Today plaintiffs attorney Boutrous will continue his questioning of Professor Cott, who is testifying about the history of marriage in America and her book, Public Vows.

Judge Vaughn Walker has entered the courtroom. Attorney appearances will be by signin instead of the litany of podium statements. One other point: is the Attorney General’s lawyer here? All will please respond regarding same-sex marriage amendment’s constitutionality, and whether the AG should have taken a role in that determination. All will please respond by Thursday at 5pm.

Ms Cott, you are still under oath, you understand?

C: yes

B: Good morning, Professor Cott. I have conferred with defendant-intervenor’s attorney regarding exhibits and they have objection (presents list to clerk) I would like to present another statemtn from the opposing counsel’s opening statement, wrt its central purpose being procreation and channelling, naturally procreative sexual activity between men and women into stable enduring unions.

B: What is your opinion?

C: Procreation is A purpose but no means the central purpose. Reminded me of the story of the seven blind men and the elephant: each sees something different, trunk/snake; side/wall; tail/vine. Procreation in a stable union is A purpose, but from the STATE’s perpective marriage has more to do with establishing a HOUSEHOLD and all that implies about social order and governance.

B: How is marriage an instrument of goverrnance?

C: Historically, I mean the regulatory purpose of marriage. Men were heads of household, responsible economically for all parts of their household. Giving benefits implied the sovereign could politically govern his realm in discrete sub-units, HOUSEHOLDS.

B: From a historical perspective, what benefits have accrued, and have they only accrued to procreative marriages?
C: No, barrenness or sterility has never been a barrier to a marriage. The FATHER of our country, George Washington, was sterile, being in a marriage with a woman who had borne children in her previous marriage. This was actually seen as an ADVANTAGE, since he could not pass on his presidency to an heir.
B: What about children’s protection?

(Sorry — lost thread)

B: Talk about the legitimizing of chihldren through the marriage of parents?
C: The state lends its prestige to the marriage, and all the family’s participants, by validating all of them.
B: Here’s another statement from opposing counsel (reads pro-child statement re: marriage) IS that a correct and complete description of marriage?
C: No, its a very opartial description. I see no evidence that the state was MOST interested in the benefits mainly to the child. Creating stable and enduring unions, supporting one another whether of not they had children, as well as support other dependents: blended families were extremely common in the past, due to earlier death and subsequent remarriage. Families comprised step-children, neices and nephews with absent or dead parents, spinster aunts or single uncles, older parents.
B: Doe marriage today serve purposes other than those at our country’s founding.
C: Its purpsoe is rooted in tha past, but some purposes are more salient now than then.
B: Yesterday, we talked about marriage and slavery. Have marriage laws always given members of socity equally AND FAIRLY?
C: No they have not. Other restrictions come to mind: used as a mode of governance, in dynamic tension with the zone of liberty and privacy, which modern marriage has moved towards. Mosst plentiful restrictions in the past, 41 states and territories restricted marriage between white persons and persons of color. Not only so-called Negros and mulattos; also between whites and Indians. These multiplied after the civil war, since emancipated slaves could now marry by the state. In CA and other states in the west, due to in-migration from Asia, there were restrictions on Malays, Mongolians, CHinese, Japanese prohibited to marry whites. These did not prohibit whites OR Asians OR Indians from marrying, but it limited their PARTNERING, their CHOICE of partner.
B: How did legislators justify the fairness and legitimacy of these relationships?
C: Leg knew these relationships OCCURRED, they ust didn’t want to give them the imprimatur of the state.
B: How justified?
C: Filling God’s plan that the RACES NOT MIX, defended as being nature’s way, the order of things, obviously GOD’s plan, a HIGHER law.
B: Another exhibit from opposing counsel’s statement: Cooper declared that racial restrictions were NEVER a distinctive feature of marriage. True?
C: No, inaccurate.
B: Not limited to black & white, what particular restrictions on others?
C: Congress passed exclusionary immigration laws from Asia, but before the law passed there were at least 100,000 Chinese men and very few Chinese women here in the 1880s. State laws were passed preventing marriage of these men to white women. In 1907, the federal govt decided that if native born American women married aliens, they would LOSE their American citizenship. Here we had a restriction than entered POLICY if not marriage LAW. Women had to take her husband’s citizenship and lose her American citizens, even if she was descended from Mayflower stock. Since Chinese were ineligible aliens from ever becoming citizens, in the state of CA for instance. So a US woman who married a CHinese man, she could never become a citizen again unless he died or she was divorced. This was lifted in the 1920s — except that the extra punishment of women remained. Partially lifted for a small group in the 1930s and then fully lifted when CHina became our WW2 ally.
B: Marriage has usually been regulated by states. Was it unusual for the feds to weigh in wrt Chinese?
C: Through immigration law, they found they did not need to be circumspect. Women actually became stateless if they married an anti-Bolshevik Russian living in the US in 1919 — she was no longer a citizen of the US, and since her husband was a stateless refugee, she became one too.
B: So this came about through imigration?
C: Economic self-sufficiency was the key. When Social Security was passed, a marital ADVANTAGE was built-in, favoring married couples over single people or unmarried couples. Federal governemnt has used marriage as a CONDUIT for conveying advantage.

