Liveblogging from Prop 8 Trial: Day 2 Recap

•January 13, 2010 • Leave a Comment

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)

The most important U.S. court trial in recent times

•January 12, 2010 • Leave a Comment

Prop 8 being challenged in California Supreme Court

Protesters from both sides of Prop 8

They call it the 21st century “Brown vs. Board of Education” (which desegregated schools), perhaps the most important court decision since “Roe vs. Wade” (which legalized abortion).  The outcome of the trial will likely be appealed all the way to the U.S. Supreme Court, which will set national precedent.

My friends, we’re on the brink of legalizing same-sex marriage in this country!

It gives me goosebumps.  And it’s happening just a few miles from me, in San Francisco, CA.

The testimony was originally supposed to be video-recorded and put on YouTube (the first quasi-televised trial of its type ever), but a last-minute appeal by Prop Hate..err, 8…supporters put the recordings on hold until Wednesday the 13th.  They claim that testimony by anti-gay marriage witnesses would become targets of violence from pro-gay marriage advocates.  In reality, they just don’t want the American people to see the truth.

Luckily, Rick Jabobs of the Courage Campaign was at the hearing yesterday and live-blogged the whole day.  Below is his transcript of the testimony, which can be found on http://prop8trialtracker.com.  That website has live, up-to-the-minute coverage of the Prop 8 trial.  I will continue to post Rick’s daily re-caps here on this website.

Liveblogging Day 1: Daily Summary

By: Rick Jacobs

[UPDATE] 9:30 The Prop. 8 side still wants to preserve objection that any evidence be put up that shows intent of those who fought to pass prop. 8 including the ads. The anti-marriage folks are continuing their theme: we want to control the media. We don’t want the public to have the info to make up their own minds.

[UPDATE] 9:46 The judge is probing extensively whether or not the problem would be solved if the state of California “got out of the marriage business.” He and Olson had a colloquy about whether domestic partnership for all would solve the problem. Olson had to have a note handed to him from his team to say that only opposite-sex couples over 62 can have domestic partnership. Judge Walker is very interested in seeing what change has occurred that should force the federal judiciary to enter the issue. He wants to know what evidence will show that makes the matter worthy of judgment. The judge is very, very smart. This is really, really fascinating. Olson is doing a great job in answering him. “What’s the evidence going to show that Prop. 8” intended to discriminate against gays and lesbians. Olson: no question that Prop. 8 intended to discriminate. We’ll put on evidence from the plaintiffs and others that show how they felt about the campaign, the sentiments that may have been used to motivate the voters.

[UPDATE] 9:52 What’s amazing here is that Ted Olson is talking about the grievous harm to gays and lesbians, that we’ll show there has been a long history of discrimination at the hands of the government and the people. What’s just amazing is that Ted Olson—read that again—Ted Olson is arguing forcefully that there is “no good reason” for Prop. 8. And there is no damage to opposite sex couples to marry. The history of the institution of marriage has evolved. Marriage laws the disadvantaged women or races or ethnicity that have been eliminated have strengthened the institution of marriage. This is Ted Olson!

[UPDATE] 10:10 Olson is just brilliant. He answered the judge’s point that marriage only existed for mere months, not a long established right, by saying that the court finally realized that the right exists within the California constitution, just as the US Supreme Court realizes that rights exist. Marbury v. Madison says, “the law is the law.”

And the judge just got to the big elephant: if Prop. 8 is unconstitutional, can DOMA be constitutional? Olson says we’ll have to work through that. This case may lead the judiciary to that conclusion, but it’s not the subject of this case. I personally (Olson) believe it’s unconstitutional!

Ted Olson on civil unions they “Inflict a badge of inequality.”

He goes on to say that Prop. 8 perpetuates discrimination for no good reason. It makes gays and lesbians inferior, lesser so they’ll be discriminated against and suffer irreparable harm.

[UPDATE] 10:14 More from Olson: When voters were encouraged to pass Prop. 8, religious institutions would be closed, gay activists would overwhelm the state and parents were told to “protect our children.” We’ll show that here.

Heterosexuals including substance abusers, convicted criminals are allowed to marry, divorce and remarry.

18000+ married same-sex couples can divorce and not remarry.

Thousands of same-sex couples married in other states are recognized here effective January 1st.

But fourth category is the plaintiffs whom we represent who have none of these rights.

Judge Walker: why shouldn’t courts stay out of this as Mr. Cooper says?

Olson: That’s why we have courts, to protect those who are discriminated against, when their children can’t go to school because of their skin color. We would not need a constitution if we left everything to the political process. We’d just let the majority prevail and that’s a good thing about democracy, but it’s not so good if you are different, new. It causes gays and lesbians unrelenting pain. We have the courts to take our worthy, upstanding citizens who are being hurt to be protected by the courts. That’s why we are here today.”

Now, turning to Terry Stewart for San Francisco.

[UPDATE] 10:16 Judge Walker wants to know the evidence that shows that CA would get $3 billion in economic benefit if we have same sex marriage. Terry Stewart said we’ll show that. And we’ll show that Prop. 8 proponents used scare tactics to show that there is a “culturally triumphant gay movement” that will harm children.

Judge Walker pushes here back to economics. Where is the evidence that denial of marriage economically injustices San Francisco.

Stewart: Hate crimes are caused by this sort of thing and that costs the state.

Judge Walker: What’s link to Prop 8?

Stewart: Prop. 8 reinforced messages that gay relationships are inferior. That message leads to hate crimes. Harms individuals and state economically because it has to prosecute those hate crimes.

This is amazing. We have tried for years to get these messages into the court of public opinion. Now, thanks to Chad Griffin and Bruce Cohen and the funders of the foundation, we have Ted Olson, Terry Stewart and a very, very smart chief federal judge asking the questions we want everyone to think about.

[UPDATE] 10:24 Terry Stewart is listing the prejudices that exist and how they negatively impact government because of the harm done to people.

Judge Walker asks the Attorney General representative: If Pro.8 violates constitutional, why did the AG allow Prop. 8 on ballot?

AG: There is no duty or responsibility for the AG to review the constitutionality or not of an initiative.

Judge: May I have a brief on this?

As lawyer, I was involved in pre-election challenge to initiatives, said Walker. Judge Walker seems incredulous that AG does not review constitutionality of props.

Judge: Did AG take a position on Prop. 8 before election?

AG; I don’t know.

- Note: Brown was opposed to 8! Everyone knows that. Why does his own staff not know that?

Judge Walker just asked for better information from the AG’s rep.

[UPDATE] 10:28 Only five states have same sex marriage and three of those had it imposed on them by judges, same way it came to California. So Cooper is going to argue strongly that the people can decide, that judges have to stay out. This is a a classic case of the role of the judiciary. Fascinating that Olson is on our side.

Cooper says, “CA has been generous” in providing rights to LG. Says that gays and lesbians have secured so many legislative victories by building a huge group of folks and groups including the newspapers, unions, corporations, hollywood, religious leaders. Gays and lesbians have enormous political power. Prop. 8 and Prop. 22 provides only a special regard for institution of marriage.

