Tuesday Recap: Federal Prop. 8 Trial

A battle over statistics dominated Tuesday’s testimony in the federal Proposition 8 trial, with attorneys sparring over the economic costs faced by California gay couples and their families as well as the effect of same-sex marriage on existing marriage and divorce rates.

M.V. Lee Badgett, a professor of economics at the University of Massachusetts, Amherst, and author of When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage, testified that Prop. 8 resulted in substantial economic losses for California. She explained that the disadvantages California same-sex couples bear post-Prop. 8 include additional health insurance costs if their employers do not extend benefits to unmarried partners, which can amount to thousands of dollars per couple each year.

Even those who are registered domestic partners in the state, Badgett asserted, are denied “the social validation that would give rise to the full effect of the other possible benefits that they would experience if they were allowed to marry.”

When California gay couples were given the choice between domestic partnerships and marriage in 2008, they overwhelmingly chose the latter, Badgett said. “The difference is that marriage is an institution that is recognized by many other people,” she said, whereas “‘domestic partnership’ has a much more clinical, business sound to it.”

Badgett also detailed how the many similarities between same-sex and opposite-sex couples far outweigh their differences: Ultimately, both seek similar qualities in their partners.

“Like birds of a feather?” Judge Vaughn Walker asked.

“That would succinctly sum it up,” Badgett replied.

In a lengthy and exhaustive cross-examination, lead defendant-intervener attorney Charles Cooper attacked Badgett’s and her colleagues’ methodology in their studies of California gay couples, his questioning occasionally so circuitous as to momentarily exasperate a usually calm Judge Walker.

Central to Badgett’s research — and subsequent testimony — is the concept that the stability of opposite-sex marriages has been unaffected by marriage rights recently bestowed on same-sex couples. Cooper pounced on that assertion and launched into data from the Netherlands, which showed a gradual decrease in marriage rates and an increase in children raised by unmarried parents since the country legalized same-sex marriage in 2001. Badgett countered that larger secular trends could be at play. The correlation, she said, was anything but causal.

Indeed, plaintiffs’ attorney David Boies countered with data illuminating a different story — namely that marriage rates for opposite-sex couples in the Netherlands have been on the decline since 1970, 31 years before gay couples were permitted to marry.

Moreover, divorce rates in Massachusetts have declined faster than the national average since gay couples were permitted to marry in the state in 2004.

Cooper also attempted to portray Badgett as a blatant marriage activist and a biased researcher, at one point mentioning her inclusion on The Advocate's list of“Our Best and Brightest Activists” in 1999 (Badgett said she didn’t lobby to be a part of the feature).

Prior to Badgett’s testimony, San Diego mayor Jerry Sanders spoke about his change of heart on the issue of marriage equality, largely the result of his daughter Lisa's coming-out to the family in 2003.

Sanders, who currently is serving a second term as mayor of California’s second-largest city, reversed his views on gay marriage in 2007. Though he had previously supported civil unions as a “fair alternative” and believed he could not have an impact on state marriage law, Sanders ultimately endorsed a brief filed by the city in support of marriage equality and announced that support during an emotional press conference that became a YouTube sensation.

The mayor was equally emotional in his testimony before the court on Tuesday, his voice breaking when relating his experience. Upon hearing from his daughter that she was gay, Sanders said, he “felt overwhelming love. I realized how difficult it was for her. I realized how difficult it was to tell her parents.”

During cross-examination, defense attorney Brian Raum asked him whether Californians who oppose marriage rights for same-sex couples necessarily do so out of hatred for gays and lesbians (whether Prop. 8 was motivated by animus on the part of its supporters may be a key determinant of whether the ballot measure violates the U.S. Constitution).

“My thoughts were grounded in prejudice,” Sanders replied. “I didn’t feel hatred. ... But the lack of animus against gay relationships doesn’t mean it’s not grounded in prejudice.”

Sanders’s endorsement of marriage rights hasn’t come without consequence, with fellow Republicans threatening to withdraw support and endorsements for his candidacy, he said. Marriage equality, Sanders continued, “Is not first and foremost in [Republicans’] minds. The national and local platforms have said that marriage is between a man and a woman.”

Speaking about his run for reelection in 2008, Sanders said his stance “didn’t cause [him] to lose it, but it didn’t make it easy.”

Following her father’s testimony, Lisa Sanders told The Advocate, “For my father to be here standing up for my rights is amazing. I am very proud he is my father, and proud of what he’s done.”

Plaintiffs are expected to complete their witness testimony by Friday, though one witness who was to testify Tuesday about his experience in “ex-gay” reparative therapy has yet to take the stand.