January 11, 2010
By Rick Jacobs
Sandy is now on. She’s also very poised. She learned in her mid-thirties that she is “gay.” She got married to a man before. She had no feeling that she was a lesbian when she was married to a man. I had a difficult relationship for most of our marriage, but I started it out with the best of intentions. She grew up in Iowa in a small town of 1,500. It was a good but sheltered upbringing. We did not travel or go to places very different from where we grew up. I had no idea of a gay lifestyle or sexuality until I was a late teenager.
I moved to CA in 1985 and got married to a man in 1987. We dated for a year before we got married on 14 November 1987. Marriage ended in 1999. (Olson is very interested in drawing out the trajectory of her sexuality, which is fascinating, rarely discussed in public.)
She met Kristin first as a coworker. We were friends. The feelings I had for her were different than I had for others. I grew to realize that I was falling in love with her, in early 1999. My marriage was falling apart on many fronts. I was extremely unhappy. My ex-husband relied on alcohol and could not support the family properly. My sexual orientation or the discovery thereof did not have anything to do with the failure of the marriage.
I had never experienced falling in love before. Olson draws out whether that’s true of her husband. I never thought people “fell in love.” When you grow up in the Midwest with a farming family, there is a pragmatism that is inherent, part of the fabric of life, that is pervasive. I remember my mom saying that marriage is more than romantic love, it’s an enduring long term commitment that is hard work. In my family, that seemed really true. I wanted to have the kind of relationship that my parents did and do.
Kris and I have a very romantic relationship. Not only did we fall in love, we wanted to merge our families. I was 36. We wanted that life of commitment and stability.
O: How convinced are you that you are gay? You lived with a husband. Some people would say it’s this, then it’s that and now it’s this.
S: I’ve only been in love once and that’s with Perry. I’m 47. I know. I’m a plaintiff this case because I would like to get married and to marry the person that I choose and that’s Kris Perry and California law prevents that.
Sandy describes her version of their marriage, the toasts, the love from community: When I got that letter saying that our marriage was no longer valid humiliated, angry and that people who brought us gifts and celebrated with us felt pity for us which is the last thing that I ever want to evoke around marriage.
S: It felt great that the court thought we had a constitutional right to get married. It was cloaked in this distension that felt very familiar. The activist groups that opposed marriage made me realize that this was not permanent. I felt strongly that at my age I don’t want to humiliated any more. We got married twice and it was taken way. I want it to be permanent, no chance it get taken away from us. We did have friends that got married. We were proud and worried for them because we did not want them to have the same problems we had.
[UPDATE] 3:20 Sandy is talking about the difference between domestic partnership and marriage. Marriage would mean we are not girlfriends or partners, we are a married couple. I was married for twelve years. Being married felt different than what we have.
Judge asks again if the state were to get out of the business of using the term marriage, but created another name for it for all people, domestic union or whatever, would not that put you on the same plane as all others?
Sandy says I believe so. Yes. If we had the same access, I’d feel equal.
Judge: Even though the term marriage is not used?
Sandy: Yes, because if it’s not a legal status sanctioned by the state or government, id’ not have to worry about access to it because no one else would either.
O: What are examples of feeling awkward about not having marriage?
S: Going to pick up my youngest son at school. I get mother’s day cards, so they think of me as their mother. Words like “aunt” or step mother aren’t there if I’m not married. Few people know what the term “domestic partnership” means. It does not describe our relationship. We’re not business partners or social partners or glorified roommates; we want to be married. Forms at doctor’s offices and the like don’t work and then I have to explain what a domestic partnership is.
O: Would being married provide you with any sense of stability that being domestic partners would not?
S: Yes. I’d feel more respected by other people. I could hold my head up high in our family. I want our children to feel good about us, not that our family is not good enough.
S: During Prop. 8 campaign, I saw bumper stickers, signs and I went to a rally that was against Prop. 8.
