January 19, 2010 Volume 6
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
BEFORE THE HONORABLE VAUGHN R. WALKER
KRISTIN M. PERRY, SANDRA B. STIER, PAUL T. KATAMI, and JEFFREY J. ZARRILLO,
Plaintiffs,
VS.
ARNOLD SCHWARZENEGGER, in his official capacity as Governor of California; EDMUND G. BROWN, JR., in his official capacity as Attorney General of California; MARK B. HORTON, in his official capacity as Director of the California Department of Public Health and State Registrar of Vital Statistics; LINETTE SCOTT, in her official capacity as Deputy Director of Health Information & Strategic Planning for the California Department of Public Health; PATRICK O'CONNELL, in his official capacity as Clerk-Recorder for the County of Alameda; and DEAN C. LOGAN, in his official capacity as Registrar-Recorder/County Clerk for the County of Los Angeles,
Defendants.
NO. C 09-2292-VRW
San Francisco, California
Tuesday
January 19, 2010
TRANSCRIPT OF PROCEEDINGS
Reported By: Katherine Powell Sullivan, CRR, CSR 5812
Debra L. Pas, CRR, CSR 11916
Official Reporters - U.S. District Court
APPEARANCES:
For Plaintiffs:
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036-5306
BY: THEODORE B. OLSON, ESQUIRE
MATTHEW D. MCGILL, ESQUIRE
GIBSON, DUNN & CRUTCHER LLP
333 South Grand Avenue
Los Angeles, California 90071-3197
BY: THEODORE J. BOUTROUS, JR., ESQUIRE
CHRISTOPHER D. DUSSEAULT, ESQUIRE
SCOTT MALZAHN, ESQUIRE
GIBSON, DUNN & CRUTCHER LLP
555 Mission Street, Suite 3000
San Francisco, California 94105-2933
BY: ETHAN D. DETTMER, JR., ESQUIRE
ENRIQUE A. MONAGAS, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
333 Main Street
Armonk, New York 10504
BY: DAVID BOIES, ESQUIRE
ROSANNE C. BAXTER, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
575 Lexington Avenue, 7th Floor
New York, New York 10022
BY: JOSHUA I. SCHILLER, ESQUIRE
BOIES, SCHILLER & FLEXNER LLP
1999 Harrison Street, Suite 900
Oakland, California 94612
BY: JEREMY MICHAEL GOLDMAN, ESQUIRE
STEVEN C. HOLTZMAN, ESQUIRE
For Plaintiff- Intervenor:
CITY AND COUNTY OF SAN FRANCISCO
OFFICE OF THE CITY ATTORNEY
One Drive Carlton B. Goodlett Place
San Francisco, California 94102-4682
BY: DENNIS J. HERRERA, CITY ATTORNEY
THERESE STEWART, DEPUTY CITY ATTORNEY
VINCE CHHABRIA
RONALD FLYNN
DEPUTY CITY ATTORNEYS
For Defendant Gov. Schwarzenegger:
MENNEMEIER, GLASSMAN & STROUD
980 9th Street, Suite 1700
Sacramento, California 95814-2736
BY: KELCIE M. GOSLING, ESQUIRE
For Defendant Edmund G. Brown Jr.:
STATE ATTORNEY GENERAL'S OFFICE
455 Golden Gate Avenue, Suite 11000
San Francisco, California 94102-7004
BY: TAMAR PACHTER, DEPUTY ATTORNEY GENERAL
STATE OF CALIFORNIA
Department of Justice
Office of the Attorney General
1300 I Street, 17th Floor
Sacramento, California 95814
BY: GORDON BURNS, DEPUTY SOLICITOR GENERAL
For Defendant- Intervenors:
COOPER & KIRK
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
BY: CHARLES J. COOPER, ESQUIRE
DAVID H. THOMPSON, ESQUIRE
HOWARD C. NIELSON, JR., ESQUIRE
NICOLE MOSS, ESQUIRE
PETER PATTERSON, ESQUIRE
ALLIANCE DEFENSE FUND
15100 North 90th Street
Scottsdale, Arizona 85260
BY: BRIAN W. RAUM, SENIOR COUNSEL
JAMES A. CAMPBELL, ESQUIRE
JORDAN LORENCE
DALE SCHOWENGERDT, ESQUIRE
ALLIANCE DEFENSE FUND
101 Parkshore Drive, Suite 100
Folsom, California 95630
BY: TIMOTHY D. CHANDLER, ESQUIRE
For Defendant Dean C. Logan:
OFFICE OF LOS ANGELES COUNTY COUNSEL
500 West Temple Street, Room 652
Los Angeles, California 90012
BY: JUDY WHITEHURST, DEPUTY COUNTY COUNSEL
For Mr. Garlow, Mr. McPherson:
AMERICAN CENTER FOR LAW & JUSTICE
11 West Chestnut Hill Road
Litchfield, Connecticut 06759
BY: VINCENT P. MCCARTHY, ESQUIRE
For Proposed Intervenor Imperial County, et al.:
ADVOCATES FOR FAITH AND FREEDOM
24910 Las Brisas Road, Suite 110
Murrieta, California 92562
BY: JENNIFER L. MONK, ESQUIRE
_ _ _ _
P R O C E E D I N G S
JANUARY 19, 2010 8:37 A.M.
THE COURT: Very well. Good morning, counsel. (Counsel greet the Court.)
THE COURT: I trust you all had a pleasant 3-day weekend. (Laughter) All right. What, if any, matters do counsel have to take up with the Court? Mr. Boutrous.
MR. BOUTROUS: Good morning, Your Honor. Two things I wanted to put on the Court's radar screen, relating to the discovery issues. The proponents filed a motion to amend Judge Spero's January 8 order, to expand the core group for purposes of discovery so that it would now reach all the way to Massachusetts. And we have filed our opposition to that motion. They -- as I understand it, proponents are withholding something -- they are withholding documents that would otherwise be responsive based on their expanded core group. The second discovery issue that relates to that is, we filed a motion a few minutes ago -- so I know the Court and counsel haven't had a chance to review it -- seeking to reopen Mr. Prentice's deposition. He is the executive director of ProtectMarriage.com. We received about 20,000 pages of documents from the proponents over the last week, in response to Judge Spero's order. And we would like the opportunity to depose Mr. Prentice on those documents. He is mentioned in -- there's at least 400, or so, that we've identified so far, where he is a principal person on those documents. And we're trying to narrow that down, but we thought it would streamline things, if we do end up calling him as a witness, to spare the Court our walking through all these documents if we could -- if we could reopen the deposition. Some of the documents, at a bear minimum, cast serious doubt on his prior statements in his deposition, disclaiming connections to various other groups. So we think they are very relevant. So those were -- those things have all just been filed, on our side, this morning. And we thought it might make sense, on these issues, for Judge Spero to take -- take a look at them, because they relate to the proceedings that we last had before Judge Spero.
THE COURT: Well, let's see. That first matter that you raised, the motion re Magistrate Judge Spero's discovery order, there are two -- let me see if I understand what it is you are referring to specifically. There is one motion which seeks to increase the core group by adding -- I believe, it's four persons, three or four persons: a Mr. Peterson, Richard Peterson; a Mr. Rob Worthlin, who I assume is the individual we have seen in these television advertisements; and a John Doe. Now, is it that motion that you're referring to?
MR. BOUTROUS: Yes, Your Honor. I think it's document 474 on the -
THE COURT: 474.
MR. BOUTROUS: -- Pacer system.
THE COURT: Right. Now, there's also a motion challenging Magistrate Judge Spero's general discovery order. That's separate.
MR. BOUTROUS: That's correct, Your Honor.
THE COURT: I think I'm ready to rule on that latter motion based upon the papers. And I don't think we probably need to hear anything further with respect to that. But have you had an opportunity to file a reply to the -- to docket number 474?
MR. BOUTROUS: Yes, Your Honor. We filed that this morning.
THE COURT: All right. So why don't I take a look at that, and either decide it myself or refer it to Magistrate Judge Spero. And are those, then, the two matters that you wish to take up with the Court and have the Court rule upon, the Prentice deposition and the motion that's embodied in docket number 474.
MR. BOUTROUS: That's correct, Your Honor. Thank you.
THE COURT: All right. Mr. Cooper. I assume you want to reply to the motion to reopen the Prentice deposition.
MR. COOPER: Yes, Your Honor. We haven't seen that. It's just now been --
THE COURT: Sorry?
MR. COOPER: I was advised when you were advised, that it was filed. We haven't seen it and would like an opportunity to look at it.
THE COURT: Of course.
MR. COOPER: And put a response in to the Court.
THE COURT: When do you think you can do that?
MR. COOPER: We can do it promptly, Your Honor.
THE COURT: "Promptly" means when?
MR. COOPER: No later than tomorrow.
THE COURT: All right. So I will have it tomorrow morning?
MR. COOPER: Yes, sir.
THE COURT: All right. Well, I'll take a look at it or send it to the magistrate. Any other preliminary matters that we need to take up at this time? Hearing none, who's the next witness?
MR. BOUTROUS: Your Honor, I am going to turn it over to City Attorney Dennis Herrera, who will call our first witness of the day.
THE COURT: Very well. Mr. Herrera.
MR. HERRERA: Good morning, Your Honor. Plaintiff-Intervenors call Mayor Jerry Sanders to the stand.
THE COURT: Who?
MR. HERRERA: Mayor Jerry Sanders.
THE COURT: By the way, I've read the deposition taken by one of your deputies, Mr. Flynn. I think he needs some counseling on proper objections in a deposition. I think you really need to review that deposition, Mr. Herrera, as the leader of your office, and do a little woodshedding of some of the lawyers.
MR. HERRERA: Okay. We will take a look at it, Your Honor.
THE COURT: All right.
THE CLERK: Raise your right hand, please. JERRY SANDERS, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do.
THE CLERK: Please have a seat. State your name, please.
THE WITNESS: Pardon me?
THE CLERK: State your name.
THE WITNESS: Jerry Sanders.
THE CLERK: And spell your last name.
THE WITNESS: S-a-n-d-e-r-s.
THE CLERK: Your first name.
THE WITNESS: Jerry. J-e-r-r-y.
THE CLERK: Thank you.
DIRECT EXAMINATION BY MR. HERRERA:
Q. Good morning, Mr. Sanders.
A. Good morning.
Q. You are currently the mayor of San Diego; is that correct?
A. Yes, I am.
Q. And what political party are you affiliated with?
A. I'm a Republican.
Q. How long have you been mayor, Mr. Sanders?
A. I have been mayor for four years.
Q. And what term are you in?
A. I'm in my second term.
Q. Prior to becoming mayor, did you have a career in public service?
A. Yes, I did.
Q. What was your first job in public service?
A. I went onto the San Diego Police Department as a recruit in 1973.
Q. And can you give us a brief description of the positions you held in the San Diego Police Department.
A. I can. I graduated from the Police Academy in August of 1973, became a patrol officer in the city of San Diego, working in many different areas and divisions of the city. I was promoted to agent in 1978, and then to sergeant in 1979, where I had a role in policing squads of officers in different parts of the city. Also some administrative assignments. I became a lieutenant in 1981. Had a geographical area. I also had assignments as the SWAT commander, as the director of the San Diego Police Academy. In 1986, I was promoted to captain, where I held two assignments, two geographical areas in the city of San Diego, where I was responsible for policing of about 160,000 people in each of those. I was promoted to commander in 1990, where I had overall command of half of the city. And, then, also served as an acting assistant chief in charge of internal affairs. I was promoted to assistant chief, where I had assignments in internal affairs, and some administrative assignments. And then I was promoted to chief of police in 1993, and retired in 1999.
Q. Between 1999, when you retired, and 2005, when you became mayor, did you have any other positions in public service?
A. Yes, I did. I was the president and CEO of the San Diego County United Way, from 1999 until about 2002. The United Way of San Diego took workplace donations and distributed those to a wide variety of health and human services throughout the San Diego region, making sure we funded priorities for children, adults, all sorts of different issues. I was then asked, after I left United Way, to reconstitute the American Red Cross board in San Diego, which had been removed by the national chapter. I went on to become the chair of the board, and served with the Red Cross for about two years, prior to going on the national board of directors, right before I ran for election.
Q. Mayor Sanders, are you gay?
A. No, I'm not.
Q. Are you married?
A. Yes, I am.
Q. For how long have you been married?
A. Been married for 16 years to my wife Rana Sampson.
Q. Do you have any children?
A. I do.
Q. How many?
A. I have two daughters. Lisa, 26, and Jamie, 23.
Q. Are your daughters from your marriage with Rana, or from a previous marriage?
A. They are from a previous marriage.
Q. And you've only been married two times?
A. I've been married twice; the first time for 14 years.
Q. Are Lisa and Jamie lesbian or straight?
A. Jamie is straight. Lisa is a lesbian.
Q. What was your relationship like with Lisa, when she was growing up?
A. Well, Lisa was my first daughter. We had a very strong relationship. Excuse me. She was, basically, my shadow. I was very busy on the police department, obviously, with my career. I was a lieutenant when she was born. But every weekend we did yardwork together, when she could barely walk. We'd go to Home Depot together. She probably knows more about Home Depot than most kids. (Laughter) We would go to the dump together, on my promise that I would buy her a doughnut and she could watch me remove all of the trash from the truck. We were pretty much inseparable over weekends, until she went away to college. I actually had both daughters every weekend, from the time I was divorced until they both went away to college.
Q. And how did you first learn that Lisa was a lesbian?
A. Lisa called us in her -- trying not to look at my daughter right now. Lisa called me in her sophomore year of college, said that she wanted to come home and talk with my wife and I, had something she needed to discuss with us. When I asked her what it was about, she said that she would prefer to wait until she got home. When she came home, she sat down with us and told us she was a lesbian and that she was in a lesbian relationship.
Q. And what was your reaction?
A. Well, it was one where I felt overwhelming love. I realized how difficult this was for her. I realized how difficult it was to tell your parents that you were a lesbian. I told her that I felt very strongly that we loved her more than we ever would, and that we would be there to support her in every step of the way. But I also told her that I thought I had concerns, and that I was -- I thought it was very tough on gay people in society.
Q. Were you upset at all?
A. No. I was very proud of her for coming and letting us know.
Q. And when you say you were concerned, why were you concerned?
A. Well, I have been a police officer for 26 years. During that time, I had seen what happened to people who came out, who had either a gay or lesbian relationship. I had -- go back to when I was a young police officer. We had a sergeant on our squad. This was in the early '70s. San Diego was very conservative at that time. Very good sergeant. He came to us and told us that he was gay. And it wasn't long after that -- and I had talked with several squad members. We still respected him tremendously. But that wasn't long after that that he left the police department, literally driven out. (Simultaneous colloquy.)
A. I'm sorry. I also, through the years, have seen violence against the gay community simply because people were gay. We had a series of crimes that would occur in the part of San Diego that had a lot of gay people there; the gay bashings, the robberies. We had a death occur in the early '90s, that was a part of a series of that. I had seen a lot of that type of thing, and heard the slurs and heard the comments that people make.
