Windsor v. The United States Of America

Filing 82

DECLARATION of Roberta A. Kaplan in Support re: 28 MOTION for Summary Judgment.. Document filed by Edith Schlain Windsor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Kaplan, Roberta)

Download PDF
EXHIBIT E In The Matter Of: 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 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 09:53:05 11 09:53:08 12 09:53:08 13 09:53:10 14 A You said a national or a -- 09:53:13 15 Q Let me rephrase. 09:53:15 16 09:53:17 17 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, A Q I think you talked about the pair, in your 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: Objection to the form. Vague and ambiguous. You can answer. Has marriage been an issue of federal law at times during American history? Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law 3b8828a4-74af-4853-9ec9-ed3844ff2d5e NANCY F. COTT, PH.D. - 7/6/2011 Page 18 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 09:54:37 11 09:54:55 12 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 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. 09:55:26 22 09:55:29 23 cultures? 09:55:30 24 A 09:55:34 25 and to certain people in congress. Q A In the post civil war era, did the federal During the civil war when the South was freed men and women. Q I'd like you to turn to Paragraph 13, page 5 of Exhibit 2. This is your expert affidavit. I didn't catch which page. Are you an expert in marriage and world 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 1-800-325-3376 www.merrillcorp.com/law 3b8828a4-74af-4853-9ec9-ed3844ff2d5e NANCY F. COTT, PH.D. - 7/6/2011 Page 31 10:15:59 1 10:16:00 2 10:16:07 3 belief and from political theories that were built with 10:16:13 4 that belief system as their base, although, again, that 10:16:19 5 deals with settler populations and not with native 10:16:22 6 Americans in that geographical range. 10:16:26 7 10:16:39 8 the first sentence you write, "The U.S. Congress has 10:16:41 9 involved itself directly in making or breaking marriages 10:16:44 10 10:16:49 11 10:16:55 12 10:16:55 13 10:16:58 14 were not functioning, since state governments have 10:17:02 15 historically had jurisdiction over making and breaking 10:17:05 16 marriages. 10:17:05 17 10:17:10 18 where the federal government -- excuse me -- the 10:17:13 19 U.S. Congress has involved itself directly in marriage? 10:17:15 20 10:17:20 21 congress has primary power; and secondly, as I describe 10:17:25 22 here, in the period of the civil war and immediately 10:17:33 23 after when areas that had been states were -- their 10:17:39 24 state governments were crushed and not yet really 10:17:43 25 assembled. where did the norm come from? A Q Both from religious, i.e., Christian, sets of Would you turn to Paragraph 74 on page 18. In only in exceptional situations." What do you mean by "exceptional situations" in this line? A Q A I mean situations in which state governments And what have those exceptional situations been First of all, in the federal territories where Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law 3b8828a4-74af-4853-9ec9-ed3844ff2d5e NANCY F. COTT, PH.D. - 7/6/2011 Page 32 10:17:44 1 10:18:13 2 You write, Dr. Cott, "Congress acted not only because 10:18:16 3 the presence of polygamy on the North American continent 10:18:20 4 seemed loathsome but because Utah's intent to apply for 10:18:24 5 statehood loomed on the horizon." 10:18:25 6 10:18:27 7 10:18:34 8 since the founding, an opposition understood between 10:18:37 9 monogony and polygamy that aligned with the difference 10:18:41 10 between a government of laws in alignment with monogony 10:18:52 11 and a despotic government, which to American founders 10:18:56 12 and many Americans through the 19th century aligned with 10:18:59 13 polygamy. 10:19:04 14 their religious beliefs of Christianity but also foreign 10:19:09 15 to their political intents. 10:19:16 16 10:19:19 17 demonstrate an animus towards the things she finds 10:19:22 18 loathsome? 10:19:22 19 10:19:27 20 10:19:27 21 10:19:28 22 10:19:33 23 is so important to you in this question, but I would say 10:19:36 24 that just using the word as I do, yes, that 19th century 10:19:40 25 Americans in general and certainly members of congress Q Turn to Paragraph 79, page 19 of Exhibit 2. What do you mean by "loathsome"? A Q There was with an American political theory So that polygamy was not only foreign to If one finds something loathsome, does she MR. EHRLICH: Objection to the form. Vague as to "animus." You can answer. A Well, I don't understand why "animus" as a word Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law 3b8828a4-74af-4853-9ec9-ed3844ff2d5e NANCY F. COTT, PH.D. - 7/6/2011 Page 33 10:19:45 1 who are involved in this action and a series of 10:19:49 2 presidents exhibited great animus against polygamy. 10:19:57 3 They associated it with barbarism. 10:20:02 4 most used to describe polygamy. 10:20:05 5 10:20:15 6 10:20:17 7 A Only in the territories. 10:20:23 8 Q And in Paragraph 78 right above the last 10:20:43 9 10:20:46 10 crime in every state. 10:20:52 11 was an exceptional situation because it departed from 10:20:54 12 the understanding of monogony that Americans had 10:20:58 13 embraced? 10:20:59 14 10:21:01 15 10:21:04 16 10:21:08 17 10:21:10 18 involved itself directly in making or breaking marriages 10:21:12 19 only in exceptional situations." 10:21:14 20 What made polygamy an exceptional situation? 10:21:17 21 MR. EHRLICH: 10:21:18 22 she already described exceptional situations, and it 10:21:21 23 didn't relate to polygamy. 10:21:22 24 10:21:23 25 Q That was the word And as a historical matter, congress had the power to ban polygamy, correct? paragraph we were looking at, you say that bigamy was a MR. EHRLICH: A Is it fair to say that polygamy Objection to the form. I don't understand the question. an exceptional situation? Q Polygamy was Whose polygamy? Well, you write that "U.S. Congress has Objection to the form. I think But you can answer. A Well, I mean, exceptional in the general course Merrill Corporation - New York 1-800-325-3376 www.merrillcorp.com/law 3b8828a4-74af-4853-9ec9-ed3844ff2d5e

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?