8:54 a.m.: Trial resumes with expert witness

The Proposition 8 trial has resumed this morning with the continued testimony of Nancy Cott, a Harvard University historian and expert for the plaintiffs. Her task to start the second day of trial is to knock down one of the central arguments of gay marriage foes: that the state has a compelling interest in restricting marriage to heterosexual couples because of the procreative purpose of marriage.

Asked by plaintiffs attorney Theodore Boutrous whether procreation is a central purpose of marriage, Cott scoffed, nothing that President George Washington, “the father of our country,” was sterile by the time of a later marriage. “Procreative ability has never been a qualification for marriage,” she testified.

9:44 a.m.: Expert insists no reason to deny same-sex marriage

Harvard Professor Nancy Cott is wrapping up her testimony under direct questioning from plaintiffs lawyers, insisting that based on historical trends in marriage, there is no reason to deny same-sex couples the right to marry.

Among other things, she notes the parallels between the country moving to allow interracial marriage in the last century and providing that rights to gays and lesbians. She is now being cross-examined by Proposition 8 lawyers, who are trying to suggest she is more advocate for same-sex marriage than independent expert. (Cott testified in court challenges in Iowa on the issue.)

The plaintiffs’ next expert today will be George Chauncey, a Yale University expert on the history of discrimination against gays and lesbians.

The trial proceedings are a bit quieter today. The courtroom is for the most part filled, although there area fewer lawyers, fewer spectators and no demonstrations outside the federal building.

10:21 a.m.: Defense presses expert on same-sex views

The judge took a brief recess, as Professor Nancy Cott is under cross-examination from Proposition 8 lawyer David Thompson, who is pressing her hard on her views about same-sex marriage. Cott is an academic to the bone, so Thompson is having a hard time pinning her down, but is clearly trying to show she has offered inconsistent statements in the past on the marriage subject.

11:02 a.m.: Witness appears impatient with cross-examination

Professor Nancy Cott, the historian, is back on the witness stand, and appears to be getting a little impatient with the cross-examination of Proposition 8 lawyer David Thompson.

Thompson is challenging one of Cott’s ideas that modern marriage laws are shaped now by civil law and social developments; the defense attorney is pushing hard on the anti-gay marriage thesis that heterosexual marriage is tied to history and religion restricting unions to men and women. He repeatedly suggested in his questions that marriage laws are tied to Christianity. At one point, asking Cott about monogamy being the result of the teachings of Jesus and his apostles, the professor got a little impatient. “I know very little about Jesus Christ and his apostles,” Cott shot back at Thompson.

The cross-examination continues.

12:20 p.m.: First expert witness wrapping up testimony

After more than two hours under cross-examination, Harvard’s Nancy Cott is now wrapping up her testimony under more cordial questioning from plaintiffs lawyer Ted Boutrous. Proposition 8 lawyer David Thompson used her time on the stand to give Chief U.S. District Judge Vaughn Walker a script of questions outlining the Proposition 8 side’s view of why traditional heterosexual marriage should remain the law, from its origins in Christianity to its “pro-child” elements. At one point, Thompson asked Cott in more of a statement than question: “Marriage is not an infinitely elastic contract between two people, correct?”

“I can’t answer that question,” Cott replied.

Yale University professor George Chauncey takes the stand for the plaintiffs this afternoon as an expert on the history of discrimination in the U.S. against gays and lesbians.

It looks like an all-expert day in the trial, and it won’t be the last as Walker establishes a record on the same-sex marriage issue and the big constitutional questions at stake in the case.

12:31 p.m.: Trial breaks for lunch

Judge Vaughn Walker just broke the Proposition 8 trial until 1:30. He wrapped up Professor Nancy Cott’s testimony with a few questions of his own, including asking her what the state’s interest is in regulating marriage. As has been the case often Cott answered with a mouthful (clearly, she’s a very accomplished scholar; however, Cott’s long-winded testimony drew a few friendly jabs from the judge and lawyers all morning): “Bundling certain social needs with the duties imposed on the couples by the state … to incentivize stable household creation” was at least part of her answer.

