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 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
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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
(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
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17
18
19
20
21
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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
(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
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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
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"
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12
13
14
42
15
16
17
Original exhibits retained by court reporter
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19
20
21
22
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25
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.
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
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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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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
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NANCY F.
COTT, PH.D. - 7/6/2011
Page 28
10:11:15
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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?
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
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