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MS. STEWART: So how did that affect them? How did the censorship of gay people out of
the movies and television affect them?
>> MR. CHAUNCEY: Well, it -- you know, it certainly meant that many young people growing
up, young gay people, had no idea that there were other people like themselves in the world,
who didn't see it in their families and their schools and neighbors, and didn't see it in
the media. It meant that older gay people didn't see themselves represented in the films,
and were once again reminded of the fact that they were a despised category, to be excluded
from the dominant media of the culture. And, of course, some directors, some actors, used
codes to try to suggest homosexuality, gay characters in themes in films especially,
and so sophisticated people could read those codes and maybe guess at what was going on.
But it meant that, for most people, gay people were not a part of the media landscape, were
not a part of the world that they knew. So not only were they unlikely to realize that
they knew gay people, because the people in their lives were so careful to hide themselves,
but, also, they didn't have other ways on the screen to learn about gay life. And in
that context, again, it was easier for more frightening stereotypes to emerge.
>> MS. STEWART: So the fourth area that you mentioned you would give some examples of,
I think you called it "demonization" or "stigmatization." So what did you mean when you said that gay
people have been demonized or stereotyped or stigmatized?
>> MR. CHAUNCEY: Well, like most outsider groups, there have been stereotypes associated
with gay people. And, certainly, in the case of gay people as a really despised group,
a range of groups have worked together to -- (inaudible) in a coordinated way, but
have cumulatively served to develop stereotypical images of gay people. There is -- certainly,
many clergy in churches considered homosexuality to be a sin and preached against homosexuality.
So people heard those sermons. And then, especially in the last generation, have led campaigns
against gay rights. Doctors began to pay attention to questions of sex perversion in a more sustained
way in the late 19th century, and sort of from the beginning assumed -- most of them
assumed this to be a pathology. And they reinforced a range of stereotypes associated with gay
people. Certainly, they were pathological, sick, something wrong with them, something
wrong with their bodies. A lot of the early medical literature in the late 19th and early
20th century focused on gender nonconformity as an essential component of sex perversion,
and so talked about mannish women and effeminate men as the sort of quintessential emblems
of homosexuals; and, indeed, thought that homosexuality was one sign of a more general
gender inversion or reversal of one's gender role. And some doctors went on -- at a time
when a good many doctors were arguing that it would be dangerous for a woman to take
a job because it might hurt her reproductive capacities -- were arguing that women who
wanted the vote, or women who smoked cigars, or women who engaged in strenuous athletics
somehow share the kind of pathology of inversion that lesbians did. In the 1920s, Freudian
theories became -- began to become more important, which thought less as a bodily issue, as homosexuality
emerging out of the body, and more a psychological construct? And Freud's American followers
were actually more conservative than Freud himself. But they typically imagined homosexuality
to be a sign of arrested development, that for a variety of reasons, a child's inability
to identify with the right parent or some trauma, that they didn't go through the full
developmental process to become heterosexuals and were stuck in a homosexual stage. And
so this sort of image of homosexuals as immature became very powerful. And then in the --
I think, in some ways the most dangerous stereotypes for homosexuals really developed between the
1930s and '50s, when there were a series of press and police campaigns that identified
homosexuals as child molesters. As not just effeminate queens you might laugh at but had
no real reason to fear, but actually as hyper men who were unconstrained by women and who
threatened the nation's children. And this image was really driven home in a series of
press campaigns around the country, usually sparked by some particularly awful murderer
or attack on a child. Although, almost all of those attacks were men attacking girls.
But under the theories of the day, that ended up being something you could lay at the feet
of homosexuals.
>> MS. STEWART: So did this -- how did the -- let me just ask it this way. How did gay
people go from being kinds of pathetic or amusing, or something like that, more sick,
to being frightening?
>> MR. CHAUNCEY: Well, there's this sort of intellectual answer to that, this sort of
intellectual theory. But I think probably -- just to keep my answers a little bit briefer
-- probably the important thing to stress here is the cultural process driving this.
Again, a series of press campaigns against assault on children, which focused on sex
perverts or sex deviants. And the homosexual emerged as the quintessential sex deviant.
And these campaigns took place in cities across the country, beginning in the late '30s, and
then, really, with special force in the late '40s and early '50s. And the national magazine
literature chimed in. Governments responded to the outcry by the press and the people,
by establishing special commissions to study the problem of what they usually called the
deviated criminal sex offender. Which came up with recommendations like indeterminate
sentencing laws. So that someone who was convicted of such a range of offenses, was suspected
of being a sex deviant, could be a sex psychopath, which was usually traditionally used, could
be committed to psychiatric observation; if determined to be a sex psychopath, committed
for an indeterminate sentence. So that they would be kept in a sort of prison slash mental
institution until they had been cured of their pathology. Very -- although, it was sort of
the worst kinds of murderers and rapists who were kind of behind the impetus for this,
in the end, most D.
>> MR. CHAUNCEY:s didn't want to send those folks to a mental institution, so they went
to prison. And it was typically the more minor offenders who were sent to the mental institutions,
and quite a lot of homosexuals amongst them. And very quickly, actually, the doctors who
were charged with curing them complained that they couldn't cure -- quote/unquote, cure
homosexuals; they couldn't turn them into heterosexuals. So this -- and, again, this
was given the imprimatur of government officials. So it's hard to overstate the -- the extent
of the fear in the press campaigns on the part of many Americans, and the way this really
built this image of homosexuals as child molesters.
>> MS. STEWART: Was there any foundation to the charge?
>> MR. CHAUNCEY: Well, again, as I've said, in looking at the press coverage, it's really
striking that most of the stories are actually about men attacking girls. There would not
appear to be a basis for this charge.
>> MS. STEWART: Would you take a look, for a moment, at the exhibit that's marked Plaintiffs'
851. It's in the big binder.
>> MR. CHAUNCEY: Yes.
>> MS. STEWART: Would you just identify that for the Court.
>> MR. CHAUNCEY: This is an article that I wrote, called, "The Post War Sex Crime Panic."
>> MS. STEWART: And could you look at the page that you pointed to me earlier. I think
it's 171. And you were mentioning the press statements about this -- you know, perpetuating
this idea. Can you read into the record the press quote that you have referred to.
>> MR. CHAUNCEY: You're referring to the Coronet quote?
>> MS. STEWART: Yes. (Reporter interrupts.)
>> MR. CHAUNCEY: Sorry. This is a quote from an article published in Coronet Magazine,
in the fall of 1950. Coronet was a very popular magazine that went into homes all over the
country. It published in this issue an article called, "New Moral Menace to our Youth." (Reporter
interrupts.) "New Moral Menace to our Youth." And the section that I quoted in this article
reads: "Once a man assumes the role of homosexual, he often throws off all moral restraints.
Some male sex deviants do not stop with infecting their often innocent partners. They descend
through perversions to other forms of depravity, such as drug addiction, burglary, ***,
and even ***."
>> MS. STEWART: How do you interpret that language?
>> MR. CHAUNCEY: Well, I think it's -- one, it's a sign of the way that sort of moral
arguments and psychological arguments about homosexuality were merged here, as they often
were, so that this is really an argument about depiction of homosexuals as subjects of moral
decay. So that when he throws off all moral restraints, once he breaks the bounds and
is willing to become a homosexual, then he can do anything, if he does that. And that
they will go on to infect other people. So a sense of homosexuality as a disease. Not
just a randomly contagious disease, but one in which the carriers infect other people
with. And this reference to infecting their often innocent partners, the term "innocent"
pretty clearly indicates they are talking about children.
>> MS. STEWART: Thank you.
>> MS. STEWART: Your Honor, I would like to move Exhibit 851 into evidence.
>> MR. THOMPSON: No objection, Your Honor.
>> THE COURT: 851 will be admitted. (Plaintiffs' Exhibit 851 received in evidence.)
>> MS. STEWART: I think you mentioned earlier, Dr. Chauncey, that government played a role
in perpetuating this idea, or in distributing it in any way. I would like you to look at
the same exhibit, but this time the quote that I think you pointed me to on page 170.
