ADF Update on Federal Prop 8 Trial: Day 2

Tuesday the plaintiffs put two professors on the stand. Attendance in the courtroom thinned considerably. Although testimony may have been a bit dry at times, both of these experts discussed what will be major themes in the trial.

The first was Harvard professor Nancy Cott, an expert on the history of marriage in the United States. Gibson Dunn attorney Ted Boutrous conducted her direct examination on a range of issues, most involving whether marriage is an elastic, evolving institution. Professor Cott testified that some of the changes that have happened to marriage include removing race restrictions that some states had imposed for a time, lessening of sex-specific gender roles in marriage, and allowing no-fault divorce. But perhaps the most striking change that Professor Cott noted is that marriage has evolved from a child-focused institution to an adult-focused institution. This is in direct response to Chuck Cooper's opening argument that "marriage is historically a pro-child relationship. Marriage aims to meet the child's need to be emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world." Professor Cott couldn't deny that this has historically been a major purpose of marriage. But she says that marriage has evolved such that it is now more about making adults stable in their own relationships with each other. A major difference indeed-and one that will prove to be one of the defining themes of the trial.

David Thompson of Cooper and Kirk conducted what was a masterful and very entertaining cross-examination of Professor Cott. If we put the opposing counsel on truth serum, they'd no doubt admit that the David's cross-examination was very damaging to them. First, he showed that Professor Cott is essentially an advocate for same-sex "marriage" (rather than a neutral academic). He also showed that she has radical views on marriage. She has stated that couples should be skeptical of marriage, that it's not important for children to be raised in households of married spouses, that marriage should be supported "in all its forms" (presumably including polygamy), and even that "alternatives to marriage" should be supported. David used an anthology of Professor Cott's statements from her books, past articles and interviews, and deposition testimony in other cases to show that 1) changes in marriage can have a host of negative and unforeseen consequences; and 2) historically a major public purpose of marriage is to ensure children are raised by the parents that brought them into the world.

David hit other themes including the Christian roots of marriage in the U.S. and the world. He also showed that making major changes in marriage could have profound and negative effects on society-that marriage is not infinitely malleable and that changes to it change the family, which changes our culture. In short, being innovative with marriage has a great negative impact on our culture.

Next on the stand was Yale Professor George Chauncey, who is also a historian. He argued that same-sex couples have been subject to a history of discrimination and recounted a campaign against same-sex adoption in Florida in the 1970's. The plaintiffs appear to be attempting to draw a comparison between that campaign and Proposition 8. However, on deck Wednesday is David Thompson, who will conduct his second cross examination, this time on Professor Chauncey. After that, the plaintiffs will put on their next expert.