Day 2: Chapters 1-5 (January 12, 2010)

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Expertise, Interpretation & Exhibits: Day 2

We offer context for each episode from our two experts, David Cruz and Linda Hirshman. First, Cruz gives an overview of what is happening during the day's proceedings - introducing the players and providing an explanation for the legal strategies being employed. Then, Hirshman recounts her first-person experience in the courtroom from San Francisco - describing the dynamics in the room and pointing out the social significance of what you are watching unfold.

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David B. Cruz,J.D.

Day 2 opens with a continuation of plaintiffs' expert Nancy Cott, a Harvard historian who has extensively studied marriage in the U.S. She denies defendants' contention that procreation is the central or defining purpose of the states, which primarily regulate marriage. Regulating households, for social stability, a kind of governance of people by the state, looms larger among marriage's purposes, in her assessment. The various benefits the state attaches to marriage contributes to the institution's prestige, she testifies. Historically, she sees little basis for the defendants' emphasis on marriage as setting for the rearing of parents biological children.

Professor Cott exhaustively addresses the history of past interracial marriage bans, including their purposes and the arguments advanced to defend them, in which she sees parallels to the exclusion of same-sex couples from civil marriage. She also testifies in detail about sex-discriminatory federal citizenship laws penalizing women who married certain foreigners; the use of marriage as a vehicle for distributing various benefits; changes in the sexual division of labor both in marital households and U.S. society more generally, illustrating that marriage has changed, and changed in the direction of greater consent and equality and greater freedom of people to choose their spouse. She also explains that the divorce rate has stayed level or slightly decreased in Massachusetts over the first five years since same-sex couples were allowed to marry there.

Defendant-Intervenors' attorney David Thompson cross-examines Professor Cott at length. He elicits various positions and memberships that suggest she is liberal. She doesn't back off her view that it has not been a purpose of marriage to ensure children be raised by their biological mother and father. Under cross Cott agrees that interracial marriage bans have never been uniform across every U.S. state, presumably because the defense is emphasizing a historical unanimity of laws excluding same-sex couples from marrying. Thompson asks Cott if she agrees with a wide variety of quotations taken from law review articles and other publications on marriage written by other people; she does not agree, for example, that allowing same-sex couples to marry is "breathtakingly subversive." He does get her to agree with him that thinking of humans in binary male/female terms is universal across cultures, which plays into the defense theme that plaintiffs' are asking the court to experiment in novel and risky ways. [Other witnesses in the trial will address such "third-gender" people as Hijras in India.]

Thompson and Cott address possible religious roots of colonial marriage law; the legal doctrine called "coverture" and old California laws treating men and women differently in marriage; and the social meaning of marriage, where he gets her agreement that the social understanding of marriage has hard-to-quantify real world effects (a point he later reinforces with questions about no-fault divorce) and that a person's views about same-sex couples marrying are "quite affected" by various factors including their friends and their religion. Thompson then explores with Cott the motivations of congressional supporters of the "Defense of Marriage Act" (DOMA), including concerns for social stability, religious beliefs, and fear of a slippery slope to legalized polygamy. He then tries to treat her as an authority on groups' political power and secures her agreement in effect that there is less prejudice against gay and lesbian people today.

On redirect examination of Professor Cott, plaintiffs' attorney Boutrous gets Cott to speak at length about how marriage in the U.S. has changed dramatically over time, becoming more egalitarian and becoming more esteemed today than during the 1960s and 1970s. Cott called into question conclusions by defense expert David Blankenhorn that letting same-sex couples marry would further "deinstitutionalize" marriage in ways negative with respect to things like cohabitation rates, nonmarital childbearing, and divorce rates. She clarifies her views on no-fault divorce; gender-unequal marriage rules; slippery slopes raised by defenders of excluding same-sex couples from civil marriage. Judge Walker gets her to clarify how governments in the U.S. came to use marriage as a regulatory or governance device and then dismisses her.

After lunch (and a brief exchange with the Judge where defendants' attorney Cooper was worried that the camera might pick him up conferring with his co-counsel), Therese Stewart, attorney for San Francisco, conducts the direct examination of Yale professor George Chauncey, a social historian, an expert in 20th century U.S. history with a specialization in gender and sexuality and lesbians and gay men. Chauncey's testimony addresses factors previously treated as relevant to the "level of scrutiny" (how deferential or skeptical courts will be toward government) that certain kinds of discrimination receive under the Equal Protection Clause of the U.S. Constitution. He testifies to a wide range of "acute" anti-gay and -lesbian discrimination by both governmental and private entities and their continuing effects, reinforcing enduring patterns of anti-gay prejudice and hostility. For example, he explains how more than just sodomy laws were used to try to keep gay and lesbian people even from congregating in bars; how military anti-gay policy came to be; persecution and purging of gay and lesbian government employees; hate crimes; and the toll of the closet, which has perpetuated "demonic stereotypes" of gay people that he elaborates at length, including past and present themes of gay men and lesbians as threats to children, which the plaintiffs are arguing were a form of irrational prejudice deployed in the Yes on 8 campaign to secure passage of the proposition. Stewart walks Chauncey carefully through past propaganda and parallels he sees in the messaging used by the campaign to enact Prop 8.