Q. Mr. Mayor, when you first ran for mayor, did you take a position on the issue of marriage equality?
A. I did.
Q. And what was your position?
A. My position that I thought civil union was a fair alternative.
Q. And why did you take that position?
A. Number one, to put it in context, I was running during a very difficult time in San Diego's history. We were being investigated by a range of federal authorities, by the SEC, by the U.S. Attorney, by the attorney -- the district attorney. We were facing huge financial problems. And I felt that in the context of the election campaign that the issues of gay marriage were not something that the city of San Diego or I could have an impact on. I also was a Republican, and felt that civil unions was a fair alternative to marriage.
Q. Did there come a time when you changed your position on --
A. Yes.
Q. -- issue of marriage equality?
A. Yes, I did.
Q. And when was that?
A. It was in September of 2007. The City of San Diego, the City Council passed a resolution to file an amicus brief on behalf of the City of San Diego, supporting the City of San Francisco on a lawsuit. And that came to my desk, and I had to make a decision whether to veto or whether to sign the resolution.
Q. And what was your decision?
A. My decision was to sign the resolution.
Q. Did you make a public announcement to explain the reasons for your decision?
A. I did.
Q. And was that announcement videotaped?
A. Yes, it was.
Q. Is it your understanding that that videotape is widely available?
A. It was on YouTube. I received letters and e-mails from around the world, talking about seeing that on YouTube.
MR. HERRERA: Your Honor, at this point, I would like to play Plaintiffs' Exhibit 186, which is a video recording of the announcement.
THE COURT: Very well. (Video played in open court.)
MR. HERRERA: I'd ask that Exhibit 186 be admitted into evidence, Your Honor.
MR. RAUM: No objection.
THE COURT: 186 is admitted. (Plaintiffs' Exhibit 186 received in evidence.)
BY MR. HERRERA:
Q. Mr. Mayor, you're obviously very emotional during that press conference. Can you tell us why?
A. Well, now that we've established that I cry in public... (Laughter) I was extremely emotional, obviously, because of the decision that I had made. I was emotional because of the fact that I felt that I came very close to making a bad decision; one that would affect, literally, hundreds of thousands of people. I came very close to showing the prejudice that I obviously had to my daughter, to my staff, and to the community in San Diego. And I think that what hit me when I started reflecting that night was that I had been prejudice, and I was showing that prejudice in the position to veto that. I was saying that one group of people did not deserve the same dignity and respect, did not deserve the same symbolism about marriage. And I was saying, in effect, that their marriages were less than, were less important than the marriages to heterosexual couples. So all of those things came into it.
Q. Did your daughter, Lisa, talk you into signing the resolution?
A. No. Quite to the contrary.
Q. What do you mean by that?
A. Lisa worked on my campaign. Lisa was with me every step of the way, along with my wife and my other daughter. Lisa felt that the position on civil unions was one that she understood, was one that she thought the community understood, and one that was probably politically palpable to the base of support that I had. And she felt that it was important that I be reelected because I was a good mayor, in her estimation, and that that was acceptable under those circumstances.
Q. What convinced you to sign the resolution?
A. Well, I -- as I said in this -- in the video, I struggled with this from the time I took the position on civil unions. The night before this press conference, though, I invited a group of individuals from the gay/lesbian community; some of them neighbors, some of them friends, some of them acquaintances. And I wanted to give them the courtesy of telling them that I intended to veto the resolution.
Q. And what did those individuals share with you?
A. Well, you know, I suppose what I expected was that they'd say civil unions are fine. I guess I was absolutely shocked at the depth of the hurt, the depth of the feeling, the depth of the comments that came from them. I remember one of our neighbors, who I have known for quite some time, said, basically: I walk by here -- my partner and I walk by here all the time, with our children. And you always stop, when you are doing yardwork, and say hello to them and talk to them. You know, we're a family just like you're a family. One of our other neighbors said that she had children just like I did; they loved the children just as many much; and that they felt their children deserved parents, also, and they deserved to have parents who were married. The depth of the feeling was unbelievable. The depth of the hurt. And also I could see the harm that I had done by considering the veto.
Q. Did any of these individuals threaten you with any political repercussions?
A. No. And this wasn't a night about politics. This was literally a night where they showed the depth of their feelings and the hurt. And I think that's one of the things that created part of the emotion the next day, as I realized how close I had come to really closing the door on things that were unbelievably important to them as a group of people.
Q. And as mayor, were there any other reasons why you decided to sign the resolution?
A. I -- I think it's in the interest of government. And I go back to being a police officer. I know how easy it is to discriminate against people when you hear discrimination or you hear slurs or you see unequal treatment by the leadership of the department. I felt very strongly that it was important we treat everybody equally in our community policing, planning. We went to every community in San Diego, African American, Asian, Latino, gay/lesbian, and told them we wanted to police them like they wanted to be policed; and we wanted them to become part of that policing. I know that it's also difficult if you're in a relationship and you can't talk about it at work. You can't tell people that you have a partner, or you can't tell people that you're married and you have children, if you're a gay or a lesbian. All of those things, I think, are important on the government's side, because if government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing. And I think that, as I look back on San Diego being a fairly conservative place, very different than San Francisco, discrimination took the form of violence against the gay community. And I don't think that's in government's interest for the community. I don't think it's in government's interest for governing itself.
Q. Now, you testified that governmental discrimination could possibly foster private discrimination. In your experience as a police officer, are hate crimes a form of private discrimination?
A. Well, I think hate crimes are the most extreme form of discrimination. Hate crimes are perpetrated on people solely because of their skin color, their religious beliefs, or their sexual orientation. And that's frequently -- a hate crime is frequently part of the violence. It's violence simply because that person is not like somebody else. And I think that when a city, when leadership talks in disparaging terms about people, or denies the rights that everybody else have, the fundamental rights, then I think some people in the community feel empowered to take action in hate crimes and in other ways.
Q. And during the time that you were police chief, what was your experience with how the police department dealt with hate crimes in San Diego?
A. Well, I think our department, like a lot of departments, didn't like to admit that there were hate crimes. We came a long way during that period of time, where we created a hate crimes unit, where the district attorney did. But, I have to tell you, in the early days there were a lot of hate crimes. There were gay bashings, where young men would go out and get drunk and feel no problem at all with bashing people who they thought were gay people, whether they were or not. I can remember one circumstances where we had a series of robberies that culminated in the death of a young gay man simply because he was gay. I can remember after 2006, after the pride parade, the pride celebration, an individual who decided that he could take it upon himself to punish the entire community by bringing a baseball bat and literally beating one man almost to death, and beating several others.
Q. And that hate crime that you just referred to in 2006, that was during your term as mayor, correct?
A. Yes, it was.
Q. Mr. Mayor, at the beginning of your public career, were you as sensitive to the concerns of the gay and lesbian community as you are now?
A. No, I wasn't.
Q. How were you different?
A. Well, I -- I can't say that I was different from a lot of other people. I was a young cop in the early '70s. I participated in the slurs in the locker room and line-ups. I think what really turned my opinion was when I saw the sergeant -- excuse me, the sergeant who admitted he was gay, was a good sergeant, was a good police officer, and then felt the -- the discrimination from the rest of the department that literally drove him out. I felt that, fundamentally, that was not right. Throughout my career on the police department, it was not easy to come out of the closet for gay and lesbians. People we knew were gay and lesbian would not come out of the closet. They felt that their careers would be over. They felt that they would be treated differently. My chief of staff came to me when I became the chief of police and said, "There's something I need to tell you. And I don't know whether it's going to affect your decision on whether to have me or not, but I'm a lesbian. And I'm not going to come out of the closet because I don't think it's in my best interest, because people will see me only as a lesbian and not as your chief of staff." So I think it was very tough for people on the police department, as it was in the rest of society.
Q. Mr. Mayor, earlier you said that the reason -- one of the reasons, at least, that you were so emotional at the press conference is that you felt like you had been prejudice. And I just have to ask you, how can someone who has been as committed to equality for all people be prejudiced against anyone?
A. I guess that was really a defining moment for me. I had been on the National Conference for, at the time, Christians and Jews, for ten years on the board directors. Later became the National Conference for Community and Justice. I had been the board chair for two years. I had participated in diversity workshops, diversity weeks, with high schools. I had gone through all these issues. I had participated in two rounds of diversity training with the City, 4-day workshops, where we talked about all these issues. And, yet, the fact that I still believed that civil unions were equal to marriage, I think, really kind of shook me, because I think that the decisions I made on that were grounded in prejudice. It didn't mean I hated gay people. Didn't mean I didn't think the community was equal in every way. It simply meant that I hadn't understood the issue clearly enough, and I was discriminating even against my own daughter by saying that her relationship was less than the relationship and marriage my wife and I had.
Q. Is your daughter, Lisa, in a romantic relationship now?
A. Yes.
Q. With whom?
A. With Meagan.
Q. And how long have you known Meagan?
A. Known Meagan for two or three years.
Q. And can you describe your relationship with her?
A. I love being with Meagan. She is like a third daughter. She is great to be around. She's smart. She's resourceful. She's energetic. She's hardworking. She has been an excellent partner for my daughter. And I love being around both of them. But Meagan is like another piece of the family, and has been.
Q. Did Lisa and Meagan ever become domestic partners?
A. They did.
Q. Do you know when that was?
A. It was in July of 2009.
Q. And do you know if they had a ceremony to celebrate their domestic partnership?
A. No, they didn't.
Q. Did they tell you beforehand that they were going to become domestic partners?
A. No. I got a text from Lisa one day, saying that they had got the DP taken care of a couples of days ago. (Laughter) And I texted back saying, What in the world is a DP? That's when I learned that they had gone down to either the state or county -- I'm still not sure -- to get a domestic partnership paperwork filled out so that they could share benefits.
Q. So you didn't go with them to register as domestic partners?
A. You know, I don't think that's really an exciting thing to do... (Laughter) ... to go to a state or county building and watch someone fill out forms.
Q. Did Lisa and Meagan send out announcements when they became domestic partners?
A. No.
Q. Did anyone congratulate you on the fact that they had become domestic partners?
A. No.
Q. Let me ask you, as Lisa's father, do you believe domestic partnership is sufficient for her?
A. No, I don't.
Q. Why not?
A. I believe my daughter deserves the same opportunity to have a wedding in front of family and friends and co-workers. I believe she has -- she should have the same opportunity to have that recognized lawfully. I believe that as a gay couple they should have the same right as a heterosexual couple in the marriage. I think we deserve or she deserves to have that.
Q. Did Lisa and Meagan ever get married?
A. They did, in December of 2009, about a month ago.
Q. Where did they get married?
A. They got married in Vermont. They went back to visit Meagan's parents in upstate New York. And they felt strongly they wanted some marriage certificate from some government, acknowledging that they were a married couple. And they went to Vermont, the two of them went to the county courthouse in a city there. The city clerk said, I'll have to find somebody to marry you, a justice of the peace. He said, basically, we have a justice of the peace who has a funeral in the afternoon, but I think she can do a wedding in the morning. (Laughter) And they went over to her house. She was prepared for the funeral, but didn't have her shoes on. And she married the two of them in her front room.
Q. Were you there?
A. No, I wasn't.
Q. How did you learn of it?
A. Lisa phoned me and told me that they had gotten married.
Q. And how did that make you feel?
A. It made me feel pretty bad that they had to go across the country and be married in somebody's front room, by somebody who was preparing to do a funeral; be married without family and friends.
Q. Did anyone congratulate you on your daughter getting married?
A. A lot of people congratulated me. I believe Mr. Chandler congratulated me during the deposition. I appreciated Mr. Chandler's congratulations.
Q. Has the marriage between Lisa and Meagan harmed your marriage in any way?
A. Uhm, I think that what it has done is make my wife and I stronger. But it has not harmed our marriage. It's not harmed anybody in our family's marriage. I don't believe it's harmed anybody in the world. I think Lisa and Meagan have been an excellent example for us of persevering, loving each other, and being willing to go to great lengths to show that.
Q. Mr. Mayor, during the course of the Proposition 8 campaign, did you see any Yes On 8 campaign signs that made reference to protecting the children?
A. Yes, I did.
Q. What did you see?
A. I suppose what I saw was what everybody else saw, signs that said "Yes On 8" and then showed little children, cutouts, paper dolls. I'm not sure what the symbolism was involved. But that's what I saw.
Q. And how did that make you feel?
A. Well, I couldn't imagine why anyone would think that children would be harmed by marriage. I couldn't imagine how Lisa and Meagan would -- could by any way harm anybody else. I couldn't imagine why children would have to be protected from my daughter, Lisa, who is one of the kindest and most compassionate people that I know. So that was the feeling I had, was, I have a loving daughter, kind, compassionate, and yet somehow society has to be protected -- the children in society need to be protected from her.
Q. Are Lisa and Meagan planning to have children?
A. I don't know. But I would certainly like to be a grandfather. (Laughter)
MR. HERRERA: Nothing further, Your Honor.
THE COURT: Very well. Cross-examine, Mr. Raum.
MR. RAUM: Thank you, Your Honor. We've got a few binders to distribute.
CROSS EXAMINATION BY MR. RAUM:
Q. Good morning, Mayor Sanders.
A. Good morning.
Q. My name is Brian Raum. It's nice to meet you. Mr. Mayor, you spent the first 26 years or you spent 26 years of your career involved with the San Diego Police Department; is that right?
A. That's correct.
Q. And during that 26 years, you saw a decrease in the amount of discrimination within the department against gays and lesbians. Would that be fair to say?
A. That would be fair to say, that we worked very hard on that issue, and I believe that's true.
Q. And, in fact, you made specific efforts to improve the Department's relationship with the gay and lesbian community?
A. Yes, I did.
Q. And the San Diego Police Department's relationship with the gay and lesbian community improved over time?
A. Yes, I believe it has.
Q. And, currently, you would acknowledge that the San Diego Police Department is supportive of the gay and lesbian community?
A. I would say that they're fair in their treatment of the gay and lesbian community, as we are with treatment in every community in San Diego.
Q. Would you agree that, in a broad sense, generally speaking, that the San Diego government is more accepting of the gay and lesbian community today than it was in the past?
A. I believe that it is more accepting, yes.
Q. And the City has specifically trained and worked with its employees to make sure that they convey respect and dignity to the gay and lesbian community?
A. Uhm, we have worked to make sure that we have our employees convey dignity and respect to every community in San Diego, whether it's the African American community, the Latino community, the Asian community, or the gay and lesbian community.
Q. And there are several open-gay politicians in San Diego; is that fair to say?
A. I would say that there are two on the city council. One in the state senate.
Q. And Mr. -- I'm sorry, Ms. Kehoe, she is in the state senate?
A. She is our senator.
Q. Toni Atkins is on the city council?
A. No, she is not. She was on the previous council.
Q. In fact, she termed out. That's why she's not on the council anymore?
A. Right.
Q. What about Todd Gloria, is that one of the other individuals that you were referring to on the city council?
A. Todd Gloria is on the city council, yes.
Q. And Carl DeMaio?
A. Carl DeMaio is on the city council, also.
Q. So out of the eight current members, two of those members identify as gay?
A. Yes, they do.
Q. You would say, as a whole, the city council is responsive to the needs of the gay and lesbian community, correct?
A. I would say, as a whole, that each city council member individually decides the issues that are important to that person and their community.
