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Liveblogging Day Two: Part II Cross-examination of Cott continues


By Rick Jacobs

The last thread was getting a bit long, so I am moving to a fresh one. Thank you for hanging in there while I was experiencing Internet connection issues earlier.

Thompson (lawyer for the defense) tries to say that Professor Nancy Cott is not a big defender of the institution of marriage.)
Throughout American history the government has been very interested in assuring dependent children are supported by family.

One of purposes of marriage is to provide for dependents and vulnerable. One of marriage’s purposes is to promote stability. One of purposes is to assure that children are raised by mother and father (She says no). Purpose to legitimate children (but less important now, she says.)

Laws of interracial marriage bans created illegitimate children. YES
Prof: 1667 law punished shameful matches between free white women and Negroes, intent was to penalize and criminalize marriages.

True that NY, PA, NJ have never had a law prohibiting interracial marriage.

I have to check this.

Fair to say never a uniform legal prohibition against marriage.

It is true that there was never a time when interracial couples could not go to some state to get married.

T: Those laws were to insure white supremacy?

Prof: Not thought of that way until 1967.

T: Institution of marriage requires public affirmation?

P: The stamp of the state, yes.

T: As the courts consider redefining marriage so it’s not between one man and one woman, it is a very important point?

P: Yes.

T: perhaps there is no watershed quite so explicit as this decision?

P: We could argue about that.

T: You gave an NPR interview in April 2004. (Plays it)

[UDPATE] 10:04 Thompson wants to play entire 20 minute interview.

Judge Walker says just play the relevant part only.

She says that perhaps same sex marriage is a watershed (in the interview). (Y’all need to listen to the interview because I could not transcribe it. But the point is that he’s trying to push her to say that this is the biggest decision the courts could ever make about marriage, much different than interracial stuff.) (He asks her about the science of history.)

Progress is not the law of history? Yes.
Some historians weight ideas? Yes
Some economics? Yes
To you, the most reasonable approach is to weigh all the factors? Y.

9th Circuit ruling of Marshall v. Sawyer allows for inclusion in cases of law review documents. Judge says he’ll take judicial notice of this, but Cott is not familiar with it. We’ll include it, but the record is what it is.

Thomspon wants to introduce articles (now from Jeffry Reading, who taught at Harvard and yale and now at University of ST. Louis Law School). Page 7, para 3, “the gay and lesbian civil rights movement is the proper province of state rather than religion is a testament of this movement to challenge the conventional meaning of terms…” Prof Cott: Would “amplify” the meaning of marriage.

[UPDATE] 10:19 Thompson introduces an article called “Gay and Lesbian Families: Queer Like Us” by Prof. Stacy at NYU published by Oxford U Press. He says Oxford press is prestigious.

Page 155 she states, “despite the paucity of enthusiasm for gay and lesbian marriage…eventually we’ll win. Will expand the meaning of family… will supplant the ‘Destructive sanctity of the family’”

Basically, he wants to introduce argument from an article, so Boutrous objects. Judge says it’s okay to put these before the witness.

It’s a prediction, so I’m neutral on it.

Prof. Joseph Raz (philosopher, pub by Clarendon Press, Oxford).
P. 23, When people demand recognition of gay marriages. They usually mean to ask for transformation of that good…will create to as great a transformation as polygamous to monogamous, arranged to unarranged.”

Prof. I do not agree.

Prof. EJ Graff is brought up. Professor Cott knew her twelve or so years ago. “The right wing gets it. Same sex marriage is a breathtakingly subversive idea.” Do you agree?

Prof. No.

T: EJ Graff supports same-sex marriage, yes?

Prof. Cott: I believe so.

T: You have no idea what affected divorce rate in Massachusetts?
Prof: Correct.

T: Goes to deposition, page 199, line 5. “What are factors that have affected divorce rates in Massachusetts.” Answer: “I don’t have any views as to what affects divorce rates in Massachusetts.” (He’s trying to make the point that we don’t know what affect same sex marriage has because we have not had it for long enough.)

Do you agree that society itself is the ultimate beneficiary of marriage?

Prof: Very difficult to answer honestly yes or no to that question as it is posed.

T: Introduces Blankenhorn op-ed from LAT. Blankenhorn is our principle expert witness. I’m a liberal democrat, but oppose same sex marriage. I believe in all my heart in the right of the mother and child. We should strengthen the only institution that strengthens that right” and make it real. Is there any institution more important to children than marriage?

Prof. I think that family is most important. Some are in marriage. I cannot agree with his approach that only biological approach is right. It’s important, but not only. I consider families a social institution. (T tries to differentiate between marriage and family).

(Taking a break until 1030)

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  • 1. Nakhone  |  January 12, 2010 at 3:13 am

    Thanks for your service, Rick. This is really awesome. Would you stay for the rest of the trial or have someone else cover this when you come back tomorrow? :=)

  • 2. Theresa  |  January 12, 2010 at 3:14 am

    I've listened to that NPR lecture (thank you Holcombe) and it is actually a really good interview.

    there isn't a biasness based off of opinion but the facts are facts and she's armed with a decade's worth of research. Her research (and NPR interview) just further proves, this standing prop 8 is absurd.

  • 3. Andrea  |  January 12, 2010 at 3:15 am

    It's "Cott", not "Coff". I doublechecked her book's page on Amazon. Two t's, not two f's.

  • 4. Theresa  |  January 12, 2010 at 3:25 am

    here is the NPR interview Thompson is speaking of:

  • 5. jstueart  |  January 12, 2010 at 3:26 am

    Jeesh, he's trying to discredit a historian's place in a courtroom? His argument–if believed–would discount every historian in every courtroom….

