Windsor v. The United States Of America

Filing 58

FILING ERROR - ELECTRONIC FILING FOR NON-ECF DOCUMENT - DECLARATION of Dugan Exhibit D 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).

Exhibit D In The Matter Of: EDITH SCHLAIN WINDSOR v. THE UNITED STATES OF AMERICA ___________________________________________________ NANCY F. COTT, PH.D. ‐ Vol. 1 July 6, 2011    ___________________________________________________                                                                                         NANCY F. COTT, PH.D. - 7/6/2011 Page 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - x EDITH SCHLAIN WINDSOR, in her capacity as Executor of the estate of THEA CLARA SPYER Plaintiff v. No. 1:10-cv-08435(BSJ)(JCF) THE UNITED STATES OF AMERICA Defendant - - - - - - - - - - - - - - - - - - x DEPOSITION of NANCY F. COTT, PH.D. Wednesday, July 6, 2011 9:34 a.m. Gay & Lesbian Advocates & Defenders 30 Winter Street Boston, Massachusetts Michelle Keegan, Court Reporter Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 2 1 2 3 4 5 A P P E A R A N C E S: GAY & LESBIAN ADVOCATES & DEFENDERS By Mary Bonauto, Esq. 30 Winter Street Boston, Massachusetts 02108 (617) 426-1350 mbonauto@glad.org Counsel for Plaintiffs in Peterson Case 6 7 8 9 10 PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP By Andrew J. Ehrlich, Esq. 1285 Avenue of the Americas New York, New York 10019 (212) 373-3166 aehrlich@paulweiss.com Counsel for Plaintiffs in Windsor Case 11 12 13 14 15 BANCROFT PLLC By Conor B. Dugan, Esq. 1919 M Street, N.W. Washington, D.C. 20036 (202) 234-0090 cdugan@bancroftpllc.com Counsel for the Defendant 16 17 18 19 20 21 22 23 24 UNITED STATES DEPARTMENT OF JUSTICE By Jean Lin, Esq. Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, D.C. 20530 (202) 514-3716 jean.lin@usdoj.gov Conusel for the Defendant Also Present: Shira Hoffman Peter Dunne Suzanne Love Ashley Dunn 25 1-800-325-3376 Merrill Corporation - New York www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 3 I N D E X 1 2 Videotaped Deposition of: 3 Page NANCY F. COTT, PH.D. 4 Examination by Mr. Dugan 4 5 Examination by Mr. Ehrlich 59 6 Further Examination by Mr. Dugan 61 7 E X H I B I T S 8 9 No. Page 10 Exhibit 1 Portion of deponent's CV 7 Exhibit 2 Deponent's expert affidavit 8 Exhibit 3 Bibliography 8 Exhibit 4 Excerpts from deponent's book, "Public Vows" 11 12 13 14 42 15 16 17 Original exhibits retained by court reporter 18 19 20 21 22 23 24 25 1-800-325-3376 Merrill Corporation - New York www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 17 09:52:19 1 together. 09:52:24 2 Q 09:52:31 3 previous answer. 09:52:36 4 couples? 09:52:36 5 A 09:52:41 6 the -- part of North America or at the time of the 09:52:44 7 founding among those who consider themselves part of the 09:52:47 8 new United States. 09:52:47 9 09:53:02 10 Q Did that pair ever include same-sex Not to my knowledge, in the colonial part of Has marriage been a national or federal issue at times during American history? MR. EHRLICH: 09:53:05 11 09:53:08 12 I think you talked about the pair, in your Objection to the form. Vague and ambiguous. You can answer. 09:53:08 13 09:53:10 14 A You said a national or a -- 09:53:13 15 Q Let me rephrase. Has marriage been an issue of federal law at 09:53:15 16 09:53:17 17 times during American history? 09:53:19 18 A Yes, marriage in federal territories. 09:53:23 19 Q What about marriage among native Americans? 