Windsor v. The United States Of America

Filing 55

FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - DECLARATION of Dugan Exhibit A in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Kircher, Kerry) Modified on 8/2/2011 (db).

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Exhibit A George A. Chauncey, Ph. D. July 12, 2011 Page 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -------------------------------------EDITH SCHLAIN WINDSOR, in her capacity as Executor of the Estate of CLARA SPYER, Plaintiff, -against- 10-CV-8435 THE UNITED STATES OF AMERICA, Defendant. -------------------------------------(Caption continued on next page.) DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D. Tuesday, July 12, 2011 George A. Chauncey, Ph. D. July 12, 2011 Page 2 1 2 UNITED STATES DISTRICT COURT 3 5 DISTRICT OF CONNECTICUT -------------------------------------JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA DEFORGE & RAQUEL ARDIN, JANET 6 GELLER & JOANNE MARQUIS, SUZANNE 7 & GERALDINE ARTIS, BRADLEY 8 KLEINERMAN & JAMES GEHRE 9 DAMON SAYVOY & JOHN WEISS, 4 10 11 Plaintiffs, 12 13 Civil Action No. -against- 310 CV 1750 (VLB) 14 15 OFFICE OF PERSONNEL MANAGEMENT, 16 TIMOTHY F. GEITHNER, in his official 17 capacity as the Secretary of the 18 Treasury, and HILDA L. SOLIS, in her 19 official capacity as the Secretary of 20 Labor, et al., 21 22 23 24 25 Defendants. -------------------------------------- George A. Chauncey, Ph. D. July 12, 2011 Page 3 1 2 3 4 DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D., a 5 Witness herein, taken by Intervenors, pursuant to 6 Notice, at the offices of Paul, Weiss, Rifkind, 7 Wharton & Garrison LLP, 1285 Avenue of the 8 Americas, New York, New York 10019 on Tuesday, 9 July 12, 2011, at 10:00 a.m., before DEBRA 10 STEVENS, a Registered Professional Reporter and 11 notary public, within and for the State of New 12 York. 13 14 15 16 17 18 19 20 21 22 23 24 25 George A. Chauncey, Ph. D. July 12, 2011 Page 12 1 G. Chauncey 2 A. No, I am not an attorney. 3 Q. What did you do to prepare for today's 4 deposition? 5 A. I reviewed the affidavit I submitted, 6 the deposition and testimony in Perry. 7 reviewed some of the materials related to the 8 case and I re-read part of my book on marriage. 9 Oh, I met with counsel yesterday to prepare for 10 the deposition. 11 Q. I I would like to ask you some questions 12 about terminology in the affidavit. 13 term "homosexual." 14 homosexual? 15 A. You use the How do you define a I have generally defined "homosexual" 16 as someone who has an identity based on their 17 sexual attraction to people of the same sex. 18 someone for whom that is a core part of their 19 identity. 20 Q. And you also used the term "gay" 21 throughout the affidavit. 22 "gay"? 23 A. How do you define I know that some people distinguish 24 "gay" and "homosexual," but I use them 25 synonymous. So, George A. Chauncey, Ph. D. July 12, 2011 Page 13 1 2 G. Chauncey Q. And you use the term "lesbian" 3 throughout the affidavit. 4 "lesbian"? 5 A. How do you define In similar terms, as a woman who 6 identifies herself on the basis of her sexual 7 attraction to women. 8 9 10 Q. Do you know what percentage of the American population is gay, lesbian or bisexual? A. I don't know. I think that the 11 estimates that I have seen that seem most 12 authoritative would put it somewhere between 3 13 and 5 percent or 3 and 4 percent of the 14 population. 15 Q. I don't think it was in the affidavit 16 but I saw somewhere you used the term 17 "homosociality." 18 19 20 What does that mean? MS. KAPLAN: Objection to form. You can answer. A. Well, let's see. "Homosociality" has 21 been used in different ways. 22 use the term, it typically would refer to a 23 social group that is same sex or to patterns of 24 association that are same sex. 25 Q. But as academics How does that term differ from George A. Chauncey, Ph. D. July 12, 2011 Page 14 1 2 3 G. Chauncey "homosexuality"? A. There is not necessarily a homoerotic 4 content to homosociality. 5 society historically was once more sex-segregated 6 than it is today in everyday life and in politics 7 and business and so forth. 