  • 6. Kevin  |  January 12, 2010 at 3:31 am

    Here's the interview:

  • 7. couragecampaign  |  January 12, 2010 at 3:32 am

    Thanks Andrea. Professor Cott's name has been corrected.


  • 8. Alan E.  |  January 12, 2010 at 3:33 am

    It seems as if he's trying to discredit her instead of the facts presented.

  • 9. Bry  |  January 12, 2010 at 3:45 am

    Seems like that to me too Alan and jstueart.. Well that's a typical right-wing playbook manuver, attack the person when you can't argue against the facts.

  • 10. Urbain  |  January 12, 2010 at 3:46 am

    Rick, you are doing a magnificent job. It's amazing how much information and detail you are providing us "on the fly." Thank you so much for the service you are doing.

  • 11. A  |  January 12, 2010 at 3:51 am

    Rick is typing quickly.

  • 12. Womyn2me  |  January 12, 2010 at 3:51 am

    By the way, in addition to making my donation to this website, I also went to my Sony ebook store and bought Professor Cott's book.

  • 13. A  |  January 12, 2010 at 3:52 am

    Seem like Prof Cott is doing a good job of answering the baited questions.

  • 14. Christopher in San F  |  January 12, 2010 at 3:56 am

    Rick, you are doing wonderfully! Keep up the great work! It is such a service especially since the whole "YouTube" blocking. So many of us appreciate it. I'm planning on being there in the next day or so….any word on how difficult it is to get a seat?

  • 15. Andrea  |  January 12, 2010 at 4:05 am

    He was using f's consistently instead of t's, so I was just trying to help out. :) I see it's been corrected — mission accomplished.

  • 16. Elijah N.  |  January 12, 2010 at 4:17 am

    I also want to know about that. I'd love to come watch in the overflow room tomorrow if possible.

  • 17. Kevin  |  January 12, 2010 at 4:22 am

    AFER tweeted that there is unprecedented use of laptops and smartphones in the courtroom:

  • 18. Jane  |  January 12, 2010 at 4:30 am

    You're doing a great job Rick — THANK YOU!!!

  • 19. Matthew S.  |  January 12, 2010 at 6:12 am

    I am absolutely riveted by all this. It's a crying shame that it isn't being broadcast. It's fascinating.

  • 20. JosephH  |  January 12, 2010 at 6:27 am

    Thanx for this great reportage. It's a real history lesson on the institution of marriage for the past few decades. j

    I loved the analysis of polygamy (anti-democratic).

    This would make for GREAT tv. Real drama. Interesting Judge. Interesting witness. Great plot. (What's Oprah waiting for? :-)

  • 21. Liveblogging Day 2 «&hellip  |  January 12, 2010 at 10:03 am

    […] Liveblogging Day Two: Part II Cross-examination of Coff continues […]

  • 22. Prup (aka Jim Benton  |  January 12, 2010 at 10:11 am

    J hope, and am conident, that Olson and Boies have checked out Blankenhorn and discovered that the self-proclaimed 'liberal Democrat' runs — and receives most of his income from — a think tank called The Institute For American Values, which receives its funding from such prominent 'liberal' foundations as the Harry Bradley Foundation, the Randolph Foundation, and, most notably the Scaife Family Foundation.

    Something tells me his reputation won't last much beyond the opening questions of cross-examination, if it even gets that far, since experts need to be 'qualifued' by examination if their credentials are not stipulated to.

    "Falso in uno…"

    (For backing on these statements see the Salon piece here.

  • 23. Joy Jacques  |  January 13, 2010 at 1:24 am

    Thanks so much for this. I'm here from Andrew Sullivan's links to the New Yorker mag article and this live blog.

    It's fascinating. I never really thought about the discrimination aspect of all of this until I read yesterday's testimony from the plaintiffs.

    Thanks again! Wish this had wider audience, I guess it will over time.

  • 24. Beth Taylor  |  January 13, 2010 at 2:13 pm

    Prof. Cott's testimony is fascinating. It brings back memories of what I learned about marriage during my college days, when my minor was History. I'll be looking for her book on marriage, because such historical records are fascinating.

    Prof. Cott is right about there being financial benefits to marriage. One such financial benefit relates to the filing of federal income taxes. For example, married people can take a deduction on their federal income taxes for college loan interest paid during the tax year. Single people (and married people filing separtely) cannot take this deduction (which sucks big time). Can anyone else think of other tax deductions that only married people can take?

    I remember the years when there was a ban on interracial marriages. One of the reasons why this was thought to be such a no-no is because such unions would produce interracial children, who would be so messed up inside that they would be unsure of their true racial/cultural identities. This is racist thinking in its most horrific form!

    I hope that the Defense doesn't try to come off with the foolish notion that marriage is strictly a Christian institution; for such is far from the truth. Marriage is a civil union, governed by the states. Those who don't believe this need only listen to what the person who marries a couple says at the end of the marriage ceremony: "By the power invested in me by the State of …….., I now pronounce you husband and wife." The State of, not the Church of, not the Christian Institution of, the State of. And as we all know, people who get married in this country do not have valid marriages unless they get a marriage license from the State and file it with the State after their marriage ceremony has taken place.

    Another argument against the notion that marriage is strictly a Christian Institution is the fact that non-Christian marriages are as accepted as Christian marriages in our country. So if the Defense wants to contend that marriage is strictly a Christian Institution, they're going to have a hard time proving that.

  • 25. Mickye Adams  |  January 20, 2010 at 10:56 am

    I'm just reading to catch up. Great job

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