Q. I'd like to draw your attention to tab 1, which is your deposition transcript, dated January 5th, 2010. Do you see that?
A. Yes, I do.
Q. And if you could turn to page 38.
A. Yes, sir.
Q. Starting on line 22, you were asked: "QUESTION: As a whole, do you think that the council is responsive to the needs of the gay and lesbian community?"
A. I do, along with every other community.
Q. And your answer was: "I do."
A. I do.
Q. Now, Bonnie Dumanis --
A. Yes.
Q. -- she serves as the district attorney for San Diego?
A. Yes, she is.
Q. And she identifies as a lesbian?
A. Yes, she does.
Q. And you've indicated that you've met a couple of state assembly members who also identify as gay; is that correct?
A. That's correct.
Q. Would you agree with that activists for the gay and lesbian community have been effective in some of their political efforts in San Diego?
A. I don't know that those came because of activism. I only know of one issue that's really come before us, and that's been the gay marriage issue.
Q. I'd like to draw your attention to page 41 of your deposition transcript, starting with line 6: "QUESTION: You talked earlier about some community activists in the gay and lesbian community that you know. Would you describe their efforts as being effective within the San Diego community?" And your answer was: "You know, I suppose, on certain issues they have been effective. Certainly, on some issues they haven't been." Do you remember testifying to that?
A. I do.
Q. And you would agree that on certain issues that certain activists have been effective in their efforts to support the gay and lesbian community?
A. I'll go back to what I just said. There has only been one issue that's come before the council that was directly gay or lesbian related, since I've been there. And that is this issue.
Q. I see. What were you referring to in your deposition when you said they have been effective on certain issues?
A. I think that they represent a class of people. But I don't know of anybody -- I mean, we don't provide health and human services in the city of San Diego. We are not a county. We don't provide funding for those services. So when I was talking about this, we have seen activism in the community. But, really, issues don't come in front of the City of San Diego. They would go in front of the County of San Diego, because they do the funding for the HIV/AIDS programs, for all these other programs.
Q. So were you referring to activists being effective at the county level; is that what you were referring to?
A. Well, I'm talking about overall. I don't know how effective they are at the county. That's not within my area. But I think that they have brought forward issues -- or, excuse me, on this issue. I know that they have brought forward issues at other levels, on terms of health and human services.
Q. And you indicated that in some respect they have been effective and in other respects they haven't been effective. That's what you testified to earlier, correct?
A. That's correct.
Q. Just like any other political group, some issues they are effective and some issues they are not?
A. We are not talking about politics here. We are talking about people who are trying to get health and human services.
Q. Well, I'm asking you specifically about your testimony. (Simultaneous colloquy.)
A. And what I guess what I'm saying is, I'm not saying it's a political group.
Q. I see. You are referring to activists as separate and apart from political groups?
A. I believe you just said "as a political group."
Q. I'm asking you what you think. Do you think that the activists that you referred to in your deposition, at page 41, are separate and apart from political groups?
A. I do.
Q. You would agree that most of the organizations that you've been involved with are generally supportive of the gay and lesbian community, correct?
A. No, I wouldn't.
Q. You would not?
A. No.
Q. I'd like to draw your attention to page 45 of your deposition transcript. Starting at line 24: "QUESTION: The other organizations that you've been involved with, either working for or on the board, have any of them not been supportive of the gay and lesbian community? "ANSWER: I don't know that some of them serve or don't serve. I believe most of them. If asked, they are generally supportive." You stated that in your deposition; did you not?
A. I did.
Q. Mayor Sanders, for three years you served as the chief executive officer of and president of the United Way of San Diego, correct?
A. That's correct.
Q. And during that time, the United Way contributed funds to nonprofit organizations that worked with the gay and lesbian community, among other things?
A. We provided funding for a wide variety of health and human services throughout San Diego County.
Q. Including services that help the gay and lesbian community, correct?
A. Including services that helped every community, including the gay and lesbian community.
Q. Thank you. And you participated in the campaign against Proposition 8, correct?
A. Yes, I did.
Q. In fact, you went to a couple of fundraisers in support of No On 8?
A. I did.
Q. And you went to a few rallies in support of No On 8?
A. I did.
Q. And, in addition to yourself, there were other state and local politicians who campaigned against Proposition 8, correct?
A. I know of a couple. I don't know how many.
Q. You would also agree that there were particular religious leaders who campaigned against Proposition 8?
A. Campaigned against Proposition 8?
Q. Yes.
A. I don't know the names of those. I know there were a few religious leaders. Very few.
Q. Now, there was a time that you supported civil unions, as you previously testified, correct?
A. That's correct.
Q. And that was your position when you were elected in 2005?
A. That's correct.
Q. And during that campaign in 2005, you made specific efforts to reach out to the gay and lesbian community, correct?
A. Yes.
Q. For example, you appeared at the San Diego Gay Pride Parade?
A. Yes, I did.
Q. In fact, you had done that approximately ten times, correct?
A. Yes.
Q. And during the 2005 campaign, you participated in two debates at the San Diego Gay Bisexual Community Center?
A. Yes.
Q. And after you were elected, you appointed three openly-gay individuals to your personal staff?
A. I did.
Q. That was Fred Sainz?
A. Fred Sainz.
Q. Jeff Gattas?
A. Yes.
Q. And George Biagi?
A. Yes.
Q. And you also, in 2006, selected an openly-gay fire chief, a Tracy Jarman, correct?
A. I did.
Q. And Ms. Jarman was unanimously approved by the city council?
A. Yes.
Q. And, at that time, during 2005 and 2006, when you were a mayor, you respected the gay and lesbian community?
A. I respected every community.
Q. Including the gay and lesbian community?
A. Including the gay and lesbian community.
Q. And you seriously considered and attempted, at least, to address the needs of the gay and lesbian community?
A. In what way are you talking about?
Q. Well, I'm asking. Did you, during your time as mayor during 2005 and 2006, attempt to address the needs of the gay and lesbian community?
A. I attempted to address the needs of every community. I -- we don't have a monolithic community. We have issues in every community; whether it's planning, whether it's housing, whether it's resources. I worked with every single community in San Diego, to try to address their needs.
Q. And you were willing to consider the needs that were brought to you from the gay and lesbian community at that time, correct?
A. I'm sorry?
Q. Were you willing to address the needs that were brought to you by the gay and lesbian community, at that time in 2005 and 2006?
A. You know, I talked to individuals. I don't know that there's a gay/lesbian coalition. I met with individuals who may have been gay or lesbian, who brought forward issues. But I was always willing to work on issues from any individuals who brought those in.
Q. I would like to draw your attention to page 53 of your deposition transcript, starting on line 17. Do you see that? Are you there?
A. Yes.
Q. You were asked the question: "So at that time, at the time you were elected in 2005, did you consider yourself an ally of the gay and lesbian community? "ANSWER: I considered myself to be someone who respected the community. "QUESTION: And were you willing to consider the needs that they brought to you? "ANSWER: Yes." You made that -- you gave that testimony; did you not?
A. I did.
Q. Now, during that time, also, you had good friends from the gay and lesbian community, correct?
A. I'm sorry, I didn't understand the question.
Q. Sure. During 2005 and 2006, you had good friends from the gay and lesbian community?
A. I do.
Q. And in 2003, you had found out that your daughter, Lisa, identified as a lesbian?
A. Yes, I did.
Q. And you weren't disappointed with that?
A. No. As a father, I was happy that she found somebody that she was close to and had a relationship. I think that's the way fathers feel.
Q. You weren't upset in any way?
A. I was upset only from the perspective that I expressed earlier that I was concerned about how tough it is to be a gay or a lesbian in a relationship or to be open and out.
Q. You indicated that you were fine with it?
A. I was absolutely -- I loved my daughter very much, and I respect her as an individual, and I love her. And whatever choice she makes is one that I would be willing to support.
Q. The fact is, you were comfortable with it, and your primary concern was that she was happy, right?
A. Right.
Q. But, at the same time, during that period, you supported civil unions as a reasonable alternative to same-sex marriage, correct?
A. I did.
Q. And you didn't think that was a position that was hostile to the gay and lesbian community, did you?
A. No, I didn't.
Q. And your daughter, Lisa, understood your position, correct?
A. My daughter, Lisa, said she understood it, yes.
Q. And despite the fact that you supported civil unions as a reasonable alternative to same-sex marriage, you don't believe that you communicated hatred to the gay and lesbian community, do you?
A. I don't believe -- I feel like my thoughts were grounded in prejudice. But I don't believe I felt hatred. I don't believe that I communicated hatred. But, in retrospect, I do believe it was grounded in prejudice.
Q. Instead, you thought that civil unions were a fair and reasonable alternative to marriage, correct?
A. At the time, yes.
Q. And your belief that civil unions were a reasonable and fair alternative to same-sex marriage, it wasn't based on any moral disapproval of gays or lesbians, right?
A. No. As I said, it was grounded in prejudice, from my perspective now.
Q. And you indicated earlier that you thought that civil unions were a reasonable alternative because, at that time at least, you believed that they were equal to marriage?
A. Yes.
Q. And you believed that even today people can distinguish between civil unions and same-sex marriage on reasonable grounds that are not based in animus or ignorance?
A. I'm not sure what you mean by "animus." You would have to help me with that.
Q. What do you mean by "animus"?
A. I consider animus --
MR. HERRERA: Objection, Your Honor. Calls for a legal conclusion.
THE COURT: Overruled.
THE WITNESS: I consider animus to be hatred or bigotry.
BY MR. RAUM:
Q. And you believe that reasonable people can disagree on the issue of civil unions versus same-sex marriage, and that disagreement is not necessarily based on animus or ignorance?
A. I believe it's not based on -- it can be a situation where it's not based on animus. That doesn't mean that I don't believe it's grounded in prejudice.
Q. And you believe that prejudice is when you treat a class of people differently, correct?
A. Yes.
Q. Now, you also believe that people voted in favor of Prop 8 because they, like you in 2005, viewed civil unions as a fair and reasonable alternative to marriage, correct?
A. I don't believe that that's exactly what I said.
Q. Well, let's look at what you said in your deposition, at page 68. Starting in line 4: "QUESTION: Okay. Do you think it's possible that -- that someone could" --
A. I'm sorry, I'm not on the same. I've got -- you said 58?
Q. No, page 68.
A. Okay.
Q. Starting on line 4, you were asked: "QUESTION: "Okay. Do you think it's possible that -- that someone could have voted in favor of Proposition 8 because they believed that civil unions were a fair alternative to marriage?" You answered: "I do believe some people did. "QUESTION: Okay. Let's step back for a minute. Did you participate in any way in campaigning for or against Proposition 8? "ANSWER: Yes. "In what way did you participate? "I participated trying to make sure that Proposition 8 was defeated." Now, in your participation in opposing Prop 8, did you encounter people who believed that civil unions were a fair and reasonable alternative to same-sex marriage?
A. I believe I probably encountered some. And I still believe that their feelings were grounded in prejudice. I don't believe that they realized what they were saying. I don't see that that makes them hate people. I don't think it makes them a bigot. But I think that what they're saying is that an entire class of people do not deserve the same relationship as a heterosexual couple.
Q. But in 2005, you didn't hold that view, did you?
A. No, I didn't. I felt that civil unions were a reasonable alternative.
Q. And a big part of the base that you were relying on for your election in San Diego felt that civil unions were a reasonable alternative to same-sex marriage, correct?
A. I believe so. Some of them did, at least.
Q. Well, you indicated that you thought a big part of the base believed that?
A. I believe a large part of the base did, yes.
Q. And you would also agree that some people can be religiously opposed to same-sex marriage, without having any hostility or animus towards gays or lesbians?
A. That is absolutely right. They don't have to have animus or hostility. That doesn't mean that decision is not grounded in prejudice, though.
Q. And you would agree that there are people who have sincere religious beliefs on both sides of this debate, correct?
A. I do.
Q. I would like to draw your attention to what's been marked as DIX1475. It's at tab 3 in your binder. Did you find that?
A. Yes, I did.
Q. And do you recall having been shown this particular document at your deposition?
A. Briefly, yes.
Q. Okay. And this document was written by Mr. Blankenhorn. Do you recall that?
A. I do.
Q. Now -- and you read this at the deposition. You were asked some questions about it, correct?
A. I was asked some questions. I don't know that I read it thoroughly. It was presented to me, and then I was asked questions.
Q. Okay. Now, I represent to you that Mr. Blankenhorn, who is the author of this article, argues that redefining marriage to include same-sex couples would undermine the purposes of ensuring that, insofar as possible, children would be raised by the man and woman whose sexual union brought them into the world. Do you recall that being the subject of this article?
A. Generally, yes.
Q. Okay. And would you agree that it's possible that people voted for Proposition 8 based on the reasons that are articulated in this particular article?
A. I believe that some people could say that. Once again, I believe that their feelings would be grounded in prejudice and, obviously, misinformation.
Q. Because you disagree with the premise that's put forward in this particular article?
A. Well, it's not the premise. It's what we see in reality. Many children are not raised by biological parents. They are raised by one parent or another, or they are foster children. So, I mean, this is supposing that everybody had had a marriage, where both partners were there throughout the upbringing of their children, all through the children's life.
Q. Well, this article puts forth the idea that, all things being equal, that the best-case-scenario for kids is to be raised with their biological mother and father. You disagree with that premise?
A. You know, I think all things equal. But I also was a cop for 26 years, and I know there are a lot of children who did not benefit from child abuse, from child neglect, by biological parents. So I don't know that we can say "all things being equal."
Q. Okay. So you disagree with the premise that's being put forth by Mr. Blankenhorn?
A. I do.
THE COURT: Is DIX1475 in?
MR. RAUM: This is --
THE COURT: Is it in evidence?
MR. RAUM: Yes, it is, Your Honor. It was admitted into evidence on Thursday, in connection with Dr. Cott.
THE COURT: Very well.
MR. RAUM: Professor Cott, I should say.
BY MR. RAUM:
Q. Would you also agree that some people who voted in favor of Proposition 8 did so simply to preserve the historical tradition of marriage in this country?
A. I would believe that some people possibly voted that way. I don't really know. But, once again, if they did, I would think that would be grounded in prejudice.
Q. And some people may have voted for Proposition 8 because they feel that marriage is tied to procreation. Would you agree with that?
A. I would agree that some people could say that. I don't really know their reasoning behind that.
Q. And you agree that there are many reasons why people voted for and against Proposition 8?
A. I do.
Q. And among these many reasons are reasons that are grounded in good faith beliefs in marriage between a man and a woman?
A. I believe that good faith beliefs don't negate the fact that they are grounded in prejudice, which means that one group of people are being treated entirely differently simply because of their sexual orientation. Whether you have a grounded belief or not, I don't think negates that.
Q. And I understand that's your position. But, nonetheless, you believe that certain people, in good faith, could disagree with that position that you've just articulated?
