George Chauncey -- a Yale-educated professor now on the faculty in New Haven, Conn., a published author with a calm demeanor -- makes for a compelling expert witness.
So after testimony for the better part of an afternoon about discrimination gays and lesbians have faced, lawyers defending a ban on gay marriage took a very direct tactic.
"You've donated money to Lambda Legal in the past, haven't you?" asked Cooper & Kirk partner David Thompson.
"I have in the past," Chauncey said. Thompson then asked Chauncey whether he supports gay marriage. Chauncey does.
The second trial day in the federal challenge to Prop 8 featured Chauncey and another expert proffered by same-sex plaintiffs. And the Yes on 8 campaign used a similar cross-examination strategy for both: attempting to discredit their scholarship by laying bare their policy preferences.
With Chauncey, Thompson went on to quote from a magazine profile about him.
"'George Chauncey is beyond question an advocate,'" Thompson read. "Do you believe that to be true?"
"That is a journalist's characterization, and one that I would resist," Chauncey said, adding that he preferred the next line, "a historian's historian," better.
Thompson followed a similar strategy with Harvard professor Nancy Cott, eliciting her support for gay marriage. On redirect, Gibson, Dunn & Crutcher partner Theodore Boutrous Jr. tried to counter the insinuation that Cott's personal preferences infected her work.
Boutrous asked whether Cott had supported gay marriage before she began her research on marriage as an institution. "I hadn't formed a view," she responded.
However, after learning more about how marriage laws had been used "punitively and restrictively" against certain groups -- like slaves and Asian immigrants -- Cott said she made up her mind.
"Most of those restrictions were gradually seen to be a bar to liberty, and dismantled," Cott said.
There were fewer journalists on hand for the second day of proceedings. That meant more members of the public were allowed in, and at times, the hard wooden benches felt almost roomy.
Northern District of California Chief Judge Vaughn Walker asked few questions of the witnesses. However, he did query Cott about how the state became involved in marriage in the first place. That has been a running theme for Walker; Monday, he asked Gibson partner Theodore Olson whether the state should just get out of the marriage business altogether.
Cott told Walker that it stemmed from battles between church and state back in the Old World. "In all of the modern monarchies in Europe, the state won," Cott said.
San Francisco Chief Deputy City Attorney Therese Stewart used Chauncey to connect historical anti-gay rhetoric to the Prop 8 campaign -- especially as it relates to stereotypes about a danger to children from homosexuals.
Amid much somber testimony, this line of questioning led to one of the lighter moments of the day. Stewart showed Chauncey a Yes on 8 print ad that depicted a man, a woman and a child. Chauncey described them as a "heterosexual" couple.
"How do you know they're heterosexual?" Walker deadpanned, prompting rolling laughter as the joke sank in throughout the courtroom. With a smile, Chauncey replied that he should have said opposite-sex couple.
Cross-examination of Chauncey continues today at 8:30 a.m. PST.
Editor's note: See related story Top 9th Circuit Judge, Judicial Conference Tangle Over Video at Proposition 8 Trial