8 groups of men together and women together. 9 didn't mean that they were erotically attracted 10 to each other. 11 So that American So, there were often That gender at that time. 12 Q. It was the social organization of And have you consistently used the 13 same definition of homosexuality throughout the 14 affidavit? 15 MS. KAPLAN: 16 throughout Defendant's 2? 17 MR. DUGAN: 18 A. Defendant Exhibit 2. Yes. Sorry. 19 Just so I understand, I believe I have. I would have to 20 look -- it depends -- probably in some cases, and 21 I actually don't remember the instances here, but 22 I would distinguish between "homosexual" as a 23 noun, referring again to someone who is 24 distinguished from others on the basis of their 25 primary sexual attraction to people of the same George A. Chauncey, Ph. D. July 12, 2011 Page 15 1 G. Chauncey 2 sex, and "homosexual" as an adjective, which 3 could just describe erotic sexual relations 4 between people of the same sex who do not 5 identify themselves as homosexual. 6 Q. And have you consistently used the 7 same definition of homosexuality throughout your 8 career? 9 MS. KAPLAN: 10 Objection to form. You can answer. 11 A. Well, I have written so many pages on 12 this subject I wouldn't say that every single 13 time I used the term I have used it exactly this 14 way. 15 used these terms. 16 But broadly, this has been the way I have Q. If we can turn to Defendant's 17 Exhibit 2, paragraph 2 on the first page? 18 list some of the cases you have either testified 19 in or been a deposed expert in. 20 tell me what kind of case Donaldson v Montana 21 was? 22 A. You Can you just It was a case in the State of Montana 23 in which there is a constitutional amendment 24 banning marriage but this is a case seeking 25 relationship -- legal recognition of same sex George A. Chauncey, Ph. D. July 12, 2011 Page 34 1 G. Chauncey 2 prohibitions against sodomy and unnatural acts, 3 penalized a wide range of non-procreative 4 behavior, including many forms of what now would 5 be called homosexual conduct." 6 Is it the case that these 7 legislators -- they were not legislating against 8 homosexual acts per se; correct? 9 A. Well, there is -- again, the word 10 "homosexual" wasn't available to them and so they 11 were operating out of the conceptual framework 12 that I just began to describe. 13 The laws varied. Broadly, the 14 southern colonies adopted the secular legislation 15 of England, and so they typically criminalized 16 buggery, which included male anal penetration of 17 a woman, a man or a beast, whereas in the puritan 18 colonies in New England, although they certainly 19 penalized a wide range of nonmarital sexual 20 behavior, they were likely -- for instance, in 21 Massachusetts -- to simply quote Leviticus, 22 prohibition against a man lying with another man, 23 and make that a capital offense. 24 25 Q. You mentioned the British tradition of a secular prohibition against buggery. How did George A. Chauncey, Ph. D. July 12, 2011 Page 48 1 G. Chauncey 2 What are some of the reasons 3 4 historians have given to explain this? A. Well, one reason that historians have 5 given for the apparent inconsistency between the 6 vehemence of the denunciation of sodomy from the 7 pulpit and the relatively small number of 8 prosecutions is that -- and we're talking about 9 very small communities and towns in colonial New 10 England in which people's lives were deeply 11 intermeshed. 12 There is some thought that the 13 severity of the punishment -- this is a capital 14 crime -- dissuaded people from pressing charges 15 even if they had some concerns about people; 16 again, people they were closely related to. And 17 some have wondered if the demonization of sodomy 18 was so enormous that it was just hard to connect 19 it to the everyday people they knew in their 20 communities. 21 But again I would stress that this is 22 still an enigma that historians are trying to 23 understand. 24 25 Q. Turning to paragraph 21 on the same page, page 9 of Exhibit 2, you write there, George A. Chauncey, Ph. D. July 12, 2011 Page 49 1 G. Chauncey 2 starting in the second sentence, "Current 3 historical research suggests that the concept of 4 the homosexual as a distinct category of person 5 developed as recently as the late 19th century. 