The Proposition 8 Court Case: It’s About American Values

Day two of the Proposition 8 court case saw Professor Nancy Cott delve deeper into the history of marriage as a basic civil right in America, and also saw her cross-examined by defense lawyer David Thompson. More on that below.

First off, MSNBC news commentator Rachel Maddow devoted a portion of her Tuesday show to interviewing Theodore “Ted” Olson and David Boies, the two leading attorneys in the fight against Proposition 8. In the interview Ted Olson describes equal access to marriage for same-sex couples as an “American value” while David Boies talks confidently about how the US Supreme Court has consistently held marriage as a basic civil right:

See the full segment at MSNBC here.

As previously mentioned, Tuesday saw a continuation of Professor Nancy Cott’s testimony. One of the main things Cott highlighted was that marriage has, in the past, excluded minorities based on characteristics like race and national origin, and was also used to implement strict gender roles that created prescribed notions of how a man and woman should behave – she commented that these qualities of marriage have, for the most part, been removed, both from American law and society.

Professor Cott went on to say that, in her opinion, allowing same-sex marriage did not constitute a fundamental redefinition of what marriage is. Instead, it continues the process of the “shedding of inequalities” which brings us to the heart of civil marriage: a stable foundation on which to create a family unit that benefits the couple, any children they might wish to raise, and society as a whole. Cott ended her testimony by saying that, “By excluding same-sex couples from marriage society is denying itself another resource for stability.”

Cott was then cross-examined by lawyer David Thompson. Thompson quoted various articles and literature regarding marriage and procreation, even quoting Cott’s own books, as well as drawing from transcripts of interviews Cott had given on the subject, challenging her on her assertions regarding marriage and exploring how far her knowledge extended.

Thompson repeatedly tried to have Cott confirm that marriage was chiefly for procreation, but she repeatedly said that, while procreation was one factor in marriage, it was not the only factor historically speaking, adding, “By no means is that the central or defining purpose of [marriage].”

Thompson pressed that allowing same-sex couples to marry would be a massive change in the definition of marriage. Cott again said she did not agree with this perspective and instead said that it would be similar to how interracial marriage was at first touted as a threat to marriage but statistics never reflected that as an actuality and instead showed that the comparative amount of interracial marriages remained quite small even today. Thompson shot back that gay marriage was a much greater change, especially when considering a Christian definition of marriage. Cott said that she could not comment on the religious argument.

Thompson also asked Professor Cott about her having donated to a fledgling foundation that valued alternatives to marriage. The foundation, Thompson said, went on to support polyamory. The foundation in question, Cott replied, was started by a friend of hers, and yes, she did donate to them, but when she was involved in the start-up foundation it was solely concerned with monogamous couples who were seeking alternatives to marriage.

After that, the court heard testimony from Dr. George Chauncey who is described as “an expert in lesbian, gay, bisexual and transgender (LGBT) studies”. He has written many acclaimed books on the subject including “Why Marriage: The History Shaping the Debate Over Gay Equality”.

Dr. Chauncey gave evidence on the history of homophobia and anti-gay feeling in American society.

Chauncey talked about the various laws that have been used to criminalize and penalize homosexuals in America including America’s sodomy laws, and the discrimination that LGBTs have faced in society. From the Courage Campaign’s live blog transcript:

Attorney Terry Stewart [TS]: Second topic is discrimination. Please provide examples.

Chauncey [C]: In 1933 when prohibition was repealed, laws were passed that prohibited lesbian and gay people from [being served]. This had a profound effect on lesbian and gay people because they could not meet each other (or legally anyone else) in a bar or restaurant. When people went to bars, they had to hide their sexuality… They in turn had to pay bribes to police or to organized crime, which meant that gay life was enmeshed in criminal activity.

TS: How did bars discriminate?

C: If a bar tender realized someone was gay, they could “86” them, i.e., tell them to leave the bar, which is humiliating. In bars with reputations for being in gay neighborhoods, signs said, “If you are gay, stay away.” This certainly put social pressure on gays and lesbians. And it made clear to police that these places would not serve gays.

Chauncey went on to describe a history of police entrapment:

TS: If you were a police officer, how did you know a bar was serving gay people?

C: Two major techniques used: 1. Take note of one man picking up another man. They’d send plain clothes policemen into bars, strike up conversations with customers, lead them on, and when an invitation was issued to go home, they’d arrest them. That also would lead to proceedings against the bar itself. 2. The other method was that the police would point to stereotypical cross gender behavior to demonstrate that homosexuals were present. Two men dancing together, women wearing male clothing articles, short hair cuts. For men, they’d point to men with hair too long. In one case, they overheard two men talking about the opera, which no “real men” would do. Striking because it’s one of the clearest examples of policing of sexuality has policed gender norms.

Chauncey then added: “They were a despised class of people, outlaws in the eyes of the law.”

He further explained that this was not confined to policing and instead said that discrimination existed at the highest levels of American politics.

In terms of institutionalized homophobia, Chauncey touched on Don’t Ask, Don’t Tell and the history of the military searching out and firing gay soldiers. He also discussed how, in the 1950s, Joseph McCarthy had called for the formation of congressional committees to weed out homosexuals, “sex perverts” and communists from government positions, which led to literally hundreds of gay people being fired.

Chauncey moved on to President Eisenhower’s 1953 executive order which banned homosexuals from federal employment. Chauncey noted that even though this was rescinded by President Carter in 1975, a ghost of the ban still remained in effect for many high profiled positions until President Clinton’s anti-discrimination policies took effect in the 90s. Even today, LGBTs in high profiled federal posts still provoke comment and debate.