A. I believe that some people could. But I can't interpret what they do.
Q. In fact, you shared that sentiment at one time; did you not?
A. I proposed civil unions as being a reasonable alternative, and admitted earlier that that was grounded in prejudice.
Q. But at the time that you believed it, you didn't think it was prejudice, did you?
A. No, I didn't.
Q. Now, you're currently serving your second term as mayor of San Diego, right?
A. Yes, I am.
Q. And you've been involved in at least two political campaigns, running for mayor.
A. Yes, I have.
Q. And you've also been involved in, to some degree, the Proposition 8 campaign?
A. Very peripherally.
Q. Well, you indicated that you spoke at -- attended rallies?
A. I think attending a couple of rallies and going to a couple of fundraisers is peripherally. I wasn't an advisor. I didn't participate in the campaign in that way.
Q. I see. I would like to draw your attention to tab 4. This has been marked as DIX2618. It's an article dated October 14th, from the San Francisco Chronicle, entitled "A Lesson in Political Naivete." Do you recall seeing this particular article at your deposition?
A. Yes, I do.
Q. Do you recall that this article recounts an event where first grade students were taken out of their class and brought to a lesbian wedding during school hours?
A. Uhm, as I recall -- and I'm going to tell you, I read this very briefly when questioning occurred at the deposition -- that the mayor conducted a wedding, and a first grade class of the teacher also attended.
Q. And when you say "the mayor," you are talking about Mayor Gavin Newsom, correct?
A. Yes.
Q. And you don't think that this particular event, in other words, taking a class of first grade students to a same sex wedding, was a good public relations move for the No On 8 campaign; do you?
A. I don't think the way it was portrayed was, no.
Q. Because you think it was portrayed as -- in a way that didn't give the proper image to the sanctity of marriage, correct?
A. That's correct.
Q. And you would agree that this event could have hurt the No On 8 campaign in its efforts to oppose Proposition 8, correct?
A. I think in the way it was presented it could have.
Q. Now, you testified earlier about your support of what's been referred to as hate crimes legislation?
A. Yes.
Q. And at the time you indicated that, today when you testified, you indicated that crimes that are committed because of someone's race and sexual orientation should be given additional punishment, correct?
A. No, I didn't. And I didn't say that -- I'm sorry. I didn't say that I supported hate crimes legislation. I said I was opposed to the hate crimes, and we worked very hard to eliminate those.
Q. So you don't support hate crimes legislation?
A. I certainly do. But I didn't say that earlier --
Q. Oh.
A. -- is what I'm saying.
Q. Excuse me. Excuse me. And you would also agree that crimes should not be committed against individuals because of their religion, correct?
A. I would.
Q. I'm sorry?
A. I would.
Q. I'd like to draw your attention to Exhibit DIX1107. It is a video that was produced by ProtectMarriage.com.
MR. HERRERA: I'm going to object to this, Your Honor, on the grounds of, I really don't understand what the relevance is of it.
THE COURT: Is this already in evidence?
MR. RAUM: No, Your Honor.
THE COURT: Okay.
MR. RAUM: The mayor testified to the fact that he absolutely opposes any kind of violence against individuals because of their particular race or sexual orientation. He also agrees that that would include crimes that are committed in connection with religion. And we'd like to just show him this particular video, because he's indicated that he's watched particular advertisements in connection with the Prop 8 campaign and has been upset by certain things that ProtectMarriage.com put out. And this is one of the things that ProtectMarriage.com put out, and we would like to get his view on what's depicted in this particular video.
THE COURT: Is this a video that he has already seen?
MR. RAUM: Yes.
THE COURT: He has seen it?
MR. RAUM: Yes, he has seen it in his deposition.
MR. HERRERA: I don't know if that's true, Your Honor.
MR. RAUM: I will represent to the Court that he was played this in his deposition. And it's at page 87.
THE COURT: All right.
MR. RAUM: Line 12.
THE COURT: All right. It appears to have been played at the deposition. You may proceed.
MR. RAUM: Thank you, Your Honor. (Audio recording played in open court.)
THE COURT: Excuse me. Is this a video, or just an audio?
MR. RAUM: No, it's a video. It's just not coming up on the screen.
THE COURT: Let's back it up and play it again. (Video played in open court.)
MR. HERRERA: Your Honor, I'm going to renew the objection on the ground the only -- I don't know what the relevance is. And the witness only saw it at his deposition, and at no other time.
THE COURT: Objection overruled.
BY MR. RAUM:
Q. Mayor Sanders, you would agree that it's wrong for people to suffer violence as a result of their political views; would you not?
A. I would.
Q. And, in fact, you would think that -- you do think that violent behavior against someone who disagrees with your political position is not a political -- politically effective strategy, correct?
A. Correct.
Q. And you don't think that vandalizing the property of someone who disagrees with your political position is an effective political strategy, either; do you?
A. That's my personal belief, yes.
Q. And you would advise people involved in a political campaign that they shouldn't steal campaign signs, right?
A. On both sides.
Q. And you would advise the people involved with the No On 8 campaign not to engage in any violent behavior or intimidation against political opponents, correct?
A. I didn't advise either campaign.
Q. That wasn't my question. But, you would have advised the No On 8 campaign people not to engage in any violent -- in any violent or intimidation against the supporters of Prop 8, correct?
A. I would have advised both groups not to do that.
Q. And the reason that you would have advised against the use of violence or intimidation, in connection with a political campaign, is because you don't think that those are effective political strategies, correct?
A. I said personally that. But I am not a political scientist. I am not a political consultant. I know you may consider me a politician, after running twice. I consider myself a cop. So I don't consider myself sophisticated enough to be able to tell what sells and what doesn't. I personally don't believe violence or stealing signs, or any of that, is effective either way.
Q. You ran two campaigns?
A. I did.
Q. And you had political consultants in connection with those campaigns?
A. And I hired them and paid them to make those type of political decisions.
Q. And you learned a little bit during those campaigns; wouldn't you say?
A. I think I did.
Q. And you were successful in those campaigns?
A. I was.
Q. And you ran for your reelection in 2008?
A. Yes, I did.
Q. And, at that time, you ran as a Republican?
A. I did.
Q. And in 2008, you openly advocated against Proposition 8 and in favor of same-sex marriage; is that correct?
A. That's correct.
Q. During your reelection campaign, you again -- you again made specific efforts to reach out to the gay and lesbian community?
A. I made specific efforts to reach out to every community in San Diego, yes.
Q. Right. But my question is, you made specific efforts to reach out to the gay and lesbian community, including and among other communities?
A. Yes.
Q. For instance, you spoke at the Log Cabin Republicans convention; did you not?
A. Yes, I did.
Q. And the Log Cabin Republicans is a national gay and lesbian Republican grassroots political organization, correct?
A. Uhm, yes, they are. I'm sorry.
Q. And during your reelection campaign, you had the approval and endorsement of the -- of this national Republican group, correct?
A. Well, I'm not sure that this didn't -- me speaking to them didn't come after the primary where I was elected. I can't find a date on this, to be very honest with you.
Q. I see. Now, you ran against five other candidates for mayor, in 2008?
A. Yes, I did.
Q. And that was during the primary?
A. Yes.
Q. And during the primary, you received 54 percent of the total vote?
A. I suppose approximately, yes.
Q. And because of that strong support that you received during the primary, you didn't have to run in a general election, did you?
A. San Diegans reelected me in the primary.
Q. Would it be fair to say that your support of same-sex marriage in 2008 didn't cause you to lose the election as mayor?
A. It didn't cause me to lose it. I can't say it made it easy.
Q. Now, your views on same-sex marriage have evolved substantially, haven't they --
A. Yes, they have.
Q. -- since 2005?
A. Yes, they have.
Q. At this point, you believe that the government should endorse and regulate same-sex marriage in the same way that it regulates marriage between a man and a woman?
A. I -- I believe that the government should allow every group of people to be married in exactly the same way, and enjoy the same rights and privileges, and recognize the marriage in the same way.
Q. There was a point in your political career, however, that you didn't think government belonged in the marriage business at all; you believed that marriage, as an issue, should be left up to the churches. Do you remember saying that?
A. I do.
Q. And do you still believe that?
A. No.
Q. When did you hold that view?
A. I believe I held that view as part of my ignorance on the whole issue, when I first started out.
Q. And you've been enlightened now, and you believe that the government should be in the marriage business, correct?
A. I believe that the government should allow everybody to get married in exactly the same way; not treating heterosexual couples different than treating gay and lesbian couples.
Q. If the government decided to get out of the marriage business, do you think that would be fair to all people?
A. I don't believe that the government is going to get out of the marriage business. If the government said we are no longer going to sanction marriage in any way, and it's up to individuals to decide that, then I suppose that would be fair to everybody involved.
MR. RAUM: Thank you.
THE COURT: Very well. Redirect?
REDIRECT EXAMINATION BY MR. HERRERA:
Q. Mayor Sanders, Mr. Raum made mention of you marching in a number of pride parades, correct?
A. Yes.
Q. Did you march or have you marched in any other parades during your tenure as police chief or mayor?
A. Yes. I've marched in the Martin Luther King parade every year. I marched in the St. Patrick's Day parade. Certainly have been in parades around Christmas, in San Diego. The Fourth of July parades. The Veterans Day parade. There are numerous parades I am part of every single year.
Q. And he also asked you about two debates that, apparently, you attended at the center. Can you give us some example of other debates that you attended during the course of that 2005 election campaign?
A. Well, during the 2005 election campaign, I believe there were close to 75 different debates throughout San Diego, in neighborhoods, at television stations. It was a very debate-heavy mayor's election.
Q. Mr. Mayor, have you ever made a decision based on fear of political repercussions from the gay community?
A. No, I haven't.
Q. Have you seen any other policymaker in San Diego make a decision or cast a vote based on fear of political repercussions from the gay community?
A. No. And, in fact, I think it's easier to go the other way, especially in San Diego. It's easier to make a decision against the gay and lesbian community than it is to make it for them.
Q. Why do you say that?
A. Because I -- I think that political ramifications are much stronger from the Republican party and from others.
Q. How did the Republican party react to your decision to support marriage equality?
A. They were very unhappy.
Q. And how did they express that displeasure?
A. Well, they expressed that displeasure by I was a sitting Republican mayor. They expressed the displeasure by saying that they were considering withdrawing their endorsement. I had to go to several party meetings and talk to party members. I think that it was a difficult issue. I think that what I also saw in the kickoff of the campaign, a lot of the people weren't there. That was the very next night, from the press conference that I held.
Q. In your experience, has the Republican party in San Diego been responsive to the needs of the gay and lesbian community?
A. I don't believe that's first and foremost in their minds.
Q. Why do you say that?
A. Well, I think that their national platform and local platform has said that marriage is between a man and a woman.
Q. Mr. Raum made mention of the Log Cabin Republicans. Are you aware of how large the Log Cabin chapter in San Diego is?
A. Well, I spoke to them during one of the election cycles, and there were four members. (Laughter)
Q. Do the log cabin Republicans have any influence in the broader Republican party in San Diego?
A. No. I would say that they don't.
Q. Mr. Raum had you watch a video, DIX1107. Do you have any reason to believe that what was represented in that video was true and actually happened?
A. Well, I have absolutely no idea. I was just shown a video that was produced by a campaign. And then, I suppose, I'm supposed to believe everything that's in it. I don't have any grounding in that. I didn't hear those instances. I didn't see those instances. My wife and I do not watch television. We do not watch television news. We have not watched it for years. And I didn't see any campaign ads, on either side. When I said that I saw a campaign sign that portrayed little children, I'm talking about a bumper stick or a sign. So I would have no idea if these things occurred or if they didn't occur, on either side.
Q. Do you have any knowledge or experience with any No On Proposition 8 signs being vandalized?
A. Well, I have a personal experience, where somebody wrote on chalk, in front of my house, because we had a No On 8 sign out. That said, "God's law. Vote Yes On 8." Now, I don't believe we were the only household. I walk in the mornings, before people are out. And I saw those on other sidewalks, where proposition -- No On 8 proposition signs were out.
Q. And this was in your neighborhood?
A. Yes. I'd like to clear up one thing, though. I do watch the Charger and the Padre games, periodically. (Laughter) That is the only television I watch.
MR. HERRERA: I think you could have brought a little better luck to them on Sunday, Mr. Mayor. Your Honor, I just want to offer one thing. A note was passed that DIX1475 was not admitted into evidence. It was only judicially noticed.
MR. RAUM: Your Honor, my understanding is, when something is usually noted, it becomes part --
THE COURT: Well, there is a difference. But, all right. Thank you for pointing that out. 1475 was subject to judicial notice. Thank you.
BY MR. HERRERA:
Q. Mr. Mayor, in your experience, can you think of a group of Americans that has faced stronger political opposition in recent years, than the gay and lesbian community?
A. No, I can't.
Q. Why is that?
A. I believe it has been okay to discriminate against gays and lesbians. I think it's been okay to not offer them the same rights and responsibilities, until just very recently. I still think people think it's okay for them to judge that their relationships, that their love for each other is different, is somehow less than the love or the relationship that a heterosexual couple has. And I think that's most -- manifested most prominently in the fact that they are not allowed to get married in the state of California. And I believe what's being said is, we don't think that you folks have the same type of relationship or that you love each other as much, so we're not going to allow you to be married.
MR. HERRERA: Thank you, Mr. Mayor. Nothing further, Your Honor.
THE COURT: Thank you. Very well, Mr. Herrera. And I trust you will --
MR. HERRERA: I take your guidance.
THE COURT: -- go through those depositions. I noticed some of the same problems in this deposition, of this witness. And I think your office needs a little counseling on that subject, of how to defend and take depositions.
MR. HERRERA: Thank you, Your Honor.
THE COURT: Thank you very much, Mr. Sanders. You may step down. And who's the next witness?
MR. BOIES: Your Honor, we next call Professor Lee Badgett.
THE CLERK: Raise your right hand. LEE BADGETT, called as a witness for the Plaintiffs herein, having been first duly sworn, was examined and testified as follows:
THE WITNESS: I do.
THE CLERK: Thank you. State your name, please.
THE WITNESS: It's Lee Badgett.
THE CLERK: And spell your last name.
THE WITNESS: It's B-a-d-g-e-t-t.
THE CLERK: And your first name.
THE WITNESS: Lee. L-e-e.
THE CLERK: Thank you.
DIRECT EXAMINATION BY MR. BOIES:
Q. Good morning, Professor Badgett.
A. Good morning.
Q. We will, as is the custom, have some binders to pass out to you and the Court. But let me begin by just asking you some background questions. Where are you presently employed?
A. I'm employed at the University of Massachusetts Amherst.
Q. And what is your position there?
A. I am both a professor of economics, and I direct the Center for Public Policy and Administration.
Q. And do you have any other positions?
A. I am also the research director of the Williams Institute at UCLA School of Law.
Q. How long have you been the research director at the Williams Institute?
A. It's been about four years.
Q. And how long have you been at the University of Massachusetts, at Amherst?
A. I have been there since 1997.
THE COURT: Be sure to keep your voice up.
THE WITNESS: Okay. I'm sorry.
BY MR. BOIES:
Q. And I assume that you have a bachelor's degree?
A. I do have a bachelor's degree from the University of Chicago, and a Ph.D. in economics from the University of California at Berkeley.
