she was covered by her husband’s life. She lost her individuality, hence becoming Mrs. John Doe. This was the marital bargain to which both spouses consented.
The point is that this was a mutually agreed upon separation of labor. Men were deemed to be providers; women, the weaker sex, were deemed to need protection. Hence there was a division of labor. All socially conventional according to the times.
[UPDATE] 9:17
Professor Cott: Separation of the roles of the sexes was deemed important because of the way the world worked. The move away from the agrarian society to mechanization changed the way marriage roles were perceived. The values of the country toward the sexes changed in the twentieth century because the sexual division of labor is no longer necessary to the work people do in the world. With the passage of Title VII and the civil rights laws, the sexual division of labor became archaic. By the 1970s, with the women’s rights revolution, the Supreme Court stepped in and the states had to stay out of assigning spousal roles according to gender. Now, both spouses are required to support one another, but no longer by specific gender assignment. In other words, the law is now gender neutral.
[UPDATE] 9:28 The more that this has become gender neutral and the more society has evolved, the more same-sex marriage makes sense. Now, the coverture doctrine is dead. The state no longer assigns gender roles in marriage. Couples may choose to take on those roles, but its not up to the state any more. (THIS IS A BIG DEAL! Most of us don’t remember when the state did assign “husband” and “wife” roles in law. And now, they cannot. So couples can choose to marry and assign their roles in the family as they see fit.)
There was a great hue and cry as the loss of asymmetry began to rise, as the coverture doctrine that made women unequal, passed. While the changes at first raised alarm because there was concern about the deterioration of families. As suffrage and equality for women rose, the doctrine of coverture seemed more and more archaic. It took a very long before this trajectory of the removal of the state from ascribing religious spousal roles was removed. In other words, tradition ways heavily.
Because of the Supreme Court decisions of the 1970s, the quality of marriage has improved, not diminished.
There has been a change in the way marriage has been perceived and regulated by the state, toward more equality between partners and fewer restrictions on choice of marital partners. The shift hasw been toward reemphasizing the extent to which marriage choice and the harmony that marriage should create as a zone of liberty between individuals has grown vs. the prescriptive laws that govern marriage. However, both still typify marriage. (Okay, so as society has progressed, the laws increasingly leave couples alone in marriage.)
Trend leads to sensibility of same sex marriage. If gender neutrality in marriage is the norm, which it is, then same sex couples can easily marry within law and modern society.
[UPDATE] 9:34 Professor Cott is opining that same-sex marriage makes sense. Prop. 8 proponents object, saying that in her deposition she said she is not an expert on this. Now, Boutrous is showing that she rebutted that in her deposition.
Judge Walker: Appears the subject was explored in the deposition. Continue and then proponent can move to strike if necessary.
Boutrous: Any evidence that same-sex marriage will increase divorce rate?
Prof: My only comment is from observing my own state of Massachusetts where there has been same-sex marriage for five years. Massachusetts has lowest divorce rate in country. Since five years ago, divorce rate has fluctuated slightly, but if anything is lower.
[UPDATE] 9:36 Prof: Especially in an era when families can have children that are not from biological procreation, and so many couples do, seems that by excluding same-sex couples from marrying and engaging in this highly valued institution, society is actually denying itself another resource for ensuring stability.
(Boutrous ends; now we cross examine.)
[UPDATE] 9:41 Cross examination begins with Mr. Thompson taking on Professor Cott. He begins by saying that she is not an expert in marriage outside of the US. She says I am not an expert by my high bar, but I’m familiar with other countries.
In the deposition in Iowa at which she testified, she said she was not deeply aware of the marriage practices in China and India, the two most populous countries int eh world.
You cannot say certainly that same-sex marriage will have no negative effect on marriage?
Prof: I cannot predict the future.
Thompson: You are somewhere between a neutral party and an advocate (which he reads form her deposition in Iowa). She put in amicus briefs in NY and elsewhere. You were not paid.
Prof: I volunteered my time because I think its’ important to have a historical view of these things. (So he’s trying to make her into an advocate, rather than a neutral party.)
[UPDATE] 10:00
Thompson (lawyer for the defense) tries to say that Professor Nancy Cott is not a big defender of the institution of marriage.)
Throughout American history the government has been very interested in assuring dependent children are supported by family.
One of purposes of marriage is to provide for dependents and vulnerable. One of marriage’s purposes is to promote stability. One of purposes is to assure that children are raised by mother and father (She says no). Purpose to legitimate children (but less important now, she says.)
Laws of interracial marriage bans created illegitimate children. YES
Prof: 1667 law punished shameful matches between free white women and Negroes, intent was to penalize and criminalize marriages.
True that NY, PA, NJ have never had a law prohibiting interracial marriage.
I have to check this.
Fair to say never a uniform legal prohibition against marriage.
It is true that there was never a time when interracial couples could not go to some state to get married.
T: Those laws were to insure white supremacy?
