Professor in Prop. 8 trial testifies that marriage has been historically restricted in U.S. [updated]

In her ongoing testimony in a San Francisco federal courtroom, a Harvard history professor said that throughout American history, government has restricted marriage on racial grounds and limited the rights of women within marriage.

Efforts to remove those restrictions and limitations were met with huge controversy, said professor Nancy Cott, who has written a book about the history of marriage in the United States. The removal of those restrictions did not weaken marriage and may even have strengthened it, she said.

Cott was called to the stand by lawyers for two same-sex couples who want to overturn Proposition 8, the 2008 ballot measure that reinstated a marriage ban for gay and lesbian couples.

During the second day of the high-stakes trial, lawyers elicited testimony from Cott to contradict claims by proponents of Proposition 8. The lawsuit by the same-sex couples contends that Proposition 8, passed by 52.3% of California voters, violated federal constitutional guarantees of equal protection and due process.

Cott also testified today that gender roles traditionally assigned to marriage no longer make sense and are no longer supported by laws. Cott said divorce has not increased in Massachusetts during the five years same-sex couples could marry, "and if anything the divorce rate has been down."

She testified that a ban on same-sex marriage deprives society a significant source of stability.

[Updated at 10:23 a.m.: Attorneys for Proposition 8's proponents pored over past statements Cott has made in interviews and tried to portray her as an activist during cross-examination. David H.Thompson, one of the campaign's lawyers, said that racial restrictions on marriage in the U.S. were never as "uniform" or widespread as the ban on same-sex marriage.]

[Updated at 10:49 a.m.: "The consequences of same sex marriage is an impossible quesrion to answer, yes or no?" Thompson asked Cott. "No one predicts the future," the Harvard professor admitted.
Thompson also got Cott to admit that same-sex marriage would be "arguably a highly distinctive turning point" in the history of marriage laws.]

[Updated at 10:57 a.m.: Thompson, reading from an article Cott wrote, asked whether Jesus Christ and his apostles taught monogamy. "I know very little about Jesus Christ," Cott replied.]

-- Maura Dolan at the federal courthouse in San Francisco

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Comments

[Daniel]

I don't think history should be a guide on this issue because it is a double-edged sword. What about the times when the United States has put restrictions on marriage? I'm thinking of laws against polygamy or laws requiring minors to get parental consent before marrying. Have those restrictions weakened marriage?

[Jill Jones]

Observing this debate over the value of actual human being's lives, it would seem that many heterosexuals seem to think that their gay children aren't even full human beings at all. Instead choosing to fight to ensure those gay children are treated badly and unfairly. Via the law as well as society.

That would appear to make framing this as an issue of 'morality' especially difficult for heterosexuals, who create every single gay person in existence, yet fight for governmentally institutionalized Apartheid for their very own offspring.

Very, very difficult to talk about morality while advocating for Apartheid, dontcha' think?

Never thought I'd live to see the day where, in this case, I would prefer to be on the gay side of life. For I simply can not imagine having my very humanity debated by the very people who brought me into this world. And we subject our gay children to that at the ballot box and at every other opportunity that we can.

It's really very sad. I pray that the gay community wins this one. But they really shouldn't have to 'win' this. For it is something that is guaranteed to every American. Equal rights. Simply by virtue of being born.

Heck, if I, a 67 year old woman, can have 5 marriages under my belt, all failing miserably, exactly how 'sanctimonious' is this institution, really???

Can't we just admit that we as society have treated our gay children ATROCIOUSLY, work correct our wrongs, make amends to our gay children, and call it a day?????????????

[Daniel]

Not all restrictions are bad, like requiring people to be of legal age and sound mind before marrying. This history professor's argument could just as easily be used to support the defense.

Marriage should be defined by the electorate, not by a judge. Opposition is so widespread to same-sex marriage that a decision to invalidate all laws against it would shake the democratic foundation this country is built on.

I don't want to be tyrannized by judges, I want to be able to have a say on issues that are important to me.

[aduran08]

reinstating the ban on same-sex marriage is a regression in history. what's next? is the law going to tell people that interracial marriages are now illegal? are they going to tell people that women no longer have a right to vote? i don't think so. or i at least hope not. reinstating the ban on same-sex marriage is taking away someone's right to be married. who gave anybody the right to tell someone that they are not allowed to legally and spiritully bond themselves to the one they love?

[adam]

there's obviously a huge difference between restricting something due to pure and willfully, unarguably, choice, and completely excluding a class of people due to their biological (backed up by the vast majority of studies done, so I don't see a point in making it seem very questionable) inclinations, and, thus, classification.

[Chris]

Why vote, if our votes in California mean nothing? If same sex couples cannot marry in california, let them move to a state that does allow it.