So he’s going to show that the gays are really powerful.

He quotes Obama that marriage is between and man and a woman.

Marriage has ancient and powerful religious connotations as Obama says.

[UPDATE] 10:35 Judge Walker said if obama’s parents had lived in VA, their marriage would not have been legal.

Cooper said, “race has never been a restriction” enshrined in marriage.

People in the overflow room laughed.

Judge asks how evidence will show that racial restrictions were different than LG.

Cooper: Never an issue. Marriage was always between a man and woman. IT’s all about procreation.

Judge: Is that the only reason for marriage?

Cooper: “Pro-child” institution. People laughed again.

Judge: Are the other values of marriage, such as companionship, secondary?

Cooper: Evidence will show that marriage will be de-institutionalized.

Judge: What is evidence going to show to support that?

Cooper: Our expert, Mr. Blackenhorn will show that the preponderance of historical and social leaders agree that this the naturally procreation sexual act that is protected, that it’s pro-child.

(So this guy is going down the rabbit hole. He’s attacking the very essence of the modern family, that family that has one parent, that adopts. He’s making this about whether the gays will hurt children. I think he has to lose. I really do. It’s not internally consistent.)

[UPDATE 10:44] Cooper’s only argument seems to be that the evidence will show that if gay marriage is legal, it will lead to higher divorce rates and lower rates of marriage. Blackenhorn will somehow demonstrate that.

Our point is that the plaintiffs cannot prove that the damage will not occur. Same sex marriage is too novel to prove that it won’t harm.

Judge: Any evidence that his happened in other countries?

Cooper: there is evidence; we believe it will show.

They are now saying that we have to prove that gay marriage will NOT harm opposite sex marriage. By that logic, no change is allowed, progress is rejected, until we can prove that the change represents “no threat.”

But it’s impossible to see how this can work except for the fact that three states had judges rule that same sex marriage is legal. In other words, if we didn’t have same sex marriage, we could not prove that same sex marriage will hurt us. Huh? They oppose it everywhere but they now say we should keep it as an experiment? So they should support same sex marriage in the five states! Let’s hold them to that!

[UPDATE] 10:53 Cooper’s case seems to rely nearly 100% on the testimony of Mr. Blankenhorn. I hope for their sake that this guy is the Albert Einstein of right wing social science. If not, they have nothing. Every time the judge asks how they are going to prove their case, Cooper says, “Mr. Blankenhorn will show you.” I can’t wait for that!

The other leg of the case is that “you will hear nothing but predictions” about what same sex marriage will bring because there is not enough history of same sex marriages. So here’s the deal: if we make a change in the definition of marriage without enough history then we will make a mistake.

At end, this really is about progress vs. conservatism. Cooper says essentially if you can’t prove there won’t be harm, you can’t make the change. That means do nothing.

And now Cooper says that only the people of California and the neighboring states and my home state can decide what the constitution demands. Not you, not the ninth circuit, not the supreme court can decide.

Judge Walker: But many times do judges take issues out of the hands of the body politic; why is this different?

Cooper: Because marriage is not covered by the Equal Protection clause. In Loving, we saw that the fourteenth amendment was specifically to deal with race, not this.

[UPDATE] 11:11 We are on a quick break. My laptop is juicing up and I’ll likely be relying on sending updates in from my BlackBerry.

[UPDATE] 11:26 The plantiff:
The love of my life. I love him probably more than I love myself. I would do anything for him. I would put his needs aheadof my own. I would be with him in sickness and in health, for richer or poorer, just like the vows. I would do anything to marry him.

Been in relationship for nine years. The word marriage has a special meaning. It’s why we’re here today. If it wasn’t so important, we would not be here today. I want to feel the same joy and happiness that my parents, my friends, coworkers felt when they got married. It’s the logical next step for us.

You believe if you were married it would change your relationship?

Absolutely. One’s capacity to love and be committed can grow. That would happen with us.

[UPDATE] 11:34 If you were married happily, would it change the way other people who don’t know about you treat you?:

Sure. When someone is married, when they notice it because of my ring or something else, they see that the couple is committed and that they hope to stay committed together for the rest of their lives.

We have not had children because Paul and I believe that it’s an important step for us to be married before we have children. IT would make it easier for us and our children to explain our relationship. It would afford different protections for our child. If we enter into that institution, we would want all of the protections so nothing could eradicate that nuclear family.

We have not registered for domestic partnership because it would relegate me to second class citizenship or maybe even third class citizenship the way things are in California now. It’s part of the pie. We hold marriage in such high regard that if we get marriage, the civil union of the past would not be sufficient recognition of our relationship.

[UPDATE] 11:47Zarello (one of the plaintiffs): Prop. 8 has emboldened other states to take action to discriminate against us. We cannot turn on TV or read a blog without having these daily reminders of what I cannot have.

Have you been placed in awkward or embarrassing situations because you are not married?

When Paul and I travel, it’s always awkward at the front desk. Numerous occasions when individual the front desk will look at us with a perplexed look and say you ordered a king size bed? Is that what you really want?

When we opened a bank account and said, “My partner and I want to open a bank account,” which leads to the bank thinking we wanta business account. IT would be much easier if we could say, “MY husband and I want to open a bank account.”

Have you ever been asked to describe your marital status?

It’s very awkward. I proudly wear my ring on my left hand to signify my commitment. People ask, “how long have you been married? What does your wife do?” Leaves me having to deliver the news that I am a gay man, that my husband or domestically partnered gay man works in the fitness industry. That leads to a continued awkward discsussion.

If state says you cannot marry a man, would you marry someone of the opposite sex?

No! I have no attraction to or desire to marry someone of the opposite sex.

If you were forced to marry someone of the opposite sex, would that lead to a stable relationship?

No!

[UPDATE] 12:00It’s really hard to listen to Jeff (one of the plaintiffs). Every time he talks about his life, about his past, about being in the closet because it was not right to be open, because I’m told to thing of myself of a bad person, to be put in a corner and told you’re different.

This hurts deep in my gut. I remember that feeling growing up.

And yesterday at LAX, on the way up here, I was going through security. I removed my sunglasses and said, “I want you to be able to see my beautiful eyes.” The guard said, “Don’t ever say that to another man.”

Wow.

Now Jeff is talking about how difficult it is to respond to folks who say, “you don’t have that right to get married, nor should you.”

There was an image that used children in the campaign for prop. 8. Protect the children was a big part of the campaign. When you protect children, you protect them from a pedophile or a criminal. You don’t protect yourself from a good or amicable person. Yet when they say they are protecting them from me, it’s so damning. I love kids. If you put my nieces and nephews on the stand right now, I’d be the cool uncle.

Don’t point your finger at me and put me in the category of those against whom you have to protect your children.

[UPDATE] 12:05 They are now playing a Prop. 8 ad. It’s the one about the little girl being allowed to marry a princess. “It’s already happened.”

How does that line, “Protect our Children. Restore Marriage,” make you feel?

