Davina Kotulski

The Spirit of Harvey Milk: Day 2 of the Prop 8 trial

Filed By Davina Kotulski | January 12, 2010 2:30 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: gay marriage, Harvey Milk, marriage equality, Professor Cott, Prop 8 trial, Prop. 8, same-sex marriage, Spirit of Harvey Milk

It's hard not to think about the legacy of Harvey Milk when the Prop 8 court case is only a block away from where Harvey made history, changed the world, and was tragically murdered by Dan White.

Dustin-Lance-Black-Prop8-trial.jpgAnd Harvey's spirit seemed to fill the federal courthouse as well. Lance Black, who wrote the screen play for the Harvey Milk movie spoke at the Sunrise Vigil for marriage equality. Bruce Cohen, producer of the MILK movie, and long-time, LGBT activist and friend of Harvey Milk, Cleve Jones, were present in the court room listening the testimony.

Harvey would be proud to see how far we've come and I can't help thinking that he's been our guardian angel throughout. The marriage license counter requests and the granting of marriage licenses all took place at San Francisco City Hall and all of the marriage cases have happened within a one-block radius of where Harvey Milk stood on the day he took his last breath. Thank you, Harvey, for giving us hope in life and in the legacy you've left.

The Media Room

There was no one protesting outside for, or against, marriage equality when I arrived at the federal building this morning.

In the media room right now there are only about 25 people. Yesterday, almost of all of the seats were filled.

Rick Jacobs, Courage Campaign, is vigorously typing away this morning as are the handful of live bloggers and journalist who, like myself find the media room, a little less stressful.

From the media room we are looking at a screen with three images: the witness stand, the judge, and the counsel. There is also a separate screen where documents, commercials and Proposition 8 Proponents' positions statements are posted on occasion.


Proponents of Proposition 8 hold the four following positions:

  1. The limit of marriage to a man and a woman is something that has been universal. It has been across history, across customs, and across society.
  2. The purpose of the institution of marriage and the cultural purpose of marriage is procreation.
  3. Across history and culture, marriage is a fundamental pro-child institution between a man and a woman. Marriage aims to meet the child's need to be emotionally, morally, practically, and legally affiliated with the woman and the man whose sexual union brought the child into the world.
  4. Racial restrictions were never a definition feature of the institution of marriage.

There have been many forms of marriage in society.

Harvard Professor Cott testimony for marriage equality

  • Civil law has been supreme in redefining and regulating marriage.
  • Religion has been in the background of many, most Americans understanding of marriage, rather sacramental or otherwise, ceremonial or otherwise. But these are apart from the validity of marriages
  • Any cleric performing marriage only does so because the state has given them the authority to do that.
  • In the original constitution there was a statement that said that no religious disagreements with a particular marriage could invalidate that marriage.

Same-Sex Marriage and the Divorce Rate

Boutrous asks Cott if there is any empirical evidence that same sex marriage will increase the divorce rate

Cott - In my home state, Mass, where same-sex couples have been able to legally marry for 5 years, the divorce rate is down not up.

The Tension and the Binder Are Thick

9:36 AM Pacific Time

The cross-examination of Professor Cott begins.

Attorney for Prop 8, Thompson, passes out a binder that is about 500 pages thick. Then he begins what I would call in my lay opinion, badgering the witness. I'm sure my wife, the attorney, would correct me.

It starts like this.

Thompson - "So, you are not an expert of the history of marriage outside of the US."

Cott - "Not according to my own high standards no."

Thompson asks her to read something from the jumbo binder.

Cott - "I need my reading glasses for this."

Thompson fires question after question to discredit the witness.

  • Are you familiar with marriage in the most populated places in the world China and India?
  • You are not an expert on marriage in ancient Greece, correct?
  • You see yourself as someone between a neutral party and advocate, correct?

Cott - "I see myself as someone who comes to the position in support of marriage for same-sex couples because of my historical research."

Thompson - You've filed briefs in support of gay marriage in New York, Iowa, and New Jersey, correct?

Cott - historians briefs, yes. I volunteered my time bc I believe it's important for historians to participate in public policy decisions.

9:50 AM Pacific Time
Thompson begins making the case that because Cott supported an organization called Alternatives to Marriage, started by a heterosexual couple to validate cohabitation as a valid choice, that this implies she is also a proponent of poly amorous relationships.

Cott - "I don't support poly amorous marriages."

The tension is thick. Cott is clearly annoyed by Thompson who is firing off question after question with smug intent to make her look stupid.

Thompson- "New York has never had a ban on interracial marriage, correct?"

Cott - (annoyed) "Frankly I don't know this colony by colony."

Thompson - "So you have no idea that the majority of the states during the founding of the country had no laws against interracial marriage, correct?"

Cott -"That is an irrelevant question."

Thompson asks her a question about another country.

Judge Walker interrupts reminding Thompson that he's established that she's not an expert on marriage outside of the US.

10:15 AM Pacific Time
Cott requests a break. Honestly, listening to this attorney asks question is getting on my nerves too. Happy for a break.

Leave a comment

We want to know your opinion on this issue! While arguing about an opinion or idea is encouraged, personal attacks will not be tolerated. Please be respectful of others.

The editorial team will delete a comment that is off-topic, abusive, exceptionally incoherent, includes a slur or is soliciting and/or advertising. Repeated violations of the policy will result in revocation of your user account. Please keep in mind that this is our online home; ill-mannered house guests will be shown the door.

In regards to same-sex marriage and the divorce rate, Nate Silver crunched the numbers over on 538.com, and states that have *prohibited* same-sex marriage have seen their divorce rates *rise*, while states that allow same-sex marriage or have not put constitutional roadblocks in the way of allowing it have seen their divorce rates *fall*.

So the evidence is even stronger against the pro-8 position.


Race has changed over the history of the country, so I don't think that there's much of an argument to be found in saying that because interracial marriage wasn't banned in colonial new york (how many black people lived there at the time?) that it's a statement on what the definition of marriage has always been.

It'd be nice, though, if they responded by saying that the gendered definition of marriage has already changed, that it stopped being about two people of different genders coming together as an economic unit and started being about two people trying to be happy in like the early 70's. The definition of marriage has already been changed - same-sex marriage only makes that new definition more coherent.

I really wish I could be there with you. You are watching history as it unfolds, Davina.


I wish you could be here too! It's so amazing!