Prop 8 On Trial

Civil marriage and its history: Cott as the key to Prop 8?

Nancy CottFor more than twenty years, Harvard history professor Nancy Cott has studied family, gender, marriage, and citizenship. In 2000, she published Public Vows: A History of Marriage and the Nation, and in 2010, she took the stand in Perry v. Schwarzenegger to describe her conclusions.

At bottom, Cott testified that, when a couple exchanges marriage vows, the state takes a simultaneous vow to protect and support that union. “Marriage is both a public and private institution,” Cott said. Most people think principally about the private aspects of the union: Have they found a partner whom they love? Do they want to embark upon a lifelong intimate relationship with this person? However, marriage is also a public institution first authorized and then used by the state as a tool for achieving its own objectives, the most important of which is creating stable households that assist in caring for and governing the populace, Cott said.

Unfortunately, due to the volume of news on the first day of Perry testimony, Prop 8 on Trial was unable to cover Cott’s remarks in detail. However, we have chosen to revisit them now because we believe her perspective is crucial to understanding one of the principal inquiries before the Ninth Circuit: What is the history and importance of civil marriage in the United States? Indeed, the spirit of this question was raised by then-Chief Judge Vaughn Walker himself during the trial’s opening statements, when he provocatively asked, “If California were to get out of the marriage business – and simply classify everyone as registered domestic partners, wouldn’t that solve the problem?”  The “problem” to which Walker referred was the desire of gay and lesbian people to live in a state that allows them to marry another person of the same sex – and the conflicting desire of Proposition 8 supporters to exclude homosexual couples from civil marriage.

Read on to study Cott’s historical perspective on what civil marriage is, why the state remains committed it, and – first – why she thinks allowing same-sex couples to join this institution would comport with 150 years of evolution in marital law.

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