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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The power of language and labels in Perry

Helen ZiaHusband. Wife. Marriage.

Much of Perry v. Schwarzenegger is about these words and who has the right to use them.  The parties agree that these are universal terms – understood in every language and culture, but they disagree about whether participants in a gay relationship should use the terms in describing each other.

Interestingly, these terms – husband, wife, marriage – were not the only important words in Perry, which often demonstrated the power of language itself.  Witnesses spoke of the insulting ambiguity in the word “partner.”  Their fear in hearing the word “abomination.”  The moment one of them decided to search his dictionary for the word “homosexual.”  Indeed, to a great extent, Perry is not just about men, women, and marriage but about the effects that all words have on the people who use and hear them.

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Jerry Sanders: A glimpse of the gay marriage tipping point?

San Diego Mayor Jerry Sanders may have provided some of the most important testimony in Perry v.  Schwarzenegger – but not because he spoke to the suit’s legal issues.  Instead, Sanders embodies something more significant: The crest of public opinion that is rising to support marriage for same-sex couples.

In January, Sanders took the stand to confess his own anti-gay beliefs, to recount his change of heart, and to say why it is important for government to disown prejudice of all kinds.  He was a unique Perry witness for two reasons: First, he had the courage to admit his own prejudice.  Second, although he now supports gay marriage, Sanders represents a demographic that is not particularly likely to do so.

But while Sanders’ story was unique at trial, it is not unique in American society.  If we believe public opinion polls showing that gay marriage is moving toward moderate acceptance, then his story of conversion can be told by millions of Americans.  As such, it is emblematic of a great social change and deserving of special attention.

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Same-sex marriage as the civil right of now

Plaintiff attorney Theodore Olson closed Perry v. Schwarzenegger on Wednesday by invoking the sacred pantheon of America’s civil rights rulings and by placing Perry, in terms more direct than ever, squarely atop that altar. Olson gave Chief Judge Vaughn Walker every reason to view Perry as a case whose facts are uniquely positioned to favor same-sex marriage and, as such, as the vessel now carrying forth perhaps the most important civil rights issue in a generation.

Olson’s closing presented a more powerful and coherent argument than the plaintiffs had mustered during January’s detailed testimony. He reduced their case to a few basic assertions: Olson said first, quite plainly, that it is “okay to be gay.” Second, that the Proposition 8 campaign was an attempt to undermine the ascent of this ideal. Third, that Proposition 8 unfairly forces gay people to sacrifice their Constitutional right to marry in order to exercise another Constitutional right – the right to engage in sexual conduct with another consenting adult. And finally, that American history and jurisprudence can no longer turn a blind eye to such unjustified prejudice.

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Attorneys give remarks and clues about arguments to come

Speaking to reporters after the close of testimony yesterday, plaintiff and defense attorneys summarized their takes on Perry v. Schwarzenegger thus far.  Their remarks might also give clues about how legal arguments will proceed in the coming months.  Here are some of their comments:

Plaintiff attorney David Boies:

“The American public has gotten a sense of what the facts are, and what we have done is lift the veil.  We have exposed the paucity of the arguments on the other side.  We’ve exposed publicly the fact that there simply is no basis for preventing gays and lesbians from getting married.  It doesn’t help anyone.  They’ve had an entire trial to come forward with a single witness who would testify that there was any harm, who would show any harm, and they could not do that.”

“The witnesses that they brought admitted that what was at work here [in passing Proposition 8] was a religious divide based on prejudice and stereotype and that there was no justification – none, zero – for depriving gays and lesbians from the right to marry.”

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Plaintiffs close on controversial rally clips

The Perry v. Schwarzenegger plaintiffs closed their case Monday by playing clips from two video conference rallies funded by Proposition 8 supporters and broadcast over the Internet before the November 2008 election.

The conferences featured attorneys, ministers, and other Proposition 8 supporters discussing same-sex marriage and the import of the pending election.  One speaker said that permitting same-sex marriage would open the door to incest, bestiality, and the ability of pedophiles to marry children.

Another compared the potency of the Proposition 8 election to the terrorist attacks of September 11, 2001 and said that even people who did not know a married gay couple would be affected by expanding the definition of marriage – just as Americans who did not know one of the terrorists’ victims were still affected by the attacks.

These rallies “were conducted as part of a grass-roots campaign,” plaintiff attorney Christopher Dusseault said.  He produced ProtectMarriage.com emails that showed campaign managers Jeff Flint and Frank Schubert had alerted supporters about the conferences.

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Emotion and kissing runs high among plaintiffs, supporters

A momentary but brazen kiss between two gay men illustrated the emotion and defiance vibrating through the courtroom on Monday, the first day of Perry v. Schwarzenegger and its challenge to Proposition 8.

Plaintiff Jeffrey Zarrillo, 36, was the case’s first witness.  He described not only his deep love for his nine-year partner, Paul Katami, but also his desire for California to honor their relationship by allowing them to marry.

Katami, 37, then rose to replace Zarrillo on the witness stand, and as the two passed each other near their gallery seats, they stopped to kiss once, fully, on the lips.

The moment caught the attention of the audience, partly because the couple were standing in an open session of court, near the middle of the room, and among a sea of 140 seated spectators, reporters, and attorneys.  The display also seemed to punctuate the couple’s frank and emotional testimony about how these men feel about each other – and how they are received in public.

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The plaintiffs

All four Perry plaintiffs testified yesterday, and regardless of your views on gay marriage, these are good plaintiffs. They spoke very well. They were emotional without being melodramatic. As Margaret Talbot noted in The New Yorker, “It isn’t easy to find the right plaintiffs for a high-profile constitutional case.” Some, like Mildred and Richard Loving, who successfully challenged Virginia’s ban on interracial marriage, are ideal. The Lovings remained quietly devoted to one another and their three children until Richard Loving died in a car accident in 1975. In advance of their legal challenge, Richard told one of his lawyers to “tell the Court I love my wife.” But other plaintiffs have disappointed the cause. Norma McCorvey, Jane Roe in Roe v. Wade, became an anti-abortion activist and petitioned a federal district court to overturn Roe.

The Perry plaintiffs are still getting acquainted with their roles as poster children. They are two couples: Jeffrey Zarrillo and Paul Katami, who live in Los Angeles have been together for nine years; and Kristin Perry and Sandra Stier, a Berkeley couple who have been together for ten years. Zarrillo worked his way up from ticket taker at a movie chain and is now the company’s general manager. Katami has an MFA from UCLA and manages group fitness at a group of gyms. They want to have children, but they want to be married first. Of Katami, Zarrillo said: “I love him probably more than I love myself. I would do anything for him. I would put his needs ahead of my own. I would be with him in sickness and health, for richer or poorer. Just like the vows. I would love nothing more than to marry him.”

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