With the two gay couples off the stand for now, attorneys for the plaintiffs in Perry v. Schwarzenegger are turning to experts and historians to dissect the meaning and progress of the institution of marriage. Yet instead of gay marriage, historian Nancy E. Cott, a former Yale and now Harvard professor, has been grilled today and yesterday more about slavery than homosexuality.
Why? Because the plaintiffs are using myriad laws related to slaves and marriage as an example of how the American legal system has had to adjust and progress over time when it comes to marriage.
Cott has investigated the history of marriage in the U.S. for some 10 years before publishing her book Public Vows. Under questioning by the plaintiffs' attorney Ted Boutrous, she has talked about the importance of marriage and how, “at least since the rise of the novel in the 18th century” marriage has become something most people strive for: “It is the principal happy ending in all of our tales.”
But slaves were not accorded that possibility. “Have marriage laws always treated citizens in this country fairly?” Boutrous asked Cott. The answer was a resounding “no.” Slaves could not marry legally, and, says Cott, “restrictions multiplied after the Civil War” once emancipated slaves were given the right. Some 41 states had laws related to marriage between races, not just related to blacks but also to an influx of Asians into the western states after the turn of the century.
Of key importance to the plaintiffs is not just an examination of a history of discrimination, but an examination of how the federal government has eventually stepped in to rectify what now would be viewed as backward laws, both state and federal. Cott discussed a 1907 federal law that stripped American women of their citizenship if they married “aliens.” In the 1920s that law was lifted and other laws more favorable to marriage were passed, such as those passed in the New Deal with “built-in” marital advantages: “Since then the federal government has tended to use the institution of marriage as a conduit for benefits of many sorts.”
In short, asked Boutrous, is there a parallel between race and same-sex marriage? Yes, given that informal unions, such as those made between slaves, “had less honor, less status and fewer benefits” and that alarms did sound when changes were instituted, resulting in “a big burst of laws” after emancipation, including a 1924 Virginia law that banned interracial marriage and “was such a hot button issue” said Cott, “that the Supreme Court approached it cautiously,” only in 1967 striking it down in Loving v. Virginia. She said she has seen no evidence that marriage has been “degraded” as an institution since marriage laws loosened.
The defense cross-examination paid less attention to slavery, and more to Cott’s ability to answer how gay marriage might affect the country. Are the consequences of same-sex marriage an impossible question to answer? Yes or no? “Yes, it’s impossible to predict the future,” she answered. The defense will likely use this argument—that the ramifications of same-sex marriage are difficult to predict—in the coming days. The defense also wants to make it clear that the redefinition of marriage, to put it bluntly, is a big deal and not one to be taken lightly. Bringing as evidence an old radio interview of Cott’s, they made sure to play audio of her saying that while the institution of marriage had seen watershed moments in the past, there was “perhaps none quite so explicit as [the current debate about legalizing gay marriage]."