Tuesday Recap: Federal Prop. 8 Trial

Tuesday’s proceedings in the federal Proposition 8 trial shifted from plaintiffs' personal stories to expert testimony on a range of issues, from the history of marriage to the historical discrimination faced by gay men and women in the United States.

Plaintiffs’ attorneys called to the stand two prominent historians: Nancy Cott, a Harvard professor and marriage scholar; and George Chauncey, a Yale history professor and expert on discrimination against LGBT Americans.

Cott testified on the evolving nature of marriage as influenced by increasing gender equality in the 20th century and the gradual eradication of laws barring interracial marriage—culminating in the 1967 Supreme Court decision Loving v. Virginia, which struck down remaining anti-miscegenation statutes.

Procreation, Cott further testified, is not the defining element of marriage, nor has the institution in the United States ever mandated the desire and ability to procreate as a prerequisite.

During cross-examination, defense attorney David H. Thompson attempted to portray Cott as a gay rights activist, rather than a neutral expert on marriage history. He also repeatedly asked Cott about how Christian tradition informs contemporary views on marriage and whether marriage equality would weaken the institution, leading to the sanctioning of polygamy, among other non-traditional relationships.

At times pointed and aggressive in his questioning, Thompson asked Cott: “Isn’t it true that the consequences of same-sex marriage is an impossible question to answer?”

“No one predicts the future,” Cott curtly replied.

In earlier testimony, plaintiffs’ attorneys played a Yes on 8 ad that called for the preservation of “biblical marriage.”

“To be honest, I found that amusing,” Cott said of the terminology used. “The bible is a situation where people are practicing polygamy.”

Observers in Tuesday’s testimony included Frank Schubert, the media mastermind behind the antigay Prop 8 and Question 1 campaigns; and Stuart Milk, whose uncle, Harvey Milk, was gunned down in 1978 at San Francisco city hall, not far from the federal courthouse where Perry v. Schwarzengger is playing out. “The hatred that took Harvey away from us is the same hatred that is fighting us on this issue,” Milk told The Advocate.

Cott was followed on the stand by Chauncey, who detailed the history of police harassment and trumped-up charges faced by gays and lesbians, as well as discrimination in employment and public accommodations.

Law enforcement harassment, Chauncey testified, “was one more way that it was conveyed to gays that they were a despised class of people, and outlaws in the eyes of the law.”

Plaintiffs’ expert testimony resumes Wednesday.