January 12, 2010
By Rick Jacobs
Internet is back!
Plaintiffs attorney Theodore Boutrous quoting a statement made by the proponents:
And the purpose of the institution of marriage, the central purpose is to promote procreation and to channel naturally procreative sexual activity between men and women into stable enduring unions… it is the central and we would submit defining purpose of marriage.
Professor Cott: Procreation is one of the purposes of marriage. The larger purpose of marriage from the state’s perspective is the ordering of the household, the contribution to stability and governance. It’s important to recognize that marriage has been an instrument of governance.
How does that contribute to governance?
Prof: Looking at this historically, it’s the regulatory purpose of marriage. Husbands were economically responsible for their family/spouse. The point of marriage was so the sovereign could govern in smaller units, the household. We no longer assume that the single head of household has all the power, especially since 1920 when omen got the right to vote. The institution of marriage has always been as much about supporting adults as it has been minors. The proponents emphasize the minors’.
TB: Have there been other benefits than child rearing (to marriage)?
Prof: There has never been a requirement that a couple must produce children in order to have a marriage. Couples beyond the procreative age were always allowed to marry. Sterility has never been a bar to marriage. George Washington, the father of our country, was known to be sterile, which was considered an advantage because he could not create a dynasty.
Prof: the line between legitimacy and illegitimacy was marriage. This had an effect on property, inheritance and the like. In the 20th century, there has been a removal of that bright line. However, in family courts, unmarried couples’ children have to prove that they deserve a piece of the parents’ inheritance, while children of married couples do not have to prove that.
The fact that the state is involved in granting these kinds of benefits and legitimacy to the marriage institution grants prestige and legitimacy that other forms of relationships never achieve.
Boutrous puts up another statement from the opening statement of the proponents:
Across history and customs marriage is fundamentally a pro-childe institution…between a man and a woman.
Marriage aims to meet the child’s need to be emotionally, morally, practically and legally affiliated with the woman and the man whose sexual union brought the children to the world.
Prof: Very incomplete description of marriage. In the history of the US, blended families that we now see as modern were around all along. Step children, nieces and nephews whose parents died, aunts, ageing sisters, parents all lived together. Heads of households were responsible for these dependents. (The point is that “family” is a broad term and always has been, unlike what Prop. 8 wants you to believe).
Prof: (Returns to the questions about restrictions from marriage, including slaves before emancipation.) The most plentiful example is the restriction 41 states had of marriage between whites and people of color. There were bars in some states as early as the 17th century between whites and Indians, not just “Negroes” and “mullatos.” Post-1865, these laws actually multiplied across the country. In California, with a considerable in-migration of Asian so-called ethnic groups, the marriage laws here and Oregon prohibited marriages between whites and people of the foregoing description. The laws did not totally prohibit those people from marrying, but they did prohibit a white person who fell in love with an Asian from marrying. (Asians could marry Asians, apparently, which is so generous of our state!) Legislatures knew these relationships were occurring; they wanted to make them second-class.
(Judge teases Prof. Cott to humor Boutrous by letting him ask a question now and then.)
Boutrous puts up another quote from Prop. 8’s opening:
“Racial restrictions were never a definitional feature of the institution of marriage.”
Is this true?
Professor Nancy Cott: No. There were many restrictive laws the prohibited Asians from entering the US. At the time the restriction laws were passed, there were already 100,000 or more Asian men in the west of the US, but there were very few Asian women. The restrictions against marrying white women made these men permanent bachelors. In 1907, a US restriction in law said that any American woman who married a foreigner would have to take his citizenship and lose her citizenship “even if she descended from the Mayflower.” A German, for example, could become a citizen through naturalization. But Asians were never eligible for citizenship. California invented this concept of Asians never being eligible for citizenship. If an American woman married an Asian, she could never again become an American citizenship.
This would be highly fought. In the 1920s. This was only lifted much later on when it became a problem for the US in its international relationships.
In setting this policy into the 1907 immigration act, the federal government was not very circumspect in how this had an impact on people. The law rendered a number of women stateless. The US law had now ability to say that a woman who married someone from the USSR in 1919 would be stateless. She’d have lost her US citizenship and could not gain USSR citizenship. Misguided policy but had a huge impact on marriage.
There were marital advantages built into social security. Since then, the federal government has continued to use the institution of marriage as a conduit for federal rights and benefits.
Parallels between these restrictions and same-sex marriage restrictions exist.
At some point after restrictions on inter racial marriage were lifted, what happened?
