A Harvard University American history professor testified in federal court in San Francisco today that she believes same-sex weddings would not hurt the institution of marriage and could even strengthen it.

Nancy Cott, the author of a book on the history of marriage in the United States, testified on the second day of a trial in which a lesbian couple and a gay couple are challenging California’s ban on same-sex marriage.

The two-week trial is the nation’s first on a federal constitutional challenge to restrictions on same-sex marriage.

The two couples claim California’s measure, enacted by voters in 2008 as Proposition 8, violates their rights under the U.S. Constitution to due process and equal treatment.

U.S. District Judge Vaughn Walker will decide the case without a jury. The outcome is expected to be appealed to the U.S. Supreme Court.

Cott was asked by Theodore Boutrous, a lawyer for the plaintiffs, whether she believed extending marriage to same-sex couples would be beneficial.

“I would accept that yes, amplifying its entry could be very beneficial,” Cott said.

She also said expanding marriage to lesbians and gays would promote what she described as the American value of responsible raising of children.

“I think it’s clear that couples of the same sex are going to form intimate relationships and raise children, either their own or by adoption, and it seems to me that it’s beneficial to the public to allow them to do that in marital units,” Cott said.

Cott said her 10 years of research for her book, published in 2000 under the title of “Public Vows,” led her to conclude that “marriage has not been one thing, that it is a flexible institution.”

She said removal of other restrictions on marriage, such as bans on interracial marriage, raised controversy in their time, but that the changes strengthened the institution.

Cott testified she believes that gay advocacy of same-sex marriage is one of two factors that helped to elevate the status of and reverence for marriage in American society in the 1980s and 1990s after a turbulent time of questioning the value of marriage in the 1970s.
The other factor was emphasis on marriage by traditional-values groups on the right, she said.

“Now we see a highly valued and honored set of expectations in marriage,” Cott said.

“I think that clearing away restrictions and emphasizing the liberty aspects in which partners make a choice has helped to give marriage more reverence,” she testified.

Cott was asked by Boutrous about arguments by supporters of Proposition 8 that extending marriage to gays could lead to a “slippery slope” of lifting restrictions on polygamy or incestuous marriage.

“I don’t think other restrictions would be jeopardized in any way,” Cott responded.

She said monogamy has historically been protected as a political value in the U.S., exemplified by the fact that Utah was denied statehood until it renounced Mormon polygamy. Incestuous marriages are banned by states for health reasons, she said.
Walker joined the questioning to ask Cott the historical reason why marriage in the United States is regulated by state governments rather than by private institutions.

Cott said the structure is derived from early colonists’ reliance on the English tradition of civil law.

Walker posed a similar question during the trial’s opening statements Monday, when he asked plaintiffs’ attorney Theodore Olson “why the state government can’t just get out of the marriage business,” leaving civil unions available to both homosexuals and heterosexuals.

Olson responded, “That may solve the problem, but that will never happen.”

Cott was the first expert witness to be called to the stand by plaintiffs, following testimony Monday by the two couples, Kristin Perry and Sandra Stier of Berkeley and Paul Katami and Jeff Zarrillo of Burbank.

The second expert witness, Yale University history professor George Chauncey, began testifying this afternoon about the history of discrimination again gays and lesbians in the U.S.

The sponsors of Proposition 8 will present their side of the case in the second half of the trial. Their experts are slated to testify on topics such as the traditional definition of marriage, whether children fare better in opposite-sex marriages and whether sexual orientation is a matter of choice.

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