Defendants' attorney Thompson then begins cross examination of Professor Chauncey, touching on various possible meanings of the word "homosexual" and distinctions between acts and identities. Day 2 concludes then with some objections about evidence and potential evidence.

~David B. Cruz, J.D., University of Southern California, Gould School of Law

± Click here to read more about David Cruz.

An expert on constitutional law and sex, gender, and sexual orientation law, Professor Cruz has been interviewed by a wide range of print, radio, and television media, including CNN Headline News, The News Hour, The Wall Street Journal, This American Life, and NPR's Morning Edition. Before joining the law faculty at the USC in 1996, he was a Bristow Fellow in the Office of the Solicitor General in Washington, D.C. and clerked for The Honorable Edward R. Becker, Circuit Judge of the United States Court of Appeals for the Third Circuit. Cruz is admitted to the bars of the State of New York and the United States Supreme Court.

Professor Cruz graduated with a B.S. in Mathematics, summa cum laude, and a B.A. in Drama, summa cum laude, from the University of California, Irvine and earned his master's degree in Mathematics from Stanford University. He was first in his J.D. class at graduation from New York University School of Law, where he was Managing Editor of the New York University Law Review.

Professor Cruz's academic publications include Heterosexual Reproductive Imperatives, 56 EMORY LAW JOURNAL 1157 (2007); "Naim v. Naim," "Bowers v. Hardwick," and "Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston" (Encyclopedia of American Civil Liberties, 2006); Disestablishing Sex and Gender, 90 CALIFORNIA LAW REVIEW 997 (2002); and "Just Don't Call It Marriage": The First Amendment and Marriage as an Expressive Resource, 74 SOUTHERN CALIFORNIA LAW REVIEW 925 (1999).

Dr. Linda Hirshman

"It's like the story of the seven blind men and the elephant," historian Nancy Cott mischievously volunteered, describing defendants' definition of marriage on Day Two of the Prop 8 trial. Defendants' lead lawyer is like the man who feels only the trunk and calls the elephant a snake. Cott then testifies about the many purposes of marriage. Some of the purposes were pretty raw: "that men were suited to be providers, were suited for certain sorts of work; whereas, women, the weaker sex, were suited to be dependent, needed a stronger hand to guide them, support them and protect them." She also testifies about the many marriage restrictions -- blacks with whites, Europeans with Asians, female citizens with male noncitizens, concluding that "the direction of change leans consistently toward -- toward the appropriateness of allowing same-sex couples to marry."

Defendant's lawyer David Thompson then introduces us to the process of cross the defendants will use throughout. Presenting a pile of Cott's statements from a decades-long career, he presses her to recognize defendants' version of marriage - a Christian, monogamous institution, focused on children -- and to admit the changes she described in direct would destroy the univocal vision. She tries to stick to her original story - that marriage was always partly secular and changed in content as the society changed, mostly, she thinks, for the better - integrating the races, emancipating women. Her testimony is crucial, because defendants' case depends heavily on establishing that heterosexual union is the only core meaning of marriage, so that any change, however harmless by normal standards of harm, will, by definition, destroy the institution.

The plaintiffs' second expert, George Chauncey of Yale, is the leading expert in the country on the history of gay life in America. It took two transcript paragraphs to list the prizes won by his book, "Gay New York," which included a ground breaking analysis of how discrimination against homosexuals developed alongside the repeal of Prohibition in the 1930's and with the rise of McCarthyism after World War II. So his testimony is about how lesbians and gay men have experienced widespread and acute discrimination over the course of the 20th century, culminating in the images of threats to children put out in support of Prop. 8.

Chauncey has written, as most modern historians have, that homosexuality as a category of humanity, arose only in the 19th century. Before that, law and society focused on the acts themselves (sodomy, etc.) and assumed they would come and go in many peoples' lives. So Thompson, cross-examining again, presses Chauncey to admit that the category "homosexual" is a fluid one, and that it's not exactly clear what it means. As the day ends, Thompson's examination of Chauncey has just begun. The real fireworks will come with Day 3.

~Dr. Linda Hirshman, Author and retired Professor of Political Philosophy

± Click here to read more about Linda Hirshman.

Dr. Hirshman specializes in social movements. She has written extensively about the feminist movement, including two controversial books, Hard Bargains: The Politics of Sex (Oxford 1994) and Get to Work: A Manifesto for Women of the World (Viking/Penguin 2006), as well as commentary in The New York Times and The Washington Post. She is at work now on a book about the gay revolution, Victory! to be published by Harper/Collins in 2011. She earned a J.D. from the University of Chicago Law School and a Ph.D. in Philosophy from University of Illinois at Chicago. She covers marriage equality at Salon.com and The Daily Beast.

Proposition 8 Trial Re-Enactment Crest

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About

In its January 13, 2010 ruling, the U.S. Supreme Court blocked the public broadcast of Perry v. Schwarzenegger, a U.S. District Court case challenging the constitutional validity of California's Proposition 8.

Working from court transcripts and first-hand accounts from bloggers who are present at the trial, we are re-enacting the trial and posting it here for public viewing.

John Ireland and John Ainsworth are co-producing this project under JIP, LLC a production company based in Hollywood.

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Cast of Characters

Vaughn Walker (left), Chief Judge, U.S. District Court is portrayed by Ted Heyck (right)

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