George Washington Was Sterile, And Other Notes From Prop 8 Trial

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

I had been planning to spend part of the week in a federal courthouse in Pasadena, where a special broadcast had been arranged so Southern Californians could watch the trial in the legal challenge to Prop 8 without having to go to the courtroom in San Francisco.

But the U.S. Supreme Court, in a 5-4 ruling that seemed based on a sort of “Wizard of Oz” logic (even the most important trials shouldn’t be hidden behind the curtain), barred the federal district judge’s plan to broadcast the trial to Pasadena, other federal courts, and over the Internet. The court’s decision, which makes me wonder if the five conservative justices have some sort of deal with Southwest Airlines, forced me to fly to San Francisco to see what I was missing.

Here are a few notes from the civil trial, in which two couples are challenging Prop 8’s ban on same-sex marriage as a violation of the equal protection clause of the U.S. constitution:

-George Washington was sterile. This came up during testimony by a Harvard historian, Nancy Cott, about the history of marriage. Cott argued that the purpose of marriage in U.S. has not traditionally been procreation. In one exchange, she noted that the father of our country, a married man, was unable to produce children.

Word is he may be able to roll over in this grave.

-It’s too bad this wasn’t televised, because the presiding judge, U.S. District Court Judge Vaughn Walker, appeared to be more than ready for his close-up. With a nice white head of hair and deep rich voice, Walker could play a judge in any movie.

Those reporters and observers who were assigned to an overflow courtroom got a taste of what a broadcast might have been like, since they had to watch on a closed circuit link. This link – to a courtroom two floors above the real courtroom inside the San Francisco federal courthouse – was the only broadcast permitted by the U.S. Supreme Court.

Walker, who had supported putting video footage on the Internet and broadcasting to other courthouses (which makes sense, since Prop 8 was a statewide ballot initiative), had arranged for a three-camera set up. One camera showed the lawyers. Another showed the witness. And a third was always pointed at the judge himself.

-Next time, get a historian who knows something about California.

During cross-examination, Cott, the Harvard historian, undermined herself as a witness by showing little knowledge of California history. She didn’t know when California became a state. She suggested that the law of the territory had established marriage; California was never a territory. She also testified that common law had prevented women from owning property separate from their husbands in the early days of California. In fact, the state’s first constitution is distinguished by explicit protections for the property rights of married women.

-The testimony included personal pleas from the plaintiffs – gay couples – and plenty of history. There was also a lot of talk about sex and polygamy. And plenty of metaphors.

This being Silicon Valley, one metaphor that seemed to stick was a description of marriage as a form of bundling, a term used in technology sales to describe the practice of wrapping up several different pieces of software into a single product.

The court was told that marriage is a bundle, since it wraps up many rights and responsibilities and burdens into one big package.

A package that five members of the U.S. Supreme Court don’t want discussed in public.

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