Breaking news: Stuart Milk on hand for second day of Prop 8 trial
by Matthew S. Bajko and Cynthia Laird
Harvey Milk's nephew Stuart Milk was inside U.S. District Court Judge Vaughn Walker's courtroom Tuesday, January 12 as the second day of the Proposition 8 trial opened.
With far fewer members of the media on hand, and not as many members of the general public, there actually were empty seats in the courtroom. Most of the members of the national media departed following Monday's blockbuster opening day that featured emotional testimony from the four plaintiffs – same-sex couples Jeff Zarrillo and Paul Katami, and Kristin Perry and Sandy Stier – in the case.
The federal trial is being held to determine the constitutionality of Prop 8, the same-sex marriage ban that California voters passed in November 2008.
Stuart Milk attended the trial with Michael Colby, the volunteer executive director of the Harvey Milk Foundation. Both are expected to attend Wednesday.
On Wednesday, the expectation is that Judy Shepard, the mother of slain Wyoming college student Matthew Shepard, will take the witness stand. Shepard and Milk are both on the advisory board of the American Foundation for Equal Rights, the nonprofit group headed by Chad Griffin that is bankrolling the federal trial.
For Milk, this is the first time he's been in a courtroom for a same-sex marriage case. He told the Bay Area Reporter that he feels it's important for the LGBT community to get the issues that are being addressed by the trial out to the general public.
"I think it is very important that we work to bring equality to every forum we have available to us," Milk said. "The history of equality in this country proves the court system moves us ahead."
Unfortunately, online broadcast of the Prop 8 trial, formally known as Perry v. Schwarzenegger, was temporarily blocked by the U.S. Supreme Court just moments before it got under way Monday. The high court is expected to issue a decision on that matter Wednesday. That action also prevented the trial from being shown at various federal courthouses around the country.
Milk said that while he understands the hard work done by grassroots groups and lawmakers, the court case is very important.
"I'm not diminishing the work undoing the referendum or the legislative work at the federal level," Milk said, "but I think this is important and crucial to do."
Milk said the court case is similar to the stance that his uncle took back in the 1970s fighting for LGBT rights. Harvey Milk was elected to the San Francisco Board of Supervisors in 1977 and also helped lead the campaign against the 1978 Briggs initiative, which would have barred gays from being schoolteachers. He was assassinated – along with then-Mayor George Moscone – in November 1978 by disgruntled ex-Supervisor Dan White.
"As Harvey would say, inalienable rights for every man," said the younger Milk, referring to his uncle's fighting to ensure gays were not second-class citizens.
Colby, who is the former executive director of National Stonewall Democrats, said he wants to get the federal lawsuit moving – the Prop 8 case is expected to eventually reach the U.S. Supreme Court – in order to "remove the barrier prohibiting us from going forward nationwide on marriage equality."
"I think it is a significant case with five states now having gay marriage in place," Colby said.
On the stand
Tuesday morning's witness was Nancy F. Cott, a history professor at Harvard University and the author of Public Vows: A History of Marriage and the Nation. She took the stand Monday afternoon and continued her testimony Tuesday morning.
The first question Cott was asked by Prop 8 proponents was about procreation being the central and defining purpose of marriage.
She said that she would agree that it's one of the purposes, but is by no means the central or defining purpose.
Marriage is a "capricious complex institution," she said.
Cott, a supporter of same-sex marriage, argued that the focus has been more about household formation and the state's ability to govern relationships.
About the central purpose of marriage, she said, "The emphasis today has shifted on which purposes are more salient."
Cott delved into the history of marriage, noting that throughout the centuries, marriage laws in the U.S. have changed. Restrictions used to be in place that were based on preventing a white person and a person of color from marrying; there were restrictions against Native Americans, Chinese, and people of various Asian descents from being able to marry in the U.S.
She also talked about how the role of women in marriage has changed throughout history.
Same-sex couples, she testified, seem "perfectly capable of fulfilling the purposes of marriage."
Cott said that there has been an overall direction of change in how marriage is understood and regulated by the state. There's now greater equality between two partners and fewer restrictions on the choice of marital partner.
"That direction of change leads consistently toward the appropriateness of allowing same-sex couples to marry," Cott said.
Ted Boutrous, an attorney for the plaintiffs, asked Cott about whether authorizing same-sex couples to wed would increase the country's divorce rate.
She said no, and added that her home state of Massachusetts – which has had same-sex marriage for five years – has the lowest divorce rate in the nation.
On cross-examination, David Thompson, an attorney for the Yes on 8 side, attempted to discredit Cott as an expert on marriage. He asked if she values marriage, and if her signing on to an alternative family project meant that she believes in polyamorous relationships.
Cott said that she didn't know what that term meant until two weeks ago when she read a Boston Globe article about it.
Thompson also asked her leading questions about whether same-sex marriage would lead to polygamy. And he asked about the issue of divorce and its impact on children.
"I think families are good for children. They do not have to be marital families, though they often are," Cott said.
She said that she was "absolutely" not endorsing polygamy in her book or that it should be legal.