Prof: Not thought of that way until 1967.
T: Institution of marriage requires public affirmation?
P: The stamp of the state, yes.
T: As the courts consider redefining marriage so it’s not between one man and one woman, it is a very important point?
P: Yes.
T: perhaps there is no watershed quite so explicit as this decision?
P: We could argue about that.
T: You gave an NPR interview in April 2004. (Plays it)
[UDPATE] 10:04 Thompson wants to play entire 20 minute interview.
Judge Walker says just play the relevant part only.
She says that perhaps same sex marriage is a watershed (in the interview). (Y’all need to listen to the interview because I could not transcribe it. But the point is that he’s trying to push her to say that this is the biggest decision the courts could ever make about marriage, much different than interracial stuff.) (He asks her about the science of history.)
Progress is not the law of history? Yes.
Some historians weight ideas? Yes
Some economics? Yes
To you, the most reasonable approach is to weigh all the factors? Y.
9th Circuit ruling of Marshall v. Sawyer allows for inclusion in cases of law review documents. Judge says he’ll take judicial notice of this, but Cott is not familiar with it. We’ll include it, but the record is what it is.
Thomspon wants to introduce articles (now from Jeffry Reading, who taught at Harvard and yale and now at University of ST. Louis Law School). Page 7, para 3, “the gay and lesbian civil rights movement is the proper province of state rather than religion is a testament of this movement to challenge the conventional meaning of terms…” Prof Cott: Would “amplify” the meaning of marriage.
[UPDATE] 10:19 Thompson introduces an article called “Gay and Lesbian Families: Queer Like Us” by Prof. Stacy at NYU published by Oxford U Press. He says Oxford press is prestigious.
Page 155 she states, “despite the paucity of enthusiasm for gay and lesbian marriage…eventually we’ll win. Will expand the meaning of family… will supplant the ‘Destructive sanctity of the family’”
Basically, he wants to introduce argument from an article, so Boutrous objects. Judge says it’s okay to put these before the witness.
It’s a prediction, so I’m neutral on it.
Prof. Joseph Raz (philosopher, pub by Clarendon Press, Oxford).
P. 23, When people demand recognition of gay marriages. They usually mean to ask for transformation of that good…will create to as great a transformation as polygamous to monogamous, arranged to unarranged.”
Prof. I do not agree.
Prof. EJ Graff is brought up. Professor Cott knew her twelve or so years ago. “The right wing gets it. Same sex marriage is a breathtakingly subversive idea.” Do you agree?
Prof. No.
T: EJ Graff supports same-sex marriage, yes?
Prof. Cott: I believe so.
T: You have no idea what affected divorce rate in Massachusetts?
Prof: Correct.
T: Goes to deposition, page 199, line 5. “What are factors that have affected divorce rates in Massachusetts.” Answer: “I don’t have any views as to what affects divorce rates in Massachusetts.” (He’s trying to make the point that we don’t know what affect same sex marriage has because we have not had it for long enough.)
Do you agree that society itself is the ultimate beneficiary of marriage?
Prof: Very difficult to answer honestly yes or no to that question as it is posed.
T: Introduces Blankenhorn op-ed from LAT. Blankenhorn is our principle expert witness. I’m a liberal democrat, but oppose same sex marriage. I believe in all my heart in the right of the mother and child. We should strengthen the only institution that strengthens that right” and make it real. Is there any institution more important to children than marriage?
Prof. I think that family is most important. Some are in marriage. I cannot agree with his approach that only biological approach is right. It’s important, but not only. I consider families a social institution. (T tries to differentiate between marriage and family).
(Taking a break until 1030)
And we are back from the break…
Thompson (defense lawyer): Now, he’s going after gender classification and its role in marriage.
T: Now onto religion in marriage. He’s reading from her own writing, talking about Christian model of monogamy, from the time of the colonists. In the history of this country both the church and state have influence marriage via conscience. He’s reading from her writings about Jesus Christ standing for the “innovation” of Christian monogamy.
Professor Cott: Want to make it clear since you are repeating my words outside of context, that I am using monogamy as within Christian precepts.
Judge Walker: Pre-Christian societies did not require monogamy?
Prof: As far as I am aware, in the regions in which Christianity arose, relationships were not restricted to monogamy. Christianity introduced the single partner for life as the marital regime.
T: One tenet of Christian monogamy was between a man and woman?
Prof. That was assumed.
T: Large sections of Christian society assume monogamy?
Prof: Yes, but also in others, too.
(T is headed into brothers not being able to marry sisters.)
T: Reads her own deposition about brothers being prohited from marrying sisters. He’s trying to get her to say that the injunction is biblical, leading to his conclusion that marriage is from the bible?)
Prof: Puritans believed in chastity before marriage and fidelity within it.
T: Proving that she wrote an article 34 years ago about puritans. The article is called Divorce in 18th century or something. He’s trying to make her an expert on puritans, but she says, “well, my article is half of one line in a thirty page article.”
