Mid-day report: second Tuesday morning Prop 8 trial

Lee Badgett

Lee Badgett

Tuesday morning’s testimony in the Proposition 8 trial began with riveting and emotional testimony by San Diego’s Republican Mayor Jerry Sanders, but the legal team scored a big victory during more testimony concerning economics.

The legal points were scored when David Boies, a lead attorney challenging Proposition 8 was able to introduce into the record a statement made by one of the defendants’ now-withdrawn experts.

Boies asked plaintiffs’ expert Lee Badgett to comment on a statement by defendant expert Douglas W. Allen during his deposition. Allen said this about a statistical drop in the number of heterosexual marriages in the Netherlands in recent years: “Like most western countries, this is no doubt part of a secular trend.”

Defendants’ lead attorney Charles Cooper made repeated objections, but U.S. District Court Judge Vaughn Walker said he thought it was an appropriate question.

Allen’s statement appears to counter the defense team’s argument that allowing same-sex couples to marry damages the institution of marriage, by suggesting that the drop has been part of a larger trend generally toward fewer heterosexuals choosing marriage.

It also appears to support statements made in press conferences by Boies that the defense team has been withdrawing many of its witnesses because they have made statements in deposition that contradict the defense team’s arguments, and not because they fear harassment.

The testimony by Badgett, a researcher for the Williams Institute in California and at the University of Massachusetts-Amherst, has attempted to establish that there is “very clear” evidence that same-sex couples see domestic partnerships as second-class designations, and that they benefit significantly from marriages. Badgett said that same-sex couples in California sought marriage licenses at roughly the same rate as same-sex couples in Massachusetts did. She said that 28 percent of the same-sex couples who married in Massachusetts have children. And she said that one in ten children who are adopted in California are adopted by gay and lesbian parents.

These arguments help establish an important government interest in supporting equal marriage rights and, in so doing, contradict claims by proponents of Proposition 8 that there is some governmental need to ban same-sex marriages.

Cooper has spent considerable time, on cross-examination, in attempting to discredit Badgett’s reported findings by suggesting that she is a “gay rights activist” and, thus, subjective in her studies. At lunch recess, he advised the court he has about two hours more cross-examination of Badgett this afternoon.

San Diego Mayor Jerry Sanders, the first plaintiffs’ witness on the stand today, told with more detail a story that has become very familiar to the LGBT community. In testimony that was often choked with tears, Sanders described how he came to reverse his own opposition to same-sex marriage after his daughter came out to him and he discussed his plans to veto the city’s participation in a brief in support of same-sex marriage in 2008.

Sanders said his own transformation from “prejudice” to understanding about gay people came from his pride in his daughter, but also important conversations he had with openly gay staff and neighbors.

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