Windsor v. The United States Of America
Filing
62
DECLARATION of Conor B. Dugan in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E (part 1), # 6 Exhibit E (part 2), # 7 Exhibit F)(Kircher, Kerry)
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
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UNITED STATES DISTRICT COURT
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5
DISTRICT OF CONNECTICUT
-------------------------------------JOANNE PEDERSEN & ANN MEITZEN,
GERALD V. PASSARO II, LYNDA
DEFORGE & RAQUEL ARDIN, JANET
6
GELLER & JOANNE MARQUIS, SUZANNE
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& GERALDINE ARTIS, BRADLEY
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KLEINERMAN & JAMES GEHRE
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DAMON SAYVOY & JOHN WEISS,
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10
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Plaintiffs,
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Civil Action No.
-against-
310 CV 1750 (VLB)
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OFFICE OF PERSONNEL MANAGEMENT,
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TIMOTHY F. GEITHNER, in his official
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capacity as the Secretary of the
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Treasury, and HILDA L. SOLIS, in her
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official capacity as the Secretary of
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Labor, et al.,
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Defendants.
--------------------------------------
George A. Chauncey, Ph. D.
July 12, 2011
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DEPOSITION OF GEORGE A. CHAUNCEY, Ph.D., a
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Witness herein, taken by Intervenors, pursuant to
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Notice, at the offices of Paul, Weiss, Rifkind,
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Wharton & Garrison LLP, 1285 Avenue of the
8
Americas, New York, New York 10019 on Tuesday,
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July 12, 2011, at 10:00 a.m., before DEBRA
10
STEVENS, a Registered Professional Reporter and
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notary public, within and for the State of New
12
York.
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George A. Chauncey, Ph. D.
July 12, 2011
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G. Chauncey
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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
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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."
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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
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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
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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
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G. Chauncey
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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
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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
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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
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buggery, which included male anal penetration of
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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,
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prohibition against a man lying with another man,
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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
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G. Chauncey
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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
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G. Chauncey
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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
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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
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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
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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
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or gay men who lived outside of constraints that
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they had experienced in small towns.
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17
18
Those would be two of the major
factors people have pointed to.
Q.
What was the nature of the reference
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to homosexuality or the term "homosexual" in that
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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.
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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
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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
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G. Chauncey
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people of Asian descent, women, lesbians and gay
3
men.
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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
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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
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implicitly understood in America to be the union
15
of one man and one woman?
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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
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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
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