Prof: I have not worked on this since the 1970s. I’d have to refresh my memory.
T: Let’s do that together. (Reads from her article.)
[UPDATE] 11:12 Thompson: He’s trying to say that “canon law” guided colonial law so that he can get to the point that religious law is important in today’s view of marriage.
Professor Cott: This is thirty five years ago. I don’t know if scholarship has changed.
T: Christian doctrine “filtered through” marriage law.
T: By end of the 19th century there was an alliance between Christian doctrine and monogamy by the government.
Prof: I was making that point about Mormon polygamy being eliminated by the government.
There’s back and forth about the history of marriage and family.
T: Reads from her book about “covenant marriage” which exists in Louisiana and Arkansas.
Judge: What is covenant marriage?
Prof: I think it is a pledge never to divorce. My sense is that it’s harder to get out of a covenant marriage rather than a regular marriage. I don’t know the specific provisions of covenant marriage.
T: Legislation that created covenant marriage in Louisiana is from Christian ethics?
Prof. Not sure.
DOMA Time! He’s reading from testimony around DOMA. And now he is asking her about Edmund Burke’s book that he says calls for a respect for tradition. She says she does not recall reading it, and if she did it’s a long time ago.
He’s saying that DOMA came from a respect for tradition; she says she assumes so.
T: Okay that gay may can marry a lesbian. In that sense, sexual orientation is not literally what law prescribes in marriage?
Prof: Man and woman were able to marry. That’s all I can say.
T: Pulling out Iowa deposition, Tab 2
[UPDATE] 11:27 (I’ll put this up now even though its short because there is a lot of rapid back and forth. Prop. 8 is trying to show that Prof. Cott supports complete devolution of marriage.)
Thompson: reads from her Iowa deposition that says that since gay men and lesbians have married each other, the law is literally not against homosexuals marrying.
He’s asking a lot of questions about the history of marriage, now in California starting in 1851. He’s making the point that “coverture” was not a part of California law. She responds that there was still asymmetry in male-female marital relationships. She says that even under community property laws, men were the managers of the family property and could dispose of it.
So it looks like he’s going to state’s rights, to say that states (California) make their own marriage laws and federal courts have not involved themselves. Coverture evolved away, were not changed by federal courts.
T is now going down the path that love and long term commitment are not legally required in marriage.
T is trying to use her own writings to show that marriage is a fragile institution and that its devolution is the cause of changes in the public’s mores and law.
They are back and forth about Clinton’s infidelity. Prof says that the public saw the issue as one between and Hillary and Bill Clinton, not the state.
T asks that witness be instructed to give yes or no answer rather than speeches. Judge says, “well you got your answer. But I don’t know that we need to talk about Bill and Hillary Clinton.”
[UPDATE] 11:44 Thompson is reading from her work that says that the past 25 years do not show that American attitudes toward marriage have changed. He reads from her writing about what the supporters of DOMA said. He quotes from Sen. James Talent of Missouri who wrote about the essential need to maintain marriage as between a man and a woman, without which society will fail.
Thompson is good. He reads these quotes really well, with great emphasis where appropriate. He’s showing that the American people still think marriage is between a man and a woman. And he cites her writing as saying that proponents of DOMA worried that same sex marriage was a slippery slope to polygamy. She agreed that that’s what they said.
He’s talking about a course she taught in 2007 on marriage. He tries to get her to say that Andrew Sullivan’s book is the best anthology on marriage today. She said it was “adequate” but she can’t say it was the best.
They are now into the changed circumstances that she believes makes same-sex marriage appropriate. One change is that homosexuality is now not thought of as a choice. And younger people support same-sex marriage. And male and female roles have changed within marriage. Together, these circumstances allow for marriage to be “enact(ed)” for same sex couples.
He’s moving down a new path now, talking about the need to have balance between men and women in society (by numbers).
Talking about changed circumstance of divorce. Professor Cott cannot identify in any “complete way” the effect of no fault divorce. Wants her to agree that from a societal perspective no fault divorce changed the relative standing of men and women within marriage; she said “I don’t know.”
T: Do you believe behavior is infinitely malleable with the exception of self-preservation?
Prof: Yes.
(Prop. 8 is caucusing to see if they are done.) They are.
[UPDATE] 12:08 Boutrous (lawyer for the plaintiffs) is up again on redirect. This professor is amazingly calm and consistent. He’s asking about why she wrote the book PUBLIC VOWS. She says it’s because marriage has been a vehicle for shaping gender roles. During the research, I learned and was shocked to see how marriage law was used punitively. I had no idea that marriage was used punitively and restrictively, yet most of them had gradually been seen to be a bar on liberty and had been dismantled. This led to my thinking about marriage for same-sex couples and the extent to which the state had entered into prescribing spousal roles (as the third party to a marriage). Those things moved me very solidly to support couples of the same sex to marriage because it is a civil right to marry whom you choose.