>> MR. CHAUNCEY: Right. This is a statement by a Special Assistant Attorney General of
California, made in 1949, that I've seen reprinted a number of places. It says: "The sex pervert,
in his more innocuous form, is too frequently regarded as merely a *** individual who
never hurts anyone but himself. All too often, we lose sight of the fact that the homosexual
is an inveterate seducer of the young of both sexes, and is ever seeking for younger victims."
>> MS. STEWART: How widely were these kinds -- I mean, you mentioned Coronet Magazine.
But was this a message that was widely circulated?
>> MR. CHAUNCEY: Uhm, yes. As I said, these -- this particular quote I've seen reprinted
in a number of places. But there were media campaigns. Many magazines published articles
on this issue. Local newspapers did. And I actually think you sort of see in the
>> MR. CHAUNCEY:G.'s quote here, the attorney general's quote, this sort of -- his argument
against an older understanding of homosexuals as being relatively innocuous. You might laugh
at them or pity them, maybe worry about them. But, in fact, they are really dangerous and
seducers.
>> MS. STEWART: Did the messages -- you know, were they largely addressed to adults, or
did they also reach the ears of children?
>> MR. CHAUNCEY: Well, they were mostly addressed to adults who were, of course, concerned,
understandably concerned about the safety of their children, and were being taught to
believe that homosexuals posed a threat to their children. But this is also a time when
school districts, in response to the growing concern about this, began issuing brochures
to school children, warning them to avoid strangers, and that sort of thing. The sorts
of things that are done today, many of which we would all understand and support. But some
of these really bred a fear of homosexuals in particular. There was actually an educational
film produced in 1961, I think, by a fellow who made a lot of educational films for the
California school system, called, "Boys Beware," which was -- really, warned boys that they
needed to be aware of homosexuals; that homosexuals couldn't be detected, and were out to --
and were sick, and were out to infect people like them; and might lead to really very dangerous
situations. So, again, sort of focusing in on the danger that homosexuals posed.
>> MS. STEWART: Dr. Chauncey, I want to ask you to look at and read from one more exhibit
on this topic. And that is one we admitted earlier, 2337. It's that U.S. Senate report.
And I think you pointed me earlier to page 4 of that report, as an example of this. Can
you find that and read that to the Court.
>> MR. CHAUNCEY: Right. Right. So the -- the report gave a variety of reasons to explain
the unsuitability of sex perverts, quoting their language, which included their immaturity,
instability, the fear that they were liable to blackmail, and so forth and so on. And
one of the arguments that they made was that they actually could endanger young people
working in a government office. So, just to quote the paragraph to that effect: "Most
of the authorities agree and our investigation has shown that the presence of a sex pervert
in a government agency tends to have a corrosive influence upon his fellow employees. These
perverts will frequently attempt to entice normal individuals to engage in perverted
practices. This is particularly true in the case of young and impressionable people who
might come under the influence of a pervert. "Government officials have the responsibility
of keeping this type of corrosive influence out of the agencies under their control. It
is particularly important that the thousands of young men and women who are brought into
federal jobs not be subjected to that type of influence while in the service of the government.
One homosexual can pollute a government office."
>> MS. STEWART: Dr. Chauncey, this is, as I think you testified earlier, a Senate subcommittee
report for the U.S. Senate. Did it influence other government agencies?
>> MR. CHAUNCEY: Well, as I've said, they encouraged the tightening of procedures to
regulate, to ferret out and dismiss homosexuals. And then in 1950 -- sorry, 1953, President
Eisenhower issued the order banning them altogether, systematically. I guess, it seems to me, perhaps
what's most significant about this is just the degree to which it's giving the imprimatur
of senior government officials to these images of stereotypes of homosexuals.
>> MS. STEWART: Was there state or -- I think, state legislative action in -- you know, in
light of this sort of attitude of gay people as deviants or perverts?
>> MR. CHAUNCEY: Well, I believe I've talked about that already, but both the federal policies
and then state policies that discriminated against employees.
>> MS. STEWART: Uhm, when people were determined to be perverts within the course of this
-- or as defined by this kind of report, did they end up in jail?
>> MR. CHAUNCEY: Well, they could. To say here, the -- I mean, this is, again, sort
of one element of a wide range of things that I have discussed. And I've talked about the
laws that have been put in place prohibiting gay people from assembling in public, bars
and restaurants, and so forth. In response to the local press campaigns, which then went
-- really went national periodically, in the late '30s and late '40s and early '50s,
there was a tremendous escalation of the enforcement of those regulations across the country. So
that there was a tremendous escalation in the number of raids on gay bars, on the arrest
of gay people. Certainly, in New York City the statistics jumped dramatically in the
late '40s and early '50s, in response to these campaigns. You know, the police felt they
needed to show that they were doing something to deal with these problems. And cracking
down on gay bars or interrogating the men who were on the list they often had developed,
of homosexuals in the city, was one way of doing that. And so people, you know, were
under much greater risk. And at those moments many people did avoid going to those meeting
places, for fear and it could have, really, life-changing effects on people. I interviewed
one person in New York, who was a librarian who worked at the New York Public Library,
the huge marble building, Central Library at 42nd Street and Fifth Avenue. And he was
arrested in one of these sweeps on a gay-related charge; spent a couple of days in jail. And
he told me the story of how when he returned to work, after being released from jail, he
discovered that his employers had learned that he was gay. And his supervisor met him
at the door, marched him down the hall, fired him publicly. Had him collect his personal
effects, and marched him down the hall. And he said that not only was it, of course, horrifying,
the thought that he might lose his career, but that he -- he was humiliated by having
all of his fellow workers, who he had known for years, come to the door and watch him
be escorted out, knowing that he had been arrested on a homosexual charge. That sort
of story happened many times.
>> MS. STEWART: I want to ask you what you think the most enduring legacy is of the years
that these sort of demonic stereotypes emerged on gay people or their place in our country.
>> MR. CHAUNCEY: Well, I guess, I think there are really two. One is that the -- the growing
crackdowns, police campaigns against gay life, the federal campaigns of soldiers and then
civilian employees, actually led to the start of the very earliest gay rights movement or
homophile movement, as it was called in the '40s and '50s. So small groups of people
-- there was a small group from New York. The best-known group started in Los Angeles
and San Francisco, actually -- started to try to counteract this. Now, of course, they
remained very small for years. But we see the origins of the gay rights movement and
the response to the systematic discrimination and demonization. And I guess, on the other
hand, I see the creation and then re-enforcement of a series of demonic images of homosexuals
that stay with us today. And so the fear of homosexuals as child molesters or as recruiters
continues to have -- play a role in debates over gay rights, and with particular attention
to gay teachers, parents, and married couples, people who might have close contact with children.
>> MS. STEWART: Another area you mentioned in your list of opinions that you were going
to give today was that gay people have suffered sustained hostility and prejudice. And I wondered
if you would give us an example of how hostility and prejudice have affected gay people.
>> MR. CHAUNCEY: Uhm, well, one would be the violence that many gay people face. And so
the general hostility towards them, and prejudice towards them, which -- and for many years
the sense that the police would do nothing to defend them, made them liable to violence
of various kinds, if they were identified as gay. Our evidence about this is sketchy
for the earlier periods. But, certainly, I've heard stories, and other historians who have
worked on this have been told stories of people being attacked when they were identified as
gay. And that, you know, we have more recently statistics. The FBI has been collecting hate
crime statistics. And they show it averages about 1500 hate crimes a year, across the
country, directed at lesbians and gay men, or people perceived to be gay. There have
been studies done in some of the big school systems. The California school system produced
research that was analyzed, that estimated that 200,000 students in California's junior
high schools and high schools are harassed for being gay or perceived for being gay,
every year; that a good number of those harassed several times. So that -- and then we, of
course -- many of us are familiar with the most famous examples of this, a handful of
incidents that have achieved -- have received a lot of media attention. Matthew Shepard's
*** in 1998, in Laramie, where he was met by a couple of guys who drove him out to the
country and tied him to a post and pistolwhipped him, and left him to die, just a year and
a half ago or so. Larry Folks King, a 15-year-old student in a junior high school here in California,
who was shot in his school's computer lab by a -- and killed by a boy who later explained
that Larry had said he was attracted to him. So that it's -- but these are the sort of
very famous examples, and the studies that show how pervasive it is. And so I would say
that I think more than the policing, the official policing of gay life, it's that fear of vigilante
violence that really affects the lives of many gay people. When a gay couple walks down
the street, if they have second thoughts about holding hands it's not really because they
are afraid the police are going to come out, these days, and put the handcuffs around them.