B: What parallels between restictions on race and restrictions on same-gnder marriages?
C: People do not have COMPLETE choice of who they marry, designating some groups as LESS THAN by their restrcited partner choice. The informal unions had LESS HONOR, LESS RESPECT.
B: At some point, the race restrictions were lefted? Were alarms sounded about how that threatened marriage?
C: These were state laws, there were cycles 1913 saw a lot of laws, and they recurred through US history. Even when SCOTUS in 1923 said marriage was a civil right, then in 1924 Virginia passed the most race-restricted in the nation. Called GOD’s PLAN, the natural law, the order of things. Because this was seen as such a hot-button issue, SCOTUS approached it extremely cautiously. THey could have taken a case in 1955, but they waited to decide a case in 1967 (Loving).

B: Did opponents of lifting these restirctions say marriage would be ruined?
C: Maybe not RUINED was used, but people thought and said their marriages would be less valued. The proportion of marriages across the color line grew to 2% quickly after Loving, and then tripled by the turn of the centry. A triping, yes, but not very many of all marriages.
B: Is rthere a term for the role the state plays in marriage?
C: Yes, it comes from common law, called coverture, describing marital roles and duties. Upon marriage, the wife was COVERED by the husband’s legal definition and economic personhood. Jane Doe became Mrs John Smith; she was really no longer Jane Doe.
B: How did states justify that?
C: this was the MARITAL BARGAIN to which both spouses consented. The husband’s obligation was to SUPPORT his wife and his dependents. Her part was to serve and obey, lend him all her property, give him all her earnings, he would represent her in court. Highly assymetrical bargain, one we see now as very unequal. BUt it was not Dominant/submissive, it was freely consented to by the couple, although THE STATE SET THE TERMS. Assymetricality had everything to do with the sex difference seen in household roles.
Women’s work in the household was extremenly important, by difference might be socially enforced.