The fact that marriage is so alive and vigorous today and that same sex couples want access to it shows how far it has changed. Like our constitution, it has certain elements that have remained the same but it has adjusted to the times.
The elimination of coverture and racial prohibition changed marriage in a very positive direction. There was a great deal of negative sentiment expressed in 1970s like swinging, open marriage—many many complaints about restraints within marriage. Since the 1980s and 1990s, both because of groups on the right like Focus on the Family and because of the advocacy of same sex couples to enter the institution we don’t see a critical perspective of marriage looming, but that it is highly honored as an institution. By clearing away from marriage the aspects of restrictions and instead moving to the emphasis on liberty strengthens the institution.
Mr. Thompson raised ‘disesetablishment’ of marriage about which you wrote. I analogized it to disestablishment of religion which opened it up to more variety of religions rather than one established religion. Marriage is similar: disestablishment in this case means that marriage does not have a single establishment perspective. What is the investment by the state in marriage? An amplified understanding of the institution of what it can accept including same sex marriage makes sense. (Disestablishment here means that the state does not impose a singular structure within marriage, ie., that roles within marriage are up to the married couple, but the state’s role is to sanction that marriage, not define how the two must relate. Hence, the role of women changed within marriage to equality, for example.)
Mr. Blankenhorn uses the word “deinstitutionalization” as a negative. From the 1960s on, we saw the “banalization of mores,” meaning that what was once outside of social acceptance is now “normal.” The rate of increase of divorce plateaued in 1981 and has not risen since. So we see that the real worry that MR. Blankenhorn seems to have that same-sex marriage will increase divorce rates is not warranted. The changes within heterosexual couples is what has changed the way marriage works and the normalization of relations outside of marriage.
Impossible to see any effect whatsoever on divorce rate in Massachusetts since same sex marriage passed five years ago. Not enough data.
Boutrous is now going to the issue of whether no-fault divorce accelerated divorce rates. It represented the change that the state was no longer interested in deciding what broke up a marriage, that specific performance of gender roles. It reinforces mutual consent and choice about marriage ending so it open the door to same sex marriage because its all about consent.
Boutrous asks if there were alarm bells raised about the decline of marriage due to no fault divorce? Cott said she cannot distinguish among the many alarm bells that were raised, none of which really seemed to have had any veracity.
[UPDATE] 12:26 Boutrous walked down a whole series of questions showing that Prof. Cott thinks children are very important in the construct of a family. She then says that same-sex relationships exist and kids will be part of those families so to establish social order, the state should want to open marriage to same sex couples. It will make society more stable.
Boutrous now goes to polygamy because Prop. 8 wanted to show that Prof. Cott supports polygamy. She says I absolutely did not and do not endorse legalizing polygamy. She is now able to show that most states do not prosecute relationships that are private even if they are illegal. Polygamy is an example. It exists and is illegal, but the state does not prosecute. The same is true of adultery, which is still illegal in a lot of states, but the state does not prosecute it.
Boutrous asks if same-sex marriage will lead to a slippery slope toward polygamy. Prof. Cott says no, of course not. There was a theme of polygamy equaling despotism vs. two partners being choice and equality in relationship. In other words, polygamy is a form of despotism while single marriage is an extension or even the building block of American democracy. (This is really good. I had never thought of it this way before. There is a strong chord in American political society that recognizes that couples marriage builds on choice while polygamy is anti-democratic.)
Boutrous is now pushing back on Prop. 8’s attempt to show that we are a Christian nation that has a Christian view of marriage. Prof. Cott says that there is separation of church and state. Prof. Cott supports the institution of marriage and judging by the way they have conducted themselves in the campaign for marriage over the past twenty years, allowing them entry into the institution will very likely strengthen the institution.
Judge: You describe marriage as an institute of government. How did the state or government become the principle formulator of the rules for this governance rather than through private arrangements? (In other words, why is government in the marriage businesses, his theme from yesterday?)
Prof: We inherited marriage from the colonists. In monarchies, the state formed a bond with the church in order to control marriage. England is an example.
Judge: State regulation was not invented in the US? What drove the growth of the state’s involvement in marriage? Is state’s role in US in marriage more vigorous than in Europe?
Prof. Cott: Marriage in the US was far less involved with ecclesiastical authority than in Europe, partially because religious authority was less established here. The state in the US considered regulation of marriage of part of its police power.
Judge is trying to distinguish between private governance and state governance.
Prof. Cott says that it’s a unique public-private engagement. There has to be a contract between the marriage partners, but that relationship is only recognized if the state says so.
Judge: What is government’s role? In the absence of the bargain that the state regulates marriage, harms will be done?
Prof. Cott: Yes, it’s in the state’s interest to regulate marriage.
Break at 1225 until 1:30. (I’m a little tired. I need to go get food and back for the next round! The judge is really, really interested in whether or not the state should even be in the marriage business. Fascinating!)
We’re baaaaaaaack!