It's that they are afraid someone who sees them could harass them verbally or physically.
So I think that that -- the scope of that violence is one of the most powerful continuing
effects of these campaigns of generating prejudice and hostility.
>> MS. STEWART: I want to ask you to take a look at Exhibit -- Plaintiffs' Exhibit 873,
and identify that for the Court, if you would.
>> MR. CHAUNCEY: These are hate crime statistics. I presume that these are the hate crime statistics
produced by the FBI. They look like that. Although, it doesn't say on the first page
that I have.
>> MS. STEWART: Can you take a moment to look at it.
>> MR. CHAUNCEY: Yes.
>> MS. STEWART: It appears that the first page is missing, and I'm not quire sure why.
>> MR. CHAUNCEY: Yes, but I see here in the introduction: "In response to the passage
of Hate Crime Statistics Act of 1990, the Attorney General designated the FBI's Uniform
Crime Reporting Program to develop and implement a data collection system."
>> MS. STEWART: If you look at the second page, or the page that's labeled "2," you
see it appears to be dated 1998? Or at least it appears to be reporting on crimes in 1998?
>> MR. CHAUNCEY: Yes, 1998, uh-huh.
>> MS. STEWART: And, then, I would also like you to look at the next exhibit, actually,
874, and tell me if you recognize that.
>> MR. CHAUNCEY: Yes. This is a document, "Safe Place to Learn Consequences of Harassment
Based on Actual or Perceived Sexua Orientation and Gender Nonconformity, and Steps for Making
Schools Safer." So this is a document put out by the California State Schools Coalition,
about the harassment.
>> MS. STEWART: And is this the document from which you got that 200,000 figure?
>> MR. CHAUNCEY: Yes, this is, uh-huh.
>> MS. STEWART: Do you recall whether 873 is the document from which you got your figure
of 1500 or so?
>> MR. CHAUNCEY: Yes, this does look like that document, yes.
>> MS. STEWART: Your Honor, I would like to move those two exhibits, 873 and 874, into
evidence.
>> MR. THOMPSON: Your Honor, I don't believe these were disclosed to us on Sunday night,
in the e-mail. I'm not anticipating a problem. Could they be provisionally admitted, and
then at our next break, or in the morning, we could clarify whether we have an objection?
>> THE COURT: That will be fine.
>> MR. THOMPSON: Thank you, Your Honor.
>> MS. STEWART: I wish I could respond. I know we provided a pretty long list. That's
probably the best way to deal with it.
>> THE COURT: All right. Well, Mr. Thompson is quite properly allowing this matter to
be worked out. So how much longer do you have with this witness?
>> MS. STEWART: Your Honor -- I'm going to say about 45 minutes.
>> THE COURT: Okay. Maybe you can pick up the pace.
>> MS. STEWART: Okay. Will do.
>> MR. THOMPSON: Your Honor, Counsel has kindly showed me that they did disclose this. We
have no objection.
>> THE COURT: Very well. Thank you, sir. (Plaintiffs' Exhibits 873 and 874 received in evidence.)
>> THE WITNESS: Sorry, Your Honor. I will try to keep my answers shorter.
>> THE COURT: Well, if the questions are shorter and answers are shorter, why, we will just
move it along. (Laughter)
>> MS. STEWART: You described anti-gay violence as one example of a hostility and prejudice
against gay people. Can you give us one more example?
>> MR. CHAUNCEY: Yes. I think that the -- that the whole series of referendum initiatives
we have seen since the mid to late '70s, over gay rights, are another example of continuing
prejudice and hostility. Maybe I should step back a second and try to briefly put this
in larger historical context. I've described the way that rules of secrecy/discretion really
govern gay life in response to this discrimination and policing. And part of what happened in
the 1970s is that growing numbers of gay people decided to come out. And, indeed, the gay
liberation movements in the 1970s shared the feeling of many other movements of that period,
of African-American, Asian-Americans, other groups, that were searching for dignity as
well as rights. And more and more people felt that they really ought to have the rights
to be openly gay. There are a variety of reasons for this. I won't go into those. But that
really set in stage a kind of confrontation, as they began advocating both the rights to
be openly gay and antidiscrimination legislation to protect them. And beginning in the 1970s,
about 40 towns and cities enacted antidiscrimination laws. Another 40 did in the 1980s. And this
very quickly produced a response. And the most famous, really, of that response was
a campaign called, "Save Our Children," in Dade County, Miami, Florida, in 1977, led
my Anita Bryant, a famous Baptist singer, which was designed to overturn the local metro
council's enactment or adding *** orientation to the antidiscrimination law. And this was
a very effective campaign that -- and its very name, "Save Our Children," revived --
drew on and revived these older stereotypes of homosexuals as child molesters, and led
a successful campaign to overturn that. And this inspired a series of campaigns in the
late '70s and early '80s, and then another major round of campaigns in the late '80s
and early '90s. So that the figures vary. But let's say in the 20 years after, there
were at least 60 of these campaigns, usually to overturn existing gay rights ordinances,
and about three-quarters of which succeeded in doing so.
>> MS. STEWART: Three-quarters of which succeeded in doing so?
>> MR. CHAUNCEY: Yes, in overturning gay rights ordinances.
>> MS. STEWART: Have you looked at some of the historical records for the Save Our Children
campaign?
>> MR. CHAUNCEY: Yes. And I teach about this campaign, and I have looked at some of those
records.
>> MS. STEWART: Can you take a look at Exhibit 1621, Plaintiffs' 1621, in your binder.
>> MR. CHAUNCEY: 1621?
>> MS. STEWART: Yes. I think it's in your smaller binder, actually.
>> MR. CHAUNCEY: Okay.
>> MR. THOMPSON: Your Honor, we object to the witness testifying to this document. It
was not listed as a material considered. Plaintiffs also provided a supplemental list of materials
considered, and I don't believe it was on that either.
>> MS. STEWART: Your Honor, two things. I think it was on the supplemental. But, in
any event, Professor Chauncey discussed the Save Our Children campaign at great length
in his report and in his deposition, and was examined about it extensively. And, you know,
this is -- he did rely on a source which was a book that in turn quoted from this document,
and thought that the Court ought to be provided with the original source document. And another
reason I think --
>> THE COURT: Well, but was the document identified to the proponents --
>> MS. STEWART: It was identified --
>> THE COURT: -- as being used with this witness in his direct examination?
>> MS. STEWART: Yes.
>> THE COURT: It was?
>> MS. STEWART: Yes.
>> MR. THOMPSON: Yes, Your Honor. We would admit, it wasn't within 48 hours. But leaving
that to the side -- they were a little late on that. But the more important point is that,
under Rule 26, they were obligated to provide us with the documents that he considered in
connection with his report, so that my deposition could be thorough going on this issue.
>> THE COURT: I see.
>> MR. THOMPSON: And I did not get this document prior to his deposition. And my records reflect,
I did not get notice of this until Sunday night. And there are many documents that fall
in this category. If it were just one, I would let it go. But I will be making this objection
repeatedly, Your Honor.
>> MS. STEWART:
I don't have that many more documents to introduce, so I'm not quite sure. First of all, it was
disclosed. It was put on the --
>> THE COURT: I understand it was disclosed for the witness's trial testimony. But Counsel
is saying it was not disclosed in connection with his -- with the witness's deposition;
and, therefore, Mr. Thompson didn't have an opportunity to examine the witness concerning
this document.