MR. BOIES: Your Honor, we have given counsel for the defendants a list of exhibits which I would, at this time, offer, unless there is some objection.
MR. COOPER: Your Honor, I do have an objection to some of these exhibits. It appears that a few of them have not been cited or relied upon by Professor Badgett, in connection with her expert -- development of her expert opinion in this case, and were not available and not used in her deposition. Now, perhaps, if Mr. Boies is going to cite them and rely on them as testimony unfolds, I can offer an objection at that time. But I am concerned that these -- that there are four or five exhibits that were not -- were not available.
THE COURT: Can you identify the four or five, so that we can then exclude those, for the moment, and take care of the rest of them?
MR. COOPER: Yes, Your Honor. PX0188.
THE COURT: 0188.
MR. COOPER: PX0189. PX1296. PX1298. And PX1309. PX234- --
MR. BOIES: I'm sorry, what was the --
MR. COOPER: PX1309.
MR. BOIES: 1309.
MR. COOPER: PX2345. PX2346. And PX2347.
THE COURT: Read the last one, please.
MR. COOPER: PX2347.
THE COURT: All right. Then a possible objection is noted as to those exhibits. And I gather there's no objection as to the remainder that Mr. Boies intends to offer; is that correct?
MR. COOPER: I believe not, Your Honor.
THE COURT: Very well. Then, Mr. Boies, if you would --
MR. BOIES: Thank you, Your Honor.
THE COURT: If you would be so good as to give the list of those exhibits that you're moving in, to the clerk, with the note that with the exception of those referred to by Mr. Cooper the remainder shall be admitted. (Plaintiffs' Exhibits 1259, 1260, 1261, 1262, 1263, 1264, 1265, 1266, 1267, 1268, 1269, 1270, 1271, 1272, 1274, 1275, 1276, 1279, 1280, 1281, 1282, 1283, 1284, 1285, 1286, 1287, 1289, 1290, 1291, 1292, 1293, 1294, 1300, 1301, 1302, 1303, 1304, 1305, 2321, 2342 received in evidence.)
MR. BOIES: Yes, I will, Your Honor, if I can get --
THE COURT: If you can get some attention from your colleagues.
MR. BOIES: -- attention from my helpers. (Laughter) (Pause)
THE COURT: Perhaps this is a good time to take a break. Why don't we take until 25 after the hour.
MR. BOUTROUS: Thank you. (Recess taken from 10:09 to 10:32 a.m.)
THE COURT: Very well. Did we get all of the documents straightened out?
MR. BOIES: We did, your Honor. And we have given the Court a list of the documents to be admitted.
THE COURT: Very well.
MR. BOIES: I would offer them at this time.
MR. THOMPSON: And, your Honor, and we have straightened out a lot of the confusion. There are still two documents remaining on the list, which my previously-stated objection still stands to, and that's PX-2345 and PX-2346.
THE COURT: Do I understand as to the others, the objection is withdrawn?
MR. THOMPSON: It is withdrawn as to the others, but only provisionally with respect to PX-0188 and PX-0189. The representation has been made by Mr. Boies's colleagues that although those documents were not cited in the materials relied upon by the witness before the deposition, they apparently were provided to my colleague before the deposition through a different transmission. I have no doubt that that's correct. Once we do confirm that, this provisional concern will be withdrawn.
THE COURT: All right. Very well. Well, that was time well spent then. Proceed, Mr. Boies.
MR. BOIES: Thank you, your Honor.
BY MR. BOIES:
Q. Professor Badgett, have you written a number of peer-reviewed articles on the subject of gay and lesbian relationships and gay and lesbian marriage?
A. Yes. I have five or six peer-reviewed articles in several science journals and about the same number in law reviews.
Q. And are some of those listed on PX-2321, which was your resume which was admitted into evidence.
A. Yes. Those should have all been cited there.
Q. Now, in addition to articles, have you written any books?
A. I have. I have written two books and co-edited a third. One was called Money, Myths and Change. That was published by the University of Chicago Press, which is also a peer-reviewed process. And then most recently the book, When Gay People Get Married, which was published by New York University Press, also a peer-reviewed process.
Q. When Gay People Get Married - What Happens When The Societies Legalize Same-Sex Marriage, is this the book you are referring to?
A. Yes.
Q. And this is Plaintiffs' Exhibit 1273, which has been admitted. Now, in 2008 did you co-author any materials relating to the impact of same-sex marriage?
A. Yes. Well, in 2008 I probably authored -- co-authored quite a few, but some in particular related to California.
Q. And what was that?
A. A colleague and I estimated the fiscal impact of allowing same-sex couples to marry on the State of California's budget.
Q. And that is marked as Plaintiffs' Exhibit 1268, which was admitted without objection. And in 2005, did you co-author an article in the Stanford Law and Policy Review?
A. Yes. That one was an earlier effort to make more or less the same analysis, looking at what the impact would be of allowing same-sex couples to marry on the California budget at that time.
Q. And that is Plaintiffs' Exhibit 1283, correct?
A. Oh, should I take a look? (Brief pause.)
A. Yes, that's at the time article.
Q. Now, have you, in addition to your reaching duties at the universities that you have identified, been invited to speak and make presentations at other universities?
A. Yes, I have. I have been invited to speak on this topic and related topics at many universities in the U.S. and in other parts of the world. Here in the U.S. in the last few years I have spoken at the University of Illinois, Chicago, University of Minnesota, Duluth, Yale University, University of Kentucky, U.C.L.A., University of Massachusetts, Smith College, Amherst College, probably some others that I can't remember. In other countries -- and, actually, I have been invited to speak at law schools as well here in the U.S. I should mention those at this point. I have given talks on this issue at Yale Law School, Temple University Law School, University of Connecticut Law School, Washington and Lee Law School, all in the last few years. I have spoken at the University of Toronto in Canada; Kings College in London, University of Amsterdam; University of Stockholm; Linz University in Austria; all on the subject for same-sex couples.
Q. Now, you're familiar with the American Psychological Association, correct?
A. Yes, yes. I'm not a member, but I am familiar.
Q. What is Division 44? You have made reference to that before.
A. Division 44 is the section of the A.P.
A. that focuses on lesbian, gay, bisexual and transgender concerns.
Q. And have you ever spoken to that group?
A. I have on several occasions, but on one occasion I gave an invited presidential address to that -- to A.P.
A. It was the president of Division 44 who invited me.
Q. And what is an invited presidential address?
A. The president of the division has the option -- well, has the ability to choose a person that they would like to come speak on a topic before the entire A.P.
A. convention potentially. So it's not just limited to division 44 members.
Q. Now, have you had papers accepted for conferences organized by various professional associations?
A. Yes. I have submitted papers for review and I have had them accepted at many conferences related to economists; the Allied Social Science Associations, which is the big gathering each year. I have spoken at the American Political Science Association. Other presentations at the American Psychological Association. I was asked to give an invited talk to the National Council on Family Relations. I have spoken before the Canadian Population Society, the American Statistical Association, and some others.
Q. Now, have you been asked to peer review articles that have been proposed for publication in journals related to same-sex couples and the effect of same-sex marriage or the absence of same-sex marriage?
A. Yes. I have been asked to review papers like that in many journals, including Demography, the Journal of Marriage and Families, The American Journal of Sociology. Some economics journals, including Industrial and Labor Relations, Industrial Relations, a bunch of others as well.
Q. Do those others include The American Sociological review?
A. Yes, I believe I have reviewed papers for them as well.
Q. And The American Journal of Sociology?
A. Yes.
Q. Have you ever testified before any government bodies?
A. Yes. In the last couple years I have testified twice before Congress. Once was in front of the House Education and Labor Committee on the Employment Nondiscrimination Act. And more recently, last summer I testified before the House Committee on Oversight and Government Reform on the question of domestic partner benefits for federal employees. And I have testified before several other state legislative bodies on different matters related to same-sex couples.
Q. Can you give me some examples of the state governmental bodies before which you have testified?
A. I have testified before the California Senate Taxation and Finance Committee, I believe it's called. I have testified before committees in Alaska, in Massachusetts, in Hawaii, in New Hampshire, Maryland, I believe, on these issues.
MR. BOIES: Your Honor, we would offer Professor Badgett as an expert on demographics information concerning gays and lesbians, same-sex couples, and children raised by gays and lesbians; as an expert on the effects of the exclusion of same-sex couples from the institution of marriage; and as an expert on the effect of permitting same-sex couples to marry on heterosexual society and the institution of marriage.
THE COURT: Mr. Cooper, voir dire?
MR. COOPER: No, your Honor.
THE COURT: Very well. You may proceed.
BY MR. BOIES:
Q. Professor Badgett, let me ask you to look at demonstrative 10, and in connection with that, ask you to tell the Court what basic opinions you are offering today? (Document displayed)
A. This demonstrative summarizes those opinions. The first one is that Prop 8 as inflicted substantial economic harm on same-sex couples and their children who live here in California. I have the opinion that letting same-sex couples marry would not have any adverse effect on the institution of marriage or on different-sex couples. And that same-sex couples are very similar to same-sex couples in most economic and demographic respects, related to marriage in particular (sic). And then, finally that Proposition 8 has imposed some economic losses on the State of California and on counties and municipalities.
Q. With respect to the third opinion, could you state that third opinion again?
A. Yes. I am -- my opinion is that same-sex couples are very similar to different-sex couples in most economic and demographic characteristics.
Q. Let me turn to the first opinion that you have identified, which is your opinion that Proposition 8 inflicts substantial economic harm on same-sex couples and their children in California. First, what is the benefit, if any, that marriage confers on couples who marry and their children?
A. Economists have long identified several different economic benefits of marriage, and most of them relate to the fact that marriage is about commitment of two people. So in the context of a family, marriage and that commitment allows them to organize their lives more efficiently, dividing up labor in ways that improves the well-being of same-sex couple -- or of any couple and their children. And it might enhance their economic well-being, both through increasing the income for their family and the time that's available for the family. It also has an important role in reducing what economists call transaction costs. That's the cost involved in making agreements of one kind or another. Probably the best example with regard to marriage is the -- two people who are married can avoid the cost, for instance, of hiring an attorney to write a will, because inheritance rights come along with giving -- having a marriage. There are other specific benefits that sometimes come from third parties, such as the state or employers who might offer specific benefits that are given to people who are married, but are not provided to couples who are not married. So those are some specific examples of how marriage has some very clear economic benefits for families.
Q. Let me ask you to look at demonstrative 11, which is a list that you prepared of how the inability to marry inflicts economic harm on same-sex couples in many ways. (Document displayed)
Q. Do you see that?
A. Yes.
Q. I would like to take you through that and ask you to explain what you mean by some of these points. You say at the beginning that: "Marriage confers numerous economic benefits, many of which are not provided by domestic partnership." Do you see that?
A. Yes.
Q. And the first one there is: "Greater specialization of labor." Can you explain what you mean by that?
A. People in -- the way economists look at families and couples is as an economic unit, kind of a little factory of sorts. And they take their time and money to produce the things that their families need, whether that's meals or entertainment or care for children. And families that can do that more efficiently are going to be better off economically. And the way to make that kind of division of labor more efficient is to have some people in these couples to actually specialize in certain types of labor, whether that's labor -- getting training to enhance your job possibilities or other sorts of training that would make you more productive in other ways.
Q. The second item that you identify is: "Reduced transaction costs." Could you explain what you mean by that?
A. The example that I gave earlier about wills is a good example. So it's reducing the cost of making some kind of agreement. So that's one very clear-cut one that might just happen once otherwise. But as family's economic fortunes might change, a partner might become unemployed or might get a big raise or other circumstances change, then the fact that the couple is married means that they don't have to renegotiate whatever deal they might have had as unmarried partners. So they just don't have to keep talking about these different agreements. They have a marriage and understand what that means.
Q. The next item that you identify is: "Additional health and other insurance benefits." And I think there has been a lot of testimony about that already. The next item that you identify is: "Greater economies of scale." Can you explain what you mean by that?
A. Yes. Marriage is an institution that pulls two people together; two people who might very well have been living separately. And when they move in together, they can have what economists call greater economies of scale, which basically means that they -- they can live together as two people more cheaply, more efficiently than they would as two separate individuals in two separate homes.
Q. The next item says: "Stronger statement of commitment." Can you explain what you mean by that?
A. Well, in this case we are getting to where marriage is quite different from domestic partnership. The value of marriage as a statement of commitment is something that is very important and underlies all of these other kinds of benefits, of economic benefits. So marriage is something that allows the two individuals to say to each other that they are committed. It's a strong signal of commitment in that sense to each other. And, secondly, it's a statement that is recognized and reinforced by people outside of the marriage as a statement of commitment, an expectation that the two individuals will be committed. And that is -- as I said earlier, that's what makes a lot of these other kinds of economic benefits of marriage possible.
Q. The next item that you have identified is: "Greater validation and social acceptance of relationship." Can you explain what you mean by that?
A. I think I kind of combined that a little bit with the previous one, but the idea here is that marriage is not just a commitment between two individuals like a contract, but it's something that has in a social context quite a few other meanings that come from the fact that other people view it and might treat the couple differently as a result of their being married.
Q. The next item is: "More positive workplace outcomes from reduced discrimination." Can you explain what you mean by that?
A. We have some research, in psychology in particular, that suggests that people who -- gay and lesbian people in workplaces who believe they are being treated differently or are facing some sort of discrimination might actually have different kinds of work experiences and economic gains from the workplace. And in the case of a group of people like same-sex couples who are not allowed to actually marry, they may feel in the workplace context that they are being treated differently from their heterosexual coworkers who are allowed to marry and, perhaps, are married. And that effects of that feeling of discrimination might have an adverse effect on their -- on their work performance and, therefore, on their ability to make, you know, future economic gains, get promotions, get raises, that sort of thing. So that could have a adverse effect on their economic well-being.
Q. Now, you say at the end that: "Some of these costs may not be quantifiable, but they are substantial." What do you mean by that?
A. These are costs that are -- these are effects of marriage that are well known in economics, but they are very difficult to quantify specifically. But, in my opinion, they could be quite large, and some of these -- we can come up with some approximations for the costs, such as the health and other insurance benefits, but in other cases it's very difficult to actually come up with this precise dollar value.
Q. You say at the end that: "These costs are imposed on virtually all California same-sex couples who would marry if they could." What do you mean by that?
A. Well, I have thought about this from the perspective of two different groups of same-sex couples in California. One would be couples who have a domestic partnership, and the other group would be couples who don't have a domestic partnership. And I think the harmful effects will be similar for both groups. The couples who don't have a domestic partnership now have -- do not have any of the kinds of legal protections that marriage provides; but even those couples who do have a domestic partnership, in my opinion, are not getting the same kind of statement of commitment and social validation that would give rise to the full -- the full effect of the other possible benefits, that would -- that they would experience if they were allowed to marry.
Q. Did you say in that last answer that there were people who had domestic partnerships, but would -- but nevertheless suffered costs because they could not marry?
A. Yes.
Q. You also said, I think, in that answer that there were people who chose not to have domestic partnerships, but would marry; did you say that?
A. That's correct.
Q. And what is your basis for that?
A. Well, I have looked at quite a bit of data here in the United States about this issue and have seen very clear evidence that there are many people who would marry, but would not become domestic partners.