Prof: Big burst of these restrictive laws passed post-1913. In 1923, when the Supreme Court first opined on marriage as a right were followed in 1924 by the most restrictive interracial marriage law in Virginia in 1924. US Supreme Court could have taken interracial marriage case as early as 1955, took one only in 1967, which came from Virginia and that extremely restrictive law. The court could have acted earlier; it did not.
Did proponents argue that removal of these laws would ruin the institution of marriage?
Prof: I’m not sure what they argued in that way, but they did say that interracial marriage would degrade their own marriages and make marriage less popular. There is no evidence that any of this happened. Marriage as an institution did not decline. And even now, only 6% of marriages are across the color line, up from 2%. So while the number tripled, it’s still really small.
Prof: Marriage fell into the common law view of “coverture” which was the French that meant she was covered by her husband’s life. She lost her individuality, hence becoming Mrs. John Doe. This was the marital bargain to which both spouses consented.
The point is that this was a mutually agreed upon separation of labor. Men were deemed to be providers; women, the weaker sex, were deemed to need protection. Hence there was a division of labor. All socially conventional according to the times.
Professor Cott: Separation of the roles of the sexes was deemed important because of the way the world worked. The move away from the agrarian society to mechanization changed the way marriage roles were perceived. The values of the country toward the sexes changed in the twentieth century because the sexual division of labor is no longer necessary to the work people do in the world. With the passage of Title VII and the civil rights laws, the sexual division of labor became archaic. By the 1970s, with the women’s rights revolution, the Supreme Court stepped in and the states had to stay out of assigning spousal roles according to gender. Now, both spouses are required to support one another, but no longer by specific gender assignment. In other words, the law is now gender neutral.
[UPDATE] 9:28 The more that this has become gender neutral and the more society has evolved, the more same-sex marriage makes sense. Now, the coverture doctrine is dead. The state no longer assigns gender roles in marriage. Couples may choose to take on those roles, but its not up to the state any more. (THIS IS A BIG DEAL! Most of us don’t remember when the state did assign “husband” and “wife” roles in law. And now, they cannot. So couples can choose to marry and assign their roles in the family as they see fit.)
There was a great hue and cry as the loss of asymmetry began to rise, as the coverture doctrine that made women unequal, passed. While the changes at first raised alarm because there was concern about the deterioration of families. As suffrage and equality for women rose, the doctrine of coverture seemed more and more archaic. It took a very long before this trajectory of the removal of the state from ascribing religious spousal roles was removed. In other words, tradition ways heavily.
Because of the Supreme Court decisions of the 1970s, the quality of marriage has improved, not diminished.
There has been a change in the way marriage has been perceived and regulated by the state, toward more equality between partners and fewer restrictions on choice of marital partners. The shift hasw been toward reemphasizing the extent to which marriage choice and the harmony that marriage should create as a zone of liberty between individuals has grown vs. the prescriptive laws that govern marriage. However, both still typify marriage. (Okay, so as society has progressed, the laws increasingly leave couples alone in marriage.)
Trend leads to sensibility of same sex marriage. If gender neutrality in marriage is the norm, which it is, then same sex couples can easily marry within law and modern society.
[UPDATE] 9:34 Professor Cott is opining that same-sex marriage makes sense. Prop. 8 proponents object, saying that in her deposition she said she is not an expert on this. Now, Boutrous is showing that she rebutted that in her deposition.
Judge Walker: Appears the subject was explored in the deposition. Continue and then proponent can move to strike if necessary.
Boutrous: Any evidence that same-sex marriage will increase divorce rate?
Prof: 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.
[UPDATE] 9:36 Prof: Especially in an era when families can have children that are not from biological procreation, and so many couples do, seems that by excluding same-sex couples from marrying and engaging in this highly valued institution, society is actually denying itself another resource for ensuring stability.
(Boutrous ends; now we cross examine.)
[UPDATE] 9:41 Cross examination begins with Mr. Thompson taking on Professor Cott. He begins by saying that she is not an expert in marriage outside of the US. She says I am not an expert by my high bar, but I’m familiar with other countries.
In the deposition in Iowa at which she testified, she said she was not deeply aware of the marriage practices in China and India, the two most populous countries int eh world.
You cannot say certainly that same-sex marriage will have no negative effect on marriage?
Prof: I cannot predict the future.
Thompson: You are somewhere between a neutral party and an advocate (which he reads form her deposition in Iowa). She put in amicus briefs in NY and elsewhere. You were not paid.
Prof: I volunteered my time because I think its’ important to have a historical view of these things. (So he’s trying to make her into an advocate, rather than a neutral party.)
[NOTE] I’ve moved to a second thread where Thompson’s cross-examination of Professor Coff continues.