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 exslaves 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.

 

 

reenactment instructions
Thank you for downloading a Testimony script and taking your first step toward reenacting an excerpt from Perry v. Schwarzenegger, the federal Prop. 8 trial.
Here’s tHe deal
• The goal of Testimony is to raise awareness about what happened at the federal Prop 8 trial and spread the word to as many people as possible across America. Through live trial reenactments or forwarding a reenactment video to a friend, anyone can participate. • Each of these scripts is taken directly from the trial transcript of Perry v. Schwarzenegger, the case argued in U.S. District Court over the constitutionality of Prop. 8, which eliminated the right of same-sex couples to marry in California in 2008. Some of these scripts are from the plaintiffs testifying, while others are from expert witnesses called by either the plaintiffs or the defense. • Your job is to recreate them in your own unique way. Be creative. Do some guerrilla theater. Act it out in the town square. Or just gather some friends and your iPhone or flip camera and shoot it in your living room. There is no wrong way to do a reenactment.

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engagement instructions
A successful reenactment will have an audience — “witnesses” to the trial reenactment. In order to have a successful reenactment and turn out a large number of witnesses, you need to set a goal. After the reenactment, make sure to get signatures of the witnesses, this will all become part of the story of the trial. Also please be sure to complete the enclosed form so we can grow the movement. Each trial should set a minimum goal of signatures from 50 witnesses.

testimony community engagement tips
As Testimony actors, your mission is to bring this trial – this conversation – to your community, identifying supporters of equality along the way. Here are a few things to think about as you begin to plan your reenactments.

2. maKe a scene
We’ve given you a script, but it’s your job make sure people listen. Be creative. Make a scene. Here are a few ideas: • Invite a local choir to open up your performance to grab the audience’s attention. • Pick out key quotes from the Testimony and paint them on large posters for all to see. • Grab noisemakers, bells, borrow a friend’s old bullhorn – don’t be afraid to be heard.

1. set goals
Just because it’s guerrilla theater does not mean that it’s poorly planned. We are all actors with purpose. To help your production team accomplish your mission, set a few community engagement goals prior to your reenactment: • Ask your team to set witness signature goals. Commit to gathering 50 WITNESS SIGNATURES from your community – signatures of people who watched your reenactment and agree that Equality should never be put on trial. Download and print out the WITNESS SIGNATURE PLEDGE form and after each reenactment engage members of the audience and ask them to sign the petition in support of equality. Follow the instructions on the bottom of the form to send your WITNESS SIGNATURES back to Courage Campaign, so that we can make sure to send a follow-up message to the witnesses in your community. • Don’t make this a one-time production. Once you’ve put together a production team and scouted a location, it’s easy to do these reenactments again and again. Consider asking your team to do multiple reenactments each time you go out. Set a goal for your team, i.e. “we will keep doing reenactments until we collect 20 WITNESS SIGNATURES.” • Videotape WITNESS REACTIONS after your reenactment.

3. tHroW a party!
Build community through these reenactments by inviting the production team and witnesses to a potluck or house party. Here are a few ideas: • Host a viewing party; • Have a conversation about equality; • Talk about what else you can do together to make sure that this trial lives on; • Find out about the next phase of this historic campaign. • Have questions? Contact us at engagement@equalityontrial.org.

TESTIMONY
EQUALITYONTRIAL
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