S: I heard many things—everything—from the yes side that disturbed me. The campaign was very focused on “protection:” protect marriage and children with the subtle implication that you have to be protected from gay people. The constant references to children felt harmful. I felt that great harm was being done by this campaign, that we are the great evil to be stopped, but as a mom of four kids, there’s nothing stronger in parenting than the desire to protect your children. I was sickened by the yes campaign.
O: As a parent of four children, you have strong sense of what it means to be a good parent. Would your boys be better off with a man in the house?
S: The most important and best thing for kids is to feel loved.
O: How is it to be a plaintiff?
S: It’s not a burden. I feel like a little tiny person in this country. I’m not trying to change anything. I just want the same thing I’m due in the federal constitution.
S: If I could marry, I’d think I was building a good world for our kids. I want our kids to have a better world than we have. I want the possibility of having grandchildren who are okay no matter whom they fall in love with. As someone from one of the most conservative pockets in the country, I see how important this is. I hope for something for Kris and I, but we’re big, strong women. We’d benefit greatly, but others over time would benefit in a more profound, life-changing way.
(No cross examination. They probably don’t want to be seen by the public as attacking women. It’s easier for them to go after gay guys than women.)
[UPDATE] 3:28 Now we’re hearing from Professor Nancy Cott. (The judge has a good sense of humor. He asked her to keep her voice up. She tried again and said, “Does this work?” He said, “Well, we’ll see.” Boutrous is examining. Olson and Boutrous have a lot of hair. Maybe that’s a prerequisite at Gibson Dunn? Or maybe I’m just jealous.)
Okay, now we get to the historians and social and cultural psychologists, etc. IN 2002, she was a Sterling Professor at Yale, the highest honor Yale gives professor. Then she moved to Harvard as Trumball Professor of American History. She’s published eight books. She has a long history of research in the history of marriage. She wrote and published PUBLIC VOWS, a history of marriage and the nation. First started investigating the history of marriage in the US in 1990. Looked at history of marriage as a public institution, a structure created by government for social benefit.
Many of my courses at Yale touched upon marriage. While I was in the process of researching the book, I was honored as the Devain Professor (SP) to teach a course outside of any one department, I was asked to teach about my conclusions on the history of marriage in the US.
(I’m giggling. I love these kinds of people who are way smart and devote an entire life to learning everything there is to know about a subject. It’s just amazing.)
I like sort of double meanings in my book titles. PUBLIC VOWS refers to the taking of vows publicly and the fact that the public, in the form of the state, makes certain vows to protect the couples. I was examining more the public intention of the institution of marriage, published in 2000, after about a decade of research.
[UPDATE] 3:43 Professor Cott: Marriage is both a public and private institution. Most people who consider marrying, think of the private and private property relations between them. But the state has a public interest in marriage. It’s a means by which the state regulates people. There are other paradoxes in the nature of marriage. Marriage is only possible for individuals who can exercise the liberty value of our citizens, yet the private realm is a place in which decisions can be made freely.
(I had never thought about any of this before. I always thought of marriage as private, but the professor is right. Marriage is quite public even as it enforces the rights to liberty and privacy in that relationship.)
(Both sides agree that she’s an expert on marriage in America, which makes me rest easy. If she’s not, who is?)
Boutrous wants to understand the meaning of marriage in America. Our form of marriage is relatively recent, but has antecedents in Anglo Saxon law. (She said it’s inaccurate to say marriage around the globe is uniform. The other side says she’s not an expert in world wide marriage just in America. Now Boutrous is trying to establish that she had to know about marriage around the globe. She wanted to give a longer answer, but the judge said she’d get asked more.
The other side is using her deposition in which she says she is not an expert of the subject of marriage around the world so she can’t say that marriage around the world is not universal.
The judge thinks that she’s allowed to talk about marriage in the US and how her knowledge of marriage elsewhere affects that, but she’s not an expert on marriage around the world.