Q. Let me ask you to look at demonstrative 12. (Document displayed)
Q. And could you explain what this demonstrative shows?
A. This is an example of one of those pieces of evidence that I just mentioned. Here we are looking at the numbers of couples who -- of same-sex couples who married in the time period when they were allowed to marry in 2008, and comparing that to the number of couples who registered domestic partnerships in that same time period. And you can see, they are quite different. Our estimate is that about 18,000 same-sex couples married during this time period and only about 2,000 actually registered their domestic partnerships. And, in fact, some of those were probably different sex couples who are also allowed -- a small group of different-sex couples are allowed to register domestic partnerships.
Q. In order to register as a domestic partnership if you are a different sex couple, is there any special requirement?
A. Yes. At least one of those individuals has to be over 62. So couples in that situation actually have a choice: They can either marry or they can get a domestic partnership.
Q. Let me ask you to look next at demonstrative 13. (Document displayed)
Q. And could you explain what this means?
A. Yes. This is from a study I did a year or so ago where we gathered data from across the United States from different states that allow same-sex couples to either marry or have civil unions or domestic partnerships, and we looked at the rate of take-up, is what we call it, a take-up rate for those different legal statuses. We compared the numbers of couples marrying in Massachusetts to the number of same-sex couples in Massachusetts over just that first year, to take into account the fact that these statuses have been available for different periods of time. And so what you see here is that 37 percent of same-sex couples in Massachusetts got married in the first year that they were allowed to do so. When we look at the states that allow civil unions, only 12 percent of same-sex couples chose to enter a civil union in that first year. And in looking at domestic partnerships in the states that offered those, we found that only 10 percent of same-sex couples in those states actually signed up for a domestic partnership. And right below there, actually, we looked more specifically at California, which started allowing same-sex couples to register in 2000. And in that first year, only five percent of same-sex couples here in California registered as domestic partners. That's in the first year. And, actually, if you think back to that previous slide, in just six months of having marriage available in 2008, about 21 percent of same-sex couples married. And, in fact, if you kind of annualized that, you end up with a rate of marrying over the first year that would have been very similar to what we saw in Massachusetts, here in California though.
Q. Now, let me turn to those same-sex couples that are -- are not registered, the ones that you're talking about. In that connection let me ask you to look at demonstrative 14. (Document displayed)
Q. And am I correct that you are dealing here with those same-sex couples that for one reason or another would marry, but will not register as a domestic partner?
A. Yes, yes. That's what I'm thinking about for this slide.
Q. And can you explain what points you were making in this demonstrative?
A. In thinking about the economic harm that those couples suffer from not being able to marry, the very -- some very specific, tangible financial effects would be that they may lack access to health insurance and other employment benefits because their relationship would not be recognized by their employers. They are likely to be paying higher state income taxes. If they are fortunate enough to have an employer who covers their domestic partner's benefits -- or their unregistered domestic partner's benefits, I should say, then they will have to pay income taxes on that, that benefit. They will not be able to file jointly. And the calculations that I have done suggest that a substantial number of couples would pay higher taxes because they are not allowed to file jointly. And then they will have these increased transactions costs that, you know, further add to the cost of not being able to marry, and --
Q. I'm sorry. Had you finished?
A. Yes.
Q. Can you quantify the economic and non-economic costs to same-sex couples who are not domestic partners from not being able to marry?
A. As I mentioned earlier, it's very hard to actually quantify some of these costs, but the ones that we can quantify, like the access to health insurance and the tax burdens, are very likely to be in the thousands of dollars per year for each couple who has to bear them. We can get a sense of how many couples we're talking about here by thinking about the differences in the take-up rights between marriage and domestic partnership, and that is likely to mean that thousands of same-sex couples in California are not registered partners and cannot marry. So if you were to multiply those thousands of dollars by the thousands of couples, you'd have tens of millions of dollars in quantifiable costs for those couples, if we added them up for the whole state.
Q. Based on your research, can you explain why same-sex couples who would marry might not register as domestic partners?
A. There are a variety of reasons that I have seen in some academic research. Some of them have to do have the fact that individuals might see registered domestic partnership as a second class status, because they don't have the choice as same-sex couples, older same-sex couples do here in California, and so they might reject it for that reason. They also might see -- there just being less value as a whole. In economics, we think about people making choices based on the value that they perceive of their different alternatives. The data suggests that when people have a choice, as they do in Massachusetts, they are just much more likely to get married than they are to get a civil union or a domestic partnership. And that value, the difference in the value, the literature tells us, is that -- that marriage is an institution that is recognized by many other people outside of the couple and so it has that social validation that we talked about earlier. And, also, to the couple, to the two individuals and the couple themselves, marriage has much more meaning than something like domestic partnership, which has a much more clinical and business-like kind of sound to it to many couples.
Q. Now, you said earlier, in your opinion, that the inability of same-sex couples to marry adversely affected the children raised by those couples; do you recall that?
A. Yes.
Q. Could you explain how that happens?
A. There are different -- different ways that marriage can help children from an economic perspective. One is just the question of resources. If it's costing couples thousands of dollars a year in additional costs because they can't marry, then that's thousands of dollars that will not be available to spend on children or to save for their college education or whatever parents might want to actually do with that, with that money. So that's one very important way that it hurts children.
Q. Let me ask you to look at demonstrative 15 where you talk about the beneficial effects of same-sex marriage to couples and their children. (Document displayed)
Q. And here you refer to a publication that is Plaintiffs' Exhibit 1267 in evidence, correct?
A. Yes, that's correct.
Q. What is that publication?
A. That was a publication that describes the results of a survey that my colleagues and I did of married people -- people who are married to same-sex partners in Massachusetts.
Q. And how large was this survey?
A. We found -- we did a survey with the Department of Public Health and it was of a large group of people. We were interested in looking at the subsample of people who said that they were married to a same-sex partner. And I believe we had 558 individuals in that part of the survey.
Q. Now, was this a representative sample?
A. No, it wasn't a representative sample, but this was a sample that we got by drawing on a mailing list of a group in Massachusetts that was working with the Department of Public Health.
Q. Despite the fact that it was not a representative sample, do you believe it provides a helpful point of reference?
A. Absolutely, yes. I mean, we have 558 people who are married to a same-sex partner in Massachusetts. That's a large group of people. And there are some indications that they are not very different from the larger group of married same-sex couples in Massachusetts. But as we point out in the publication, we know that this is not a random sample, so there might be some differences overall, but -- but the overlap of experiences is likely to be there.
THE COURT: You referred to it as not a representative sample. Does that mean it was not a random sample or a sample in which the exemplars were drawn randomly?
THE WITNESS: That's right. That's right. It was not a random sample or a probability sample, as we sometimes call it.
BY MR. BOIES:
Q. You say from the survey over 72 percent of the respondents felt more committed to their partners as a result of marrying; do you see that?
A. Yes.
Q. What's the significance of that?
A. That, I believe, speaks to the issue that I talked about earlier; that marriage is a way for two individuals to form a more strongly-committed relationship. And this survey, we asked individuals whether or not they felt more committed to their partners, whether they agreed or disagreed with that statement, and almost three-quarters agreed; that they felt more committed to their partners.
Q. The next statement that you make here is that: "Almost 70 percent felt more accepted by their communities." Do you see that?
A. Yes.
Q. What did you mean by that?
A. Again, that's a clear indication that the same-sex couples that we surveyed were experiencing that larger kind of social validation of their relationship that I talked about earlier, which is something that might well enhance the commitment.
Q. The last statement here says that: "93 percent of the respondents that were raising children in their homes agreed or somewhat agreed that their children were happier and better off as a result of their marriage." Do you see that?
A. Yes.
Q. And can you explain the significance of that?
A. Yes. Twenty-eight percent of the people who answered this survey had children that they were raising in their homes, and almost all of them agreed that -- that their children were better off, in the opinion of the parents. We also asked an open-ended question to allow parents to say more about why that might be, but -- what sort of effect there might be. And many of them spoke of the value to their children of now being part of a family that looked like the families of the kids that they went to school with or other kids in the neighborhood. The parents said that they, themselves, had actually found it easier to deal with the people who are important people in their children's lives, whether that's teachers or healthcare providers, who had a clearer idea of what it meant to the -- to be a parent, to be a same-sex couple who are the parents of children, they were now able to see they are, you know, married couples and that the -- and in that context they believe that they had an easier time in dealing with the people in their children's lives.
Q. Now, this survey related to same-sex couples who married in Massachusetts, is that correct?
A. Yes, that's correct.
Q. Now, does that have any relevance to the question of same-sex couples and their children in California?
A. I think it does.
Q. Why?
A. For several reasons. One is the fact that it's in the United States, which has very similar -- relatively similar laws about marriage across the different states, to my understanding. Of course, I'm not a lawyer. But Massachusetts and California have very similar marriage rates. About six people per thousand in the population get married every year. So those are very similar. The same-sex couples in Massachusetts and in California look very similar in terms of their demographics of raising children and income levels, education levels. There are many similarities that lead me to believe and to have the opinion that I can apply similar findings from Massachusetts to California.
Q. Let me ask you to look next at demonstrative 16. (Document displayed)
Q. And this focuses directly on California, correct?
A. Yes.
Q. And you talk about here how, in your opinion, Proposition 8 harms children being raised by same-sex couples in California, is that correct?
A. Yes, yes.
Q. First thing you say here is that: "Same-sex couples in California are raising 37,300 children under the age of 18." Do you see that?
A. Yes.
Q. First, where does that come from?
A. That comes from an analysis I did of public use data from census 2000.
Q. And you say one in ten of California's adopted children live with a lesbian or gay parent; do you see that?
A. Yes.
Q. What's the significance of that?
A. Will, that suggests that -- that many adopted children have a lesbian or gay parent who might want to marry at some point, and those children are likely to be better off if their parents are allowed to marry.
Q. And do you have an estimate of what the number is of adopted children living with lesbian and gay parents?
A. I don't remember the exact figure in California. I believe it was somewhere around 10,000 or so.
Q. Let me ask you to look at Plaintiffs' Exhibit 1264, which is in your binder. And when you have it, can you tell me? And particularly page 10, table five, and see if it refreshes your recollection?
A. I'm sorry. Which page was that?
Q. Page 10, which was table five.
A. Okay. (Brief pause.)
A. I think I underestimated it. So, yeah, we estimated that about 16,000, 16,460 or so adopted children were living with gay or lesbian parents.
Q. Are you aware of professional organizations who have taken the position that depriving same-sex couples of the right to marry harms the children raised by those couples?
A. Yes. I have seen a report by a committee of the American Medical Association that makes that conclusion related to healthcare disparities that stem from reduced access to health insurance, in particular.
Q. I want to turn now to your opinion that you stated earlier; that permitting same-sex couples to marry would not have any adverse effects, including any adverse effects on heterosexual marriage or the institution of marriage. Can you summarize the basis for that opinion?
A. Yes. I have looked at several different sources of data from different angles, looking to see if any adverse impact has happened in the places where same-sex couples are allowed to marry. I have looked at demographic data. I have looked at the reasons for the -- that same-sex couples give for marrying. I have looked at how they are treated after they are married by their heterosexual communities and families. I have looked at behavior of heterosexual individuals before and after same-sex couples were allowed to marry, and I have seen no evidence of any harmful effect of allowing same-sex couples to marry.
Q. Now, in looking at the statistical experience of various jurisdictions in which same-sex couples have been allowed to marry, is it possible to translate that directly into a prediction of what would happen in California?
A. It's important to be careful in doing that. There may be particular trends that are already well underway for certain kinds of measures that you would want to take into account. You want to be sure that the data that you use is the right data. It's important to take into account changes, other changes that are happening at the same time that might influence the measures that you are looking at. So I do believe that it's important to proceed carefully.
Q. Let me ask you to look at demonstrative 32, which is a statement from Professor Douglas Allen, who is one of the defendants' experts. (Document displayed)
Q. And did you review this statement by Professor Allen?
A. Yes. I remember reading it in his report.
Q. And professor -- Professor Allen is one of the defendants' experts and he presented an expert report, is that correct?
A. Yes.
Q. And would you read this portion of his expert report?
A. (As read) "In the Netherlands the total number of heterosexual marriages has slowly fallen since the introduction of same-sex marriage. Like most western countries, this is no doubt part of a larger secular trend."
Q. And is that an example --
MR. COOPER: Your Honor, excuse me. I'm going to object to this testimony. It relates to Professor Allen, as you have heard. Professor Allen was withdrawn as a witness early on in these proceedings and we don't believe it's appropriate to introduce Professor Allen's opinions as though they are binding on the defendant-intervenors.
THE COURT: Well, Mr. Boies?
MR. BOIES: Your Honor, I wasn't suggesting that this is binding as a party admission. I was introducing it as evidence from the defendants' expert. Now I think the fact that it comes from the defendants' expert may lead the Court to give it greater weight than it might otherwise, but I -- I do agree that the weight to be given this is within the Court's discretion?
MR. COOPER: Your Honor, I would only respond, it doesn't come from the defendants' expert. The defendants considered using Mr. Allen, Professor Allen as an expert, withdrew Professor Allen before this trial commenced, and he is no longer an expert of the defendant-intervenor.
THE COURT: Is it not appropriate to place before the witness an opinion of another person in the same field that disagrees with the opinion being expressed by the witness and to ask the witness her response to that contrary opinion? That's a fairly conventional way of dealing with an expert witness, is it not, Mr. Cooper?
MR. COOPER: Yes, your Honor. And if presented in that fashion, I have no objection to it.
THE COURT: Very well. Then you may precede, Mr. Boies.
MR. BOIES: Your Honor, the only thing I would say is that I'm presenting it in a slightly different context in the sense that I believe that the witness will agree with this statement as opposed to disagree with the statement. But I still think it's appropriate to put in front of her a statement by another person in the field and ask her how she relates to that statement.
THE COURT: That's what I understand you are doing and can do without objection from Mr. Cooper.
MR. BOIES: Thank you, your Honor.
BY MR. BOIES:
Q. Professor Badgett, the statement that was previously read from Professor Allen, which I won't repeat, do you agree or disagree with that statement?
A. I agree with the statement.
Q. And is that an example of what you were talking about before of something that has to be taken into account in applying the experience in other countries to what would happen in, for example, California?
A. Yes, that's a very good example of applying the experience from the Netherlands or even from Massachusetts.
Q. Now, can I ask you to give some other just examples of trends or facts that you would have to take into account if you were applying statistical information from a jurisdiction other than California to predict what might happen in California?
A. I can think of a few examples of other changes that have taken place that show kind of unusual -- unusual effects and demographic trend data. For instance, in 2005 when Spain began to allow same-sex couples to marry, they also changed their divorce laws and made it easier to divorce.
MR. COOPER: Your Honor, if I may. I'm going to have to object to this. This testimony that we are now hearing has not been testimony or in any way disclosed in the witness's expert report, in any of the expert reports. I believe I'm confident in saying that.
THE COURT: Is the objection that it goes beyond the scope of the witness's expertise?