09:53:29 20 A Yes, that's a good point, that in dealing with 09:53:34 21 Indians, again, in federal territories and in certain 09:53:43 22 states where the federal government was dealing with 09:53:51 23 the -- with native Americans through the Bureau of 09:53:56 24 Indian Affairs, the form of marriage observed by these 09:53:59 25 populations was of concern to that federal agency, yes, 1-800-325-3376 Merrill Corporation - New York www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 18 and to certain people in congress. 09:54:04 1 09:54:05 2 09:54:12 3 government involve itself in the question of the 09:54:15 4 marriage between former slaves? 09:54:17 5 09:54:21 6 occupied and in the very beginning of the post civil war 09:54:25 7 period when the southern states were not yet 09:54:28 8 reconstituted, yes, the federal government through the 09:54:32 9 Freedmen's Bureau concerned itself with marriages of the 09:54:36 10 Q A In the post civil war era, did the federal During the civil war when the South was freed men and women. 09:54:37 11 Q I'd like you to turn to Paragraph 13, page 5 of 09:54:55 12 Exhibit 2. 09:54:59 13 A I'm sorry. 09:55:00 14 Q Page 5, Paragraph 13, right under Section B. 09:55:05 15 A Okay. 09:55:07 16 Q You write there, "What is seen as legitimate This is your expert affidavit. I didn't catch which page. 09:55:11 17 marriage in a given society may be, for instance, 09:55:14 18 polygamous, monogamous, matrifocal or patrifocal, 09:55:19 19 patrilineal or matrilineal, lifelong or temporary, open 09:55:21 20 or closed to concubinage, divorce-prone or 09:55:25 21 divorce-averse," and so on. Are you an expert in marriage and world 09:55:26 22 09:55:29 23 cultures? 09:55:30 24 A 09:55:34 25 1-800-325-3376 As I said at the outset, I am a specialist in the history of the United States, but that is studied in Merrill Corporation - New York www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 20 09:57:40 1 to divorce his wife because she was past child-bearing 09:57:43 2 age. 09:57:46 3 prevented from marrying, nor could a marriage be 09:57:49 4 annulled for an inability to bear or beget children." Men and women known to be sterile have not been What about the case of impotence? 09:57:57 5 09:58:02 6 Has that been a bar to marriage? MR. EHRLICH: 09:58:03 7 09:58:04 8 Q 09:58:06 9 Objection to form. In -- -- in the United States, from the founding until now. MR. EHRLICH: 09:58:07 10 09:58:09 11 Under federal law or any state law? MR. DUGAN: 09:58:09 12 That's right. 09:58:10 13 A Federal law, so far as I know, has never dealt 09:58:14 14 with this. Certainly in colonial law there -- in New 09:58:21 15 England, yes, impotence or impotency was a reason to 09:58:25 16 dissolve a marriage if there had been no knowledge of 09:58:29 17 that by the partner who was deprived before the 09:58:38 18 marriage. 09:58:39 19 Knowledge that the person he or she was 09:58:42 20 marrying could not engage in sexual intercourse would -- 09:58:47 21 if that knowledge was there before the marriage, then 09:58:49 22 the inability was not a cause for dissolving the 09:58:53 23 marriage. 09:58:53 24 Q 09:58:57 25 Does this mean that consummation has been required to validate marriages in the United States, Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 21 federal or state subdivisions? 09:59:00 1 09:59:02 2 09:59:04 3 09:59:07 4 09:59:10 5 required. 09:59:16 6 that required consummation through sexual intercourse 09:59:19 7 for a marriage to be valid. 09:59:24 8 sufficient. 09:59:28 9 Christian church from the beginning of the period A Well, certainly federal law has never dealt with this, so far as I am aware. No, I do not think that consummation has been I'm not aware of any law in a state or colony Consent was considered And prior and more important and even the 09:59:31 10 considered consent more important than consummation to a 09:59:34 11 marriage. 