When history Professor Nancy F. Cott took the stand in January 2010, she was stepping into a highly contentious arena that had drawn California’s governor and most ardent supporters of gay marriage into a battle over the legality of Proposition 8, which banned same-sex marriage in that state.
Cott was called as an expert witness by the plaintiffs’ lawyers, who had flown her, one of the foremost historians of marriage in the United States, cross-country to refute Prop 8 supporters’ claims to fact. Cott is in favor of same-sex marriages. She reached this conclusion, she says, “as a result of my historical research and study.” She argues, “[I]f gender symmetry and equality and the couples’ own definition of spousal roles are characteristic of marriage, then same-sex couples seem perfectly able to fulfill those roles.”
In a time when same-sex marriage had been legalized in six states and was being discussed around the nation, Prop 8 was a local trial with seemingly national ramifications. Everyone was watching.
Over the course of her four-hour testimony, Cott used her decades of research to debunk each of the Prop 8 defendants’ claims. They claimed that procreation was one of the central tenets of marriage; they claimed that children were better off in heterosexual family structures; they claimed that heterosexual monogamy was the “American way” of marriage. Cott deconstructed each assertion, showing that history proved each of the defense’s claims was unfounded.
Cott knows more about marriage history in the United States than perhaps anyone alive. The other expert witness brought by the plaintiffs, Yale Professor of History George Chauncey, had been Cott’s dissertation advisee when she taught at Yale prior to coming to Harvard.
As Cott took the stand, Theodore J. Boutrous, Jr. of Gibson, Dunn & Crutcher of the plaintiffs’ legal team took the floor. What did Cott think, he asked, of the assertion made by one of lead defense attorneys Charles J. Cooper’s opening remark that “the purpose of the institution of marriage, the central purpose, is to promote procreation and to channel naturally procreative sexual activity between men and women into stable and enduring unions”?
“It rather reminded me of the story about the seven blind men and the elephant,” she said to the jury and packed courtroom, “in that each of them is feeling the animal at some side of it; and the one that feels the trunk says, oh, this animal is just like a snake.”
In other words, Cooper’s definition of marriage, Cott thought, was so limited as to be inept.
In her testimony responding to Boutrous, Cott easily recalled dates, facts, historical accounts, and past precedents. Cott presented the anti-miscegenation laws, which banned white people from marrying minorities, as a historical parallel to discrimination against lesbians and gays. Questions ranged from interracial marriage to husband-wife gender dynamics to procreation’s role in marriage. The content of her testimony harkened back to “Public Vows: A History of Marriage and the Nation,” her most recent book, which was met with critical acclaim.
When the defense was handed the floor, though, the tenor of the questions shifted. Questions from Boutrous seemed like softballs compared to defense attorney David Thompson’s cross-examination.
Thompson dug into Cott’s past, scrutinizing her past testimonies from other trials, statements she had made for the media, her previous academic work (even from 34 years past), and her personal donations to marriage-related non-profits. Thompson was doing his best to present Cott as an impassioned gay rights activist, biased and unreliable, rather than the neutral and objective scholar whom Boutrous had presented her to be.
Cott had worked hard to maintain the appearance of impartiality. Cott—like many other scholars of hot button issues—skirts the line between the role of activist and public historian, and sitting on a witness stand, those two roles converged.
Thompson baited her, trying to discredit her testimony by drawing out her personal feelings about marriage equality.
An example: “You think gays and lesbians should have the right to marry, correct?” Thompson asked.
“I have come to that view from my research and study of the history of marriage, yes,” Cott returned.