MR. COOPER: No, your Honor, it's not. It is that this information and this basis for her opinion was not disclosed prior to the time that she was deposed, and there was never an opportunity to depose the witness with respect to this information. This is the first time that the defendant-intervenors are hearing about this.
THE COURT: And by "this information" you mean what, Mr. Cooper?
MR. COOPER: The information with respect to Spain and the --
THE COURT: Divorce laws in Spain?
MR. COOPER: Yes.
THE COURT: Mr. Boies?
MR. BOIES: Your Honor, what was clearly disclosed was the fact that the evidence, including the evidence from other jurisdictions, confirmed the witness's general view that there would be no adverse effect on same-sex couples, and that you had to look at those experiences to see their applicability. Now, all I am doing here is giving -- having the witness give some examples of that. A expert report is not intended to be word-for-word all of the things the witness is going to say or to give all of the evidence that the witness is going to rely on. What the expert report does is -- under Rule 26 is it provides them with notice of what those opinions are and what the bases are. It doesn't purport to give them a word-for-word description of everything she's going to testify to.
THE COURT: Mr. Cooper?
MR. COOPER: Thank you, your Honor. Your Honor, the expert's witness reports identified a number of pieces of information of this kind. Primarily from the Netherlands, which is her expertise and on which she wrote a book and which is repeatedly referred to throughout her expert reports. And we had an opportunity, a fair opportunity, to cross examine with respect to the particular empirical data on which she based her expert opinions as presented in her expert report. I have not heard of this empirical data before and I have had no opportunity to examine into its bona fides.
THE COURT: Well, I understand the objection is not that this testimony goes beyond the expertise that the witness has been qualified to offer opinions on and, therefore, I think it's an appropriate subject to which the witness can explore. I will permit Mr. Boies to pursue the matter, allow you to cross examine the witness with respect to this and, if appropriate you believe, you may make a motion to strike that part of her testimony. But let's hear the testimony, see what the response is, and give you a crack at trying to shake the witness from her opinions in this regard, Mr. Cooper.
MR. COOPER: Very well, your Honor.
BY MR. BOIES:
Q. Professor Badgett, I've not sure you completed your description of the example that you were drawing from Spain. Could you summarize that briefly?
A. Yes. So Spain made divorce easier at about the same time they allowed same-sex couples to marry. So you do see as divorce rate in Spain around 2005. So that's one example of a kind of a confounding effect that might occur that would -- you would want to take into account when looking at data on trends, demographic trends.
Q. Now, Mr. Cooper mentioned the Netherlands. Can you give us an example from the Netherlands?
A. Yes. There are two good examples. In 2001 the Netherlands started allowing same-sex couples to marry. At that time the law related to that -- that change also allowed people who were in marriages to convert their marriages into registered partnerships, which made it possible then for those relationships to be dissolved more easily than a marriage could be dissolved. And there was a second change in that same year that increased the parental responsibilities of people who were in registered partnerships. So those are two fairly significant changes to the law that you would want to take into account when looking at data on trends and both marriage and registered partnerships in the Netherlands.
Q. Now, Mr. Cooper had mentioned that you had talked about Massachusetts in your report. Is there any difference in applying experiences from Massachusetts, which is obviously another state, as opposed to applying the experience of other countries, like the Netherlands or Spain or Belgium?
A. In my opinion, it would be more appropriate to look at Massachusetts because of the similarities, cultural similarities between different states here in the U.S. There would be less you would have to take into account than doing a simple comparison to the Netherlands.
Q. Now, in looking at Massachusetts first, did you discern any evidence of adverse impact of permitting same-sex couples to marry in that state?
MR. COOPER: Your Honor -- forgive me, Mr. Boies, but I have to assert an objection similar to the ones I have in the past. There was nothing in this witness's expert reports which referred to any kind of demographic data or any kind of analysis of the harm or lack of harm from same-sex marriage in Massachusetts. I think this is going to relate to a couple of the exhibits that I objected to earlier, exhibits concerning population statistics from the CDC relating to --
THE COURT: Population statistics in?
MR. COOPER: From the CDC, the Centers for Disease Control. But my point here is that the witness's expert report, her testimony at her deposition, focused solely on her assessment of the lack of harm from same-sex marriage as she had studied that issue in the Netherlands. It did not relate to any empirical data or demographic data from Massachusetts.
MR. BOIES: Your Honor, first, we disclosed -- gave them her studies in Massachusetts that she testified about. At her deposition at page 181 line five. "QUESTION: Do you think the consequences for heterosexuals in California will be identical to the consequences for heterosexuals in Massachusetts from same-sex marriage?" The answer was: "ANSWER: To my knowledge, there have not been any changes for heterosexual couples in Massachusetts. I would not predict any for heterosexual people in California. So in that sense, yes, I think it would be the same." That's an example. They had every opportunity to ask her why she thought that. And, again, the fact of the opinion is disclosed. The materials that she relied on for that has been disclosed. And all I'm doing is asking her to put the two together. There is no surprise here.
THE COURT: I assume the quotation from the deposition transcript is accurate, Mr. Cooper?
MR. COOPER: I don't deny its accuracy, your Honor. I do --
THE COURT: It does appear the subject was explored at her deposition.
MR. COOPER: Your Honor, it is not true that the materials were disclosed relating to divorce and marriage statistics with respect to Massachusetts and other American jurisdictions. It was limited to these types of data concerning the Netherlands.
THE COURT: But it does appear from the question -- question and answer that Mr. Boies read, that the subject matter was explored at the witness's deposition and that would appear to have put you on notice that this was within the realm of the testimony that this witness was prepared to give. Very well. The objection will be overruled.
MR. BOIES: Let me see if I can remember where I was, your Honor.
BY MR. BOIES:
Q. Professor Badgett, I may have asked you this question or I may not have, but I think it's a good place to continue the examination. Did you see any evidence of any adverse impacts in Massachusetts on same-sex couples or different-sex couples or the institution of marriage or on children resulting from --
THE COURT: Maybe you better start over.
MR. BOIES: Yes, your Honor. I agree with you.
BY MR. BOIES:
Q. Did you see any evidence of any adverse impacts in Massachusetts of permitting same-sex marriage on heterosexual marriage or the institution of marriage?
A. No, I saw no such adverse effects.
Q. Did you see any evidence of adverse effects in Massachusetts of permitting same-sex marriages on children, either children being raised by same-sex couples or children being raised by different-sex couples?
A. No. I see no evidence of any such adverse effects.
Q. What does the Massachusetts experience lead you to conclude about whether there would be adverse effects of permitting same-sex couples to marry in California?
A. I believe that the same effect would occur here in California; that is, that there would be no adverse effect on different-sex couples or on the institution of marriage here in California.
Q. You also testified that one of your opinions was that there were many more similarities among same-sex couples and different-sex couples than there were differences between the two groups, and that any differences were marginal, is that correct?
A. Yes, that's correct.
Q. And what is that based on?
A. That's based on my analysis of census data for the State of California, comparing same-sex couples to marry different-sex couples.
Q. Let me ask you to look at demonstrative 37. (Document displayed)
Q. And you say here that: "Same-sex couples wish to marry for many of the same reasons that opposite-sex couples marry."
A. Yes.
Q. And you then list reasons and I would like to ask you about that. You say: "Just as with different-sex couples, same-sex couples are raising children." Do you see that?
A. Yes.
Q. And you already described the extent to which that is being done, correct?
A. Yes.
Q. You then say that: "Just as with different-sex couples, same-sex couples are engaged in positive assortative matching." Do you see that?
A. Yes.
Q. What does that mean?
A. Well that's a fancy economics and sociological concept, which basically boils down to similar people -- people seek partners who are similar to them in many ways. So we see the same kinds of patterns for same-sex couples as we do for different-sex couples. People are partnering with people who have similar levels of education, similar race, similar age, and similar economic positions as well.
THE COURT: Birds of a feather?
THE WITNESS: That would succinctly sum it up, yes.
BY MR. BOIES:
Q. And you say that different-sex couples and same-sex couples are seeking the same benefits associated with marriage, correct?
A. Yes, yes. And that's quite clear from the research from our study in Massachusetts. So that's one reason why couples are seeking to marry there in Massachusetts.
Q. I would ask you to turn next to a statement that you made earlier about how preventing same-sex marriages imposes some quantifiable cost in losses on California and its subdivisions; do you recall that?
A. Yes.
Q. And I would like to ask you how you would go about making that kind of quantification? Because you said earlier that some of these costs were substantial, but not quantifiable. Now you are talking about quantifying things.
A. Yes. It is possible to quantify those particular harms. People spend a lot of money on weddings typically, and so we tried to figure out how much money would be spent by same-sex couples here in California if they were allowed to marry; both couples who live here in the state, and couples who would travel here from other states in order to get married. And we used data from the census to get estimates of couples. We looked at the rate of couples getting married in the first few years in Massachusetts. About half of the couples there had gotten married within, roughly, the first three years. And we looked at that for couples in the state and estimated that about half of the couples here in the state would get married over that time period. We made estimates about how many couples from other states would come here based on the numbers of couples in those states. And, again, although we think that about half of the couples might want to marry from other states if they were allowed to do so in the first three years, we know that not all of them will travel to California to do that. So we made various adjustments to take into account the fact that California draws tourists, heavily draws tourists from certain states. So in those states we estimated higher numbers would be coming here. Higher proportions of the couples who want to marry would be coming here. We took into account the fact that now -- well, if California did allow same-sex couples to marry, they would have some competition from not only Massachusetts, but now Iowa, Vermont, New Hampshire and Connecticut. So we tried to make some adjustments about couples who might go there instead. In particular, we think couples from New York are much more likely to travel to one of those states that are very close by. So we all but eliminated New York from our calculations. And then used data from the state bureaus here in California that estimate spending by tourists. And we looked at some studies on estimates of spending on weddings. And we took the number of couples who are likely to come here to get married and we multiplied them by those different figures for the spending that we would expect them to have if they were to come here. And we then came up with one big number. I believe it was about $490 million over three years of increased spending here in California. And then we estimated how much of that spending would generate in sales tax revenues and hotel occupancy tax revenues that go to the state and to the counties and municipalities here in the state. And that figure was about $40 million.
Q. Let me ask you to look at demonstrative 38. (Document displayed)
Q. And this shows that the $40 million over three years that you just talked about. It then says: "There are other costs to state and local governments." Do you see that?
A. Yes.
Q. And the first is "general productivity losses"?
A. Yes.
Q. And can you explain what you mean by that?
A. That relates back to my earlier point; that if gay and lesbian people or people in same-sex couples feel like they are being treated differently, they may not be as productive in the workplace and that has potential broad economic harms to the state that will filter down to harmful impacts on state governments in the same way that -- that we talked about for the larger business spending and the economy.
Q. Another cost to state and local governments, which you identify but do not quantify, is "higher speaking on means-tested programs." Can you explain what you mean by that?
A. Yes. The state has some safety net programs for people who have low incomes. And if some of the effects on same-sex couples tend to reduce their incomes, then that will make them more likely to need and be eligible for those means-tested programs that are paid for by the state.
Q. Another cost to state and local governments that you identify, but do not quantify, is stated to be higher costs for healthcare of uninsured same-sex partners. Can you explain what you mean by that?
A. Yes. As I mentioned earlier, one of the important benefits of marriage from employers is the coverage of spouses on health insurance plans. And to the extent that couples are not given -- that same-sex couples cannot have access to those same benefits, then there will be uninsured people who might need to sign up for some of the -- for the state's version of Medicaid or the state children's health insurance program, and that will increase costs to the state; or uncompensated care by uninsured individuals might also be costly to the state.
Q. Another cost to state and local governments that you identify, but do not quantify, that results from not permitting same-sex marriage is said to be loss of workers; do you see that?
A. Yes.
Q. And can you explain what you mean by that?
A. People, gay or lesbian people, who either want to marry their current partner or want to have that option in the future might decide that California is not a good place for them to live and they may move elsewhere in order to have that right.
Q. And are you aware of any data or experience that supports the statement that you just made?
A. Yes. There are two pieces of information that a colleague of mine analyzed. One came from census date that shows that after Massachusetts started allowing same-sex couples to marry, there was an influx, a net influx of people in same-sex couples who come from the so-called creative class. Those are people who are more likely to be scientists or inventors or artists, people who -- according to some models of economic growth, are some of the drivers of economic growth. And those individuals appeared to be attracted to Massachusetts, perhaps because they are allowed to marry this. In the survey that we talked about earlier of the married couples, married individuals in Massachusetts, some of those individuals had moved recently since same-sex couples were allowed to marry, and they reported that that was one reason why they moved to Massachusetts, was in order to have the right to marry.
MR. BOIES: Your Honor, I have no more questions.
THE COURT: Very well. You may cross examine, Mr. Cooper.
MR. COOPER: Thank you, your Honor, has a binder been up the presented to the witness? Fine. Okay.
CROSS EXAMINATION BY MR. COOPER:
Q. Good morning, Professor Badgett.
A. Good morning.
Q. My name is Charles Cooper. I represent the defendant-intervenors in this case. It's a pleasure to meet you. Professor, you have -- you have long been an advocate for legalizing same-sex marriage, have you not?
A. I'm not sure what you mean by "advocate."
Q. Well, you have supported the legalization of same-sex marriage for many years, correct?
A. Yes, I have. I have been doing research on this topic for many years, and have been a supporter of the issue -- of the --
THE COURT: Be sure you keep your voice up.
THE WITNESS: I'm sorry.
THE COURT: What was the answer?
A. The answer was, yes, I have studied this issue for many years and that influenced my opinion, and I do have the opinion that same-sex couples should be allowed to marry.
BY MR. COOPER:
Q. And would it be fair to call you a gay rights activist?
A. I'm not sure, again, exactly what you mean by that term. There have been opportunities that I have had to state my opinion on subjects and I -- as I said, I do believe same-sex couples should be allowed to marry.
Q. Well, your CV identifies that the Advocate magazine awarded you or bestowed upon you an award for being "one of our best and brightest activists," is that right?
A. They did. That was not something I applied for or sort of sought in any way, but that was their opinion.
Q. But your activity in this field qualified you for that, for that award?
A. Well, my activity was to have done research on these topics for almost 20 years, yes.
Q. And you contributed to No On 8, Equality For All in the Proposition 8 campaign, you did not?
A. I did.
Q. Now, your primary academic focus, Professor Badgett, is essentially sexual orientation and economics, is that correct?
A. There are different ways to define it. I'm a labor economist by training. That's sort of the broad field that I'm in. My specialty within that has been in terms of thinking about sexual orientation differences. That's one piece of it, yes.
Q. And what does the term "sexual orientation" mean?
A. It has different meanings in academic research. I'm not sure what kind of context you are asking about.
Q. Well, are there definitional problems with the concept of sexual orientation?
A. No. I don't think there are problems with it.
Q. Are there different dimensions of the concept of sexual orientation?
A. Yes, yes. There are different dimensions.
Q. Would you describe them?
A. The dimensions that -- that are often found in the research that I'm aware of concern differences in self-identity. There's a dimension related to behavior, whether someone's -- the sex of someone's sex partners. There are dimensions related to attraction.