Terri Stewart, the brilliant lawyer in the SF Attorney’s office who argued part of the case before the California Supreme Court, is conducting the questioning of Dr. George Chauncey who is an expert in LGBT studies. One of his books is called “The Gay Mark”, “Why Marriage”, “Hidden from History” and he is currently working on finishing a book about post-war gay politics. He is continuing research on the issue. He has received awards from Gay New York for best dissertation and won two awards from the American Historical Association (which ironically violated our boycott of the Manchester Hyatt in San Diego).
Based on his very impressive resume, Dr. Chauncey is accepted as an expert witness.
[UPDATE] 2:04 Dr. Chauncey says that anti-homosexual laws were more enforced in the colonial period, then less and then more again starting in the late 19th century. Most of the enforcement was around sex with minors. But then the Supreme Court decriminalized sodomy (anal sex, even though it decriminalized heterosexual anal sex, too). Sodomy laws were used to prosecute gay people. The range of laws used to prosecute gay people were not specific to gay people, but were used almost solely for that. Disorderly conduct came to be applied more and more to homosexuals and at some point the police started to enter disorderly conduct (degenerate) in their police logs. Then in 1923 (?) New York State criminalized solicitation for sex by one man to another. It was used against people at gay parties in private homes, clubs.
There were approximately 50,000 arrests under this charge from 1924 to the 1960s when then-Mayor Lindsay disallowed the police from using entrapment to arrest homosexuals. Similar laws were in place in other states, such as California.
TS: What effect did these laws have on gay people?
C: One effect was to register society’s disapproval of homosexuals. Sodomy laws were used to keep gay soldiers out of the army. It stood as a sign disapproval of homosexuals. A phenomenal number of people ran a foul of the law.
TS: Did it affect people who wanted to go out in public?
C: It did for some. At times when there were police crackdowns, people were very careful about going out in public. Disorderly conduct charges were not that serious in and of themselves, but it opened people up to more problems. Police would call their parents, landlords and work place to confirm data. So that would lead to them being known homosexuals which could lead to loss of jobs and homes, which sometimes it did lead to.
TS: Second topic is discrimination. Please provide examples.
C: Public accommodation example: In 1933 when prohibition was repealed, laws were passed that prohibited lesbian and gay people from serving them. This had a profound effect on lesbian and gay people because they could not meet each other (or legally anyone else) in a bar or restaurant. When people went to bars, they had to hide their sexuality. So they’d search out places that charged higher prices. They in turn had to pay bribes to police or to organized crime, which meant that gay life was enmeshed in criminal activity.
TS: How did bars discriminate?
C: If a bar tender realized someone was gay, they could “86” them, i.e., tell them to leave the bar, which is humiliating. In bars with reputations for being in gay neighborhoods, signs said, “If you are gay, stay away.” This certainly put social pressure on gays and lesbians. And it made clear to police that these places would not serve gays.
TS: How did they enforce the laws?
C: The liquor licensing system assured that the staff would avoid having “trouble.” Local patrolmen could and did look in. Liquor authorities themselves would come in and report them, which could lead to closure of a place.
TS: Did public authority besides police get involved in policing efforts?
C: Bars that were close to military bases were under supervision of coalitions of military and local police because military did not want sailors and soldiers to go there.
TS: If you were a police officer, how did you know a bar was serving gay people?
C: Two major techniques used: 1. Take note of one man picking up another man. They’d send plain clothes policemen into bars, strike up conversations with customers, lead them on, and when an invitation was issued to go home, they’d arrest them. That also would lead to proceedings against the bar itself. 2. The other method was that the police would point to stereotypical cross gender behavior to demonstrate that homosexuals were present. Two men dancing together, women wearing male clothing articles, short hair cuts. For men, they’d point to men with hair too long. In one case, they overheard two men talking about the opera, which no “real men” would do. Striking because it’s one of the clearest examples of policing of sexuality has policed gender norms.
[UPDATE] 2:31 TS: When did the bar raids end?
C: They continued periodically even after they had been ruled unconstitutional, most famously the raid on the Stonewall bar in 1969 after the supreme court had ruled it was unconstitutional not to serve gay men. Last summer in Ft. Worth, Texas, the police went into a bar and arrested a bunch of patrons. The number of raids has declined significantly, but it still happens.
TS: What are the effects on gay people?
C: It was one more way it was conveyed to them that they were a despised class of people who had to take great care to conceal the fact that they are gay. For the public at large, it associated gay life with criminality. Talked about gay bars as corruptors of the police.
TS: Talk about employment discrimination.
C: First striking example is in military itself. At beginning of the Second World War, the military decided to absolutely exclude all homosexuals and screen them out. Part of the induction process was a screen. Not surprisingly, they only found 5,000-6,000. Most gay people, like their heterosexual peers, were patriotic and wanted to fight the Germans and Japanese. People in smaller towns worried that if their selective service board found out they were gay, they’d have problems with their families. This regulation continues to the present day. (SEE Choi, Dan!)
