Prop 8 Trial Brings Examination of Marriage Role in Society & Religion

SAN FRANCISCO (CN) - Historians, psychologists and sociologists descended on the trial over California's ballot measure banning gay marriage, lining up Tuesday to testify on the history and social implications of marriage. The second day of trial was punctuated by laughter in the packed courtroom and touched on a broad range of topics from bans on bi-racial marriage to the effects of immigration to the intent of Jesus Christ and his apostles.

Nancy Cott, who teaches American history at Harvard University, testified in the morning that when it bars same-sex couples from marrying, "society is denying itself another resource for stability and social order."

Though Cott does not describe herself as an "advocate" of same-sex marriage, she said she came to the view that gay and lesbian couples should be allowed to marry while doing research for her book, "Public Vows: A History of Marriage and the Nation."

"I learned particularly about how marriage laws were used punitively against such groups as blacks, Asians and even women who had made the 'bad' choice of marrying someone 'alien,'" Cott said, referring to laws in the late-19th century that stripped U.S. women of their citizenship if they chose to marry someone from an "alien" country considered ineligible for citizenship. "But most of those restrictions seemed to eventually be dismantled," Cott said. "These things moved me in the direction of same-sex marriage, because I think it is a civil right to marry the person of your choice."

Cott noted two shifts in the country's history of marriage: the repeal of laws that disfavored biracial marriage, and the evolution of spousal roles. "The more gender-neutral spousal roles become, the more couples of the same sex seem capable of fulfilling the purpose of marriage," Cott said. She defined that "purpose" as "a stable union in which couples support one another and their dependents," not necessarily only biological children.

Cott noted parallels between the racial restrictions of the past and the ban on same-sex marriage initiated by Prop. 8. "The most direct parallel is the restriction of choice that designated some groups as less worthy and some marriages as less worthy," she said.

The somber tone of Monday's opening arguments was replaced with one of a bit more levity, with both sides remarking on Cott's penchant for verbosity. At one point, U.S. District Judge Vaughn Walker interrupted Cott's testimony to let the Prop. 8 opponents' attorney, Theodore Boutrous, "throw in a question every once in a while," while the Prop. 8 supporters' attorney, David Thompson, asked Walker to "instruct the witness to answer my questions 'yes' or 'no' without giving all these long speeches."

Thompson's cross-examination often elicited laughter from the crowd of media representatives and Prop. 8 opponents, particularly when Cott would correct him on material from her book or historical facts. "There were no Puritans in America before the 17th century," said Cott, to much tittering.

Thompson focused on the religious history of marriage, saying it evolved "as a result of Christian principles" and "Biblical tenets," the sort that kept brothers from marrying sisters. Laughter erupted when Thompson asked Cott if it was the objective of Jesus Christ and his apostles' teachings that individuals pursue monogamous marriage, to which Cott replied, "I know very little about Jesus Christ and his apostles."

Thompson also asked Cott whether she thought population growth a desirable result of marriage. Cott said procreation was "not as important as it once was," especially since "immigration has always been a great source of population growth in the United States, and we don't rely solely on reproduction." More chuckling ensued when Thompson asked if she meant "illegal immigration."

Cott also disagreed with Thompson's assertion that "marriage is not an infinitely elastic contract," or a slippery slope that could lead to polygamy. Instead, she likened the institution of marriage to the U.S. Constitution. In her studies for "Public Vows," Cott said she was "struck by how marriage is not one static thing."

"Like the Constitution, it has some elements that remain the same but is still a very much alive and vigorous institution," she said.

Follow @MariaDinzeo

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