Prop 8 Trial Day 2: History and Hate

Afer The media hordes diminished considerably at the Prop 8 trial today (I had to return to L.A. this morning, but will be back), devoted entirely to the testimony of two expert witnesses. Both were brought in to establish the plaintiffs’ claims that, far from being a static institution, with marriage there is a history of restrictive and changing laws, and that gays and lesbians have been a special class of citizens who have been discriminated against. 

The morning was spent with Harvard Prof. Nancy Cott, who testified on the history of marriage and how it has been restricted over the years via race and gender, as well as how it was banned for slaves and, at the start of the 20th century, for women who married “aliens.” It gave Ted Boutrous, on the plaintiffs’ legal team, a chance to ask whether same sex marriage would affect divorce rates.

Per Karen Ocamb, Cott said, “My only comment is from observing my own state of Massachusetts where there has been same-sex marriage for five years. Massachusetts has lowest divorce rate in country. Since five years ago, divorce rate has fluctuated slightly, but if anything is lower.”

As Ocamb writes, there were chuckles among some of the journalists at that comment.

Cott, however, seemed to get flustered via a line of questioning from David Thompson, a defense lawyer, who challenged her credentials and citing some of the statements she has made in past writings, including one she made in a journal 34 years ago.

And Thompson also challenged Cott’s ability to predict the consequences of same-sex marriage, with Cott admitting that, “Yes, it is impossible to predict the future,” per Newsweek’s Eve Conant.

After the lunch break, NYU history professor George Chauncey testified about how gays and lesbians have been a “despised category” through the years, whether through the laws on the books banning “nonprocreative” sex or through the entertainment industry, which long shunned even mentioning homosexuality or, if it did, it was in a negative light, per the Los Angeles Times. But he also testified that discrimination continues, noting the lack of laws barring discrimination on the basis of sexual orientation. He’ll be cross-examined on Wednesday.

Finally, screenwriter Dustin Lance Black (“Milk”), who is on the board of the American Foundation for Equal Rights, which is backing the case, tells Ocamb that he believes Harvey Milk would have been “furious” that cameras have not been allowed to cover the trial. Black also writes on the Huffington Post that with the trial, “we are fulfilling Harvey’s dream.”

Photo of plaintiffs Paul Katami, Jeff Zarrillo, Kris Perry and Sandy Stier by Diana Walker for the American Foundation for Equal Rights.

Update: Olson and Boies talked about their strategy tonight on “The Rachel Maddow Show,” including the presentation of the personal stories of same-sex couples to the court.


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  1. Tim Price says:

    It’s all just disgusting on so many levels.

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