(the professor is wearing a green sweater top. She has light brown hair, neatly cut and stylishly carried. She’s exactly the look that you’d expect if you were watching DaVinci Code and wanted to imagine a Harvard/Yale, self-confident and approachable professor. She evokes lots of laughter because she tries to answer questions at length when she’s supposed to say just “yes” or no.” So Boutrous then asks her to follow up. It’s good.”
[UPDATE] 3:58 Boutrous is asking about the Prop. 8 ads that say that biblical marriage is the goal of the US.
The other side objected, saying that she is not competent to opine on the ad because she has not seen the ad. But then the judge said that she could opine because she saw the ad this morning.
Professor Cott said about biblical marriage,” I was very amused that they used that. The bible is full of references to polygamy for Jews.”
The limitation of marriage to a man and a woman is something that has been universal. It has been across history, across customs, across society. (Cooper’s opening statement is flashed on the screen.)
Prof says this is not accurate including from ancient Jews, Muslims now. I think that Christianity has been the source of monogamy vs. polygamy. I suspect the person in the ad referred to the New Testament when he said biblical marriage. She said the success of the view of monogamous marriage is a tribute to evangelical Christianity, particularly in this country since the 19th century.
Now they are talking about the social meaning of marriage.
Marriage is unique because it successfully combines private and public. It is successful as an institution as a couple’s valuation of living together, commitment to each other and engage in an economic partnership to their household. Upon that core, very many cultural add ons have been admitted as well.
The ability to marry, to say I do, is a civil right. It demonstrates liberty. This can be seen in American history when slaves could not legally marry. As unfreed persons, they could not consent. They lacked that very basic liberty of person to say I do which meant they were taking on the state’s obligates and vice versa. A slave could not take on that set of obligations because they were not free.
When slaves were emancipated, they flocked to get married. IT was not trivial to them by any means. They saw the ability to replace the informal unions with legalized vows that the state would protect. One quotation, the title of an article, “The marriage covenant is the foundation of all our rights,” said a former slave who became a northern soldier. The point here is that this slave built his life on that civil right.
She refers to Dred Scott who tried to claim he was a citizen. He was denied that claim. Justice Tawny spent three paragraphs saying that marriage laws in the state in which Dred Scott was prevented him from marrying a white woman was a stigma that made him less than a full citizen. It was a piece of evidence that shows that he could not be a full citizen.
(THIS IS BIG STUFF, at least to me!)
Informal relationships of black slaves were totally treated with abandon by white society. They were broken up all the time. The rush to marry by so many slaves after emancipation was a common sense approach to obtaining civil rights. White employers would often demand that black families and children work in certain ways. The former slaves assumed that once married, they’d have a claim of certain basic rights.
People remain unaware that in marrying, one is exercising the right of personal freedom. They don’t tend to equate the civil rights aspects to it. It’s only those who cannot marry at all who are aware of the extent to which marriage is an expression of basic civil rights.
[UPDATE] 4:08 The restrictions on marriage, as they have been lifted, have made marriage more appealing. The removal of restrctions on marriage have tended to strengthen the institution. The religious connations that different groups have attached to marriage have been a part of its high cultural valuation. In entertainment, movies—at least since the rise of the novel in the 19th century, marriage has been the happy ending. The cultural polish that present the rice, the white dress, the happy coupe parading down the aisle are the expression of happiness by the couple.
How does the cultural value of marriage compare with civil unions?
I appreciate that many states have extended many or all of the rights to people who can’t marry, but there is no comparison in a historical view because there is nothing like marriage except marriage.
At the founding of the country, were there comparisons made between the institution of marriage and democracy.?
Yes. This was based on consent, on voluntary agreement to be governed. Great Britain called its people subjects, not citizens. When the US broke away, they called people citizens who voluntarily consent to a stable relationship that may govern you, but was good. They compared this consent to marriage, an institution that requires consent.
It’s just after 4:00PM. Boutrous said he has another hour or so to go with this witness. So the judge adjourned for the day, saying, “We’re off to a very good start. Can we start at 8:30AM tomorrow instead of 9:00AM?