What are you protecting them from? Are you protecting them by denying them certain rights? If so, that’s what they are doing. The threats are insulting. They are demonizing us. Why?

(There’s a big back and forth because the Prop. 8 side does not want any of these ads to be aired from the campaign. The Prop. 8 side thinks that not enough notice was given. The judge said that the witness would remain available for another 48 hours in case the good guys cannot prove enough notice was given.)

We’re taking a little break for the Prop. 8 side to chat amongst themselves about the question of when the list of exhibits was made available to them. But what the heck? Do you think they had not seen the ad? They used it all the time in California and then again in Maine. Maybe they should check out their own side’s website.

After a big back and forth, the Ron Prentice ad that says that if California loses on Prop. 8, family will be destroyed, we’ll go off the rails. It has a nice looking black guy talking about the bible and about not being afraid. Stand up for Jesus Christ. He stood up for you in a public forum; now you stand up for him. (I had not seen this. It’s a longish video that shows the forces of God fighting the judges. It has the scary music.)

Boies: How did you feel, especially seeing that last line?

Objection by the other side because it’s not been produced by Protect Marriage dot com. So now they are upset that our side is showing what the other side really wanted to do. They only want to show these ads when no one can talk about them publicly.

[UPDATE] 12:15 When you saw that ad, stand up for righteousness, vote Yes on 8, how did it make you feel?

It made me feel bad. That image of an oncoming freight train that will kill you that makes me feel that I am part of a community that will kill people? I want to marry Jeff. I’m not going to start a movement that will harm people or children. How can they categorize me as the devil? Those lines between right and wrong are talking about things that are bad in nature, that harm people in a society. I just want to get married. I love someone. I want to get married. It demeans you. People are putting effort into demeaning you.

(Again, this stuff literally makes me feel ill.)

[UPDATE] 12:21 So now there is a back and forth about whether to use NOM’s “Gathering Storm.” The other side thinks it’s not relevant because it was produced after the campaign. Boies says it’s worse than what happened in the campaign, because there’s no campaign on going.

The judge asked if it is tied to those in the room. Boies said that it is because NOM funded 8 and is sufficiently related to the campaign broadly defined. Even if it were done by someone with no connection to the campaign, the court needs to see this to determine whether this is a class of people subject to continuing discrimination.

Other side:

1. Not produced by Protect Marriage.

2. After campaign.

3. Not about Prop. 8.

Any harm that could have flowed from this particular video could not have come from Prop. 8.

Judge said no. Not connected to the parties that sued. There’s another way to show that homosexuals are discriminated against.

[UPDATE] 12:31 Okay, so the judge said they can’t show Gathering Storm. It was that pseudo scary ad that we all did responses to. OOOOH, the gays are gonna get you!

Boies now wants to admit the ballot guide for Prop. 8. (For a minute I though the other side was going to object to this even though it’s a public document!).

Now we’re looking at the sentence that says voting Yes on Prop. 8 restores the definition of marriage that’s was approved by over 61% of the voters. Voting YES overturns the decision of four activist judges. Voting YES protects our children.

Plaintiff: Jeff and I are informed voters. We do the reading. We discuss it all. This punch line again of protecting children is absolutely clear. From what are you protecting children? From harm. But what is the harm? That language is indicative of some kind of perpetration against a child. Separates me from the norm. Makes me part of a community that is perpetrating a threat. That’s why we are here (in court).

(Again, at age 51, I can still feel these barbs that have made my life so odd.)

We hear a lot about the fact that you get the same rights; what’s the big deal? The big deal is that it’s a separate category, maybe a fourth class citizen now that we recognize marriages from other states. We still have discrimination. Puts a Twinkie at the end of a treadmill. Here’s a bite. Then another bite. You want that whole Twinkie (I don’t love this analogy).

None of our friends has ever said, “hey this is my domestic partner.” It’s not even the rights as much as it is the full access to the laws of the state. If you are separate, it fortifies prejudice. It’s rooted in something fundamentally wrong. All I want is to be married. That affects only my husband and family and concentric circles. If it it bolsters us publicly, good. So long as we are outside due to laws, it’s us and them. My state is supposed to protect me; it’s not supposed to discriminate against me.

Everyone is now taking lunch and will resume thereafter, at 1:30PM.

[UPDATE] 12:47 It’s hard to think while this goes on. I’ve never before been on trial, but today every gay or lesgbian person in the country is on trial. The testimony brings up all of that “stuff” that I keep pretending I’ve left behind. I grew up near Knoxville knowing I was gay, but never wanting to be. I dated girls, just like Jeff did. I hid from myself. I became an Orthodox Jew in LA and almost got married because I did not want to be gay. When Boies asked Jeff if he’d be in a more loving, stable relationship if he married a woman, it was not a throw-away. That’s what the NOM folks want you to believe. They want you to believe that if Jeff or me or so many others of us who were born homosexual would just marry a woman, the world would be a better place.

But nothing is further from the truth. How many marriages have broken up because one partner or other was not in love and finally had to leave to be true to his or her nature? How many times in history has a person committed suicide, drunk himself to death or even abused a spouse because he or she was in a marriage that was not real? Society is weakened by these false constructs.

One last point: the defendants had better spend time in the five states in which same sex marriage is now legal. Mr. Cooper, the defandant’s lawyer, said we need more time to see if same-sex marriage will do harm. That means he must support it in those states. His position is regressive and without sense, but if he really believes what he said, get he to New Hampshire and Iowa to preserve same sex marriage!

Paul Katami (one of the plaintiffs) is being cross examined now. The other side is asking if a first and second grader should be taught about sex. He wants to know whether children that young can make judgments about sex education that age.

Paul is saying that he does not know the curriculum of the school system and he is not willing to say what he thinks should or should not be taught. He said that if his child were taught something in school to which he as a parent objected, it would be incumbent upon him to working with his child.

So here we go. They are going to scream that we are going to turn children into homosexuals.

[UPDATE] 2:04Lawyer: Did you feel that ads about kids requiring protection were misleading?

PK: Yes.

Now we’re looking at the ballot guide again. “We should not accept a court decision that may result in public teaching our kids that gay marriage is okay. That is an issue for parents to discuss with their children according to their own values and beliefs. It shouldn’t be forced on us against our will.”

PK says this is missing the point. What angers me is the way it was presented. It was a diversion away from the fact that I have an inalienable right to marry the man I love.

Counsel says but you object to the ads even though they are saying that they are protecting kids from being taught about gay marriage. He’s making the point that the ads did not say that gay couples are bad.

The answer from PK is that it insinuates that gay people are bad and need to be protected. (PK Is doing a good job with a sharp lawyer.) PK says the minute they turn their beliefs into an action that sanctions my rights, that’s a problem.

“The fact is that the ad that we played that has been admitted to evidence specifically says that kids were taught about gay marriage in Massachusetts.”

PK is being asked to say that if there is gay marriage, parents have no redress with their kids. PK says they should talk to their own children. They can say what they think in their home.

