Plaintiff attorney Boutrose will question Nancy Cott.

She is looking at her CV, exhibit 2323 and will be questioned about it.

I am a historian, yes.

American Civilization PHD, taught at Yale and now at Harvard, in gender and womens studies. Main period of research on the history of marriage. Book: Public Vows, A History of Marriage In The Nation.

Also an article in the historical review about marriage as a public institution, created by governments for social good.

Jonathan Trumbull Professor of American History at Harvard now.

B: Did you teach courses at Yale about marriage?
C: Yes, I was appointed the DeVane Professor allowing me to teach a course of my own choosing. I was coming to conclusions about the history of marriage, in 1997, and so I taught the course in 1998 about the two-hundred year history of marriage in America for an entire semester, the single class.

B: Please look at the cover of your book

C: Yes it is the cover of my book, Public Vows

B: Whythat title?

C: I meant to express two aspects of marriage as a public institution. One, the couple makes their vows publicly before a witness. Two, the state ( the public) is making certain vows to the couple about their status within society. I was examining what the public intentions about marriage in America.

B How long did this take?

C: About a decade

Walker: Wait for counsel to complete the question please.

B: Tell us more about Public Vows please and marriage, and what you found.

C: It is a UNIQUE institution, of course, but encompasses things we think of as opposites. It is both public and private. Most think about the private matter: The love, the private realm, property transmission, the private realm. But it is a public, state-authorized institution the state uses to regulate married persons.

C: This public/private hybrid extends: marriage has had a stonrg governance function, while still having a strong component of liberty. In the 20th century, that private realm has been re-created and formalized, its intimacy, its privacy, legally.

B: HAve other materials emerged since your book?

C: There has been other scholarship in this area, yes, and I continue to update my knowledge, and I did rely on other articles.

B: Tender Cott as an expert witness in this proceeding.

Walker: So ordered without objection.

B: Has marriage played a central vital role in American society?

C: Yes

B Please tell us, as an historian, about the history of American marriage.

C: Our definition is recent and has distinctive antecedents. To call American marriage traditional, since it is unlike other marriages

OBJECTION: She explicitly said she was NOT an expert in marriage elsewhere and elsewhen

UPHelD, question rephrased.

Walker trying to get her to answer YES/NO to YeS/NO questions about the objection.

Walker thinks it is appropriate to confine her testimony to American marriage, perhaps how it compares to other countries and cultures.

She really wants to expound on her book (and presumably earn her fee).

Now Cott is talking about The Founders and their understanding of marriage elsewhere during the founding — that Americans were practicing marriage different in form from the various forms elsewhere, polygamy, etc.

C: There have been many forms of marriage sanctioned by societies.

B: Do you speak of marriage as a civil institution?

C: Yes, let me expl — YES

B: Can you please explain?

C: Yes. In all the states, civil law has governed marriage in all realms. While the founders and others understood and respected religious ceremony, their creation of marriage was profoundly civil.

B: What role has religion played?

C: Religion has been in the background, sacramental and ceremonial. But these are apart from and have no particular bearing on the civil marriage. Rabbis and ministers and priests, when they perform marriages, do so as a delegate of the state.

B: When CA entered the union, how was marriage addressed?

C: CA’s first constitution said that no religious disagreements could invalidate a civil marriage.

B: Did American colonists adopt marriage in their constitutions?

C: Yes, they did.

B: Did you see the ad this morning where Biblical Marriage is mentioned?

OBJECTION: OVDERRULED, she was in the courtroom and saw the ads.

C: Yes, I was here, and I saw it.

B: Asks that Cooper’s opening statement be displayed.

B: When you hear the term Biblical MArriage, what does that mean to you?

C: When I heard it, I was amused. The Bible has characters who practiced polygamy, so that was very amusing.

B: Reads: "across history, across customs, across society" with regard to the universality of marriage

OBJECTION OVERRULED

C: This INACCURATE

B: Why

C: Many forms, many forms of polygamy have been sanctioned, ancient Judaism, current Islam — anyone who understands history would know this is an inaccurate statement.

B: Where does monogamy come frmo in America?

C: Probably the New Testament — Christianity, and attributable to the success of evangelism across the globe that monogamy has become a norm instead of polygamy.

B: What is the "social meaning" of marriage?
C: The societal evaluation of marriage, it is amorphous, we do generalize about common understanding of it.

B: What is your view of the social meaning of marriage?

C: Today or over time?

B: OVer time, what we now think of as marriage.

C: (deep breath, winding up) Wellllllll, it is a unique institution, a couples chjoiceto live together and form a household based on an economic partnershpi. Marriages places a unique valuation on the core of a couples choce, with many cultural add-ons. Before that, though, I should mention first its features I emphasize in my book.

Most people think about it as an initimate choice. The ability to marry to say "I DO" is a basic civil right. It expresses the basic right of a person to consent validly. This can be seen looking at the time when slaves could not marry legally.

B: Why could slaves not marry?

C: As unfree persons, they could not consent. They could not accept the state’s terms because the master had oversight over the slave’s decision-making.

B: What happened at emancipation?

C: Slaves flocked to marry, it was not trivial. To replace an informal union in which they had formed families and had children, so that teh state where they lived could porotect themselves. TEH MARRIAGE COVENANT IS THE BASIS OF ALL OUR RIGHTS. Because the history of slavery is happily behind us, there are other ways in which this right of citizenship is a feature of the right to marry.

Dred Scott relevant here because Justice Tawney remarked that Dred Scott as a black man could not marry a white women was a stigma that marked him as less than a free citizen. It was remarked on because this limitation showed that Dred Scott, since he could not marry entirely freely, was not a free man anywhere.

C: It’s important to note that the informal slave marriages of that time were entirely disrespected by the state in preference of the owners’ rights to break up families, sell property, etc.

B: You mentioned that some of what goes into a marriage is less visible than people realize. Tell us about that.

C: People who have unlimited marriage rights often don’t see it as an unlimited right of their freedom. Only those without the civil right to marry the partner of their choice, or at all, see it as an important expression of basic civil rights.

B: Have efforts by others to acquire civil marriage rights strengthened marriage?

C: Say what?

B: how does having a debate about removing restrictions from marriage rights strengthen, or affect, marriage?

C: The restrictions, as they’ve been removed, have made the institution more appealing as an equal right, strengthening marriage.

B: How does culture value marriage in America>

C: This is a huge subject, I will be brief. But almost all sects, our entertainment, our folktales, our novels — marriage has been the happy ending, resolving the conflict that existed throughtout the story. This cultural polish on marriage has been added by advertising, the rice, the white dress, the happy couple — this has become the destination for ANY HAPPY COUPLE in America.

B: How does the social meaning of marriage compare to the social meaning of domestic partnership or civil unioins?

C: there is nothing that is LIKE marriage excpet marriage. In that halo around marriage, there are also states going beyond the basic freedom that marriage implies to add many other benefits.

B: At America;s founding, were there ever comparisons between marriage and democracy?

C: Yes, the form of the republican government was a government based upon consent and voluntary allegiance. Not as a subject, as in Great Britain, which had subjects and not citizens. In breaking away from GB, the founders of teh American republic formed a union based on voluntary consent. Their best analogy, seen in newspapers and pamphlets at the time, was marriage. In popular periodicals, that analogy was frequently made, that they should consent to be governed as people consent to marriage.

B has another hour with this witness, so we will pick up at 8:30 tomorrow morning.

See you then?