6 The word 'homosexual' appeared for the first time 7 in a German pamphlet in 1868 and was introduced 8 to the American lexicon only in 1892." 9 Can you explain how this historical 10 process of the idea of the homosexual as a 11 distinct category arose? 12 13 14 15 MS. KAPLAN: Objection to form. You can answer. A. We're going to be all day if you want me to explain this. 16 Q. Can you give the CliffsNotes version? 17 A. Okay. 18 seminar to -- 19 20 21 We'll switch from the graduate MS. KAPLAN: Go to the freshman lecture. A. Well, again I will say, as I did 22 before, historians think about and write about 23 this question a lot and, so, have pointed to 24 earlier periods in which people seemed to have 25 had persistent interest in people of the same sex George A. Chauncey, Ph. D. July 12, 2011 Page 50 1 G. Chauncey 2 without being categorized as homosexuals, those 3 categories being unavailable. 4 Their emergence has been attributed, 5 for instance, to the growth of the medical 6 profession and scientific research, which helped 7 produce and circulate terms of this sort. 8 is a general impetus towards classification of 9 people. 10 There People have talked about the growth of 11 large cities, in which it was easier for people 12 to separate themselves from the family or 13 household economy and to create lives as lesbians 14 or gay men who lived outside of constraints that 15 they had experienced in small towns. 16 17 18 Those would be two of the major factors people have pointed to. Q. What was the nature of the reference 19 to homosexuality or the term "homosexual" in that 20 1868 pamphlet? 21 A. I believe this was a pamphlet that 22 was -- I could be wrong about this since I am not 23 a German historian, which is where this appeared. 24 But I believe this was a pamphlet written in the 25 context of discussions of the sodomy law in George A. Chauncey, Ph. D. July 12, 2011 Page 51 1 2 G. Chauncey Germany or in Prussia. 3 So again it gives us an indication of 4 the degree to which sodomy was -- you know, 5 encompassed more than homosexual conduct. 6 understood as being primarily by this time an 7 anti-homosexual measure. 8 9 10 11 12 Q. It was Then how did the word "homosexual" enter the American lexicon in 1892? A. I believe that it first appeared in an American medical journal in 1892. Q. Did it take time for "homosexual" to 13 be recognized as a specific social category in 14 the United States? 15 A. Well, again, we're talking here about 16 a precise medical or scientific term. 17 now, there were a wide range of vernacular terms 18 used in the streets: 19 "lesbian" actually had been used for a time since 20 it drew on classical references to the poetry of 21 Saphho, who lived on the isle of Lesbos. 22 Then as Fairies, pansies -- "Homosexual" spread but there were 23 other terms that had similar or related meanings 24 that were probably used more commonly. 25 Q. In that same paragraph you are talking George A. Chauncey, Ph. D. July 12, 2011 Page 84 1 G. Chauncey 2 people of Asian descent, women, lesbians and gay 3 men. 4 the historical specificity while still 5 recognizing that these groups have all 6 experienced a general pattern of discrimination. 7 One would just need to sort of think about Q. At the time of the adoption of the 8 14th amendment was it illegal for two men to have 9 anal intercourse with each other in every state 10 in the union? 11 A. 12 13 I believe it was illegal in every state to have anal intercourse, yes. Q. In the 19th century, was marriage 14 implicitly understood in America to be the union 15 of one man and one woman? 16 17 18 MS. KAPLAN: Objection to form. You can answer. A. Well, expectations about what marriage 19 meant and who was available to -- who had access 20 to marriage have changed over time, so that I 21 think in the 19th century one could say that it 22 was generally assumed that marriage would involve 23 only a man and a woman. 24 assumed that a black person and a white person 25 could not marry. It was also generally