Lawyer: Official ballot language says that parents should be able to discuss that with their children?

PK: For me, the language means that parents have responsibility and right to deal with their children as they see fit. But there are other influences, such as if there is a gay married couple in a movie.

Lawyer: You thought that “protect our children” is misleading. Is there nothing kids need to be protected against? (Judge says to rephrase because it’s a little broad.) Fact is you don’t think kids need to protected from same-sex relationships.

PK: True. Kids do not need to be protected from the idea of same sex relationships.

(Pause now while the lawyer gets the transcript of the deposition. He’s trying to prove that parents have the right to determine what kids learn and that if there is same sex marriage kids will learn about that and that’s bad. But that’s a canard. People disagree with what kids learn in society. PK’s right; parents have to raise kids, not constrict society.)

[UPDATE] 2:09 Prop. 8 ad that says that children will be taught about gay marriage was played. It’s the one that ends with Gavin saying, “like it or not.”

Boies redircted, asking if there was anything in Prop. 8 about whether kids would be taught same-sex marriage or sex education in school. PK said no.

Now Olson has Kristen Perry one of the plaintiffs from Northern California up on the stand.

[UPDATE] 2:24 The dulcet-toned Ted Olson is now questioning the highly poised Kristin Perry. She has worked for 25 years for government protecting the interests of children under five. Now they are talking about her personal life.

Ted is asking if she fell in love with Sandy and Sandy with her; both were answered in the affirmative.

Kristin said, “I am a lesbian.” I grew up in Bakersfield. I did date a few boys so that I’d have a date to go to the prom too, or to a party too, but as I got older, I realized that I did not feel the same way my friends did about boys.

Olson: Do you feel you were born with those feelings? Will it change?

Kristin: No. I’m 45 years old. I don’t think so (those feelings will change.) There was laughter. I’m a plantiff because I want to marry Sandy. I really never let myself want marriage until now. Growing up as a lesbian you never let yourself think about marriage because you can’t have it. I think it means that you are honored and respected in your relationship. Everyone can join in supporting your relationship if you are married. I can only observe that as an outsider; I have no firsthand knowledge of it.

Olson asked if it matters that the state sanctions a relationship. Kristin said yes. I want it to happen because I do everything I can to do the best I can for the state, but the state does not let me be happy because of the barrier. We attempted to get married …

In 2003 I proposed to Sandy without knowing that all this about gay marriage would happen in California. I wanted to propose because of how much I love her. We live in a hilly part of Berkeley. I took her for a walk. I sat down on a rock with her, took a ring out and asked if she’d marry me. She said yes, but she said, “how will we do that?” So we had to invent a way to marry. We started figuring out the day, the place, who we’d like to have marry us. As we were in the midst of that, we learned that SF was going to permit same sex marriages. That was February 2004 for us.

Sandy and I were both reading about this in the newspaper. Would we go to SF for the marriage and then go on with our other plans? That’s what we did. We brought all of the boys and my mom and got married in the city hall.

(Olson asks these questions as a gentle father or brother. He makes even me feel comfortable and confident and I’m not there.)

I had an otherworldly feeling as I got married because I thought it would never happen. We went ahead with our other plans as well so that more people could come. We had a party as an afternoon in Berkeley with a small ceremony and then 100 guests joined us on August first 2004.

[UPDATE] 2:34 Perry: A few months later there was the California Court ruled that our marriage was invalid. When you are gay you feel you don’t deserve things, so I was not surprised that the Court ruled. The city of SF sent a form letter with our names at the top. We are sorry to inform you that your marriage is no longer valid. We’d like to return your marriage fee to you or give it to a charity.

Olson: What feelings did that evoke?

Perry: “I’m not good enough.”

O: Sometime, I think May 2008, the Supreme Court ruled that you could marry the person of your choice. How did you feel?

P: “I was elated. After we heard about it, we heard that our friends were talking about getting married. We decided that we could not bring ourselves to do it again right then. We had not recovered from the SF experience. It did not feel like a permanent solution given what was going on outside of the CA Supreme Court. I was aware that (what became Prop. 8) was starting. I remember people reacting against the Supreme Court. “

O: What was it like for you to be a citizen and watch that campaign to overturn the Court?

P: “I’m a California resident. I could see evidence of the camapign. I’d see bumper stickers. I saw ads, one in particular I remember, signs on people’s lawns.”

The ad I remember “struck me as being a sort of education-focused ad” that indicated that you had to protect your children against learning about gay marriage. The ad was creating a sense of fear and worry with me so that I should vote for prop. 8. They reduced relationshis to this “bad thing” so that if you don’t want kids to learn about gay marriage, you have to vote for Prop. 8. I felt it did not relate properly to me and my friends. It messaged to me that I am perhaps a person who does not protect her kids.

Olson: Did you feel that others might need to protect their kids from you?

Perry: Yes. I felt I was being used and mocked and disparaged for being the way I am.

O: Do you feel other effects of discrimination due to your sexual orientation every day?

K: Every day. As an adolescent, it was a struggle. I was well aware of the comments and jokes that circulated about lesbians and gay people. Once I told people I was a lesbian, I drew questions. I want people to like me, so I go to great length to being likeable so that when people find out I am gay they do not dislike me. For example, if I’m on a plane and there is a seat saved for Sandy, I say it’s for my partner and they say, will you move that? Every day, I have to think about whether or not I want to come out. I make a deicision every day about whether or not to come out every day at work or home or school or soccer.

O: Did coming out take a long time for you?

By the time I was 18 or 19 I could talk to myself about it. You often hear lesbian and gay people say, “once I’ve figured it out, I realize that I’ve been gay forever.”

O: Did you have to explain that to your children? Was that difficult?

Yes, I did, but my children always knew me as their mom so they don’t know the difference.

Now they are talking about her and Sandy being domestic partners since August 2004.

[UPDATE] 2:46 K: We are registered domestic partners due to the advice of an attorney.

O: Is it a property or estate planning transaction?

K: Yes, but I believe it has unique features. It allows us to access each other’s health and other benefits. But the domestic partnership agreement is a legal agreement. It’s not the same thing as a celebration. We don’t remember the day it happened. We don’t invite people over on that anniversary.

O: Court will have to deal with why domestic partnership is different to you than marriage?

K: I don’t have access to the word to describe our relationship. Marriage appears to be really important to people. I’d like to use the word, too. You chose that person over everyone else. You feel that it should stick. You want the public support and inclusion that comes with marriage. If we got married, it would be an enormous relief to our straight friends who feel sorry for us. I can’t stand it. They have a word. They belong to this institution. Sandy and I went to a school football game. I realized they were all married and we’re not.

O: Sounds like your heterosexual friends would not feel threatened by you marrying. They’d feel more comfortable.

K: Yes. They’d feel better because they think we are outside of their institutions and that’s strange.

O: Have you discussed with Sandy the impact of victory in this lawsuit?