The judge, of course, has the benefit of transcripts to decide the case.

12:49 p.m.: Defense attorney calls plaintiff’s expert testimony a ‘disaster’

Well, that didn’t take long. Professor Nancy Cotts finished her testimony, and within about 10 minutes, Proposition 8 counsel Andrew Pugno held a news conference and called her performance on the stand “a disaster for the plaintiffs.” Pugno contends his legal team was able to show through some of Cotts’ past statements and writings that many of her positions were actually “very favorable to our position.”

Cotts, however, repeatedly said in her testimony that, based on her study of history, same-sex couples should now have the legal right to marry.

No word yet from plaintiffs side, but safe to say they didn’t view Cotts’ testimony the same way as their adversaries.

1:51 p.m.: Ivy League professor takes the stand

It is on to the next Ivy League history professor in the Proposition 8 trial. George Chauncey, a Yale professor and expert on the history of discrimination against gays and lesbians, has been called to the stand by the plaintiffs. “Lesbians and gay men have experienced widespread and acute discrimination,” he testified under questioning from Therese Stewart, San Francisco chief deputy city attorney.

Chauncey’s testimony would be relevant to the plaintiffs’ attempt to persuade Judge Vaughn Walker that gays and lesbians should be a “protected class” under the federal constitution, important to make a claim under the equal protection clause that denying them the equal right to marry is a violation

1:32 p.m.: Professor details history of discrimination against gays

Professor George Chauncey of Yale is now walking the judge through the history of discrimination against gays in the country. He’s talked about how gays were through much of the first half of the 20th century the target of criminal enforcement by local police whenever they gathered. “They had to hide the fact they were gay,” he testified, describing sweeps of bars where gays and lesbians were found. Chauncey then moved forward in history, through banning gays from the military at the outset of World War II and up through employment discrimination in more modern times. He’s about to respond to San Francisco deputy city attorney Therese Stewart’s questions about censorship campaigns.

3:22 p.m.: Yale professor says gays and lesbians demonized for decades

Yale professor George Chauncey is testifying about the public campaigns “demonizing” gays and lesbians for decades, from newspaper accounts in the 1930s to Anita Bryant’s famous campaign against homosexuality during the 1970s. Plaintiffs lawyers plan to attempt to link those campaigns and their impact on gays and lesbians to the Proposition 8 campaign and other efforts to thwart same-sex marriage..

Chauncey will face cross-examination in the morning. The plaintiffs have three witnesses slated to follow him: Dr. Edmund Egan, chief economist for San Francisco who will testify about the economic impact of Prop 8 on local governments; Dr. Ilan Meyer, a Columbia University expert on how discrimination causes a mental health toll on gays; and Dr. Letitia Peplau, a UCLA prof who will testify about the personal benefits of being married

4:17 p.m.: Defense attacks expert’s credibility; second day of trial ends

The second day of the Prop 8 trial is now in the books. Yale historian George Chauncey finished up his testimony under questioning from plaintiffs attorney Therese Stewart, describing the campaign to enact Prop 8 as part of a historical trend of demonizing gays and lesbians. Judge Vaughn Walker then allowed Prop 8 lawyers to start their cross-examination, and it’s clear from just a few minutes of it that they intend to portray Chauncey they same way they attempted to portray Harvard expert Nancy Cott earlier in the day: as a gay marriage advocate, not an expert. Chauncey conceded he supports the right of gay couples to marry, but insisted his historical research on discrimination is untainted.

The cross-examination will continue Wednesday morning, and the plaintiffs have three more experts lined up on the runway.

Meanwhile, the biggest news to expect Wednesday will take place outside the federal building. The U.S. Supreme Court is expected to decide by 1 p.m. whether to lift a stay on Walker’s order allowing delayed broadcasts of the trial to be posted via YouTube.

(Read Howard Mintz’s recap of the first day of the Proposition 8 trial later today online on this Web site and in tomorrow’s Mercury News, Contra Costa Times, Oakland Tribune, and other Bay Area News Group papers. Return to this Web site for live coverage of the Proposition 8 trial tomorrow and every day the case is being heard).

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