[Zach]

You have a point, Daniel, but I doubt the professor is saying we need to do away with all restrictions on marriage. She cites restrictions that arbitrarily made some people unequal merely because of color or sex, and these days we know that was wrong. Children require parental consent to marry for the less arbirary reason that only adults can sign legal contracts of any sort. Polygamy would play havoc on marriage laws designed for two people, which would take an overhaul FAR more extensive than changing "bride/groom" to "Partner A/B."

Her point seems to be that marriage has changed, and much of the history of restricting two consenting adults from signing a marriage contract is now regarded as wrong. That's different than condemning any and all restrictions.

[Nina]

I can't believe they actually brought up Jesus Christ. As if that's even relevant. You are kidding me.

[S. Ignab]

There have been restrictions in the past, such as laws against polygamy or laws requiring minors to get parental consent before marrying, but there is a critical difference between those laws and the definition of marriage: A consensual legal relationship between two adults. That definition stops minors, multiple spouses, and marrying your pets. What it does not do is allow the government to "approve" of what perfectly capable adults decide to do.

If it is wrong for our government to block two people of different religions, nationalities, ages or races from getting married, it is also wrong for our government to block two people of the same gender from fully participating in our society and economy. That is the American Traditional Value of fairness and equality, life liberty and the pursuit of happiness.

You might also find Nate Silver's research interesting, he found that states with gay marriage have significantly lower rates of divorce than states that oppose equality. http://www.fivethirtyeight.com/2010/01/divorce-rates-appear-higher-in-states.html

[Debbie]

Shouldn't be any questions here about religion/Jesus Christ as that would be the US promoting a religion and that is against the 1st amendment. Separation of church/state began for the Baptists who were being villified by not adhearing to the most common denomination of the day the Church of England/Anglicans. To allow any promotion of any religion opens up the opportunity for any relgion to state what our laws will be.

Using the history of marriage as a precedence is also a slippery slope. Do you adhere to that women are property and they cannot own anything? There would be no divorce. Women could literally be beaten by their husbands.

In essence, I think the question must be the 14th amendment and equal protection under the law. You cannot have separate but equal so the question is are all the citizens being represented equally under the law.

The state could declare that the term marriage could be used in the secular sense and that would eliminate the religion point. Or they could declare all partners are civil unions with participants open to seek their own religous confirmations aside.

I cannot see legally how it can be determined that only a man and woman can define civil unions or secular marriage. Without using religion or tradition the other option is science and there are numerous species that are male-male/female-female.

I am not gay and I am a Christian but I don't want infringement of the 1st or 14th amendments to take place because once they are opened they could impact my right to practice my religion and they could impact my right to equal protection under the law. These people are not asking me to change my religion or be gay so I say let them be married and let me and my faith alone.

[UDChE89]

I hate to tell you folks that marriage is not a religious term. Marriage existed well before organized religion and was used to consolidate power. Holy Matrimony is the religious term. In this country, a marriage license is granted by the state. You can't get married without it. You can, however, get married without entering into Holy Matrimony.

The whole fight is about allowing gay and lesbian citizens (and taxpayers) to express their civil rights by having their relationships sanctioned by the government. We're not forcing you to accept our relationships as many people today still don't accept interracial relationships though they have to be recognized by the government. Marriage gives many rights to those who partake that are not given to same-sex couples even in civil unions (which are separate and unequal... already proven to be illegal in this country).

As for the majority voting on these rights, this should never be allowed. The founders of this country, when writing the Declaration of Independence and the Constitution, never intended to leave any rights up to a popular vote. If this were the case, women wouldn't have the right to vote and slavery would still exist.

[Jet Black]

Marriage restrictions such as parental consent for minors, polygamy, incest(consensual), and once upon a time, same-sex, were put there to keep it from weakening society as opposed to weakening marriage. No one knew that a day would come when we would have to defend marriage in its biblical form of one man one woman. Polygamists never seem to seek out to obtained a marriage license and bigamists were prosecuted without crying that someone was infringing on their civil rights.

[Rae]

Many states had laws against interracial marriage up until the Supreme Court's decision in 1967 and now here we are again, trying to deny rights to a group of people. The government has no right to tell two consenting adults that they cannot marry based solely on their sexual preference.

[Engineer Bill]

If you can call the union between a couple of the same sex marriage, why can't you call the union between a human and an animal marriage ? What about the union between a adult and a child ? A slippery slope, isn't it ? ...E.B.

[Mar Vista Guy]

Let me get this straight. Thompson wants to set US Legal Precedent on what Jesus and his apostles taught?

The US is *NOT* a Theocracy. We have a separation of Church and State.

(And, as an aside, based on the Gospels, Jesus would have a much bigger issue with economic disparities in this country than marriage law. He never mentioned sexuality once, but sure talked a lot about social justice.)

