SCRIPT #2

NANCY COTT: WHY WERE SLAVES BARRED FROM MARRYING?

(PLAINTIFFS' EXPERT)
Testimony as given in U.S. District Court on January 12, 2010

Speaking:
NANCY COTT
THEODORE BOUTROUS
 

TO BE READ ALOUD:
Hear ye, hear ye! The following scene is a re-enactment of Perry v.
Schwarzenegger, the Prop 8 trial heard in U.S. District Court. Dr. Nancy
Cott, professor of American History at Harvard University, expert witness
for the plaintiffs on the history of marriage, is under direct-examination
by the plaintiffs’ lawyer, Theodore Boutrous. The plaintiffs in this case
are two loving same-sex couples who simply want to marry, just as any
heterosexual couple in America has the right to do.

Court is now in session!

NANCY COTT, PLAINTIFFS’ EXPERT ON THE HISTORY OF MARRIAGE:

Yeah. Well, first of all, marriage -- the ability to marry, to say, "I do"
-- it is a basic civil right. It expresses the right of a person to have
the liberty to be able to consent validly.

And this can be seen very strikingly in American history through the fact
that slaves during the period, the long period that American states had
slavery, slaves could not marry legally.

THEODORE BOUTROUS, PLAINTIFFS’ ATTORNEY:

Why were slaves barred from marrying?

COTT:
Because as unfree persons, they could not consent. They
did -- they lacked that very basic liberty of person: control over their
own actions that enabled them to say, "I do," with the force that "I do"
has to have. Which is to say, I am accepting the state's terms for what a
valid marriage is.

A slave couldn't do that because the master had rights over the slaves'
ability to disport his person or to make any claim. The slave could not
obligate himself in the way that a marriage partner does obligate himself
or herself.

BOUTROUS:
What happened when slaves were emancipated?

COTT:
When slaves were emancipated, they flocked to get married. And this was
not trivial to them, by any means.

They saw the ability to marry legally, to replace the informal unions in
which they had formed families and had children, many of them, to replace
those informal unions with legal, valid marriage in which the states in
which they lived would presumably protect their vows to each other.

In fact, one quote that historians have drawn out from the record, because

 
 
 

many of these ex-slaves were illiterate, of course, but one quotation that
is the title of an article a historian wrote, it was said by an ex-slave
who had also been a Union soldier, and he declared, "The marriage covenant
is the foundation of all our rights."

Meaning that it was the most everyday exhibit of the fact that he was a
free person. He could say, "I do" to his partner.

And then in corollary with that -- because, of course, the history of

slavery is happily behind us -– there are other ways in which this
position of civil rights, of basic citizenship, is a feature of the
ability to marry and to choose the partner you want to choose.

BOUTROUS:
What would be an example of another one of those features?

COTT:
Well, I want to use an example of that, that again doesn't have to do with
the slave. It has to do with a black man, Dred Scott, who tried to say,
when he was in a non-slave-holding state, that he was a citizen. And in an
infamous decision, the Supreme Court denied him that claim.

And why this is relevant here is that Justice Taney spent about three
paragraphs of that opinion remarking that the fact that Dred Scott as a
black man could not marry a white woman -- in other words, that there were
marriage laws in the state where he was and many other states, that
prevented blacks from marrying whites -- was a stigma that marked him as
less than a full citizen.

Because if he had had free choice, Taney wouldn't have mentioned it. But
he remarked on it because of the extent to which this limitation on Dred's
ability to marry was a piece of evidence that Justice Taney was remarking
upon in his opinion to say this shows he could not be a full citizen.

BOUTROUS:
Now, going back to the era of slavery, would slaves form something they
would call marriage, or that the slave owners would call marriage, at
least informally?

COTT:
Yes.

BOUTROUS:
And was that viewed by the state or by society as an important
relationship?

COTT:
Certainly, it was regarded as an important relationship within slave

 
 
 

communities. They were the only relationships they had, these informal
relationships. But they were totally treated with abandon by white society
-- broken up all the time. And no, no state authorities gave any
protection or credence to these relationships whatsoever.

BOUTROUS:
And, as a historical matter, to what do you attribute the desire to be
formally married by the state upon emancipation?

COTT:
Well, it was, as I suggested, because this was a common-sense indication
of freedom, of possessing basic civil rights, and because they assumed it
would mean to them that white employers -- because, of course, the ex-
slaves were still quite poor and employed by white -- whites who were --
well, at any rate, white employers would often try to demand that families
worked in certain ways, or that children worked, and so on. And so the
emancipated -- the freed men and women--assumed that once they were
legally married, that they could make valid claims about their family
rights.

 
 

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