K: Yes. Sandy has been married before which I envy. There would be a settling in and deepening of our commitment if we could get through this instead of feeling like it is everybody else’s decision. We went to Alameda County recorder’s office in May having reached the point where we wanted to know if there was a permanent solution to this problem, how Prop. 8 was being enacted. Clerk’s eyes got really big. “I am sorry. There are reasons why I think I can’t do what I want you to do, but I am not comfortable with it. I’ll have to ask my boss.” Her boss came back and read the statute. He was upset. He said he was very sorry he could not issue the license and hoped that he’d be able to and that we’d come back then.

Sandy and I really like our life where we live in our house with our kids and see our friends. We don’t want any change; we just want our life to get better and better. It makes me really happy if we get this so that other people could. But mostly we just want to be happy in our house.

O: Do you think if court gave right to marry it would have an impact on the other discrimination you feel?

(Objection was overruled.)

K: If marriage were legal, I would not be treated the way I was. There is something so humiliating about not being able to marry. I try not to take every bit of discriminatory attacks against me personally. If kids growing up in Bakersfield could grow up without knowing what this discrimination feels like, their lives would be on a higher arc.

No questions from the other side.

Sandy is now on. She’s also very poised. She learned in her mid-thirties that she is “gay.” She got married to a man before. She had no feeling that she was a lesbian when she was married to a man. I had a difficult relationship for most of our marriage, but I started it out with the best of intentions. She grew up in Iowa in a small town of 1,500. It was a good but sheltered upbringing. We did not travel or go to places very different from where we grew up. I had no idea of a gay lifestyle or sexuality until I was a late teenager.

I moved to CA in 1985 and got married to a man in 1987. We dated for a year before we got married on 14 November 1987. Marriage ended in 1999. (Olson is very interested in drawing out the trajectory of her sexuality, which is fascinating, rarely discussed in public.)

She met Kristin first as a coworker. We were friends. The feelings I had for her were different than I had for others. I grew to realize that I was falling in love with her, in early 1999. My marriage was falling apart on many fronts. I was extremely unhappy. My ex-husband relied on alcohol and could not support the family properly. My sexual orientation or the discovery thereof did not have anything to do with the failure of the marriage.

I had never experienced falling in love before. Olson draws out whether that’s true of her husband. I never thought people “fell in love.” When you grow up in the Midwest with a farming family, there is a pragmatism that is inherent, part of the fabric of life, that is pervasive. I remember my mom saying that marriage is more than romantic love, it’s an enduring long term commitment that is hard work. In my family, that seemed really true. I wanted to have the kind of relationship that my parents did and do.

Kris and I have a very romantic relationship. Not only did we fall in love, we wanted to merge our families. I was 36. We wanted that life of commitment and stability.

O: How convinced are you that you are gay? You lived with a husband. Some people would say it’s this, then it’s that and now it’s this.

S: I’ve only been in love once and that’s with Perry. I’m 47. I know. I’m a plaintiff this case because I would like to get married and to marry the person that I choose and that’s Kris Perry and California law prevents that.

Sandy describes her version of their marriage, the toasts, the love from community: When I got that letter saying that our marriage was no longer valid humiliated, angry and that people who brought us gifts and celebrated with us felt pity for us which is the last thing that I ever want to evoke around marriage.

S: It felt great that the court thought we had a constitutional right to get married. It was cloaked in this distension that felt very familiar. The activist groups that opposed marriage made me realize that this was not permanent. I felt strongly that at my age I don’t want to humiliated any more. We got married twice and it was taken way. I want it to be permanent, no chance it get taken away from us. We did have friends that got married. We were proud and worried for them because we did not want them to have the same problems we had.

[UPDATE] 3:20 Sandy is talking about the difference between domestic partnership and marriage. Marriage would mean we are not girlfriends or partners, we are a married couple. I was married for twelve years. Being married felt different than what we have.

Judge asks again if the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?

Sandy says I believe so. Yes. If we had the same access, I’d feel equal.

Judge: Even though the term marriage is not used?

Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, id’ not have to worry about access to it because no one else would either.

O: What are examples of feeling awkward about not having marriage?

S: Going to pick up my youngest son at school. I get mother’s day cards, so they think of me as their mother. Words like “aunt” or step mother aren’t there if I’m not married. Few people know what the term “domestic partnership” means. It does not describe our relationship. We’re not business partners or social partners or glorified roommates; we want to be married. Forms at doctor’s offices and the like don’t work and then I have to explain what a domestic partnership is.

O: Would being married provide you with any sense of stability that being domestic partners would not?

S: Yes. I’d feel more respected by other people. I could hold my head up high in our family. I want our children to feel good about us, not that our family is not good enough.

S: During Prop. 8 campaign, I saw bumper stickers, signs and I went to a rally that was against Prop. 8.

S: I heard many things—everything—from the yes side that disturbed me. The campaign was very focused on “protection:” protect marriage and children with the subtle implication that you have to be protected from gay people. The constant references to children felt harmful. I felt that great harm was being done by this campaign, that we are the great evil to be stopped, but as a mom of four kids, there’s nothing stronger in parenting than the desire to protect your children. I was sickened by the yes campaign.

O: As a parent of four children, you have strong sense of what it means to be a good parent. Would your boys be better off with a man in the house?

S: The most important and best thing for kids is to feel loved.

O: How is it to be a plaintiff?

S: It’s not a burden. I feel like a little tiny person in this country. I’m not trying to change anything. I just want the same thing I’m due in the federal constitution.

S: If I could marry, I’d think I was building a good world for our kids. I want our kids to have a better world than we have. I want the possibility of having grandchildren who are okay no matter whom they fall in love with. As someone from one of the most conservative pockets in the country, I see how important this is. I hope for something for Kris and I, but we’re big, strong women. We’d benefit greatly, but others over time would benefit in a more profound, life-changing way.

(No cross examination. They probably don’t want to be seen by the public as attacking women. It’s easier for them to go after gay guys than women.)

[UPDATE] 3:28 Now we’re hearing from Professor Nancy Cott. (The judge has a good sense of humor. He asked her to keep her voice up. She tried again and said, “Does this work?” He said, “Well, we’ll see.” Boutrous is examining. Olson and Boutrous have a lot of hair. Maybe that’s a prerequisite at Gibson Dunn? Or maybe I’m just jealous.)

Okay, now we get to the historians and social and cultural psychologists, etc. IN 2002, she was a Sterling Professor at Yale, the highest honor Yale gives professor. Then she moved to Harvard as Trumball Professor of American History. She’s published eight books. She has a long history of research in the history of marriage. She wrote and published PUBLIC VOWS, a history of marriage and the nation. First started investigating the history of marriage in the US in 1990. Looked at history of marriage as a public institution, a structure created by government for social benefit.

Many of my courses at Yale touched upon marriage. While I was in the process of researching the book, I was honored as the Devain Professor (SP) to teach a course outside of any one department, I was asked to teach about my conclusions on the history of marriage in the US.

(I’m giggling. I love these kinds of people who are way smart and devote an entire life to learning everything there is to know about a subject. It’s just amazing.)

