Deboer v. Snyder – Day 4 Update 1

Continuation of Plaintiff’s witness.

Professor Nancy Cott is a Jonathan Trumbull Professor of American History; Director, Pforzheimer Foundation; Director Schlesinger Library at Radcliff.   Her specialty is gender and sexuality; political and cultural history of the US in the 19th and 20th century.  She is a member of the American Historians and the American Historical Society.

Most of Nancy Cott’s work in 19th and 20th century U.S. history focuses on gender questions. Her interests also include social movements, political culture, law, and citizenship. Her current project concerns Americans who came of age in the 1920s and shaped their lives internationally.

Since writing Public Vows, on the history of marriage as a public institution in the U.S., Professor Cott has participated in writing historians’ amici briefs on the same-sex marriage question in several states, including challenges to the federal Defense of Marriage Act, and she testified as an expert witness in the federal case Perry v. Schwarzenegger against Proposition 8 in California.

She teaches courses on the history of sexuality and gender, as well as (at the graduate level) twentieth-century U.S. history.

Professor Cott was offered , without objection by the AG , as an expert on the history of marriage.  The Judge certified her as an expert for that purpose.

She authored a book entitled Public Vows which addresses the history of marriage which was preceeded by 10 years of research on the history of marriage.  The title, she explained, is indicative of the dual aspect of marriage, public and private.  The vows are private and form a contract between the people, marriage has historically been promoted by government to incentivize household units, and the public (government) vows to guarantee those private vows.

She explained that marriage is a civilly authorized public institution that also forms a private contract between the participants and is granted a legal status.

Marriage is encouraged by the government traditionally to promote social order and economic benefits.  With marriage comes the obligation to support that benefits the state in that the state is then relieved of the obligation of supporting the persons in the marriage if there is illness or other cause of the person being unable to support him or herself.

Also, in the history of the US, discriminatory laws regarding marriage also tried to prescribe who is the most desirable people to include in the US.  While some of these laws were dictated by emotions regarding race, it also was dictated by emotion about who should populate the US.

The history of marriage does not include laws regarding procreation as a means of validating the marriage.  Sterility, aging limitations on fertility, and inability to bear a child have never impacted the right to marriage or be a cause for divorce.  In fact, George Washing ton was known to be sterile.  He helped raise Martha’s two children from a previous marriage and the child of one her children after he died.  This is an early example of a non-biological family unit.  Further, sexual intimacy is not a requirement for a valid marriage.

When asked what is the State’s interest in allowing or encouraging marriage between people who cannot procreate, the answer was: economic and social order including the obligation to support.  She explained that in the 1920s when there was growing availability of contraception, non-procreative marriages were a recognized reality.

Marriage has always been a civil arrangement in the US.  She quoted William Bradford, 1st Governor of the Plymouth Colony when American was in its infancy.  He distinguished the new world from the Church of England by saying that marriage is in fact a civil entity with great property involved.

Professor Cott was asked  – who has the authority to regulate marriages.  The legislature and the courts have the authority to regulate.  They regulate eligibility, requirements and obligations, rights, and who can perform the ceremony.  Historically, in Michigan and other states, marriage gives special benefits in the law.

Religion does not play a role in the regulation of marriages.  Religions have the right to freely exercise their ideals.  Civil authorities have typically recognized their authority to do so within their religion.  Clerics have been “loaned the authority” to perform the marriage by the civil authorities.  Religions have the right to impose additional requirements in addition to legal requirements for ceremonies performed within their churches but have no right to impose additional regulations that would impact the validity of marriages.  An example would be that that Catholic Church has traditionally barred divorced people from re-marrying in the church.  This does not mean they cannot re-marry, but the church can refuse to allow the church to be used for such purposes.

The State of Michigan advances that the ban on marriage is justified because of “tradition”.  Dr. Cott responded that when viewed in the eyes of history,  marriage is a “moving target” and not static in any set tradition.  One way in which marriage has changed relates to changes in the relationship between the spouses.  Historically there were certain roles expected of each spouse that were reflected in the laws.  The roles were asymmetrical and created a hierarchical system.  The wife’s identity was absorbed into her husband’s identity to the point that she could not own property, could not enter into a debt, and could not bring a lawsuit.  The husband had a strong set of responsibilities and was required to support his wife.  This is known as “coverture” and is based on the idea that the wife is “covered” by her husband’s identity.  Over time the court began to change this aspect as social norms changed.

In 1963, Michigan changed it Constitution to abolish coverture, but the big change did not come until the 1970s.  Now, across Michigan and the US, the laws no longer view the roles within the marriage as hierarchical.

Another big change to marriage and how marriages are treated under the law and viewed by society came with the increase and change in the reasons for divorce in the 20th century.  In 1971, Michigan was one of the first states to change their divorce laws to “no-fault” divorce.  Prior to this, a couple could only divorce if it no longer served a state interest.  It had to be shown to fault against the state (not the other spouse).  If the marriage no longer served social order because of abuse in the home, or if the purposes of economic support were abandoned because the husband deserted the wife, then a divorce would be granted to free the spouses to enter into a new marriage and restore the social order and economics.  When no-fault divorce was instituted, the focus changed from a the state’s interests to consent of the parties.  If the parties no longer consented to be married, then they could be granted a divorce.

There are numerous ways in which states regulate who can marry.  Interracial marriage bans were instituted in many states but all of these regulations only prohibited a non-white person from marrying a white person.  No other racial combinations where prohibited.  These laws were not reciprocal and undermined the claim that God’s plan was to keep the races apart, that nature would not have made people look different if they were intended to marry.  Those laws changed and moved in a direction of consent and moved to a position of gender neutral rights and roles under the law.

Alarmists say that same sex marriages would undercut the institution of marriage.  There is a consistent theme among various marriage bans that any change would be opposed as unnatural.  However, the changes that have happened so far have not, in fact, undercut marriage.   The government knew that there was sexual intimacy between people of different racial backgrounds and that the ban did not prevent this but rather that bans only served to demean the couples, putting social pressure and stigma on the couple.

The effect of the changes to marriage laws over the years has been to make marriage more equalitarian between the spouses , make it an institution of choice and consent, and the State honoring the couple’s decision to remain a unit for as long as the consent continues.   In the face of this it shows that marriage is has resilliance and can be adjusted with the legal, social, and economic changes of society.  This has actually helped keep marriage as a viable choice for people in today’s society.  Opposite sex marriages have not suffered because of same sex marriage.  After 10 years of marriage equality in Massachusetts, marriage remains a health institution.  If anything, younger populations of opposite sex couples are saying they do not want to marry if others can’t.  Overall, there is no evidence of harm to opposite sex marriages.  Professor Cott’s predictions for the future:  history shows changes made to the institution of marriage to bring it up to date have been beneficial to the institution of marriage.

Historically, Federal restrictions relating to marriage have included the refusal to view marriage between Native Americans as valid marriage, and refusal to give validity to proxy marriages of Japanese immigrants.  There were marital disincentives for American women who married non-American men.  The women would forfeit their citizenship and lose all of their property.   Marriage laws under coverture eventually pushed the Federal Government in a position to allow joint tax returns for married couples.  Couples were moving to community property states where the law viewed assets and income of the marital couple to be owned one half by each spouse.  By dividing earnings from the sole wage earner in the household between the couple, they could get a better income tax rate.  Eventually the IRS gave in and began allowing joint tax returns for couples.

Conclusion:  the trend toward gender equality and neutrality has laid a course for marriage.  Michigan’s Constitution ban has obstructed that path.

Concludes direct examination.

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