Also, there was no socialization of homosexuals as there was with Jews and Catholics due to exposure in the army in WWII.
TS: Talk about DADT.
C: Clinton retreated from full legalization, the “compromise” of DADT came to be. It became worse than it was before. 9,500 people were discharged in the first decade of DADT. This meant that the country lost the patriotic services of those who wanted to achieve success for the nation. A number of Arabic translators were dismissed. The financial cost associated with training new people was and is considerable.
Evidence read that shows that the military had to pay millions of dollars to train new recruits to replace those fired for DADT. (I think $5 million?)
TS: What else?
C: 1950, Senator McCarthy said he had a list of perverts and deviants, which led to a report called “on the employment of homosexuals and other sexual perverts.” Forced government to investigate civilians. Prevented 1,700 people from 1947-1950 (I think) from getting government jobs. 1953, Eisenhower signed executive order banning civilians from serving in government and demanded that contractors ferret out and fire homosexual employees.
TS: Compare treatment of homosexuals to communists?
C: Estimate at the height of the scare, the State Dept. fired more “homosexuals” than communists.
TS: Turning to Pres. Eisenhower’s executive order, when did that policy end?
C: Ended for most federal agencies in 1975 when Carter rescinded, but still in effect for “highly sensitive” posts. Only in 1990s when Clinton eliminated the ban. Carter said that federal agencies were no longer required to dismiss or not hire homosexuals. Clinton issued an anti-discrimination order banning discrimination. State governments took up this issue in a variety of ways trying to institutionalize employment discrimination between lesbian and gay men. 1950s Florida launched an investigation of homosexuals in university system. More than 300 people were interrogated, some fired. Intimidation was rampant. The NYC Welfare Department had to fire employees in the 1950s.
TS: Did this affect access for jobs in the private sector?
C: Yes. Eisenhower’s ban extended to private companies working for the USG. More broadly, gay people faced discrimination in the work force. Most people realized they had to hide their homosexuality for fear of losing jobs.
C: While we have no statistical evidence, we see anecdotally that people hid their identities and did their work. Some just migrated to low status jobs that would not cause trouble for them such as hairdressers, waiters or secretaries where they felt they would not be fired.
TS: General effect?
C: Broadly, means that gay life was submerged. People did have a gay social life, but they had to be very, very careful to hide it. Although this had already been true in the earlier 20th century, people were very worried about risks of being discovered. This led to a secret language such as the word “gay” without anyone else understanding. Relatively few heterosexuals thought they knew gay people, which led to prejudice due to ignorance, which led to demonic stereotyping.
TS: Has the discrimination in employment in state and local ended?
C: No, but it is better. Serious laws have been passed to help, but there are still 20 states that do not prohibit discrimination in public and 28 in private employment.
[UPDATE] 2:54 Discussion of Hays Office reviewing scripts to prevent any gay characters from being in movies or on TV. It was very strictly managed. The Hays Code itself did not regulate TV, but there was even more concern about TV. Worried that TV would be in people’s homes so they were really worried. Discussion of homosexuality began to increase only in 1980s. 1989 a program showed two men with sheets pulled up to their eyes for about fifteen seconds. Huge protests from religious organizations, so they did not do that any more until the 1990s.
Astonishing in 1996 that when Ellen DeGeneres came out on her show, she was put on Time Magazine’s cover, which now seems unimaginable.
TS: How did this affect gay people?
C: Certainly meant that gay people did not see themselves represented on film, so reminded that they were despised category to be excluded. Some directors and writers used “sophisticated codes” to represent gay people, but most people did not know. Most people did not know gay people as gay because they hid themselves.
TS: Now demonetization/stigmatization.
C: Like most outsider groups, there have been stereotypes associated with gay people. Sermons railed against homosexuals. Campaigns were led against gay rights recently. Doctors assumed homosexuality to be a pathology which extended stereotypes. A lot of the research focused on gender nonconformity. Thought that homosexuality of reversion of gender roles. Doctors opined that women should not take certain jobs or smoke cigars or vote because they’d take on pathology of lesbians and hurt their ability to bear children. Then in the 1930s, they imagined homosexuality to be arrested development. They were heterosexuals stuck in the homosexual stage, which reinforced the stereotype of immaturity.
Most dangerous period was 1930’s-1950’s when homosexuals were signed as heightened men unrestrained by women which led to the idea that homosexuals were killing children even though most such attacks were men on girls.
A series of campaigns against sexual deviants focused on the idea of homosexuals as deviants. Magazines piped up. The government established panels and then ordered sentencing laws that could commit people to indeterminate sentences in asylums. More minor offenders went to mental institutions and doctors charged with curing them complained they could not turn them into heterosexuals. Hard to overstate the extent that the fear and press campaign built the image of homosexuals as child molesters.
Again, most of the stories of the time are about men attacking girls, so this does not hold up to the public stereotype and fear mongering.