b; Did the sexual division of labor explain the sexual difference in marital couples we’ve seen through history?
C: Yes, the sexes were seen as so UNSUITED to the same type of work, work was particular to the sexes. Both types of work were seen as very important to the survival of society, which is why the state endorsed them.
B: Did these divisions ever come to an end?
C: Yes, fully in the 1970s but earlier as society mechanized, the nature of work, the sexual division of laborbecame far less rigid. In the 20th century, in our era, the sexual division of labor became no longer applicable. Came to be seen as increasinly archaic, states and SCOTUS stepped out of assigning work roles by gender. This did not however reduce the bargain. Currentyl,spouses roles are gender neutral. Most are obligated to support one another, but the law recognizes that one spouse may be the most economic supportive.
B: Why is the change in gender roles applicable to same-sex marriages?
C: Work roles within a household when gender specific required two genders. But now, with work no longer seen as gender specific, individual couples can decide the symmetry of their own gender roles. No longer enforced by the state. The presence of a marriage by members of the same sex no longer vioilates the states interst inmarriage.
B: Overview, plesare of the objections and concerns about gender roles and coverture going away in the 19th century?
C: Yes, the primacy of the husband as primary protector was seen as essential to what marriage was. The assymetry was seen as essential. ONce women could own property the role of the coverture was threatened. Lots of assumptions the the model of marriage would nevertheless persist. But the suffragette movement, womens voting, andlater the womens movement, coverture seen as archaic. But there were ALARMS and RESISTANCE — it took a very very long time for the state to change all its laws to encompass the change. Becauee of SCOTUS in 1970s, without apparent damage to the institution, it has strengthened the institution of marriage.
B: What has been the trajectory of the stregth of marriage as laws have changed?
C: The definition and regulation of marriage by the states has moved toward symmetry and equality of the two partners, with fewer restrictions of the CHOICE of marital partners. Shift has been toward emphasizing the zone of privacy and intimacy, away from the prescriptions of the state about what should go on. Away from governance and toward LIBERTY.
B: How do those trends bear on whether same gender couples should be allowed to marry?
C: Leans toward the appropriateness of same-sex couples marrying. As roles are no longer expected to meet man/woman differences are no longer work-related; no longer a founding feature of marriage in our society. Other restirctions on choice of marital partner — where there has seemed to be constitutional restirctions, like race was seen — have fallen away while the state still enforces some partnership rules.
B: You’re aware of teh "damage" argument against same-sex marriage? Is there a basis for that? WIll divorce increase?
C: NO.
OBJECTION: IN DEPO, witness refused to answer that question, saying it was impossivble to answer.
B: It is in her report, and depo had an exam of her about divorce page 199. She was questioned and answered about divorce.
Walker: What pages?

Walker: Let’s hear the answer, you may renew your objection as a motion to strike.
C: IN my home state massaschusetts, which has same sex marriage, we have the lowest divorce rate in the union. And it has DECREASED in the five years since same sex marriage began there. [HA!!!]
B: Go back, please, to discuss consent in marriage.
C: Consent, in America, has presumed to be based on a LOVE MATCH, freely chosen, unlike elsewhere where marriages are arranged. This is a free choice based on love, to compose a family and make a household together>
B: Would same sex marriage inclued those defining characteristics of marriage?
C: Yes, it seems like the motives of same sex couples to marry, form households based on stable loving unions, for just the same reasons.
Esclusing same sex couples from this highly valued social institution, society is denied itself the value of stability and security provideed to the partners in the marriage.
B: No more questions.
Defendants attorney has binders to bring forward.
waiting on binders to be brought to the witness stand. [Wonder what;s in those binders???]

Townsend: You don’t consdier yourself an expert on marriage in other countries.
C: High bar for the word expert.
T: What about China and INdia?
C: Ive been there.
T: Please look at your Iowa case testimony, where asked about China or India
T: Can you say that you can predict the impact of same sex marriage?
C: No
T: what about ancient greece, expert?
C: NO
T: Are you a neutral party or an advocate for same sex marriage?
C: In between, a scholarly conclusion
T: (reads Iowa testimony, where she called her self "between"
T: Were you compensated for your work in other cases?
C: I volunteered my time because I think it’s an important civil rights issue.
T: Please look at page 13, to the annual report of the Alternative to MArriag organization, were you were listed as a DONOR. Was that you?
C: Possibly
T: Reads mission statement of organization, as advocate for persons who choose not to marry. DO you support that?
C: Yes
T: Polyamorous families are listed.
C: I had not heard that term until about a week ago, read an article in the Boston Globe about people in multiple stable relationships.
T: Reads dated info from annual report, where it discusses extending rights and benefits to polyamourous families. DId you suport that?
C: No, I knew the straight couple who started this organization to benefit straight couples who CHOSE not to marry. This young couple had been pressured to marry by their families, and didn’t want other to suffer that pressure.
T: Points out another Alternatives to Marriage binder page with her name on it.
C: Not in my binder
Walker: Not in mine either.
T: well, do you recall it?
C: Yes and I support it, all healthy families should be supported by society.
T: You think couples should keep a skeptical stance on marriage?
C: Maybe I have said that
\T: Please turn to Tab Three, an interview with Priscilla Gaiman, on the fourth page you said: I also say couples should keep a skeptical stance on marriage. DId you say an dbeleive that?
T: I never had the chance to review the interview before it went on the web. Can’t say whether I siad that.
T: Teh state is ALWAYS interested in seeing dependent children supported by their parents, yes?
C: Yes, very important.
T: One of its purposes has been to create stable familes in american history, yes>
C: Yes
Purppose of marriage to see chjildren raised by the bio parents, right?
C: no
T: Race restritions caused barriers to legal ties for illegiimate children, right?
C: NO, it created no ties, but not barriers
T: asks about race-based laws, when was the first
C: 1666, Chesapeake colony prohibted ‘shameful’ unions between white women and Negros.
T: Goes state by state, have they had laws prohibited interracial marriage?
C: I don’t know, state by state.
(COLLOQUY about making a speech, not now, but on redirect please)