>> MS. STEWART: But, Your Honor, it was discussed in this book, Out for Good, which was a source
cited in the report and provided quotes from the document. And, furthermore, another reason
the Court ought to give us a little leeway here, I think -- or at least I would request
it -- is that the defendant-intervenors have refused to testify at all about their messaging
in this case. And connection with that, the Ninth Circuit suggested that we have our expert
witnesses comment on their messaging. And, very shortly, I intend to turn to that. But
one way that Dr. Chauncey --
>> THE COURT: This is not part of the proponents' message -- (Simultaneous colloquy.)
>> MS. STEWART: Well, he's a historian, Your Honor. And so the way that it's appropriate
for him to comment on messaging is comparative. And, so, because he did testify in his deposition,
and was cross-examined about the Save Our Children campaign, and it was -- that campaign
was discussed in the report, and quoted from some of these materials -- actually, this
document was in -- was quoted in the book, and referred to in the report -- I don't think
there's any prejudice. And, certainly, Counsel can fully cross-examine him on it today or
tomorrow.
>> THE COURT: I gather the book was identified in connection with the witness's deposition?
>> MS. STEWART: Yes, it was, Your Honor.
>> THE COURT: Well, that may be your way of referring to the content. But I'm going to
sustain Counsel's objection.
>> MR. THOMPSON: Thank you, Your Honor.
>> MS. STEWART: Dr. Chauncey, I would like to ask you to look at Exhibit 864.
>> MS. STEWART: Your Honor, may I approach?
>> THE COURT: You may.
>> MS. STEWART: Dr. Chauncey, would you -- before we look at this exhibit, would you
tell the Court generally about the themes that were used in the Save Our Children campaign
that Anita Bryant led in 1977?
>> MR. CHAUNCEY: Yes. When they began the campaign their polling data showed that there
was a margin of support for the anti-discrimination ordinance and that groups that they were worried
would support it, they needed to persuade. And so they decided to focus on some of what
they argued were the consequences of allowing an anti-discrimination law to stand, and they
focused particularly on the effects that this might have on children. They made a variety
of arguments, but two of them were that the simple tolerance of gay people -- or allowing
gay people to be open, particularly if they were teachers or in other positions where
they might interact with children, would allow them to serve role models -- as role models
that would encourage children to become homosexual themselves. There was sort of -- there was
a presumption here that *** identity is unstable, that children are easily swayed
to homosexuality, and that this would be a real danger. And then they emphasized that
point by drawing on the stereotypes, whose development I have described, to argue that
homosexuals were child molesters and that, in effect, to allow this anti-discrimination
ordinance to stand would be to release homosexual predators onto the children of Miami. I would
comment, also, they periodically would sort of say, We are willing to tolerate homosexuals
so long as they don't flaunt their lifestyle, which was just basically to say so long as
they aren't open about being gay. So I think you get a sense there of the kind of conflict
that was being set up in the 1970's as more gay people were insisting on their right to
be openly gay and a pretty clear reaction against that.
>> MS. STEWART: And was there discussion in the campaign materials about homosexuals threatening
heterosexual people's rights or other people's rights or forcing themselves on people?
>> MR. CHAUNCEY: That's sort of aligned with the point I just made, the sort of sense that
to allow gay people to be open, have these rights, would make them a protected class
and would sort of force themselves on other people simply by being open.
>> MS. STEWART: Dr. Chauncey, would you take a look at page 303 of Exhibit 64 to the book
Out For Good. And look at the bottom of that page, the second to last paragraph, and read
the language in quotes that is ascribed to Anita Bryant in connection with that campaign.
>> MR. CHAUNCEY: She is quoted here as saying: "Some of the stories I can tell you of child
recruitment and child abuse by homosexuals would turn your stomach."
>> MS. STEWART: Would you also quote from the newspaper advertisement that's quoted
further down in that paragraph?
>> MR. CHAUNCEY: (As read) "This recruitment of our children is absolutely necessary for
the survival and growth of homosexuality, for since homosexuals cannot reproduce, they
must recruit, must freshen their ranks. And who qualifies as likely recruits, a 35-year-old
father or mother of two" -- sorry. "Who qualifies as a likely recruit, a 35-year-old father
or mother of two, or a teen-age boy or girl who is struggling, surging with *** awareness?"
>> MS. STEWART: And after you testified in deposition in this case, did you request that
we seek to find the original article that you just quoted from?
>> MR. CHAUNCEY: Yes.
>> MS. STEWART: And is that what exhibit -- the exhibit that was not admitted is?
>> MR. CHAUNCEY: I will have to check the footnotes to confirm that, but I believe that's
the case.
>> MS. STEWART: Your Honor, while the witness is confirming that, I would like to offer
Exhibit 1621 for judicial notice. Even -- there is no question about the authenticity
of the document, or at least that's what we have been told, and so I would request that
the Court take judicial notice of the document.
>> MR. THOMPSON: We have no objection, your Honor.
>> THE COURT: Very well.
>> MS. STEWART: Dr. Chauncey, just to make it easier, if you look at --
>> MR. CHAUNCEY: Yes. The quote I read you from the newspaper is from the article.
>> MS. STEWART: Would you take a look as well at the -- I'm sorry. Going back to Out For
Good, the Exhibit 864, the top of page 304, and read the material quoted from the Miami
Herald advertisement that's at that part of the book?
>> MR. CHAUNCEY: Okay. So this is from an ad. It reads: "There is no human right to
corrupt our children. Many parents are confused and don't know the real dangers posed by many
homosexuals and perceive them as all being gentle, non-aggressive types. "The other side
of the homosexual coin is a hair-raising pattern of recruitment and outright seduction and
molestation, a growing pattern that predictably will intensify if society approves laws bringing
legitimacy to the sexually perverted."
>> MS. STEWART: Dr. Chauncey, would you turn to page 306 of Out For Good and read the language
quoted from Anita Bryant in the bottom paragraph about the middle of that paragraph? Well actually
-- yes. It begins, "Homosexuality is a conduct."
>> MR. CHAUNCEY: (As read) "Homosexuality is a conduct, a choice, a way of life. And
if you choose to have a lifestyle as such, then you're going to have to live with the
consequences. It's not a sickness, but a sin."
>> MS. STEWART: Last, Dr. Chauncey, would you take a look at page 308 of Out For Good,
and take a look at the bottom of that page and read the language that Anita Bryant is
quoted as saying in her written victory statement to her audience?
>> MR. CHAUNCEY: She is quoted as saying: "Tonight the laws of God and the cultural
values of man have been vindicated. I thank God for the strength he has given me and I
thank my fellow citizens who join me in what at first was a walk through the wilderness,
the people of Dade County. The normal majority have said enough, enough, enough. They voted
to repeal an obnoxious assault on our moral values despite our community's reputation
as one of the most liberal areas in the country."
>> MS. STEWART: Professor Chauncey, did the Save Our Children campaign have an impact
outside Dade County, Florida?
>> MR. CHAUNCEY: Yes. The success of the campaign inspired other groups around the country to
start referendum campaigns to revoke anti-discrimination laws bearing on homosexuality. There was a
series of campaigns, St. Paul, Eugene, California, in the late 70's and early 80's. Two of them
were unsuccessful. One, the Brinks initiative here in California, one in Seattle when the
others passed. And then, as I think I said before, over the next 20 years or so there
were dozens of such campaigns designed primarily to overturn such anti-discrimination laws,
but sometimes to engage in other -- to in other ways restrict homosexuals.
>> MS. STEWART: Professor Chauncey, when we started today, you expressed your expert opinion
that the history of discrimination that you have recounted has had continuing effects
today. And I want to wrap up by talking a little bit about the Proposition 8 campaign.
Are you familiar with the initiative called Proposition 8?
>> MR. CHAUNCEY: I am.
>> MS. STEWART: And how do you understand the purpose and effect of Proposition 8?
>> MR. CHAUNCEY: It was a proposed vote on a proposed amendment to the California constitution,
which would have restricted marriage to a man and a woman. And it was put on the ballot
in response to the California State Supreme Court's decision that gay couples did have
marriage rights, and it passed and did take those rights away.
