January 13, 2010 at 6:31 pm EST | by Karen Ocamb
Watching the Prop 8 trial, part 5

Special to DC Agenda
For more on the Prop 8 trial, visit lgbtpov.com

After the second day of the federal trial challenging California’s Proposition 8, attorney Ted Boutrous, representing the plaintiffs, and San Francisco Chief Deputy City Attorney Therese Stewart, representing the city, met with reporters and bloggers to discuss the day’s testimony.

American Foundation for Equal Rights board president Chad Griffin introduced the attorneys and guests Dustin Lance Black, Stuart Milk and Cleve Jones.

Boutrous, an attorney with Prop 8 challenge lead attorney Ted Olson’s law firm of Gibson Dunn, started off the press availability with a summation of where he thinks the case stands on Day Two.

Ted Boutrous:

I think we had another extraordinary, powerful and informative day in terms of what marriage means in this country. As the day ended, [attorney] Terry [Stewart] was putting on professor [George] Chauncey from Yale who talked about the deep-seated discrimination against gay men and lesbians that we’ve seen this country. I’ll let her address that testimony.

Proceeding professor Chauncey was professor [Nancy] Cott of Harvard, a renowned expert on the history of marriage in the United States who made several things very clear: that it’s indisputable and irrefutable that the history of marriage in the United States can be characterized by the fact that this nation has time and again knocked down and eliminated barriers to marriage that were discriminatory and unfair.

It was very powerful to hear her talk about the history of discrimination, beginning with slavery and when the slaves were freed. One of the first things that happened was an explosion of people who had been slaves wanting to get married because of this badge of citizenship and freedom.

And other restrictions on women, on Asians on other groups who were targeted in our past — those restrictions were struck down as our society recognized those were unfair. That is a powerful testament to liberty and due process and equal protection in this country.

And for those of you who were there: you would have seen that the proponents’ counsel in his opening statement, he made several statements about history and tradition and what marriage means and professor Cott destroy the premises and demonstrated — without any real suggestion that she wasn’t correct — that he was wrong.

And so we’re very pleased with this morning and with this afternoon and we think our case is shaping up extremely strong.


I’d have to agree with that. Unfortunately I didn’t get to see all of professor Cott.

Professor Chauncey is a Yale historian and really one of the first people ever to specialize in the study of our history as gay men and lesbians. He didn’t talk about it on a personal level, but basically the censorship that he talked about that happened with respect to the film industry in Hollywood also, to a large degree, happened in academia.

And for that reason, gay people’s history is a story that really hasn’t been told — only recently have people begun to study it. Many of the things we’ve talked with him about over the course of preparing for this case and back in the marriage cases, are things where he would say, “Well, you know that’s an area that really needs further study.” So he is a remarkable man who took risks to get tenure studying something that hadn’t been studied because of stigma.

And he is really an amazingly powerful and knowledgeable witness. He didn’t give a comprehensive history because we would have been here for three or four days at least.

But he gave examples that I think are really representative of the key ways in which gay people have been walled out of culture in America and kept from fully participating as citizens, whether it be employment or sort of being completely left out in the media. And for many of us, that history is actually — because we’re kind of old, we remember some of it. We know it because it’s part of our lives.

I think for many people who are not gay, that history isn’t something they’re familiar with so they don’t see Proposition 8 in the context in which it actually occurred, which is the demonization that went on is the focus on sex perversion that we were accused of.

And the imagery that was used in the Proposition 8 campaign really can’t be viewed in a vacuum, and I think professor Chauncey’s testimony demonstrated that. When you understand what’s been said about gay people in the past and for how long and in a period where no positive depictions were happening because of censorship, that is a lasting and enduring imagery, and it’s called up to vote by much of the messaging — particularly the messaging around children.

So I felt very good about professor Chauncey’s testimony today and I hope it will eventually be posted on YouTube because I think it’s a lesson that frankly many gay people — I’ve learned more about gay history in the course of this case and in the California marriage cases than I knew before by a long shot. And I’m privileged to work with the Gibson Dunn folks and the Boies Schiller folks in this case.

Reporter question:

When Mr. Pugno was in here earlier, he said that he thought that Professor’s Cott’s testimony was a disaster for you guys because it backfired and boomeranged and she was forced to admit that throughout the history involving the institution of marriage that it was till always a man and a woman. Can you respond to that?


Let me put it mildly. I think he’s being radically overly optimistic on his part. The cross examination largely consisted of counsel for the opponents reading pieces of different articles from different people into the record — which were not even admitted into evidence.

And professor Cott could not have been clearer that the history and tradition of marriage in this country will be strengthened, and by recognizing the ability and the right of individuals of the same gender to marry she said that the prior discriminatory features of marriage that had been eliminated when they were eliminated — that strengthened marriage.

