See note on sources at the end of this post
At Monday’s first day of the trail on a federal lawsuit challenging the constitutionality of California’s Proposition 8, the testimony of the suit’s four plaintiff’s was mostly unchallenged by defense attorneys. Only one of the plaintiffs, Paul Katami, was cross-examined. And in that cross-examination defense attorney Brian Raum mostly focused on two campaign ads that had been introduced by David Boies, partly to introduce the contention that the Prop. 8 campaign was motivated by anti-gay bias.
But in Tuesday morning’s session, defense attorneys brought out the legal long knives when attorney David Thompson—one of the lawyers representing the Yes-on-8 campaign—aggressively cross-examined the plaintiff’s first expert witness, Nancy Cott, a Harvard professor of history.
Watching the trial from the San Francisco courtroom of Chief Judge Vaughn Walker, and posting frequent updates on her Twitter account, Davina Kotulsk tweeted, “The tension is thick between Atty Thompson and Prof Cott. As thick as the approx 500 page binder he handed her.”
Toward the end of Thompson’s cross-examination, Kotulsk tweeted, “Thompson’s questioning so aggressive. a nasty energy- feel emotionally beat up on. worn down, want to get away from him. headache coming on.”
The trial: Prop 8 lawyer aggressively questions plaintiff’s first expert [contd.]
Thompson began his cross examination by going through that large notebook that he’d handed her, with copies going to the plaintiff’s lawyers and the judge. He attempted to crush her credibility as an expert on marriage by throwing all of Cott's advocacy stances back at her, Dan Levine reported via Twitter from the courtroom, finally asking her if she could be a neutral party because she supports same-sex marriage.
He cited Cott's assigned readings to her Harvard class to portray her as an ideologue.
“Thompson and Cott are sniping at each other,” Levine tweeted. “eg. him citing her articles, she saying he's taking ‘half of one line’ out of a 30 page article.”
Howard Mintz of the San Jose Mercury News observed, “Cott is an academic to the bone, so Thompson is having a hard time pinning her down, but is clearly trying to show she has offered inconsistent statements in the past on the marriage subject.”
In his questioning, Thompson appeared to be “trying to establish that American marriage law is based on Christianity,” the LGBT legal group NCLR observed from the courtroom.
Indeed, Alliance Defense Fund, a right-wing legal group whose lawyers are part of the defense team, observed on its Twitter feed, “Christianity influenced early American understanding of marriage as lifelong monogamous commitment.”
Mintz reports in Mercury News that after a mid-morning break when Cott returned to the stand as cross-examination continued:
Professor Nancy Cott, the historian, is back on the witness stand, and appears to be getting a little impatient with the cross-examination of Proposition 8 lawyer David Thompson.
Thompson is challenging one of Cott's ideas that modern marriage laws are shaped now by civil law and social developments; the defense attorney is pushing hard on the anti-gay marriage thesis that heterosexual marriage is tied to history and religion restricting unions to men and women. He repeatedly suggested in his questions that marriage laws are tied to Christianity. At one point, asking Cott about monogamy being the result of the teachings of Jesus and his apostles, the professor got a little impatient. “I know very little about Jesus Christ and his apostles,” Cott shot back at Thompson.
LGBT reporter Lisa Keen tweeted that “audible gasps” were heard from the gallery during that exchange.
Courthouse News Service reported:
Laughter erupted when Thompson asked Cott if it was the objective of Jesus Christ and his apostles' teachings that individuals pursue monogamous marriage, to which Cott replied, "I know very little about Jesus Christ and his apostles."
One of the more bizarre exchanges between the two when Thompson tried to get Cott to admit that Prop. 8 isn’t discriminatory against LGBT people because a gay man could marry a lesbian. NCLR summarized the questioning, “Thompson now tormenting Prof Cott with absurd questions about whether gay men can marry lesbians.”
The plaintiff’s attorney Theodore Boutrous reexamined Cott following Thompson’s cross, Cott said that the role of marriage to enforce inequality has largely been shed over time. She noted that allowing marriage for gay and lesbian couples would, in her opinion, strengthen the institution.
When Boutrous asked her about the defendants’ assertion that the primary reason for civil marriage is procreation, Cott “scoffed” at the suggestion, according to Mintz. She noted that President George Washington, “the father of our country,” was sterile by the time of a later marriage. “Procreative ability has never been a qualification for marriage,” she testified, according to Mintz.
Just before Cott left the stand, Judge Walker asked a question that seems to be central to his thoughts right now. He asked Cott how government had become the regulator of marriage. Cott responded that she thought the legal tradition had been brought over from Europe. (She did not note that some early American religious colonists—notable the Pilgrims in what would become Massachusetts—did not recognize a religious ceremony for marriage, but considered it to be solely a civil matter.)
Note on sources: Except where noted in the inline links, much of this report is derived from the Twitter reports of observers in the courthouse. Today’s list of observers are collected in this Twitter list. (Click to see the live updates from the courthouse.)