C: Reads from an article in Coronet, a popular 1950s magazine that talks about how homosexuals do not stop at that, but often descend into even more depravity such as drug addiction, rape and even murder. When man throws off all restraints, he will become uncontrolled and will infect other people (“their often innocent partners, i.e., children) with their disease.
(WOW! This hits me hard, yet again. I think about my parents who are in their 80s. I wonder how they managed to accept me as well as they have against all of this!! No wonder the older generations have trouble with us. They were TOLD that we are evil.)
While messages were directed at adults, school systems began warning kids to stay away from strangers, which makes sense, but the subtext was very clear.
Most of the authority shows that presence of sex perverts undermine offices, particularly true of young people who might come under their influence. Particularly important that the government protects against homosexuals. “One homosexual can (ruin) an office.”
[UPDATE] 3:28 Hang onto your hats. Anita Bryant is below and she’s not funny at all. Not at all.)
We’ve been hearing about hate crimes, including a vivid description of Mathew Shepherd’s murder and young Master King’s eighteen months ago.
“Two men are afraid to walk down the street holding hands now not because of fear of police, but of being attacked in society.”
We’re looking at hate crimes statistics and a document from the Safe Schools of California. (I had to leave the room, but there were statistics of hate crimes and reports of school bullying in the thousands).
“Save Our Children” in 1977 in Dade County Florida was the most famous response of local jurisdictions adding homosexuality to anti discrimination laws. This very name, “Save our Children,” returned to the theme from the ‘40’s and 50’s suggesting that children were threatened by gay people. This very successful campaign worked and then was replicated. There were 60 such campaigns through the 1990s and most were successful.
(There’s back and forth between the attorneys as to whether or not they can use a book he’s going to use. There are many documents that fall into this category or I’d not make this objection. Judge says it was not disclosed with witness’s deposition. Since defendant interveners have refused to testify about their messaging in Prop. 8. Because he was deposed about Save Our Children Campaign and he’s a historian. Sustained objection, but said you can find a way to refer through the fact that the book was part of the supporting documents for the depo. I may have the procedures wrong, but the intent here is clear: The Prop. 8 side does not want to allow any discussion at all for how they came up with their messaging.)
They made a variety of arguments in the various campaigns against gay people. The main one was that children would be threatened, that sexual identity was unstable, that children could be persuaded and then drew on the arguments that homosexuals are predators. They’d say, “we’re willing to tolerate homosexuals so long as they don’t flaunt their lifestyle, i.e., not be openly gay.”
So as the gay rights movement was gaining a bit of steam the reactionaries were pushing back as hard as possible, using the children as the weapon.
Reads quote from Anita Bryant: Some of the stories I could tell you about child abuse and recruitment by homosexuals would turn your stomach. This recruitment is absolutely necessary since homosexuals cannot reproduce themselves so they must recruit to swell their ranks. “ And kids are the logical base for recruitment.
(Okay, now my stomach hurts and I have those damned tears again. I feel that I was punched with that one. I want it to be funny, but it’s so not. Anita Bryant promulgated the myths that homosexuality is a choice and suggests that we are really vampires. )
[UPDATE] 3:44 The success of the Anita Bryant campaign in Florida spawned many other such campaigns in the late 70s and early 80s. Two were unsuccessful: Briggs in CA and one in Oregon. Over the next twenty years, there were dozens of such campaigns designed to restrict homosexuals and overturn anti-discrimination laws.
Now we get to Prop. 8.
Terri Stewart (lawyer for the plaintiffs): Are you familiar with Prop.8?
Dr. George Chauncey: Yes. He then defined it. (It hurts a bit more in this context, I have to say.) As a historian I have to say that the wave of campaigns we’ve seen in the last decade is an extension of the previous campaigns.
T: She has C read from the ballot guide for Prop. 8 to show that the same arguments are used in Prop. 8 as were used in all of those others.
C: Reads ballot guide language that focuses on children, on saying that gay marriage should not be forced on our children “against our will.” Prop. 8 does not take away any of those rights and does not take away any of the rights for gays to live the lifestyles they choose.
T: How does this extend from the previous testimony?
C: They say that a married heterosexual couple is superior to a gay married couple. Focuses on children, not calling them child molesters and so on, warning that gay marriage should not be taught against our wills, gay equality should be stopped. We should not have to force this on our kids. Have the rights to do what they want on their own, but don’t make us take note of them, so their rights are lesser than ours. This is all consistent with the previous decades of attacks.
C: Telling us to protect children against us as child molesters. Same messages.
TS: Do you believe Prop. 8 ads perpetuate the stereotypes of the history you describe?
C: I think they do, but they are more polite than the Anita Bryant ads. Society has changed such that what you can say in polite society is different, but most striking is the image of the little girl who comes in to tell her mom that she can marry a princess. There’s a strong echo of this idea that simple exposure to gay people will lead a generation of young people to become gay.