She talked about how the fact that men and women gender roles used to be dictated in a way that was very — she said asymmetrical — that those things had been broken down which — all of that comes together, as she put it — to strongly support a trend in changes in laws governing marriage that is perfectly consistent, indeed supports recognition of the right of individuals of the same gender to marry.

So we were very pleased with her testimony. And in fact, I can’t think of a single point on which they made any headway whatsoever and in fact, I thought that, to the extent that there were any relevant questions asked, professor Cott demolished the lawyer for the other side.

Reporter question:

Can you put into context why all these aspects of marriage matter? The economics of marriage that we’re going to be hearing about a little later in the week, the history of marriage, discrimination, the history of discrimination? In the end, when you sum everything up, what difference is that going to make to the constitutionality of Proposition 8?


On the history of discrimination — and I’m going to let Ted talk about the history of marriage — the most obvious relevance on the history of discrimination is that when a court decides whether a group of people who are seeking to have the court apply a high standard of review to discrimination against them should get that high standard of review, sometimes called strict scrutiny.

The court considers as one of the most important factors whether there’s been a history of discrimination against them and whether that history has in any way hampered their ability to represent themselves in the political process. So in a large part today, that’s what professor Chauncey’s testimony was about.

The second aspect of it, as I mentioned earlier, was that in order to understand the messaging in the Proposition 8 campaign, remember there have been, as Dr. Chauncey testified, waves of these referenda and their messaging has gotten a little more subtle over the years and little more coded. But in order to understand the messaging of today, we have to be aware of what are those stereotypes that are ingrained in our head about gay people and without really fully understanding the history of that same kind of messaging, even though it was more shrill and more nasty in tone early on, it tells you a lot about this whole focus on children and on consequences to straight people and this dangerousness idea about gay people that’s implicit and explicit in messaging in Prop 8.


The other issues, for example the history of marriage, one of the reasons it matters is the history of marriage in this country, when a scholar like professor Cott takes an objective look at it, destroys all the arguments that the Proponents of Prop 8 make.

And as professor Cott noted, each time a discriminatory barrier was taken down or eliminated in this country. Similar types of arguments, in terms of the effect on the institution were made, alarm bells were sounded and each time they’ve proven to be false.

And as professor Cott testified, when discrimination was eliminated, the institution of marriage was even stronger. And so we think it shows the illegitimacy of the argument on the other side, the irrationality of the arguments on the other side when one looks at the history of marriage, of the economic consequences of allowing marriage.

And as professor Cott testified, marriage adds stability and is good for the government because it saves the government costs. It helps the government govern, so in that way, it’s a positive thing and the arguments made on the other side are simply irrational.

Reporter question:

Frank Schubert was just here a moment ago and I asked him if he was going to testify and he said he hasn’t been called. So I’m wondering if you’re considering, given all this discussion about messaging, if you’re going to call him and go directly to the source about messaging.


We have listed Mr. Schubert on our witness list and we are going to watch how things unfold to determine precisely who our witnesses are. We haven’t called him, we haven’t provided notice to the other side when or whether we’re going to call him, but we do have him on our witness list, so we have the ability to call him. So we’re going to see how it goes. See what we get in. We want to move briskly here and put our case before the judge. So we’re just going to see and take it one day at a time.

Reporter question:

But I don’t understand. If he’s the creator of the message, why don’t you go directly to the source of the message that’s harmful?


We have a lot of good material from his deposition. And we have a lot of good material from his — he wrote an article in which he basically bragged about the messaging and the strategy which, as professor Cott suggested today was like ripping Page 1 out of the discriminatory handbook that plays on these messages related to children, that have nothing to do with marriage.

And as professor Cott talked about today, as a traditional matter, [this] has nothing to do with marriage. And so we have a lot of good material that really demonstrates the issue and the messaging issues. But we’re going to take a look. I’m not saying we’re not…

Reporter question:

Forgive me for pressing the point, but it’s different to have an article. He’s on videotape saying the same thing. That’s different from having him on the witness stand and under oath and you ask him hard questions about it.


Can I just add one thing? One thing you have to understand is that the strategy on the other side has been to avoid and really hide from testifying in deposition and for providing documents that reflect the messaging in their campaign. Now it’s not that they’ve given us nothing, but it’s been like pulling teeth to get it. And in the deposition, when asked about the messaging, they were unwilling to answer it.

I’ll give you one example. Today, one of the exhibits to which my opponent objected was a sign that is a www.ProtectMarriage.com sign that says, “You have the power to protect your children” and has this family — this man and woman cradling this child as though there is something to protect the children from. You know, they’re not going to be able to hide the messaging because they put it out on the Internet, on signs and everywhere. And that stuff will come into evidence.

But the question about calling witnesses and how they’re called and how we deal with them is a little bit complicated by the kind of see no evil, hear no evil, speak no evil approach of the Yes on 8 people after the campaign.

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