09:59:34 12 Q And in returning to the question of impotence, 09:59:38 13 do you know why impotence has been a grounds for 09:59:40 14 annulment or divorce in American law? 09:59:42 15 A Yes. I believe that it is because sexual 09:59:49 16 intimacy was assumed to be part of marriage. 09:59:55 17 required for a marriage, but it was assumed to be part 09:59:57 18 of marriage. 10:00:01 19 Q It was not And that was the reason. Would you turn to Paragraph 21, which goes from 10:00:15 20 the bottom of page 6 to the top of page 7. 10:00:19 21 you write, "The notion that the main purpose of marriage 10:00:22 22 is to provide an ideal or optimal context for raising 10:00:26 23 children was never the prime mover in states' 10:00:29 24 structuring of the marriage institution of the United 10:00:32 25 States, and it cannot be isolated as the main reason for 1-800-325-3376 Dr. Cott, Merrill Corporation - New York www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 28 10:11:15 1 characteristics and in their skills and in their 10:11:18 2 strengths and weaknesses. 10:11:21 3 10:11:38 4 10:11:40 5 10:11:43 6 10:11:44 7 10:11:46 8 10:11:49 9 10:11:52 10 Q Yes. Has monogony been a central part of the American understanding of marriage? MR. EHRLICH: Objection to the form. At all points since the founding? MR. DUGAN: At all points since the founding in the states and in federal law. A Has monogony be a central understanding of what marriage is? 10:11:54 11 Q 10:11:57 12 I would say yes. from? MR. EHRLICH: 10:11:58 13 10:12:00 14 Objection to the form and beyond the scope of the affidavit. But you can answer if you know. 10:12:01 15 10:12:02 16 And where does the concept of monogony come A I believe it is Christianity that has been the 10:12:11 17 most important philosophical trend in enforcing 10:12:15 18 monogony -- Christianity as compared to Judaism or Islam 10:12:23 19 or Buddhism or other world religions. 10:12:27 20 Q And the understanding of monogony in the United 10:12:45 21 States from the founding until, let's say, 15 years ago, 10:12:49 22 monogony was understood to be between one man and one 10:12:52 23 woman, correct? 10:12:53 24 10:12:55 25 1-800-325-3376 MR. EHRLICH: Objection to the form. Understanding by whom? Merrill Corporation - New York www.merrillcorp.com/law NANCY F. COTT, PH.D. - 7/6/2011 Page 29 10:12:56 1 Q The public understanding. 10:12:57 2 A The general public understanding? 10:12:58 3 Q Yes. 10:12:59 4 A Yes, although I would put it back more than 10:13:05 5 15 years. I would say that really from the 1970s 10:13:09 6 certain people thought that monogony could -- was 10:13:15 7 appropriate for two people of the same sex, but it 10:13:17 8 wasn't a general majority view. 10:13:28 9 Q I want to paraphrase. I hope I'm accurately 10:13:45 10 paraphrasing your testimony about Christianity's 10:13:48 11 influence in establishing monogony. 10:13:54 12 was a -- sort of the chief philosophical -- not 10:14:00 13 principle but philosophical sort of thread that led to 10:14:05 14 monogony in the west. A 10:14:07 15 10:14:12 16 10:14:12 17 10:14:15 18 Q Well, that valorized or celebrated monogony, Does that mean monogony has been the norm in Western society for 2,000 years? MR. EHRLICH: Objection to the form. Definitely beyond the scope of the affidavit. But if you know, you can answer. 10:14:20 21 10:14:22 22 Is that correct? yes. 10:14:18 19 10:14:19 20 I think you said it A No, not that long. In Roman -- Christian Rome, 10:14:27 23 for instance, monogony with concubinage was quite 10:14:32 24 typical for elites. 10:14:37 25 history than that. 1-800-325-3376 So no, I think it's a much shorter Merrill Corporation - New York www.merrillcorp.com/law