TS: (I adore her!!!!!! She wants to show some of the ads. I suspect the other side won’t like that.)
[UPDATE] 3:53 First ad is the Gavin ad “like it or not” and the attack on the judges that will lead to churches losing their tax exemption and gay marriage being taught in school.
Then the princess marrying a princess ad.
Then the ballot guide ad that shows that gay marriage has “everything” to do with schools. Same ad as they showed in Maine. “It’s already happening in Massachusetts.”
Opponents of Prop. 8 took kids to a lesbian wedding because it’s a teachable moment. Jack O’Connell’s website is called into play. And it ends with Gavin.
Then the African American minister and the Latino/Latinas who oppose SF judges imposing will on them. This is the one where a little girl says “on me?” when the question is asked about imposing gay marriage on teaching in school.
(Remarkably, the Prop. 8 folks agreed to admit their own ads!!)
C: Same messages. We have to protect our children from exposure to gay people, fight gay marriage which is the full recognition of our rights. Underlying message here is something about the undesirability of homosexuality; we don’t want our children to become this way.
TS: Now having him look at two print ads.
(Prop. 8 objects to having Chauncey testify to this document besides the ads were not available for discovery. This was in the first production of documents. Objection is that this was not disclosed before the deposition. TS says that the 9th Circuit said quite late, as late as January, that our witnesses could talk about messaging because defendants refused to produce anything about messaging.
Prop. 8 says I know about this document, we’re proud of it, but we did not have the chance to examine Dr. Chauncey in deposition.
Judge: Inasmuch as the defendant interveners produced the document and since TS’s point about the 9th Circuit is correct. Overruled; show it.
Prop. 8 For second document, it’s a photocopy so we have to authenticate it.
Judge: Admit the fist and second subject to verifiability.)
TS: Show photo of poster of two presumably married young male/female couple kissing their young child. You have the po0wer to protect your children?
C: Implies inferiority of gay couples, same issue.
Second one is a poster that says, “Restoring Marriage and Protecting California Children You can help. Visit our website, etc. with images of hetero couple holding up a banner with their children and then photos with heterosexual families (Judge asks how you know they are heterosexual? He’s tapping his fingers and he seems done.)
C: says they appear to be heterosexual or at least opposite sex. Same message: protect kids from gay people.
C: Talking about ideas of religious involvement in same-sex marriage. Compares to what Rev. Falwell said in 1958 speech that if there is black and white equality it could lead to interracial marriage. People hold their beliefs deeply and interpret scripture variously and it changes. Compares invocation of religion in maintaining segregation as against God’ s will just as is happening especially since Anita Bryant’s first campaign. Same thing happened in Prop. 8.
(He’s not saying that people who believe are bad. He’s saying that religion is used to motivate people and that those beliefs do change.)
TS is done. She’s done a great job!
Now, the judge is giving Prop. 8 a shot at Chauncey, at least for ten minutes.
[UPDATE] 4:15 Prop. 8: You gave to LAMBDA and another group that advocates for gay marriage. Profile about you says, “George Chauncey is an advocate.”
C: Likes line above that says that he’s “a historian’s historian,” but yes I do support the right of gay couples to marry but I distinguish that from my work as a historian, which is beyond reproach.
Prop. 8: He wants to define homosexuality. (This is just great. It really is. We have homosexuality on trial!!) Well, in that context I was using it objectively as substantively as people having relations with people of the same sex. As a noun it’s an identity of people whose primary attraction and erotic appeal is to someone of the same sex.
Most of the historians say that definition of homosexuality has changed.
Prop. 8 is trying to make the point of that C’s writing shows that the definition of modern homosexuality is only since 1930’s. Earlier culture allowed men to have sex with men without the need to identify as homosexual in the modern taxonomy. There were many men who had same sex relations who went on to marry women. Moving from a time when homosexuality was evil to face a powerful movement that changes that to neutral or even good.
(This part stops for the day.)
Boutrous asks about more secrecy questions. He says that there are several documents presented to the court under seal at the order of the Magistrate for production by the Prop. 8 side. Boutrous says, “Since Mr. Thompson has been such a stickler about document production, I want to be sure we can share with our witnesses.” Cooper says he has to look at the documents again tonight. Boutrous says they are not confidential, public documents, should not be in any way controversial for confidentiality.
Judge wants to see them. Both sides do not object to having Judge review.
Cooper says we have to review document by document and may have to remain under protective seal. (Wow again. Come on, guys. These are apparently public documents from Prop. 8 that Prop. 8 does not want to release to the public, or at least use in court. Hide. Hide. Hide.)
Cooper wants to place the objection that the future documents that are produced under the Magistrate’s order be under continual possible objection under First Amendment and grounds that they are irrelevant.
The judge agrees that Amicus Briefs may be filed only until seven days after the presentation of evidence.
(4:08PM Adjourned. Called for 0830AM tomorrow)
was starting. I remember people reacting against the Supreme Court. “
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