I like sort of double meanings in my book titles. PUBLIC VOWS refers to the taking of vows publicly and the fact that the public, in the form of the state, makes certain vows to protect the couples. I was examining more the public intention of the institution of marriage, published in 2000, after about a decade of research.

[UPDATE] 3:43 Professor Cott: Marriage is both a public and private institution. Most people who consider marrying, think of the private and private property relations between them. But the state has a public interest in marriage. It’s a means by which the state regulates people. There are other paradoxes in the nature of marriage. Marriage is only possible for individuals who can exercise the liberty value of our citizens, yet the private realm is a place in which decisions can be made freely.

(I had never thought about any of this before. I always thought of marriage as private, but the professor is right. Marriage is quite public even as it enforces the rights to liberty and privacy in that relationship.)

(Both sides agree that she’s an expert on marriage in America, which makes me rest easy. If she’s not, who is?)

Boutrous wants to understand the meaning of marriage in America. Our form of marriage is relatively recent, but has antecedents in Anglo Saxon law. (She said it’s inaccurate to say marriage around the globe is uniform. The other side says she’s not an expert in world wide marriage just in America. Now Boutrous is trying to establish that she had to know about marriage around the globe. She wanted to give a longer answer, but the judge said she’d get asked more.

The other side is using her deposition in which she says she is not an expert of the subject of marriage around the world so she can’t say that marriage around the world is not universal.

The judge thinks that she’s allowed to talk about marriage in the US and how her knowledge of marriage elsewhere affects that, but she’s not an expert on marriage around the world.

(the professor is wearing a green sweater top. She has light brown hair, neatly cut and stylishly carried. She’s exactly the look that you’d expect if you were watching DaVinci Code and wanted to imagine a Harvard/Yale, self-confident and approachable professor. She evokes lots of laughter because she tries to answer questions at length when she’s supposed to say just “yes” or no.” So Boutrous then asks her to follow up. It’s good.”

[UPDATE] 3:58 Boutrous is asking about the Prop. 8 ads that say that biblical marriage is the goal of the US.

The other side objected, saying that she is not competent to opine on the ad because she has not seen the ad. But then the judge said that she could opine because she saw the ad this morning.

Professor Cott said about biblical marriage,” I was very amused that they used that. The bible is full of references to polygamy for Jews.”

The limitation of marriage to a man and a woman is something that has been universal. It has been across history, across customs, across society. (Cooper’s opening statement is flashed on the screen.)

Prof says this is not accurate including from ancient Jews, Muslims now. I think that Christianity has been the source of monogamy vs. polygamy. I suspect the person in the ad referred to the New Testament when he said biblical marriage. She said the success of the view of monogamous marriage is a tribute to evangelical Christianity, particularly in this country since the 19th century.

Now they are talking about the social meaning of marriage.

Marriage is unique because it successfully combines private and public. It is successful as an institution as a couple’s valuation of living together, commitment to each other and engage in an economic partnership to their household. Upon that core, very many cultural add ons have been admitted as well.

The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.

When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.

She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.

(THIS IS BIG STUFF, at least to me!)

Informal relationships of black slaves were totally treated with abandon by white society. They were broken up all the time. The rush to marry by so many slaves after emancipation was a common sense approach to obtaining civil rights. White employers would often demand that black families and children work in certain ways. The former slaves assumed that once married, they’d have a claim of certain basic rights.

People remain unaware that in marrying, one is exercising the right of personal freedom. They don’t tend to equate the civil rights aspects to it. It’s only those who cannot marry at all who are aware of the extent to which marriage is an expression of basic civil rights.

[UPDATE] 4:08 The restrictions on marriage, as they have been lifted, have made marriage more appealing. The removal of restrctions on marriage have tended to strengthen the institution. The religious connations that different groups have attached to marriage have been a part of its high cultural valuation. In entertainment, movies—at least since the rise of the novel in the 19th century, marriage has been the happy ending. The cultural polish that present the rice, the white dress, the happy coupe parading down the aisle are the expression of happiness by the couple.

How does the cultural value of marriage compare with civil unions?

I appreciate that many states have extended many or all of the rights to people who can’t marry, but there is no comparison in a historical view because there is nothing like marriage except marriage.

At the founding of the country, were there comparisons made between the institution of marriage and democracy.?

Yes. This was based on consent, on voluntary agreement to be governed. Great Britain called its people subjects, not citizens. When the US broke away, they called people citizens who voluntarily consent to a stable relationship that may govern you, but was good. They compared this consent to marriage, an institution that requires consent.

It’s just after 4:00PM. Boutrous said he has another hour or so to go with this witness. So the judge adjourned for the day, saying, “We’re off to a very good start. Can we start at 8:30AM tomorrow instead of 9:00AM?

“Vodka Martini with Two Olives”

•January 9, 2010 • Leave a Comment

The Autobiography of Bette Davis

By: Aaron Endré

I’ve been called many things.  Most of them
true, I imagine.  I was called tall once,
and that, as you can see, is a lie.

I’ve been called a lady, a jezebel,
an heiress, a tramp, and also a queen.
I was a smoker when it was thought sophisticated.

I’ve been accused a communist, a radical,
a feminist before it was popular, a bitch
before people wrote songs about being one.

I’ve been deemed glamorous by men, called dangerous
(but mostly by women), diagnosed “Hollywood”,
hailed a Venus for the silver screen.

I’ve been arrested, shot at, poisoned, blinded,
strangled to death, drowned, burned, and stabbed—
but in real life it was cancer that killed me.

If I wasn’t born a woman
I’d be a man—
but I’d be smarter.

Never stopped me though.  Do you know what gravestone reads?
She did it the hard way.  Ain’t that the truth?
Bartender, a vodka martini with two olives please
you can call me Bette
that’s B-E-T-T-E — no fucking Y.

A Glimpse into the Future of Television

•January 8, 2010 • Leave a Comment

LG 7mm-thick HD TV (Photo courtesy of CNN)

Thanks to Toshiba, LG, and the Consumer Electronics Show, we’ve gotten a glimpse into the future of TV.  And three themes seem to be the focus: “Ultrathin”, “3D”, and “Connected”.

The Anorexic LG HD TV

The yet-to-be-named HD TV shown above was debuted by LG at CES this week.  It comes in at under seven millimeters thick — that’s less than a quarter of an inch — which makes it the thinnest TV that I’ve ever heard of.  It will be available later this year.

3D HD TV at Home

If you’re like me and you’ve only seen Avatar in IMAX 3D, it’s hard to imagine watching it any other way.  But you still want the DVD/Blu-Ray.  What to do?

Well, you won’t have to give up the 3D experience when watching video at home if Panasonic, Toshiba, Sony, and Samsung have anything to do with it.

Toshiba ZX900 Series Cell TV

The Toshiba ZX900 Series Cell TV, which debuted at CES this week, will convert standard programming into HD 3D in real time.  It requires a bit of horsepower to do that — which is why the new ZX900 will have roughly 143 times the processing power of current TVs, Toshiba claims.

It will be available later this year.  Don’t hold your breath on pricing.

