taking the stand

What To Expect at Today’s Perry Trial: Some History Nerds Talking About the Past

Nothing like a couple of Harvard and Yale academics to show Judge Vaugnn Walker how the gays have been discriminated, like, for-evs.

Harvard history prof Nancy Cott (pictured) will resume the stand to chat about how marriage is not a universal term around the world, and that in the United States, while Yale’s George Chauncey, also a history professor, will wax on about long-term bias against The Gs.

The defense’s attorney, Charles Cooper, showed yesterday that he’s not always going to take the opportunity to cross-examine the plaintiff’s witnesses, but we have a feeling he’ll go after these two and what’s clearly their distorted representation of this sacred institution.

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  • emb

    This is all fascinating but it doesn’t change the pretty much inevitable fact that the current US Supreme Court, where this case is ultimately headed, is highly unlikely to rule in favor of “gay marriage” and against the likely states’ rights and self-determination arguments. The “behind-closed-doors” libertarianism of Lawrence v Texas is one thing; an outright rejection of “traditional marriage” is another. Ultimately, I fear this case will hand the AFA and the pointy-headed rightwing christian taliban yet another in a string of victories, and halt progress toward social equality for decades (there were 22 years of separate-but-equal between Plessy v Ferguson and Brown).

  • romeo

    Queerty, presumably you’re just being snarky about these scholars. In fact, this kind of testimony may be crucial all the way up to the Supreme Court because the defense’s main argument is that marriage has only been defined one way, their way, “for all time.” Even a cursory reading of history demonstrates that’s not true. Disregarding the hard contradictions to the defense’s “traditional marriage” concept will put the court in a tricky position.

    This all should be very interesting.

  • FakeName

    Romeo sez: In fact, this kind of testimony may be crucial all the way up to the Supreme Court because the defense’s main argument is that marriage has only been defined one way, their way, “for all time.”

    In Bowers v. Hardwick, SCOTUS relied on supposed the “ancient roots” of sodomy laws in upholding their constitutionality. The briefs in Lawrence v. Texas spent a lot of space on the real historical record and the majority decision striking down sodomy laws took the Bowers court to task for its “ancient roots” remarks. This illustrates how important this testimony may turn out to be.

  • hyhybt

    there were 22 years of separate-but-equal between Plessy v Ferguson and Brown1954-1896=58, not 22.

  • hyhybt

    Results from the Supreme Court are so often a surprise… and besides, it will take a while for it to get there. Maybe there will be some turnover by then.

  • emb

    Thank you for correcting my arithmetic, HYHYBT; I guess I was being optimistic rather than accurate!

  • Qjersey

    Yeah history nerds, oh I mean people with PhDs are testifying for our rights. Queerty’s editor got a BA and now runs a blog. Who’s the nerd?

  • Wade MacMorrighan

    If Cooper *does* go after these two esteemed profs. of History I hope they make is unequivocally clear that the Church originally had NO INTEREST (not ONE) in solemnizing “marriages” for the first several hundred years of its existence, making it an entirely civil/ secular, peasant, and even pagan matter! Oh, and btw, according to other historians, throughout Britain, homosexuality was not a “crime” until about the 14th. century when we started to get a bad time over being Gay. Before that, it was relatively accepted! Oh, how I wish that the late Prof. of History at Harvard, John Boswell, were here to testify at this trial! perhaps these witnesses will even rely upon his works when making their statements, because he had found (besides the above) that there are certain isolated cases where the Church has, in fact, solemnized the marriages between two men!

    BTW, I would LOVE a transcript of each Professor’s testimony! Hell, I’d also like a transcript of the opposition’s testimony so it can be on record–UNDER OATH!

  • Jon B

    First off, this testimony is important.

    Second, @EMB, I don’t really know what you’re talking about. The court is split evenly, with 4 Conservatives, 4 Liberals, and 1 swing. Kennedy will likely be the deciding vote here. This is what he had to say in his opinion in Lawrence v. Texas:

    “It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law.”

    However, he did qualify the opinion by stating:
    “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.”

    This indicates that he may not have been ready to rule that Gay Marriage is a Constitutional Right. That being said, Lawrence v. Texas was 7 years ago now, and several states have legalized gay marriage.

    All of that is to say, it will likely come down to Kennedy, who has generally been on our side.

  • John from England(used to be just John but there are other John's)

    @ Jon B

    People have been saying what you are saying but you will still get the naysayers same the same tired old thing that all the judges in the supreme court are repubs.


    I guess they know more that Olson himself, the man who hates to lose in the supreme court and has decades more of experience plus knowledge of these judges, knows less than the Queerty commenters!

  • Sam

    @No. 10: Yeah, Olson’s “decades more of experience” led to him making a very basic factual error in answer to Judge Walker’s question about California’s domestic partnerships. Olson does have experience in front of the Supreme Court but he does not have experience with civil rights law in general or LGBT law specifically. There are many area of the law and being expert in one does not make you an expert in another. That’s why lawyers have specialties. And why you don’t go to a podiatrist for brain surgery.

    That said, what I’ve heard of what he’s done so far seems encouraging. Worlds of difference from the pre-trial conference where he couldn’t even understand why they would need time for discovery…

    @Jon B: You’re making two very risky assumptions. One is that a vote against imprisoning gay people is automatically a vote for forcing states to recognize same-sex marriages, even those 31 that have constitutional amendments against it. I don’t think that’s a safe assumption. Lawrence and Perry are VERY different cases. I don’t think it’s 100% that we have all four of the liberals, much less Kennedy.

    Your second assumption is that there are only two options. Either vote for equal protection or vote for Prop 8. But there are many other ways they could rule. I’m beginning to think that the most likely outcome is that SCOTUS will rule that there is no equal protection argument because California already gives same-sex couples all the same rights they give opposite sex couples, just in the form of domestic partnership. Without an equal protection argument, there will be no reason to strike down Prop 8. They won’t even have to consider whether or not same-sex marriage bans in other states are discrimination.

