Witnesses in Prop. 8 trial examine history of marriage, gays

During the second day of a widely watched federal trial on same-sex marriage, an expert on the history of marriage testified that its central purpose historically was not procreation, but the creation of stable households.

Harvard professor Nancy Cott, who has written a book about the history of marriage in the United States, told a federal court in San Francisco that child rearing was only one of several purposes of marriage, not “the central or defining purpose.”

“There has never been a requirement that a couple produce children in order to have a valid marriage,” Cott testified, adding that George Washington, the father of the nation, was sterile.

Cott was one of two expert witnesses quizzed Tuesday as foes of Proposition 8 tried to make the case that it violated federal constitutional guarantees of equal protection and due process.


During cross-examination, the Proposition 8 campaign tried to impugn the experts as advocates whose views were shaped by their support for same-sex unions.

Cott testified that previous efforts to repeal laws that banned marriage based on race and ethnicity, or that subjugated women, were hugely controversial and such “hot button” issues that the U.S. Supreme Court declined for years to address them.

She noted that that divorce rates rose steeply in the 1960s and marriage continued to be viewed negatively in the 1970s as heterosexuals advocated “open marriages” and “swinging.” But divorce rates hit a plateau in the 1980s, and marriage is now held in high esteem in the U.S., she said.

She attributed the higher status of marriage to advocacy by the Christian right and the growing clamoring of gays and lesbians to participate in it.


During cross-examination, lawyers for the Proposition 8 campaign noted that racial restrictions on marriage in the U.S. were never as “uniform” or widespread as the ban on same-sex marriage. He also asked Cott if it was possible to predict the consequences same-sex marriage would have on society.

“No one predicts the future,” she admitted.

For the third time in two days, U.S. Chief District Judge Vaughn R. Walker, who is presiding over the trial, asked about government’s involvement in marriage. How did the government become so involved in the institution? he asked.

Cott replied that government has a long history of administering marriage laws and “in bundling certain social awards with duties . . . to encourage stable, long-term associations.”


Cott was followed to the stand by Yale professor George Chauncey, who described a litany of laws and practices throughout U.S. history that he said put gays and lesbians into a “despised category.”

He said various laws and police actions made gays afraid to reveal themselves and as a result, “Gay life was really pushed underground,” Chauncey testified.

Chauncey cited early colonial laws that banned “non-procreative” sex, sodomy laws and what he said was until recently the practice of police using vagrancy laws to arrest gays. Places where gays gathered had to pay bribes to police or organized crime, said Chauncey, who has written several books and articles about gay history.

“Gay life was enmeshed in a web of criminality,” he testified.


He said the fear that homosexuals will molest children or recruit others to their orientation “continues to play a role in debates over gay rights.”

The anti-Proposition 8 side again played Proposition 8 commercials that dealt with protecting children and showed opposite-sex couples with children. When Chauncey described the people in the photos as heterosexuals, Walker chimed in: “How do you know they are heterosexual?”

The courtroom burst into laughter, and Chauncey admitted he did not know their actual sexual orientation.

Systematic discrimination against gays and lesbians has fallen since the 1950s, he testified, but added that 20 states still do not have laws preventing discrimination against gays in government employment and that 28 states fail to bar bias by private employers.


The plaintiffs plan to present more expert witnesses today when the trial resumes.