Oh, and can’t stand the glasses?  3M (with that name, who else) has apparently developed technology that will allow you to watch 3D TV without those clunky 3D glasses!

The Connected Entertainment Center

The “connected” TV is also making news at CES.  Several new TVs, included the aforementioned Panasonic ZX900, will feature an internal hard drive for storing movies, photos, and any other type of media.  More importantly, they will be internet-connected, doubling as a video phone (think Skype on the big screen) and allowing you to stream content from Pandora, Netflix, Boxee.tv, and other web services directly to your TV in real time — and possibly for downloading and storage on the internal hard drive.

The Color Purple…err, Yellow

Sharp debuted a new TV technology at CES this week that adds a fourth color — yellow — to the red, blue, and green of traditional TV pixels.  The so-called “quad pixel technology” will allow their Aquos line of LED TVs to display more than a trillion different colors.  And I thought the Crayola crayon boxes already had too many colors…

15 earthquakes in less than 24 hours, and counting

•January 7, 2010 • Leave a Comment

Shake, rattle, and roll, baby.  Welcome to San Francisco Bay.

The San Jose/Milpitas area has been rattled by a series of more than fifteen earthquakes yesterday and today, beginning with a 3.0 magnitude quake at 11:09pm local time last night.

The quakes are all occurring around the same area, near the Calaveras Reservoir, about five miles east of Milpitas and about six miles northeast of San Jose.  That area is is also where the Calaveras and Hayward faults join.  The Hayward fault runs up through Berkeley and Oakland.  Yikes!

Here’s the list of quakes:

  1. 1/6/10  11:09pm – 3.0 magnitude
  2. 1/7/10  12:37am – 1.5 magnitude
  3. 1/7/10  10:09am – 4.0 magnitude
  4. 1/7/10  10:19am – 1.5 magnitude
  5. 1/7/10  10:22am – 1.6 magnitude
  6. 1/7/10  10:24am – 1.5 magnitude
  7. 1/7/10  10:34am – 1.4 magnitude
  8. 1/7/10  10:36am – 2.2 magnitude
  9. 1/7/10  10:54am – 2.3 magnitude
  10. 1/7/10  11:34am – 1.3 magnitude
  11. 1/7/10  11:36am – 1.3 magnitude
  12. 1/7/10  12:21pm – 1.7 magnitude
  13. 1/7/10  1:56pm – 1.5 magnitude
  14. 1/7/10  3:52pm – 2.1 magnitude
  15. 1/7/10  4:21pm – 1.5 magnitude

Is it a sign of something coming?

Goodbye, newspapers and books

•January 7, 2010 • Leave a Comment

The Skiff is the new kid in town

Photo courtesy of thecoolist.com

Now, I’m not an e-reader kind of guy.  Don’t get me wrong — I think the Kindle is cool and all, but I have always been waiting for the paper-thin, flexible, digital ink newspaper/book that I can fold up and put in my pocket.  Well, it still doesn’t exist.

BUT, we’re one step closer.  Enter the Skiff Reader.  You won’t be able to get your hands on one until later this year, but it’s totally worth drooling over.

It’s revolutionary because of it’s touchscreen interface.  And it’s 11.5″ screen.  But most of all, because of this:

Photo courtesy of thecoolist.com

Now tell me that ain’t cool!  Sure, it’s not paper thin, yet, but it’s getting there:

Photo courtesy of thecoolist.com

Want to know more?  Check out the article by TheCoolist*.  What do you think?  Would you buy one?  I don’t think I’ll be able to resist…

I Grew Up in “The Lost Decade”

•January 6, 2010 • 3 Comments

And it somehow gave me direction

Photo courtesy of Washington Post

Ah, my childhood.

According to a Washington Post article entitled, “Aughts were a lost decade for the U.S. economy, workers”:

The U.S. economy has expanded at a healthy clip for most of the last 70 years, but by a wide range of measures, it stagnated in the first decade of the new millennium. Job growth was essentially zero, as modest job creation from 2003 to 2007 wasn’t enough to make up for two recessions in the decade. Rises in the nation’s economic output, as measured by gross domestic product, was weak. And household net worth, when adjusted for inflation, fell as stock prices stagnated, home prices declined in the second half of the decade and consumer debt skyrocketed.

Photo courtesy of Washington Post

Now, full disclosure: I was born in 1986 — in the middle of the Reagan administration and during a period of great economic growth.  I was 13 when the “lost decade” began and 23 when it ended.  So my formative years were defined by two recessions and, most recently, the most constricted economic climate since the Great Depression.  I graduated college and began my job search at a time when talk of layoffs and unemployment (especially in Michigan, where I was living at the time) evoked feelings of terror and panic.

People my age have never experienced great economic prosperity and we entered the job market at the worst possible time, so we don’t know anything other than the bloodbath that is the “lost decade” job hunt.

But, in the end, for all the doom and gloom, I like to think it made it made me stronger (and dare I suggest my generation as a whole) — much the same way the Great Depression made our grandparents stronger.  We don’t take employment for granted and we learned to work for what we have.

The decade may be lost on some, but I sure as hell learned a lot.

Telekinesis: Coming Soon to a Store Near You

•January 4, 2010 • Leave a Comment

And how it’s going to change our lives

Muscle-based controlling

Picture  this: touching the tips of your index finger and thumb together to unlock your car.  No keys, nothing more than your fingers.  Or playing an “air guitar” and hearing playback on your stereo.

Well, it’s not just science fiction anymore.  Muscle-based controlling exists and it might be commonplace before you can snap your fingers (which could open your garage door).

The technology behind muscle-based controlling is called Electromyography, or EMG. Electrodes are placed on the body to track muscle movements, which are then assigned to specific actions or commands.  The commands are remotely sent to any device to provide “hands-free” control.

Want to see it in action?  Check this out:

My theory: clothing of the future will have these types of electrodes built in.  Imagine wearing pants that track your muscle movements and can help you train for sports; or sweaters that sync to your stereo or video game console; or gloves that control your car.  The possibilities are endless.

Telekinesis

Take muscle-based controlling one step further and we’re confronted with something similar to Avatar — that is, controlling devices using only the most powerful muscle of all: the brain.  Psychokinesis (also called telekinesis) and telepathy (sharing thoughts between individuals) already exist today.  As Ann Hammock of CNN notes, “Researchers are already using brain-computer interfaces to aid the disabled, treat diseases like Parkinson’s and Alzheimer’s, and provide therapy for depression and post-traumatic stress disorder. Work is under way on devices that may eventually let you communicate with friends telepathically, give you superhuman hearing and vision or even let you download data directly into your brain, a la ‘The Matrix.’”

In much the same way as discussed before, electrodes are attached in order to engage with the brain.  This is done in one of two ways: non-invasively by electrodes on the scalp, or invasively by electrodes directly attached to the brain (that is, inside the skull).

Picking up on microvolt signals sent by specific areas of the brain, the electrodes send specific commands to assigned devices — allowing them to be controlled by nothing more than thought.  Think of this in terms of an amputee with a prosthetic arm: he can “think” about moving his arm and the prosthetic, which communicates with the electrodes in his brain, moves accordingly.