>> MS. STEWART: And is this Proposition 8, this measure, representative of the history
that you have described of a large number of direct democracy campaigns that are hostile
to gay people?
>> MR. CHAUNCEY: I do think as a historian that the wave of campaigns that we have seen
against gay marriage rights in the last decade are, in effect, the latest stage and cycle
of anti-gay rights campaigns of a sort that I have been describing; that they continue
with a similar intent and use some of the same imagery.
>> MS. STEWART: And have you reviewed some of the materials that advocated the passage
of Prop 8?
>> MR. CHAUNCEY: I have.
>> MS. STEWART: And do you believe that some of the stereotyped images of gay people that
you have described today can be seen in those materials?
>> MR. CHAUNCEY: I do.
>> MS. STEWART: And is one of the things that you reviewed today the Official Voter Guide?
>> MR. CHAUNCEY: Yes, I did review that.
>> MS. STEWART: I'm going to ask you to read a few passages from that. Would you turn to
Plaintiffs' Exhibit 1, which I believe is in your skinny binder.
>> MR. CHAUNCEY: It's here. Yes.
>> MS. STEWART: And if you would turn to the argument in favor --
>> THE COURT: I believe Exhibit No. 1 is in evidence, isn't it?
>> MS. STEWART: Yes, it is, your Honor.
>> MS. STEWART: ...the argument in favor of Proposition 8 on -- well, the page is marked
56, I think, of the ballot pamphlet.
>> MR. CHAUNCEY: Right. It would have been 56 from the Voter Guide.
>> MS. STEWART: Would you start by reading the text of the seventh paragraph that begins,
"It protects our children"? It's the paragraph after the --
>> MR. CHAUNCEY: (As read) "It protects our children from being taught in public schools
that" -- sorry. I'll go more slowly. "It protects our children from being taught in public schools
that same-sex marriage is the same as traditional marriage."
>> MS. STEWART: Would you also now read the first full paragraph in the right-hand column
that begins, "We should not accept"?
>> MR. CHAUNCEY: Okay. I would actually like to read the next paragraph, following the
one I just read.
>> MS. STEWART: Okay.
>> MR. CHAUNCEY: (As read) "Proposition 8 protects marriage as an essential institution
of society. While death, divorce or other circumstances may prevent the ideal, the best
situation for a child is to be raised by a married mother and father." And then to go
the passage you mentioned. "We should not accept a Court decision that may result in
public schools teaching our kids that gay marriage is okay. That is an issue for parents
to discuss with their children according to their own values and beliefs. It shouldn't
be forced on us against our will."
>> MS. STEWART: And then would you read the passage, the second sentence of the paragraph
after the one you just read?"
>> MR. CHAUNCEY: (As read) "However, while gays have the right to their private lives"
>> MS. STEWART: I'm sorry. The sentence immediately above that.
>> MR. CHAUNCEY: Okay. "Proposition 8 does not take away any of those rights and does
not interfere with gays living the lifestyle they choose."
>> MS. STEWART: And then read the sentence you were about to read.
>> MR. CHAUNCEY: (As read) "However, while gays have the right to their private lives,
they do not have the right to redefine marriage for everyone else."
>> MS. STEWART: Could you explain how you believe the messages in these arguments reflect
the stereotypes whose historical origins you have already discussed today?
>> MR. CHAUNCEY: Well, I think, in part, they certainly are premised on the notion of the
inferiority of gay people, gay people in their relationships. So to argue that the best situation
for a child is to be raised by a married mother and father is to argue that a married heterosexual
couple was superior to a gay couple. So it continues the long history that I have described,
which is presumed the inferiority of gay people. And then it focuses on children, not calling
them child molester -- gay people child molesters and so forth, but warning that we should not
teach our kids that gay marriage is okay; that it shouldn't be forced on us against
our will. In effect, that we should not be told that gay marriage, in effect, gay equality,
which I think is linked to the openness of gay people on their call for the full recognition
of their rights that other people enjoy, their right to be public in their relationships,
that we shouldn't have to expose our kids to that. And this sort of image, it shouldn't
be forced on us against our will and it evokes that -- the fears of the aggressiveness of
the *** -- and the society, that they do not have the rights to -- however, while gays
have the right to their private lives, they do not have the right to redefine marriage
for everyone else. Again, they have the rights to do what they want to their own, just don't
make us take note of it. So their rights to be open about who -- who they are and about
their relationships is less important than our rights and not have to recognize them.
>> MS. STEWART: And in that Voter Guide on several -- in several places uses the language
"protects our children." How do you interpret that language?
>> MR. CHAUNCEY: Well, you have to ask the question, protect against what? And it evokes,
for me, the language of saving our children, the need to protect children from exposure
to homosexuality; not just from exposure to homosexuals as presumed child molesters, but
protecting them from exposure, from the idea of openly gay people.
>> MS. STEWART: I would like to ask you to look now at -- sorry. Give me a moment. Let
me do this. Professor Chauncey, have you reviewed any the television ads that were broadcast
in California in support of Proposition 8?
>> MR. CHAUNCEY: I have.
>> MS. STEWART: Do you believe the messages in those campaign ads reflect the stereotypes
whose history you have described?
>> MR. CHAUNCEY: Umm, I think they do. I mean, they're certainly more polite than the ads
that Anita Bryant used 30 years ago. It's a sign, I think, of how the place of gay people
in American society has changed and what one can say in polite society about gay people
has changed. But I guess I was especially struck by -- I think those ads in general
focused -- what their focus in protecting their children, the concern about people of
faith, religious institutions somehow being harmed by the recognition of gay marriage
are in them. But what I suppose is most striking to me is the image of the little girl who
comes in to tell her mom in the kitchen that that day she read a book in school called
King and King, and she learned that a prince can marry a prince and maybe I can marry a
princess. And so here I think you have got a pretty strong echo of this idea that simple
exposure to gay people and their relationships is going to somehow lead a generation of young
kids to become gay.
>> MS. STEWART: Your Honor, I would like to show some of the short video ads, the ones
that are marked Exhibits 29, 99, 91, 15 and 16. (Brief pause.)
>> MS. STEWART: Your Honor, I will offer in evidence all five of them, to the extent they
are not already admitted. I think one or two of them may already have been admitted yesterday.
(Discussion held off the record amongst plaintiffs' counsel.)
>> MS. STEWART: 99 and 15 are in, your Honor.
>> THE COURT: Under a different number?
>> MS. STEWART: No, same number.
>> THE COURT: All right. So 15 and 91 are in.
>> MS. STEWART: 99. Sorry, your Honor.
>> THE COURT: 99, I'm sorry. And you are offering?
>> MS. STEWART: 29, 91 and 16.
>> THE COURT: Hearing no objection.
>> MR. THOMPSON: Your Honor, we don't anticipate any objection, but could we just see the ads
and then we will say "no objection" once we see them?
>> MS. STEWART: That would be fine with me, your Honor. (Videotapes played in open court.)
>> MR. THOMPSON: Your Honor, having seen the videos, we have no objection to their being
admitted.
>> THE COURT: Very well. 15, 16, 29, 91 -- well, those four are admitted. (Plaintiffs'
Exhibits 15, 16, 29, 91 received in evidence)
>> MS. STEWART: What are some of the key messages being communicated in these ads that you think
reflect the history of discrimination you have discussed with us today?
>> MR. CHAUNCEY: Well, again, the sense that the inequality of gay people and their relationships;
that marriage will convey equal status to gay people and their relationships. The fear
of something being forced on people, which certainly animated many of the referendum
campaigns that I've mentioned, designed to put it to a popular vote, popular resistance
to something being imposed on them by legislators for the courts. And this focus on children,
I think, is the most striking thing; that we have to protect our children from exposure
to the idea of gay marriage, which was a sign of the full equality of gay people and of
our recognition of them. And, certainly, the implication, as I said, in that ad that such
exposure could actually lead children who have unstable *** identities to become
gay --
>> MS. STEWART: I would like to --
>> MR. CHAUNCEY: -- the fear of that. I mean, there clearly, the underlying message here
is something about the -- the undesirability of homosexuality, that we don't want our children
to become this way.