Chauncey then listed how LGBTs have historically been censored in the media. He also pointed out that if they were included in the media, it was usually as part of an Anita Byrant style campaign which saw LGBTs painted as “perverts” out to infect and recruit children and destroy society.

Interestingly, Chauncey then said that there were similar themes present in campaign ads used for Proposition 8, thus touching on the issue of whether the drive behind Proposition 8 was animus against LGBTs. Chauncey was shown several of the campaign ads and posters and each time said that there were distinct parallels. From’s coverage:

The ads, testified Chauncey, “are more polite than the ads Anita Bryant used 30 years ago. But the message they convey, he said, “is that simple exposure to gay people in a relationship will lead a generation of young kids to become gay.”

David Thompson was then allowed to cross-examine Chauncey, and again Thompson attempted to establish that Chauncey was not neutral on the issue of homosexuality and that he was an “advocate” of gay rights, to which Chauncey replied that as a historian he was neutral on the history of prejudice faced by LGBTs, but yes, he did support LGBT rights and a right to marry. After a brief question about the definition of homosexuality and how its meaning had changed over time, the court had procedural matters to attend to, and so cross-examination was put on hold for the day.

One other item to note is that the Supreme Court is expected to rule on Wednesday as to whether court room proceedings should be broadcast to the public and made available on YouTube. As soon as that decision reaches us, I’ll update this page with the Court’s ruling.

The Courage Campaign is running a live blog on the trial so that you can keep up with events in the court room as they happen. You can follow it by clicking here.

You can also follow the case on Twitter via the Twitter Feed of the American Foundation for Equal Rights.

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UPDATE: The US Supreme Court has ruled 5-4 to stay the broadcast of court proceedings blocking live broadcast indefinitely. You can read more about the decision, including the 17 page unsigned opinion the Court has issued, at SCOTUSblog.




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W. C
W. C11 days ago


W. C
W. C1 months ago

Thank you for the article.

George S.
George S.6 years ago

doesnt mean being a pansie. If gays and lesbians and even tranys learned to act their gender, i think alot of these stupid stereotypes would be eliminated. My last point is, Why are we even argueing over this? We have wars going on and other countries that are way less fortunite as us. Why in the world are we waising our time when Bob and Jim, and Tina and Lisa want to share their lives together and not have to worry about what happens to themselves if one or the other is injured or lost? Gay people just need to ride this out because national views are changing. All you hung up homophobes whos only goal in life is to push your views on others need to either snuff yourselves out or learn to be a civil person and present your views. That is all :)

George S.
George S.6 years ago

I am a 16 year old bisexual Roman Catholic male who goes to a normal school in bakersfield, California. Honestly, the human race discusts me. We go against eachother batting out what the majority dont see as "acceptable." old people, get over it. Weather you like it or not your sons and grandsons will most likely be homosexual. It isnt something you can choose. Ive talked to many church members and i agree that IN THE CHURCH marriage is derived as a union between man and woman for procreation. My second point being the THE CHURCH, athough it is the foundation of our governmental values, IS NOT supposed to be involved in anything reguarding the government as defined by the constitution. You Bible morons insist on pushing select beliefs while leaving out the entire word. "Hey god tels us not to judge another person, but lets just leave that one out." ugh MORONS! the way I see it, Gay marriage should be allowed only by court so that the couple involved can share and in any case be there to supporttheir significant other. However, i do not believe that it is a true marraige. Im a strong Catholic, born and raised that way. My own father told me, "Son your going to be who you are. Im not worried about what will happen after this life because thats not my problem. You will face the big guy upstares, and be able to talk with him when its your time." My dad is very homophobic but he has learned to just leave me alone because it is none of his business. I have also learned that being g

Tommmy True
Past Member 7 years ago

Mark my words, homosexuals will never be happy until they turn this whole nation queer. They do have an agenda and don't let anyone tell you different. Do the research you will find out the awful truth. It is not as simple as live and let live it will not stop there.

Karen R.
Karen R8 years ago

I do not understand why the gay movement is so desperate to legalize their unions. I thought that for them love was the most important thing. Being close to the loved one. They know they are different, a minority. Perhaps that is why they want to look and do the things that everybody do.

Agnes Mina
Agnes Mina8 years ago

Carole? Are you 11 years old? We would soon disappear without marriage? Then how come so many teenagers require abortions due to unwanted pregnancies outside of wedlock?

Mary W.
Mary W.8 years ago

Marriage is not romantic, religious, etc. It is a legally recognized partnership and that is why there are laws regarding it. It deals with shared property, the care of children, insurance, etc. This issue is like most others and is about MONEY, plain and simple. All this rights yap confuses the issue. Do two people have the right to establish a marriage, regardless of their sexual proclivities? If people would get off the romantic aspects of freedom, rights, etc., we might get down to the nitty gritty.

Nicholas D.
Nicholas D8 years ago

This is not a religious issue. The bottom line is equality, which is "guaranteed" by our constitution. It is not equality with exceptions based on religious beliefs. This country was settled on a basis of avoiding religious prosecution from the state. By denying gay couples the right to marriage, you are doing the same thing, prosecuting people for not upholding your religious beliefs. Believe in what you want to and uphold your own "values," just don't pass laws to force others to as well.

Jack Spat, I love how believing in someones fundamental civil rights, in your mind, makes them an atheist. I also love how use the word atheist like it is an insult.

Carole Tokaruk
Carole Tokaruk8 years ago

Of course procreation is the main point about marriage,otherwise we soon would all disappear. It is not the only reason, just the main reason.