Telepathy

Perhaps even more interesting than telekinetic control is the development of telepathic control and communication. Telepathic communication would require that two individuals be linked by implanted electrodes in their brain that are specialized to allow for intercommunication of thoughts.

DARPA, the Pentagon’s technology research division, is currently working on an initiative called “Silent Talk,” which would let soldiers on secret missions communicate with their thoughts alone. Sort of a scary thought.

Less sinister is the application of basic telepathy in video games like Mindflex and the Star Wars Force Trainer, which use headsets made by Neurosky with simple electrodes to monitor levels of concentration and relaxation. The signals trigger a fan that can move a ball up or down, depending on how hard you’re thinking.  And if you want to be Carrie, now you can: NeuroBoy lets you set targets on fire just by concentrating on them.

If the mind really is the last frontier, then it seems that pretty soon we might just need to find a new one.

What do you think?  What other applications or predictions do you have about this technology?

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Surrogates: Are we far off?

•December 7, 2009 • 1 Comment

And what does it say about us?

Still shot from "Surrogates" by Touchstone Pictures

Still shot from "Surrogates" by Touchstone Pictures

Yesterday I watched “Surrogates”, a movie I’ve been meaning to watch for a long time.  It stars one of my favorites, Bruce Willis (who, by the way, is still kicking ass and yippie-ki-yaying at almost 55.  Go him.)

If you’re not familiar with the plot of the movie, here goes with no spoiler: sometime in the near future a tech conglomerate, VSI, develops robots that allow humans to interact in the world without ever needing to leave the comfort and safety of their home.  Base models of the robots — or “surrogates” — are pretty generic and feature only a limited set of senses while the more expensive models have an extraordinary and superhuman set of senses and abilities.

The story revolves around the hunt for a weapon that can kill both the surrogate and its user.  Such a weapon defeats the purpose of the surrogate, which is intended to allow humans to experience “Life — only better” since jumping off a building, or getting hit by a car, or getting shot or whatever only damages or destroys the surrogate and not the owner.

Owners have the option of replicating themselves in their surrogate, but most tend to choose one that is young and attractive.  Go figure.  And because humans can choose how they want to appear — indeed, who they want to be — and no one ever knows who is behind the surrogate, humanity loses the concepts of sexism, ageism, and racism.  We see this in the film from the get-go: in one of the initial scenes and attractive, young female surrogate is actually owned by an older, heavy-set man.  The theme is continued in the story of Bruce Willis’ wife’s character.

It made me think: with the prevalence of online personas and identities, how far off are we from choosing who we want to be and how we want to represent ourselves?

Certainly we don’t have external, real-world representations of our ideal selves (YET–unless you count plastic surgery), but with blogs, online gaming communities and spaces like Second Life, platforms like Twitter and Facebook and countless others, aren’t we already there?

We have a word for how we choose to visualize ourselves — “avatars.”  It may be the “real” us, a Photoshopped version of the “real” us, or it could be any representation of how we want to appear to others.  It’s the same principle that makes the internet potentially dangerous for kids: that 12-year old kid that wants to “hang out” may be a 50-year old predator.  Who can tell?

And so, naturally, I got to thinking: in a world of surrogates, would I use one myself?  Yes, most likely.  And how would I choose to represent myself?  Would I choose an identical and accurate representation of myself?  Nope.  And I’d wager you’d say the same.  Please correct me if I’m wrong.

But what does that say about us?  And what does it say about our culture?

Same-Sex Marriage Equality: Time Is Our Best Ally

•November 19, 2009 • Leave a Comment

This too shall pass

"This too shall pass" in reference to same-sex marriage

"This too shall pass"

Back in May of this year I was all aglow because the state legislature and governor of Maine opened marriage to same-sex couples.  Maine would have been the sixth state to allow same-sex marriage in the United States.  But, like in California and 30 other states, same-sex marriage in Maine was defeated by popular vote.

Those on the side against same-sex marriage, like Maggie Gallagher, head of the National Organization for Marriage, love to boast that the “victory in Maine interrupts the cultural narrative that was being manufactured, that somehow American opinion is shifting on the gay marriage issue.”

On the contrary, Maggie; allow me to introduce you to Steve Chapman of the Chicago Tribune who points out that like organic yogurt, bans on same-sex marriage have an expiration date and they’re already beginning to smell:

Traditionalists take heart that same-sex marriage has lost every time it’s been on the ballot, and that a decisive majority of the public rejects it. The latest poll by the Pew Research Center for the People and the Press finds 53 percent of Americans are against, with 39 percent in favor.

But anyone who denies that “American opinion is shifting” inhabits a fool’s paradise, whose walls are sagging noticeably. Opposition to gay marriage is shrinking. In 1996, 65 percent took a negative view. Since then, support has fallen by about one percentage point a year. Put another way, one out of every eight Americans has gone from opposing the concept to endorsing it.

Time is on the side of gay marriage. The heaviest opposition comes from people over 65. Among those under 30, by contrast, supporters predominate — and by a hefty 58-to-37 percent margin. Ask any actuary where this disparity will lead.

History repeats itself

The same-sex marriage struggle consistently draws so many parallels to interracial marriage.  Recently a Louisiana justice refused to grant a license to an interracial couple, which sparked outrage across the country and prompted his resignation.  Nowadays, we consider interracial marriage to be unobjectionable.  But obviously that wasn’t always the case.

According to Gallup research, as recently as 1994 less than half of Americans approved of interracial marriage and just fifty years ago less than 5% of Americans approved of interracial marriage.

And let’s not forget that at least three constitutional amendments have been proposed to ban interracial marriage.  How…eerie.

In 1871, Rep. Andrew King of Missouri was the first politician in Congress to propose a constitutional amendment to make interracial marriage illegal nation-wide.  In 1912 Rep. Seaborn Roddenbery of Georgia introduced a proposal to create a nation-wide ban on interracial marriage through constitutional amendment.  Spurred on by Roddenbery’s introduction of the amendment, politicians in many of the 19 states lacking anti-interracial marriage laws proposed their enactment.

In 1928, Rep. Coleman Blease of South Carolina proposed an amendment that went beyond the previous ones, requiring that Congress set a punishment for interracial couples attempting to get married and for people officiating an interracial marriage.

Obviously, none of these amendments were passed.  In the 1940s and 1950s states repealed anti-miscegenation laws one by one on the grounds that it was unconstituional, but it wasn’t until Loving vs. Virginia in 1967 that interracial marriage was finally made legal throughout the United States.

In the past 80 years we’ve gone from supporting constitutional amendments that would ban interracial marriages to firing racist court justices who have the audacity to deny a marriage license to an interracial couple.

Like bans on interracial marriage before them, bans on same-sex marriage will be repealed one by one until, finally, the bans are deemed unconstitutional by the Supreme Court.

To those of us who live in states where same-sex marriage is illegal, remember: “This too shall pass.”

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