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)
EXHIBIT E
In The Matter Of:
NANCY F.
COTT, PH.D. - 7/6/2011
Page 17
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together.
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Q
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previous answer.
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couples?
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the -- part of North America or at the time of the
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founding among those who consider themselves part of the
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new United States.
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A
You said a national or a --
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Q
Let me rephrase.
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A
Yes, marriage in federal territories.
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Q
What about marriage among native Americans?
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A
Yes, that's a good point, that in dealing with
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Indians, again, in federal territories and in certain
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states where the federal government was dealing with
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the -- with native Americans through the Bureau of
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Indian Affairs, the form of marriage observed by these
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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?
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NANCY F.
COTT, PH.D. - 7/6/2011
Page 18
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government involve itself in the question of the
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marriage between former slaves?
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occupied and in the very beginning of the post civil war
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period when the southern states were not yet
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reconstituted, yes, the federal government through the
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Freedmen's Bureau concerned itself with marriages of the
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A
I'm sorry.
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Q
Page 5, Paragraph 13, right under Section B.
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A
Okay.
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Q
You write there, "What is seen as legitimate
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marriage in a given society may be, for instance,
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polygamous, monogamous, matrifocal or patrifocal,
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patrilineal or matrilineal, lifelong or temporary, open
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or closed to concubinage, divorce-prone or
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divorce-averse," and so on.
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cultures?
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A
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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
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NANCY F.
COTT, PH.D. - 7/6/2011
Page 31
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belief and from political theories that were built with
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that belief system as their base, although, again, that
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deals with settler populations and not with native
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Americans in that geographical range.
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the first sentence you write, "The U.S. Congress has
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involved itself directly in making or breaking marriages
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were not functioning, since state governments have
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historically had jurisdiction over making and breaking
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marriages.
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where the federal government -- excuse me -- the
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U.S. Congress has involved itself directly in marriage?
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congress has primary power; and secondly, as I describe
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here, in the period of the civil war and immediately
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after when areas that had been states were -- their
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state governments were crushed and not yet really
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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
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NANCY F.
COTT, PH.D. - 7/6/2011
Page 32
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You write, Dr. Cott, "Congress acted not only because
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the presence of polygamy on the North American continent
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seemed loathsome but because Utah's intent to apply for
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statehood loomed on the horizon."
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since the founding, an opposition understood between
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monogony and polygamy that aligned with the difference
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between a government of laws in alignment with monogony
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and a despotic government, which to American founders
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and many Americans through the 19th century aligned with
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polygamy.
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their religious beliefs of Christianity but also foreign
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to their political intents.
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demonstrate an animus towards the things she finds
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loathsome?
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is so important to you in this question, but I would say
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that just using the word as I do, yes, that 19th century
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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
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NANCY F.
COTT, PH.D. - 7/6/2011
Page 33
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who are involved in this action and a series of
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presidents exhibited great animus against polygamy.
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They associated it with barbarism.
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most used to describe polygamy.
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A
Only in the territories.
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Q
And in Paragraph 78 right above the last
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crime in every state.
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was an exceptional situation because it departed from
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the understanding of monogony that Americans had
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embraced?
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involved itself directly in making or breaking marriages
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only in exceptional situations."
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What made polygamy an exceptional situation?
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MR. EHRLICH:
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she already described exceptional situations, and it
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didn't relate to polygamy.
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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
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