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

Joe Mathews's picture
Journalist and Irvine senior fellow at the New America Foundation. He is 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.

While Washington may have

While Washington may have been sterile, and I stress "may" because we really don't know, it could have been caused by his catching smallpox in his younger days. However, he did not know he was sterile, as medicine and science were not that advanced in his time. He hoped for his own children and probably did not know the reason why he and Martha could not have children. To make this information part of that trial is absurd. How can something from 200+ years ago, without the science and knowledge we have today, be used in this kind of trial? Another case of twist the facts and information to benefit your point of view. The jerks are the people who believe the Washington reference is pertinent.

Re: Broadcast

To Micah's question, I don't think there are strong arguments against broadcasting the proceedings, at least in the limited way (to other courthouses, and with a post on the internet of each day's proceedings) that was proposed here (before the Supreme Court shut it down). The arguments against televised trials -- that witnesses could be intimidated, that the presence of cameras changes behaviors -- are unsupported by data. And there have been few problems with broadcasts of federal trials. On the other side, the arguments for broad access to the courtrooms, particularly in a major case like this, involving a statewide ballot initiative and the institution of marriage, are very clear and strong. We the people pay for the courts; we should be able to get to see what goes on there, without having to spend thousands of dollars on plane tickets and hotel rooms to go to San Francisco.

Gay Marriage

All the chatter about legalize this and that because it would benefit the economy. Only if we legalized organized crime we could put a corporate tax on their business. Lets make murder for hire legal think of the sales tax on those contracts. I know lets legalize prostitution, theft, kidnapping, you know what if we made everything legal we could capture new taxes, and there would be no prisons to pay for that would save more money, and think the only two industries hurt would be lawyers and police compare that to all the new industries that would be legal. The reason for most laws at least initially in this country was the ten commandments, and wanting society to follow Christian tenants.

Would like to know more of what you think

About public broadcast of trial proceedings and, for that matter, of bill negotiations. I imply from your writing that you are in favor of it. But there are strong counterarguments against as well, no?



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