>> MS. STEWART: Thank you. I would like to just quickly have you look at two print ads
and then we will be about ready to wrap this up. I would like you to look at Exhibits 1763,
which I -- I'm hoping our tech people can put on the screen.
>> MR. THOMPSON: Your Honor, we object to Dr. Chauncey testifying to this document.
We do not object to its being admitted into evidence, but this was not disclosed in his
expert report as material considered.
>> THE COURT: Ms. Stewart?
>> MS. STEWART: Your Honor, it's correct that it was not. He had not yet seen it at the
time. We were still getting discovery from the plaintiffs at that time. And so much of
the written material -- I can't say for certain that this one came before or after, but the
material we were getting from the plaintiffs was coming in quite late.
>> MR. THOMPSON: Your Honor, I can say definitively, and this was in the first production well
before the expert report was due on October 2nd.
>> THE COURT: The objection is this was not disclosed at the time the witness was deposed?
>> MR. THOMPSON: Yes, your Honor. And it would violate Rule 26, when this was in possession
of the plaintiffs before his report was due, for him then to come into court now and for
the first time offer his opinions on it.
>> MS. STEWART: Your Honor, if I might. Again, the Ninth Circuit indicated quite late, that
is in December -- and its decision wasn't even final until January 4th -- that we should
use our experts to talk about messaging. These are two exhibits. I'm just about done here.
But I think that because the delay in the plaintiffs producing their evidence and their
refusal to talk about them led the -- to the understanding that we would need experts solely
to comment on the messaging or at least it would be unlikely we would be able to get
the plaintiffs to comment on them.
>> THE COURT: When did this particular document come into your possession?
>> MS. STEWART: That I don't know, your Honor, because the volume came at us fast and furious,
but maybe one of my colleagues can answer the question.
>> MR. THOMPSON: It was in the first production.
>> MS. STEWART: What about the 1775?
>> THE COURT: When was that first production?
>> MR. THOMPSON: Your Honor, I know that the second production was September 18th. So I
know it was before September 18th, and the expert reports were due on October 2nd. And
I would further add, your Honor, that they did a supplemental production of materials
considered and this was not part of it. So this is totally the first time that we --
other than on Sunday night when we not the laundry list of documents that we had any
idea that Professor Chauncey was going to testify about this.
>> THE COURT: Well, this is a little different in that this is a document that appears to
have been produced by your client.
>> MR. THOMPSON: Yes, your Honor, but I --
>> THE COURT: It's unlike the Miami Herald article of 1977.
>> MR. THOMPSON: Your Honor, I have known about this document. We are proud of this
document. We don't have a problem with it being admitted into evidence. What we do have
a problem with is under Rule 26 a witness coming in, never having disclosed it in his
expert report, never having given any indication in the report he would opine on it, my not
being able to depose him on it and now he comes in, you know, trying to speak to it.
>> MS. STEWART: Your Honor, it's not deep. Professor Chauncey discussed at length in
his report and in his deposition the messaging. These are both simple documents, simple message.
And, you know, it's going to take less than a minute probably to get through this testimony.
I don't think that this --
>> THE COURT: I'm not sure that's an argument for getting it in. But inasmuch as this is
a document of the defendant-intervenors and in view of your description and, I think,
an accurate one of the Ninth Circuit's initial holding with respect to the scope of expert
testimony, I think since the document is coming in, since it is a document of the proponents,
that it's not unfair to permit the witness to testify about it and his conclusions concerning
the document. And so the objection will be overruled with respect to 1763.
>> MS. STEWART: And, your Honor, can -- 1775 is similar, although I think it may have been
produced later.
>> THE COURT: Same circumstances?
>> MR. THOMPSON: Your Honor, there are the same circumstances. I won't repeat my objection,
but we do have an issue about authenticity, which we may be able to resolve and we may
be willing to let it come in provisionally. But this is a photocopy and I have no idea
whether this is actually a Protect Marriage -- you can see from the quality of it, it
could have been digitally altered. It's not like the first document, which is one of ours.
>> THE COURT: Subject to an authenticity objection, then, you may proceed with 1775. And 1763
will be admitted. (Plaintiffs' Exhibit 1763 received in evidence)
>> MS. STEWART: Dr. Chauncey, if you could just look at 1775 --
>> MR. CHAUNCEY: Seventy-four?
>> MS. STEWART: Five.
>> MR. CHAUNCEY: Five.
>> MS. STEWART: Can you describe the --
>> THE COURT: Well, have you asked him about 1763?
>> MS. STEWART: I know. I'm going to do them in reverse order, if that's all right.
>> THE COURT: I'm sorry. That's all right. It's your witness.
>> MS. STEWART: Dr. Chauncey, can you read the language of this sign into the record?
>> MR. CHAUNCEY: Yes. It says: "Yes On 8. Protect Marriage. You have the power to protect
your children." Gives the website, ProtectMarriage.com.
>> MS. STEWART: And what does the photograph depict?
>> MR. CHAUNCEY: It depicts what is presumably a married couple with their child. And so
we see here, again, the indication of protecting marriage, the need to protect your children.
The question is, what are we protecting our children from? Actually, the image we see,
the mother and father, in fact, protecting the child on either side of the child and
expressing love for that child. I mean, in many ways it's a wonderful image, but, again,
it implies the inferiority of a same-sex couple with holding a similar child, and the --
the need to protect children from the exposure, I take it, to the idea of gay marriage and
idea of gay equality.
>> MS. STEWART: Dr. Chauncey, can you now look at Exhibit 1763?
>> MR. THOMPSON: And, your Honor, I have conferred with my client, who has confirmed this is
not an authentic ProtectMarriage.com document. So unlike the one that they are turning to
now, which we have no objection as to authenticity, we do have an authenticity objection to the
document that was just discussed.
>> MS. STEWART: Your Honor, if you would indulge me, what I would like to do is tomorrow provide
you with the information about the document. Perhaps I can resolve with counsel the authenticity
without even taking it up with the Court.
>> THE COURT: All right. We will see if there is a foundation for 1775.
>> MS. STEWART: And, Dr. Chauncey, would you read into the record the language of the
-- what appears to be a flyer that is 1763?
>> MR. CHAUNCEY: Right. It says: "Yes On 8. Protect Marriage. Restoring marriage and protecting
California children. You can help. Visit our website or call us for more information. www.ProtectMarriage.com,"
and a phone number.
>> MS. STEWART: And can you describe the images on the page?
>> MR. CHAUNCEY: Well, there's both a graphic image at the top that shows dimensional graphics.
A heterosexual couple, both holding up a banner saying "Protect Marriage" and implicitly protecting
their children, standing on either side of their children. Then a series of photographs
of happy heterosexual families.
>> THE COURT: How do you know they're heterosexual?
>> THE WITNESS: Okay. Let me say, mixed sex families.
>> MS. STEWART: Perhaps opposite sex would be --
>> MR. CHAUNCEY: Opposite sex families. (Laughter.)
>> MR. CHAUNCEY: I don't know, but I think that's the implication of the picture in the
context of the campaign. And I -- I believe that that's what's meant to be conveyed here.
And so, again, it's this reiteration of protecting California's children. What are we protecting
them from? We are protecting them from exposure to gay people, gay people and the idea of
gay equality and the full recognition of gay relationships and the equality of gay relationships.
>> MS. STEWART: Thank you. Professor Chauncey, I have one more question and then I want to
simply do some housekeeping and move into evidence some of your sources. And the question
is: Have you written about the parallels between from the religious debates over segregation
and the religious debates over same-sex marriage? And if so, could you describe those parallels?
