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

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NANCY F.

COTT, PH.D. - 7/6/2011
Page 2

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2
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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
[phone]
[e-mail]
Counsel for Plaintiffs in Peterson Case

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7
8
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PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP
By Andrew J. Ehrlich, Esq.
1285 Avenue of the Americas
New York, New York 10019
[phone]
[e-mail]
Counsel for Plaintiffs in Windsor Case

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BANCROFT PLLC
By Conor B. Dugan, Esq.
1919 M Street, N.W.
Washington, D.C. 20036
[phone]
[e-mail]
Counsel for the Defendant

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UNITED STATES DEPARTMENT OF JUSTICE
By Jean Lin, Esq.
Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
[phone]
[e-mail]
Conusel for the Defendant
Also Present:
Shira Hoffman
Peter Dunne
Suzanne Love
Ashley Dunn

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1-800-325-3376

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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

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5

Examination by Mr. Ehrlich

59

6

Further Examination by Mr. Dugan

61

7
E X H I B I T S

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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"

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13
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42

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16
17

Original exhibits retained by court reporter

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1-800-325-3376

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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

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NANCY F.

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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

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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,

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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

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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,

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NANCY F.

COTT, PH.D. - 7/6/2011
Page 28

10:11:15

1

characteristics and in their skills and in their

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2

strengths and weaknesses.

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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?

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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?

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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.

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So no, I think it's a much shorter

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