[Kari Heaberlin]

And to Daniel, why wouldn't minors need parental permission to marry an adult? That would be known as statutory rape if the couple did not have the permission of the parents. Minors do not have the right to enter into a contract as an adult and therefore need consent from their legal guardians. Also, polygamy is a bit of a gray area with marriage. While restrictions of it violate the first amendament right to freedom of religion, U.S. federal law states that a person cannot enter into more than marriage contract at a time because of the civil vows made in the marriage contract. There is a high potential for spousal and child abuse in polygamic families, including child molestation and neglect. Also, many tax claims, deductions, and benefits become available to a couple when they are married. Therefore, having more than one wife may entitle a person an unequal proportion of local, state and federal benefits, and thus government inacted inhibitory legislation in order to prevent this event from occuring. Has it made marriage better? Maybe not for the husbands.

[lizwetzel]

Let all species marry each other. We should let dogs and men marry each other, why would you deny that?

[able baker]

Hopefully clear heads will prevail and continue to ban homosexual marriages.

[Liz]

Marriage:(Webster's II Dictionary) 1.a. The state of being married:Wedlock. 2. Legal union of a man and a woman as husband and wife.

Marriage: (Bible) Genesis 2:21-25. And the Lord God caused a deep sleep to fall upon Adam, and he slept; and he took one of his ribs, and closed up the flesh instead thereof: 22. And the rib, which the Lord God had taken from man, made he a woman, and brought her into the man.
23.And Adam said, This is now bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken out of Man.
24. Therefore shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh.
25.And they were both naked, the man and his wife, and were not ashamed.

[busytimmy]

Liz, that is a ridiculous, stupid statement and you know it. Prop 8 is about discrimination, pure and simple. There is no rational reason to deny equality to all.
"At the end of the day, whatever the motives of its Proponents, Proposition 8 enacted an utterly irrational regime to govern entitlement to the fundamental right to marry, consisting now of at least four separate and distinct classes of citizens: (1) heterosexuals, including convicted criminals, substance abusers and sex offenders, who are permitted to marry; (2) 18,000 same-sex couples married between June and November of 2008, who are allowed to remain married but may not remarry if they divorce or are widowed; (3) thousands of same-sex couples who were married in certain other states prior to November of 2008, whose marriages are now valid and recognized in California; and, finally (4) all other same-sex couples in California who, like the Plaintiffs, are prohibited from marrying by Proposition 8."

[Michelle]

A dog can't sign a legal document for marriage. Human beings can.

[Liz]

Marriage:(Webster's II Dictionary) 1.a. The state of being married:Wedlock. 2. Legal union of a man and a woman as husband and wife.

Marriage: (Bible) Genesis 2:21-25. And the Lord God caused a deep sleep to fall upon Adam, and he slept; and he took one of his ribs, and closed up the flesh instead thereof: 22. And the rib, which the Lord God had taken from man, made he a woman, and brought her into the man.
23.And Adam said, This is now bone of my bones, and flesh of my flesh; she shall be called woman, because she was taken out of Man.
24. Therefore shall a man leave his father and his mother, and shall cleave unto his wife; and they shall be one flesh.
25.And they were both naked, the man and his wife, and were not ashamed.

[Solidforce]

@lizwetzel

We can see how you are a bigot. Comparing bestiality to same gender marriage is deplorable. I am sure you would want to go back to segregated interracial marriage or the Jim Crow era.

Do the world a favor and end yourself.

[Mike Dale]

"In her ongoing testimony in a San Francisco federal courtroom, a Harvard history professor said that throughout American history, government has restricted marriage on racial grounds and limited the rights of women within marriage.

Efforts to remove those restrictions and limitations were met with huge controversy, said professor Nancy Cott, who has written a book about the history of marriage in the United States. The removal of those restrictions did not weaken marriage and may even have strengthened it, she said."

The supposed purpose of marriage I guess is to raise a family that is to have or produce children, whom will continue to contribute to society where their parents left off ?

When I read, and re-read Ms. Cott's statement above, the word pandering jumps to my mind, lets equate racism and sexism to the homosexual agenda's aspiration for marriage acceptance, I hope the judge is smart enough to see through that .

It is not a matter of civil rights it is a matter of human rights, people whom are happy in whatever relationship they are in should not be denied human rights
or discriminated against in anyway, so long as that relationship is legal.

So an option should be made that would give these couples the satisfaction of marriage. But that does not mean that we should go through the dictionary and start changing definitions to satisfy one groups particular interest.

[David]

I used to be on the fence about gay-marriage until Perez Hilton and his attitude he took when the answer wasn't the one he liked. It seems to me that those who support same-sex marriage are their own worst enemies.
In the current augments they are talking about the social meaning of marriage. Well, if society say same-sex marriage is not a marriage - end of discussion. Either you abide by the social norm or just say we don't care about society and just want the legal rights - which they already have in domestic partnerships.