>> MR. CHAUNCEY: Well, that's a very delicate question and I hope I will be alert enough
after two hours and 15 minutes of this to give you the answer I would like. Obviously,
people of strong religious principle have supported Prop 8, organized Prop 8 to protect
their vision of marriage, their understanding of what marriage should be. Often their feelings
are driven by deeply-held religious beliefs. We -- we tend to think of all the argument
on the marriage debate as being on that side of the marriage debate and all the argument
on the debate over civil rights in the 1940's, 50's and 60's as being on the other side because
of the prominence of Reverend Martin Luther King and the black churches and the civil
rights campaign. But what's, I guess, striking to me is that -- and many other historians
have commented on this, written about this, is that, in fact, during the civil rights
era, very many southern white Christians believed very deeply and sincerely that segregation
was part of God's will for humankind. Reverend Jerry Falwell himself preached a sermon in
1958 criticizing the Supreme Court's Brown v Board of Education decision as going against
God's will and warning, actually, that it could lead to interracial marriage, which
was then sort of the ultimate sign of black and white equality. And so, I guess, I just
want to suggest here that there are -- people hold their beliefs very deeply, and they read
scripture by their own lights. You know, as we see in history, their interpretations of
that scripture change over time. And that in the -- I'm just struck by the degree to
which religious arguments were mobilized in the 1950's to argue that -- against interracial
marriage and integration as against God's will in a way that arguments have been mobilized
in this campaign and the other -- many of the other campaigns I have described since
Anita Bryant's argue that we need to do this because homosexuality itself or gay people
or the recognition of gay people, the recognition of their equality, is against God's will.
>> MS. STEWART: Thank you, Professor Chauncey. Before we let you go, I would just like to
ask you what the major sources were that you relied on today. And to speed things along
here -- meaning the articles and books and other sources that you relied on for your
testimony -- your Honor, I would like to move some of those items into evidence. Dr. Chauncey
prepared a list for us, which might make it easier than reading the list of sources into
the record, but I leave it to your Honor whether he would prefer it the other way.
>> THE COURT: I trust you have disclosed the list to Mr. Thompson?
>> MS. STEWART: We have not -- I mean, all of the documents on it were disclosed on Monday
night and previously and.
>> MR. THOMPSON: Your Honor, may I propose that we look at the list overnight, and I'm
sure we will be able to agree to things.
>> MS. STEWART: That would be fine.
>> THE COURT: You took the words out of my mouth, Mr. Thompson. Issues.
>> MS. STEWART: Thank you, your Honor. Then we will have that little bit of housekeeping
in the morning or -- well, your Honor, you tell me your pleasure.
>> THE COURT: I think Mr. Thompson can get started. He has got 10 minutes or so and he
looks like he's ready.
>> MR. THOMPSON: Let's roll.
>> THE COURT: All right. Cross examine, Mr. Thompson. I'll cut you off in 10 minutes or
thereabouts, so find a spot in that vicinity and we will take our recess for the day at
that point, but make it a convenient point in your cross-examination.
>> MR. THOMPSON: May I approach, your Honor?
>> THE COURT: Certainly you may. (Whereupon, a binder was tendered to the witness.)
>> MR. THOMPSON: Good afternoon, Professor.
>> MR. THOMPSON: Just a little bit of background. You have donated money to the Lambda Legal
Defense in the past, is that right?
>> MR. CHAUNCEY: I have in the past.
>> MR. THOMPSON: And you have also donated money in the past to the Gay and Lesbian Advocates
and Defenders, is that right?
>> MR. CHAUNCEY: I have in the past.
>> MR. THOMPSON: And you strongly support the right of same-sex couples to have access
to the institution of marriage, is that correct?
>> MR. CHAUNCEY: I do support the right of same-sex couples to have the right to marriage.
>> MR. THOMPSON: And do you recall that the University of Chicago Magazine did a profile
on you? It was -- it's Tab 4 in your binder and it's entitled "Moment of Decision." "Chicago
Professor George Chauncey has spent a fair portion of his life fighting for civil liberties.
His latest battle, historical scholarship." Do you remember this article?
>> MR. CHAUNCEY: I do remember this article.
>> MR. THOMPSON: And then --
>> MR. THOMPSON: And on the last page of the article it ends: "George Chauncey is beyond
question an advocate." And do you believe that to be true?
>> MR. CHAUNCEY: Excuse me. Where does it say that?
>> MR. THOMPSON: The last line of the article. It says: "George Chauncey is beyond question
>> MR. CHAUNCEY: Umm, actually, I almost said this when you read the first line as well,
the subtitle in this. This is journalist characterization and one that I would resist. I like the second
line there, that "He is beyond question a historian's historian." So that, yes, I like
that line. (Laughter.)
>> MR. THOMPSON: You get the bitter with the sweet.
>> MR. CHAUNCEY: So I would say that, yes, I do support the right of gay couples to marriage.
And I distinguish that from my historical scholarship, which I have been very careful
to try to be as accurate to the historical record as I can be.
>> MR. THOMPSON: Now, I would like to go over some definitional issues with you. When you
use the term "homosexual" as a noun, you would be referring to people with identities which
have primary *** and emotional attraction to people of the same sex, is that right?
>> MR. CHAUNCEY: I wouldn't necessarily say "identities." People who have a primary ***
and emotional attraction to people of the same sex.
>> MR. THOMPSON: Well, let's look at your deposition in this case, which is behind tab
two and page 48, line 23. Let me know when you are there, Professor. (Brief pause.)
>> MR. THOMPSON: 48, and let's actually start at line 16 to get the full context. I asked
you: "QUESTION: What do you mean by the term homosexual as you used it? "ANSWER: Well,
I" --
>> MR. CHAUNCEY: I'm sorry, I haven't found it.
>> MR. CHAUNCEY: Sorry. I was... Very odd way they paginate here on these condensed.
>> MR. THOMPSON: 16, yes, sir. I asked: "QUESTION: So what do you mean by the term homosexual
as you used it?" And you answered: "ANSWER: Well, in that context as I just used it I
was using it objectively, substantively to refer to *** relations between people of
the same sex." "QUESTION: Can that word have a different meaning in a different context?
"ANSWER: Well, homosexual as a noun used to refer to -- usually would be used to refer
to people with identities" -- and I believe this is -- "which have primary *** and
emotional attraction to people of the same sex." You gave that testimony, right?
>> MR. CHAUNCEY: What I said here is that homosexual as a noun is --
>> THE COURT: The question is: Did you give that testimony?
>> THE WITNESS: Yes, sir, I did.
>> MR. THOMPSON: Homosexual as an adjective can describe *** relations of people of
the same sex even where one of them would not identify as a homosexual, correct?
>> MR. CHAUNCEY: Yes. I did write that, yes. I did say that.
>> MR. THOMPSON: And most historians now would argue that categories of *** difference
that were available to people changed over time, correct?
>> MR. CHAUNCEY: Yes. Most historians would argue that.
>> MR. THOMPSON: And although the gay male world of the prewar years was remarkably visible
and integrated into the straight world. It was a world very different from our own, is
>> MR. CHAUNCEY: I did write that, yes.
>> MR. THOMPSON: Okay. Only in the 1930's, 40's and 50's did the now conventional division
of men based on the sex of their partners replace the division of men based on their
imaginary gender status as the hegemonic way of understanding sexuality, correct?
>> MR. CHAUNCEY: I was referring there particularly to men in immigrant communities, working class
communities. So as I show in another point in the book those sorts of identities had
emerged earlier in middle class culture, so that broadly there is a shift in that period.
>> MR. THOMPSON: And by the "book" you mean Gay New York?
>> MR. CHAUNCEY: Yes, Gay New York.
>> MR. THOMPSON: And the ascendancy of the term "gay" reflected a reorganization of ***
>> MR. THOMPSON: There was a transition from an early twentieth century culture divided
into *** and men on the basis of gender status to a late twentieth century culture
divided into homosexuals and heterosexuals on the basis of *** object choice, correct?
>> MR. CHAUNCEY: Yes.
>> MR. THOMPSON: Any such taxonomy is necessarily inadequate as a measure of *** behavior,
correct?
>> MR. THOMPSON: The most striking difference between the dominant *** culture of the
early twentieth century and that of our own era is the degree to which the earlier culture
permitted men to engage in *** relations with other men, often on a regular basis,
without requiring them to regard themselves or to be regarded as gay, correct?