  • hyhybt

    #11: That’s nearly the only thing I *can’t* see them doing. For one thing, why bother even taking the case then? And for the other, while that decision makes sense coming from a state-level court, at the federal level it’s complete nonsense. If they are ruling on a federal level whether marriage is allowed, or whether domestic partnerships are equal, there’s no logical way to ignore the complete nonexistence of nationwide DPs and how DOMA fits into equal protection. They might well accept something along the lines of the ‘it’s equal because gays can marry the opposite sex’ argument, but that’s about it.

  • Sam

    @No. 12: But here’s the thing: This case isn’t about DOMA. It’s not about federal or other state’s DPs or lack thereof. It’s about Prop 8 and whether or not Prop 8 violates the U.S. Constitution’s promise of equal protection. That’s it. None of that other stuff enters into it.

    Plus, courts don’t deal in hypotheticals. If they don’t see any evidence that these four plaintiffs are harmed by Prop 8 in violation of the equal protection clause, then they will not rule in their favor. It would be very easy for any justice to say that these four plaintiffs get exactly the same rights from the state of California as they would if Prop 8 didn’t exist, therefore there is no violation of equal protection.

    As for why bother: if the Ninth Circuit rules in favor of the plaintiffs, you can be damned sure they’re gonna take it. SCOTUS wouldn’t deny cert for a case that would potentially overturn every constitutional marriage ban in the country. If they did, we’d be left with a situation where only the gay marriage bans in the Ninth Circuit states were overturned…until the inevitable loss in another circuit, creating a circuit split, which SCOTUS always settles. The only way they’d deny it is if the plaintiffs lose at the Ninth Circuit…which would mean that we are WAYYY worse off than just quibbling over Kennedy.

  • Jon B

    @Sam: I’ll have to disagree with both of your points. First, I said that it will likely be a 5 to 4 vote. With the exception of Sotomayor, who has not had the chance to vote on any gay-rights issues while in the Supreme Court, the Liberal bloc on the Court, Ginsburg, Stevens, Breyer have voted in our favor in every major Gay-Rights case that came before them. Stevens, the only member of the current court at the time, even voted in our favor in Bowers v. Hardwick. Kennedy has voted in our favor in all but the Boyscouts case. This case is going to include many elements that were involved in both Romer and Lawrence. Which works in our favor. The Court is not being asked to decide whether or not Gay Marriage must be recognized, it is being asked whether or not it is Constitutional to ban it. The difference may be subtle, but it exists. In California it would mean that gay marriage was legal, but that is not the case for all of the other states that have enacted gay marriage bans in their Constitution.

    Secondly, I certainly didn’t make the assumption they could rule one of two ways, especially because I know that there is a Substantive Due Process argument as well as an Equal Rights argument. However, in the end, there are only two outcomes for Prop 8. Either it stays, or it goes. It is possible that it goes, but case is decided by the plurality and therefore we’d need another case to figure anything out, aside from the fate of Prop 8. That’s what happened in Lawrence. O’Connor wrote a concurring opinion with a different rationale. In the end though, Anti-Sodomy laws are unconstitutional.

  • hyhybt

    I must be missing something obvious here: what space is there between “must be recognized” and not being “constitutional to ban it?”

  • hyhybt

    Oh, and back to 13: if the SC were to strike down Prop 8, that would only legalize marriage in California? Or: if it would remove the ban nationwide (which is how I’d always heard it up until now) how does that line up with considering only whether it was equal enough on a state level?

  • FakeName

    Jon B sez: In California it would mean that gay marriage was legal, but that is not the case for all of the other states that have enacted gay marriage bans in their Constitution.

    On what basis are you suggesting that a favorable decision would strike down Prop 8 but leave other state constitutional bans (along with statutory bans) undisturbed?

  • Sam

    @Jon B: Lumping Romer, Lawrence and Perry together as “gay-rights issues” is such a gross oversimplification of the issues involved in each that I can’t really respond to it in a blog comment. If you really believe that throwing gay people in prison is the legal equivalent of denying them marriage, then nothing I say is going to shake your blind faith. More power to you. I hope you are right.

    As for your other points, I don’t know what a decision that overturns Prop 8 but does NOT require recognition of same-sex marriage looks like. How does one write a ruling where you conclude that explicitly banning same-sex couples from marriage violates equal protection (or substantive due process) but simply not allowing them to marry does not? Or are you theorizing a Romer redux whereby the court rules that legislative bans are okay but constitutional amendments go too far by stripping gay people of even the right to seek the protections of marriage through the political process?

  • Sam

    @No. 16: Totally depends on how the decision is written, and on what grounds Prop 8 is overturned. But if Boies/Olson hit the grand slam and get the ruling they are gunning for, it would overturn all state-level constitutional amendments and statutes banning same-sex marriage. I’m not 100% sure, but I think there would have to be a separate challenge before DOMA would be overturned (though it would be hard to see why SCOTUS would overturn Prop 8 but not DOMA under the U.S. Constitution).

  • Sam

    @No. 17: “On what basis are you suggesting that a favorable decision would strike down Prop 8 but leave other state constitutional bans (along with statutory bans) undisturbed?”

    One way you could do that would be to challenge Prop 8 with an argument that, because California recognizes the marriages of some same-sex couples (those married before Prop 8) but not others (those married after Prop 8), Prop 8 violates equal protection. If it were struck on those grounds, it would only apply to Prop 8 and leave other bans intact.

    I’m not sure how likely that would be to win, but it would be a way to do it. As far as I know, Boies/Olson are NOT making that argument.

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