T: So there was not consistent laws in all states?
C: No, not until 1967 when the SCOTUS overturned all state laws that were race-based.
T: (Tries to talk about marriages abroad, Walker calls him on it)
T: Marriage in America calls for puiblic affirmation, right?
C: Publicly witnessed, yes.
T: As courts consider whether to redifine marriage as no lnoger between man and women, isn’t this an explicit point.
C: Yes, it is.
T: Plays interview of Cott with NPR after Mass Court overturned same sex restrictions.
OBJECTION as to 20minute lenght, Walker says one step at a teim, lets see the relevant part you want to show to the witness.

Recording, she says it is an explicit point in the evolution of marriage, perhaps the most distinct change to marriage.
T: Is your recollection refreshed? Did you say that no other turning points were as important as this one, changing marriage so it’s same-sex?
C; Yes
T: Marriage is complex, correct?
C: Yes
T: Some historians weigh ideas, some weigh economic factors, some give contingency more weight, yes?
C: YEs
T: So you think all these play a role in history, yes?
C: Yes
T: Turn to law review article UVA, please — is this a well-regarded publication? Are you familiar with the author?
C: Can’t confirm the publication or the author,not familiar.
T: (reads statement that marriage will be changed for ALL PEOPLE if same sex marriage becomes law)
Walker ponders, reads law review article.
Thompson argues law review articles are important, in many cases.
walker: Court can take judicial notice, teh witness has stated she’s not familiar with the publication or the author, but we’ll put it in the record, mark it as DIX 1434.

t: Next tab, DIX 1020, Chapman jounral of law and policy by jeffrey reading. Do you know him?
C: Never heard of him
T: he taught at harvard and yale, I thought perhaps you had.
t: (reads article about challenges to trad marriage) Do you agree?
c: I would say it would amplofy marriage, not transform it.
C: (has another law review article) states: expand the meaning and destroy the sanctity of marriage?
OBJECTION: He’s simply reading law review articles.
Walker: It’s appropriate for him to examine this witness by asking if she agrees
(Almost continues without getting an answer, Walker reminds that hemight want the witness to answer)
C: It’s her opinion, and a prediction, I am neutral
T: (another law review article): when people demand recogntion of gay marirage, they ask for the transformation of that good. It will be as big a change as from arranged and unarranged and from poly to mono marriage. Agree?
C: No, I do not.
T: (DIX 1445): DO you know her?
C: I did, not now.
T: :Breathtaking subversive idea!" Agree?
C: No.
T: You don’t haveany views of what has affected the divorce rate in massachusetts do you/
C: No.
t: tab one, your depo in this case, page 199, line 5
I asked: What factors have affected divorce?
You answered: I don’t have any views on what affected the divorce rates in massachusetts. I mentioned it in my report as a concomitant observation, not a causation, is that what you said/
C: Yes, I said that.
T: Another article, by MontySeward, page 327 first graf
"primary purpose, consequences of procreative passion, immediate welfare of children and the often vulnerable mother" Do you agree that society is the ultimate beneficiary of marriage?
C: difficult to answer yes or no, I can’t honestly answer yes or no.
T: Tab 18, DX 1475 article LATimes, David Blankenhorn, starts by saying I am a liberal democrat who opposes same sex marriage. "I reject homophobia, and beleive in the dignity of the child who deserves his/her biological parents"
Is there any other institution as important as marriage to children?
C: FAMILIES are most important, and biological link is NOT the necessary foundation of marriage and families.

witness asks for break, until 10:30, Walker agrees.

I’ll start a new post when we resume.