>> MR. CHAUNCEY: Yes. And here, again, I am generalizing for purposes of the introduction,
I believe, to the particular groups of people I will talk about later in the book. They
were different from other groups.
>> MR. THOMPSON: And there were many men involved in same-sex relationships at that time who
were also on intimate terms with women and went on to marry them, correct?
>> MR. CHAUNCEY: Yes.
>> MR. THOMPSON: You would agree that whether homosexuality is good or bad, chosen or determined,
natural or unnatural, is in the realm relief ideology and the subject to contestation,
correct?
>> MR. THOMPSON: And you agree with it?
>> MR. THOMPSON: And we are living in a time when a previously dominant ideological position
that homosexuality is immoral or pathological faces a powerful and increasingly successful
challenge from an alternative ideology which regards homosexuality as neutral, healthy
or even good, correct?
>> MR. CHAUNCEY: Yes, I did say that that ideology faced an increasingly powerful challenge.
>> MR. THOMPSON: Your Honor, I would suggest that this is a natural breaking point.
>> THE COURT: All right. Then that's fine. We will do our little housekeeping tomorrow
morning. Any matters to take up before we adjourn this afternoon?
>> MR. BOUTROUS: Your Honor, I had two matters, procedural matters, if I may.
>> MR. BOUTROUS: The first issue, your Honor, relates to the motion we filed today. It's
an administrative motion to file several documents under seal. The only reason we filed them
under seal was to put them before the Court to get the Court's guidance. They were produced
pursuant to Magistrate Judge Spero's order compelling production of documents from the
defendant-intervenors. They are documents that we believe are relevant. We would like
to use them with our witnesses, but they were produced pursuant to the attorneys' eyes protective
order. As far as I can tell, there is absolutely no basis for covering them under the protective
order and we would like to use them with our witnesses. And since Mr. Thompson has been
such a stickler for disclosure, I would note that we may not end up be being able to give
quite as much notice as to these documents because we just received them and they should
have been produced many, many months ago. So I guess my question is how -- the best
way the Court would like to resolve questions relating to documents we are just getting.
They are producing them under a protective order. Whether it makes sense to have Magistrate
Judge Spero take a look first tomorrow while we are here in trial. Really, just wanted
>> THE COURT: Do you have any views, Mr. Thompson, or Mr. Cooper?
>> MR. COOPER: Your Honor, we really don't have any views to present to the Court on
this very recently raised issue at this moment. We will try to study on this issue this evening
and have some views, at least half baked, for you in the morning.
>> THE COURT: I'm sure they will be fully baked. (Laughter.)
>> THE COURT: At this juncture and since we may very well confront this problem going
forward, would it delay matters to refer this back to the magistrate rather than for us
to take it up right here, because you are planning to use or going to be using these
documents, if you are permitted to, with witnesses on the stand?
>> MR. BOUTROUS: It may delay matters, your Honor. And it's -- we are moving, I think,
at a nice pace, but there are witnesses coming up that I think we want to use these documents.
I've looked at the documents. I can't say anything in detail right now because they
are still under seal, but the burden, as the Court knows, is significant to sealed documents
and there is -- these are documents that -- these are the external documents that were
sent beyond the core group as defined by the Ninth Circuit and by Judge Spero, who gave
an even broader interpretation to the core group, I think, than was mandated. And so
these documents cannot in any way be deemed the kind of confidential protected information.
And we really would like to use them. In fact, there are all kinds of issues I think they
are directly relevant to based on today's testimony. So whatever the speediest manner
we can do it in.
>> THE COURT: Which witness do you plan to use these documents with?
>> MR. BOUTROUS: I will certainly be using them with Professor Segura, who will probably
come up possibly towards the -- on Friday, but more likely on Tuesday. And so that's
probably the most likely, but it may be some of our witnesses earlier. We are still just
reviewing the documents and I think there are probably some more documents that may
come up with the witnesses later this week.
>> THE COURT: It might be helpful if I were to see those documents so I had some idea
of what it you are talking about. And I assume that's without objection, Mr. Cooper?
>> MR. COOPER: Of course, your Honor. And I believe they have been filed with the Court
>> MR. COOPER: -- and they are available to the Court to review. As I say, I think I'm
correct in saying these came to us yesterday and I think it was late yesterday. But in
any event we are -- we are looking at them and trying to assess them. I think that I
agree with Mr. Boutrous that sending this back to Magistrate Judge Spero very well might
delay things that if we dealt with them here -- and we will have to deal with them on
a document-by-document basis -- some may not be objectionable, and I'm not sure the ones
he submitted are objectionable, but some others certainly may be objectionable or at least
documents that we believe ought to be protected by some kind of protective order and remain
under seal, even if they are ultimately available to the Court for its review. So we will just
have to, I think, prepare our thoughts on this for tomorrow morning.
>> THE COURT: You say these have already been filed, filed under seal. Do you have a docket
>> MR. BOUTROUS: Your Honor, I think we do. In fact, I -- actually, we didn't -- the electronic
version, because we filed them under seal, we couldn't file the documents, but we provided
your staff with the sealed versions, two copies.
>> THE COURT: So I can take a look at those documents and have some idea of what it is
you are talking about and that will help me figure out what would be an appropriate way
>> MR. COOPER: And while we are on this subject, it might be well to deal with another matter
like the one I -- we opened our trial with, which is to place on the record for purposes
of preservation again an objection to the introduction and admissibility of these --
the documents of this ilk that are being now produced on a rolling basis to the --
to the plaintiffs pursuant to Magistrate Judge Spero's order, but that we do believe
-- and notwithstanding the Ninth Circuit's decision, we do believe qualify for a First
Amendment privilege and, also, are irrelevant. We would like to place that objection, again,
to preserve it and ask that it be continuing in nature, again, so I don't have to interrupt
the progress of the trial every time a document is offered of this kind or a question is asked
of a witness that would elicit information that we believe is of this kind. And if we
could have that, your Honor, we would be content.
>> MR. BOIES: Yes. We have no objection.
>> THE COURT: I beg your pardon, Mr. Boies?
>> MR. BOIES: We have no objection actually.
>> THE COURT: All right. Continuing objection is noted, and I will take a look at these
>> MR. BOUTROUS: And, your Honor, I had one more. This is one is even less controversial.
Amicus briefs, we have had a number of additional requests about filing them and we wanted to
just get clarification if the Court would accept them. We were going to propose a deadline
of seven days after the end of the trial, applications for amicus briefs on both sides.
>> THE COURT: I certainly would support a deadline for the filing of amicus briefs.
>> THE COURT: I gather, Mr. Cooper, you would also support a deadline of filing amicus briefs.
>> MR. COOPER: Your Honor, I would -- apparently, a number of amicus parties who would support
our side of the case filed amicus briefs a couple days ago. So I would propose a deadline
of yesterday. (Laughter.)
>> MR. COOPER: But I would certainly support the deadline that Mr. Boutrous has articulated,
>> THE COURT: All right. Well, that will be fine. Seven days after the conclusion of the
presentation of evidence.
>> THE COURT: Anything else?
>> MR. MARTINEZ: Yes, your Honor.
>> MR. MARTINEZ: Manuel Martinez. I'm representing two parties today. Normally I represent Defendant
Patrick O'Connell, Clerk-Recorder for County of Alameda. I'm also standing in as a friend
of Defendant Dean Logan, Los Angeles County Registrar-Recorder/County Clerk.
>> THE COURT: What county? What is the second county?
>> MR. MARTINEZ: Los Angeles County. The reason I rise, your Honor, is just simply to bring
it to the Court's attention that two motions with stipulations signed by all the parties
were filed last Thursday regarding the attendance of Alameda County and Los Angeles County.
I just want to put it on the Court's table.
>> THE COURT: I have already signed that.
>> MR. MARTINEZ: Thank you, your Honor. I appreciate that.
>> THE COURT: All right. See you tomorrow, 8:30.