Perry v. Schwarzenegger: day six summary

Timothy Kincaid

January 19th, 2010

Thanks to Courage Campaign and FireDogLake for liveblogging.

Today’s testimony started with San Diego Mayor Jerry Sanders. He stated his conservative credentials: Republican, previously police chief. Sanders talked about his lesbian daughter Lisa and how he came to believe that domestic partnerships were not adequate.

Sanders spoke about the city’s resolution to support marriage equality and why he unexpectedly decided to sign it rather than veto it (liveblog paraphrase):

I struggled for a long time since I took the position. But the night before that video, I invited some LGBT friends over to tell them I was going to veto. I was shocked at the hurt that they showed when I told them. One friend said that we interact with you as a family. They felt that their children deserved married parents. I could see the harm that I would do with the veto. This was a night not about politics, but about the depth of their emotions. That created part of the emotion in the video. I realized how much it hurt for them.

Sanders’ part of the testimony is interesting. It appears that he is there to show that one can be supportive of the community and acting without hatred and yet have your judgment and behavior clouded by prejudice. He sees that his previous view of domestic partnerships as being “good enough” was a prejudiced view even though he was not motivated by hatred.

In cross-examination, the Proposition 8 supporting attorney Brian Raum proposed several other motivations for supporting the propositions: religion, biological family preference, procreation, history. In each, Sanders came back to these reasons being grounded in prejudice.

The next witness was M.V. Lee Badgett, a professor of economics at the University of Massachusetts Amherst. She has an extensive curriculum vitae in matters surrounding the economics of same-sex marriage and is the research director of the Williams Institute for Sexual Orientation Law and Public Policy at UCLA School of Law and also the directer of the Center for Public Policy and Administration at the University of Massachusetts Amherst.

She argued four points:

· Prop 8 inflicts substantial economic harm on same-sex couples residing in CA and their children.

· Permitting same-sex couples to marry will not adversely affect different-sex couples, children, or the institution of marriage.

· Same-sex couples are similar to different-sex couples in most economic and demographic respects

· Prop 8 imposes substantial economic losses on Californa and its counties and municipalities.

Badgett testified that gay couples benefit economically more from marriage than domestic partnerships and that gay couples are far more likely to enter a marriage than a domestic partnership. She took data from Massachusetts’ married same-sex couples and showed that couples and children greatly benefited from marriage.

Badgett studied the behavior and treatment of heterosexual married couples after Massachusetts allowed marriage equality and found that there were no negative consequences.

We now find out why Professor Douglas Allen withdrew as a witness. It appears that he was to tell the court that since marriage equality came to the Netherlands that the total number of marriage decreased. However, he also noted that it was part of a greater trend rather than an effect of marriage equality. Badgett used Allen’s testimony to argue that comparison to Massachusetts is more reasonable than comparison to a foreign nation.

(It seems that the Proposition 8 supporters’ decision to withdraw two thirds of their witnesses in order to bury their testimony may not have been successful. The portions most beneficial to the Olson/Boies team are being presented.)

In cross-examination, Chuck Cooper noted that even during the period in which same-sex couples could marry, some people elected domestic partnerships. Badgett said that she didn’t know if perhaps they did both. (While this might seem glib, I can easily see a couple registering immediately to get the coverage while they were planning their wedding or fearing their marriage would become invalid through Prop 8).

Cooper tried hard to suggest that gay people prefer domestic partnerships and don’t really want marriage. And he challenged Badgett’s numerical accuracy. He did a lot of quibbling about numbers (18,130 v. an estimate of 18,000). Badgett dismissed the variances and reiterated that hundreds of millions of dollars would be lost by the state for not allowing marriage equality.

Cooper made up some hypothetical situations and tried to get Badgett to explain variances between his hypotheticals and her estimates. Much of the cross examination appears to be an exercise in obfuscation, seeking to have Badgett justify old estimates made on some assumptions without allowing for the fact that those assumptions were impacted by later events.

Cooper tries to have fun with math by trying picking dates and comparing marriage rates and children out of wedlock in the Netherlands. He tried to intimate that marriage equality caused the Dutch to value marriage less.

However, Badgett points out that legalizing gay marriage had no statistically valid impact on this trend and his graphs look the same before marriage equality as they do after. Cooper sought to find measures of difference that were minuscule and find meaning in them.

In redirect, Boies showed that Cooper’s selection of 1994 as a start point was hand picked to try and present a false impression. Badgett presented a chart going back to 1960 which proved that the decline in marriage rates in the Netherlands was part of a long trend and was not impacted by the legalization of same-sex marriage. Further, he showed trends of heterosexual marriage and divorce in Massachusetts that, if causal, would be an argument for marriage equality.

(I know that the information I’m receiving is filtered through the eyes and ears of those who sympathize with the plaintiffs. But, even so, it is does appear that the defense is ill prepared and is making foolish blunders. Why talk about the Netherlands if it doesn’t prove your point and why present charts if they are only going to be shown to be falsely constructed?)

Elizabeth Casswell

January 19th, 2010

Nice summary, thank you!


January 19th, 2010

Once again, thank you for covering this landmark case in a very readable and insightful manner.

I try, in all situations, to weigh the logical and factual merits of arguments in any heated discussion, but it seems that the defense is grasping at straws resorting to unfounded statistical quibbles. Surely they will have their chance to present their own evidence, but in the meantime they seem unable to cobble together a coherent line of questioning.


January 20th, 2010

Could you links to any anti-equality websites with analysis of the trial? It would be interesting to see how they are presenting things. So far, I have found is Andy Pugno on That site is rather short on links, and my googling may not be up to snuff, but even Google seems short on links to the pro-prop-8 side. I want some hard-hitting analysis from their side. Any tips, any one?

Eric in Oakland

January 20th, 2010

“Cooper tried hard to suggest that gay people prefer domestic partnerships and don’t really want marriage.”

The blacks really PREFER having their own water fountain and don’t really want to use the same one that whites use.

Timothy Kincaid

January 20th, 2010


I can’t find an anti-gay site that is live-blogging. Even Maggie Gallagher linked to a pro-gay liveblog to make some point she wanted to make.

If you find a good anti-gay summary, please let us know. I like to have a broad base to my input. I’d rather know the truth than the spin.


January 20th, 2010

Below is what I’ve found this evening. The Alliance Defense Fund is twittering and blogging.

The Anglicans are quoting the Baptists:

Interestingly, the antigay forces’ pages that I’ve read in the past few hours argue that the trial is a waste of time as the issue was settled by California’s November referendum. So turn off the trial now please and go home everybody!

I was amused to read this ditty by ADF lawyer Austin R. Nimocks, “Aren’t changes to social policy things that belong to the legislative process (which includes the initiative), or does it really belong to one judge?” Yes, amused because California’s legislature did address the question twice (Sept. 2005 and Sept. 2007), approving marriage equality for same-sex couples. The govenor’s veto of those two decisions was overruled by the state Supreme Court in 2008.

In all my googling, I found scads of lawyers blogging in favor of marriage equality. None blogging against it offering support for ADF. But I suppose I didn’t delve deeply enough, or maybe that evil pro-homosexual-agenda Google is blocking them?

Thanks, Timothy!


January 20th, 2010

Hilarious twittering to parody the anti-gay side:


January 21st, 2010

“I know that the information I’m receiving is filtered through the eyes and ears of those who sympathize with the plaintiffs.”

Which is one of the greatest concerns in making ‘precise’ predictions of the outcome. Or to be able to more accurately understand the pros and cons being discussed.

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