With the two gay couples off the stand for now, attorneys for the plaintiffs in Perry v. Schwarzenegger are turning to experts and historians to dissect the meaning and progress of the institution of marriage. Yet instead of gay marriage, historian Nancy E. Cott, a former Yale and now Harvard professor, has been grilled today and yesterday more about slavery than homosexuality.

Why? Because the plaintiffs are using myriad laws related to slaves and marriage as an example of how the American legal system has had to adjust and progress over time when it comes to marriage.

Cott has investigated the history of marriage in the U.S. for some 10 years before publishing her book Public Vows. Under questioning by the plaintiffs’ attorney Ted Boutrous, she has talked about the importance of marriage and how, “at least since the rise of the novel in the 18th century” marriage has become something most people strive for: “It is the principal happy ending in all of our tales.”

But slaves were not accorded that possibility. “Have marriage laws always treated citizens in this country fairly?” Boutrous asked Cott. The answer was a resounding “no.” Slaves could not marry legally, and, says Cott, “restrictions multiplied after the Civil War” once emancipated slaves were given the right. Some 41 states had laws related to marriage between races, not just related to blacks but also to an influx of Asians into the western states after the turn of the century.

Read the rest of Eve Conant’s Newsweek article here.