Q. Would you turn to Tab 4 in your binder? (Witness complied.)
Q. That is a document published by the Williams Institute called Best Practices For Asking Questions About Sexual Orientation On Surveys. It appears to have been published in November, 2009. Are you familiar with that?
A. Yes, I am.
Q. And did you have anything to do with its development and publication?
A. Yes. I was a member of the group of scholars who prepared it, and I was one of the editors of this document.
MR. COOPER: Your Honor, I would like to move the document, which is --
THE COURT: DX-1108.
MR. COOPER: Yes, your Honor, into evidence.
MR. BOIES: No objection.
THE COURT: Very well. DIX-1108 is admitted. (Defendants' Exhibit 1108 received in evidence.)
BY MR. COOPER:
Q. Dr. Badgett, I would like to refer your attention to page six of the document. And in the middle of the page the heading reads: "Conceptually sexual orientation has three major dimensions." And then it lists the three major dimensions in succeeding paragraphs: Sexual attraction, sexual behavior and self-identification. Are those the dimensions that you were referring to a moment ago in your testimony?
A. Yes, those are the same ones.
Q. Now, it's true, then, that self-identification is not always in concordance with sexual attraction or sexual behavior, is that correct?
A. It is for most people.
Q. And, again, referring now to the bottom of page six where the report states: "Sizeable numbers of people reporting only same-sex attraction and/or behavior self-identify as heterosexual or bisexual. Similarly, sizeable numbers of those who identify as gay or lesbian report some sexual partners of a different sex and/or some level of attraction to different sex partners. Some people may not be currently sexually active, yet have an orientation identity when asked. Self-identification is particularly important for social, political and economic studies." You agree with those propositions, don't you?
A. Yes.
Q. Now, how does a conscientious researcher determine what to ask in a survey question in the light of these different dimensions of sexual orientation?
A. It might vary as to the subject that you are studying. There is no single answer to that question.
Q. But one would have to assess the purpose of the survey and determine the questions based upon the dimension of sexual orientation that is most pertinent to that survey, is that accurate?
A. In my experience if one is fortunate enough to have options, then, yes, you would have to think about those kinds of questions.
Q. Now, are you familiar with the 1992 National Health and Social Life Survey?
A. Yes.
Q. Okay. Could you -- do you recall it well enough to describe its reflection on this issue, the different dimensions of sexual orientation?
A. Well, I definitely recall that they asked about those different dimensions in separate questions.
Q. All right. Would you turn to exhibit -- or tab five in your binder? (Witness complied.)
MR. COOPER: And, for the record, your Honor, this is a book -- or at least some excerpts from a book called Sexual Orientation Discrimination in an International Perspective.
BY MR. COOPER:
Q. And you recognize that document?
A. Yes. I co-edited this book.
Q. And this was published when?
A. I believe in 2007.
Q. Now, could I ask you to turn to page 21, which is -- which is one of the excerpts behind tab five there? (Witness complied.)
Q. And the first full paragraph reads as follows. "The first complication is defining what one means by sexual orientation, on being gay, lesbian, bisexual or heterosexual. Sexuality encompasses several potential distinct dimensions of human behavior, attraction and personal identity as decades of research on human sexuality have shown." And in the next passage you refer to the study that we have been discussing, the National Health and Social Life Survey. Allow me to read on: "Perhaps the findings from the 1992 National Health and Social Life Survey reveal the complexity most clearly. One group of respondents, 6.2 percent of men and 4.4 percent of women, report feeling sexual attraction to people of the same sex. A smaller group, 4.1 percent of women and 4.9 percent of men, have engaged in sexual behavior with someone of the same sex since the age of 18. An even smaller group, 2.8 percent of men and 1.4 percent of women, reported that they think of themselves as gay (or lesbian for women) or bisexual, and the potential nesting is not necessarily complete or consistent. Some people who have same-sex desires have never acted on them. And even a small number of men who think of themselves as gay or bisexual report no same-sex behavior or attraction, for instance." So, Professor Badgett, there is -- can be a wide variation in the classes of individuals who -- whose sexual orientation is being identified depending upon whether the dimension being used is the self-identity, the attraction or the behavior, is that correct?
A. They are different numbers. There is overlap, as I note here. Although there is some lack of overlap, as well, for this group. It's not inconsistent with my earlier statement. I mean, most people don't fall into any of those categories. Most people are heterosexual in terms of both their identity and their behavior and their attractions.
Q. And these survey problems or issues with sexual orientation are generally not present in studying race and sex discrimination, are they?
A. No. I wouldn't agree with that at all.
MR. BOIES: I object.
THE COURT: I beg your pardon?
MR. BOIES: I object. It's outside the scope. I'm not sure that he is doing this in order to save time; that is, it's not totally relevant to the case, but it's certainly outside the scope of what this witness has talked about.
THE COURT: Well, it is outside the scope, but I think it's appropriate. You may proceed on the matter, Mr. Cooper.
MR. COOPER: Thank you, your Honor.
BY MR. COOPER:
Q. I'm sorry. Did you answer my question?
A. I started to. I said, no, I don't agree with that statement that you just made.
Q. Okay. Could you turn to page 23 of the excerpt from your book? (Witness complied.)
Q. And the sentence before the last paragraph reads: "Such issues are generally not present in studying race and sex discrimination, since those characteristics are more reliably observed or reported." Do you not agree with that? (Brief pause.)
A. I believe the context is different from what you were looking at earlier where we were just looking at different definitions. I think in this case we're thinking about the context of doing certain kinds of -- the context and interpretation of certain sorts of tests, which are asking a somewhat different question actually.
THE COURT: A word that you use or that is used in that paragraph that Mr. Cooper pointed out is endogeneity.
THE WITNESS: Yes.
THE COURT: What is endogeneity?
THE WITNESS: Another one of those $2 terms. It basically means that some of the factors that we are looking at all at the same time might be influencing each other. So in this particular case a good example would be the possibility that -- that one's -- this is a broad example; that one's sex -- if you were looking at the impact of a lot of factors that influence wages, for instance, we often include things like education and experience and race and sex and occupation, because we know all those things matter in the context of explaining the variation in wages. But it also turns out that there might be some relationship between these things. So, for instance, a person's sex has a big impact on the occupation that they are in, which we know from other sorts of studies. So in this case my argument was simply that some of these other factors might influence whether or not someone identifies as gay, lesbian or bisexual in a way that we wouldn't sort of argue for whether or not someone says that they are male or female.
THE COURT: I see. So one's occupation may affect how one identifies to other people with respect to sexual orientation; is that what you are saying?
THE WITNESS: Well, I was thinking about it more with regard to sex, looking at the impact of being female on wages. So I'm sorry if I confused the matter by bringing that other subject in, but that's the overall context. I mean, I'm looking at this now, I think, because my main concern in this article really didn't have very much to do with race or sex discrimination, I did not talk about some of the very important complications and difficulty in some cases of measuring race. For instance, our census has changed its racial categories in almost every single census that we've had. So this is -- obviously, these kinds of questions about measurement also come up in that particular context as well. It's just not questions about the measurement of sexual orientation, but, also, questions about the measurement of many different categories, including race, even though I didn't mention that here.
THE COURT: Mr. Cooper?
MR. COOPER: Thank you.
BY MR. COOPER:
Q. Professor Badgett, in your expert report, which I believe is -- it's behind tab -- behind tab one of the binder in front you, and it was one of the tabs in your -- in the binder that Mr. Boies used with you, and was one of the documents that was now introduced into evidence, you discuss the varying rates of domestic partnerships in the Netherlands. And in the Netherlands you -- you state in this paragraph that: "The number of registered partnerships dropped dramatically from 1500" -- excuse me -- "from 1500 to 3,000 per year to around 500 to 700 per year when same-sex couples were allowed to marry in 2001, while annual marriages of same-sex couples were twice that number." So in the Netherlands since 2001 domestic partnerships did drop, but they remain -- they remain roughly a third or so of the number of same-sex marriages, is that right?
A. Well, they aren't marriages. I would refer to them as formalizations. Yes. Same-sex couples with a choice in the Netherlands of which of those two they would prefer to have.
Q. And same-sex couples are continuing to select, as you say, domestic partnership or registering as domestic partners, at the rate of about 500 to 700; and that's about, again, a third of the number of same-sex marriages?
A. Yes. Registered partnerships, yeah, that's the term. I don't know the exact paragraph you are referring to, but that is my memory of --
Q. Paragraph 35 -- I'm sorry. I didn't mean to rush you. Paragraph 35. I was quoting from the bottom of the page on 11. And you also say again in Paragraph 35 that: "Different sex-couples are also more likely to marry than to have a registered partnership". And, Professor, I would like you to turn to your tab number seven in your binder, and I would like to publish to the screen a demonstrative. (Document displayed)
Q. Now, tab seven of your binder contains census data from the Netherlands on the subject of opposite-sex relationships. And I would like you to take a look at the demonstrative on the screen, if you will, Professor Badgett, which tracks the total number of opposite-sex relationships. And the demonstrative indicates same-sex marriages for -- excuse me, opposite-sex marriages have declined since 2001 at the same time that opposite-sex new registered partnerships have continued to increase over that period of time; is that correct?
A. These are the numbers of actual marriages -- well, I think in the first place, I'm not sure that what you just said is correct. If you look at 2001 data and then look at 2002 data, you see a clear increase in the number of marriages. So it does depend somewhat on which of these numbers that you want to look at. But overall, in my opinion, this doesn't tell you anything about what the impact of allowing same-sex couples to marry is.
Q. Does this not indicate that opposite sex couples are subscribing and using registered partnerships at continuing -- at increasing rates since 2001 and that -- and that opposite-sex marriages have actually declined from that period, at least in their trend with some variation?
A. Okay. I'm going to have to just stop and compare the data that you have in more detail and the exhibit to what you have on the screen to make sure I understand it. (Brief pause.)
THE COURT: Question, Mr. Cooper?
MR. COOPER: I thought the witness was...
THE WITNESS: Okay. I think I almost understand what you have here. (Brief pause.)
A. I'm sorry. Could you repeat the question, please?
BY MR. COOPER:
Q. I'm simply asking for your confirmation that opposite-sex couples have used registered partnerships since 2001 in increasing and steadily increasing numbers since that period; and that, as well, the numbers of marriage have trended downward at the same time, since 2001?
A. They have clearly trended downward since 1998, the first year you have on here as well, in terms of the number of opposite sex marriages. That's what I see in these data. In looking at the new registered partnerships and assessing, you know, what's happening here, I think you would have -- as I said earlier, you would want to look at preexisting trends, which is the issue for the marriages. You would want to look at other kinds of things that have changed. There was a big change in 2001 for registered partnerships before interpreting what this --
Q. Professor Badgett, this is just a real "yes" or "no" question. Your counsel can ask you to explain anything that you would like to explain, but I'm simply asking a "yes" or "no" question. Have -- have opposite-sex couples registered partnerships at year 2001 at the number of 1670, and a number that has increased steadily to 2008 to 7,450?
A. Those appear to be numbers that are -- that reflect the numbers that you have given me here if these, in fact, come from the source that you have cited.
Q. Thank you. Now, in Paragraph 37 of your expert report, you refer to a qualitative data from the Netherlands that you relied upon for the proposition that alternative statuses are viewed as inferior in the Netherlands; that is, registered partnerships are viewed as inferior to marriage. And you referred to some interviews that you did in the Netherlands. Would you describe those, please?
A. Interviews?
Q. Yes, please?
A. I did interviews of same-sex couples to ask them about why they chose to marry or to register as partners or to remain unmarried.
Q. And at least with respect to this paragraph, it was those -- on those -- the basis of those interviews that you developed your conclusion that "registered domestic partnerships are viewed as socially and culturally second rate when compared to marriage," is that right?
A. I'm sorry. Could you tell me the paragraph you are looking at again?
Q. It's 37.
A. Okay.
MR. BOIES: Your Honor, I am told that this exhibit actually is not yet in evidence. It's Plaintiffs' Exhibit 1257. We have no objection to it being in evidence, but --
THE COURT: All right. The exhibit number is?
MR. BOIES: 1257.
THE COURT: Very well.
MR. COOPER: The expert report, your Honor.
THE COURT: I beg your pardon?
MR. COOPER: The expert report. The initial expert report.
THE COURT: Oh, you are entering the expert report?
MR. COOPER: That's what I understood Mr. Boies to be doing.
THE COURT: It's not usually done, is it, Mr. Boies?
MR. BOIES: No, it's not. Counsel had said this document was already in evidence in response to the Court's question. My observation is simply that it was not in evidence and I have no objection to it being in evidence. I also have no objection to it not being in evidence. (Laughter.)
MR. BOIES: I thought the record ought to be clear as to whether it's in evidence or not.
THE COURT: Well, we don't ordinarily introduce the expert report when the witness testifies. Is there any reason why we should make an exception in this case?
MR. COOPER: Not on my account.
THE COURT: Apparently, not on Mr. Boies's, so let's just move on.
MR. COOPER: I was misinformed.
BY MR. COOPER:
Q. Again, we are referring to Paragraph 37.
A. Uh-huh.
Q. And it was on the basis of those interviews that you relied for the conclusions that you have identified in paragraph 37 that I have quoted previously?
A. No. I actually cite three other sources in that paragraph as well.
Q. Okay. But this was part of your basis for your opinion?
A. Yes, that's correct.
Q. And when did you conduct those interviews?
A. I conducted them in 2004.
Q. And how many interviews did you conduct?
A. I interviewed, I believe it was 34 people and 19 different couples.
Q. Nineteen couples?
A. Yes.
Q. And how were the 19 same-sex couples selected?
A. They were selected in a very common procedure for people doing qualitative interviews like this. I recruited subjects by tapping into some of my professional networks and my personal networks to start, and then I asked the couples themselves to suggest other couples whom I might interview.
Q. Do you recall the gender breakdown of the couples?
A. There were more female than male couples. I don't remember the exact numbers.
Q. Would it refresh your recollection if I suggested there were six male couples and 13 females?
A. That's quite plausible.
Q. And how long did you conduct these interviews?
A. The interviews lasted roughly an hour to an hour and a half in most cases, sometimes a little bit more.
Q. And it's true, isn't it, that almost all of the couples had been formed well before 2001, when the Netherlands legalized same-sex marriage?
A. Yes, that's correct.
Q. Now. All but two of the participants had post secondary education, is that correct?
A. I believe that -- that to be the case. I don't recall exactly, but that sounds right.
Q. But you -- you would agree that the sample itself was probably then skewed towards middle or even upper class couples?
A. The sample -- it was, again, not a random sample. So it might have some of the characteristics of my own personal and professional networks. Yes, as I discuss in the book, in the methodology section.
Q. Do you remember the dominant age cohort?
A. They were mostly in their 30's and 40's, some in their 50's.
Q. So you don't make any claims about how common the experiences of these couples are, do you?
A. Not in terms of the commonness or frequency, no.
Q. And that's because it would be inappropriate to do so given the non-random sampling, development of this grouping?
A. That is a very -- it's a very common issue with this particular type of research. It's not designed to be generalizable.
Q. Now, none of the same-sex couples that you interviewed had registered a partnership after 2001, is that correct?
A. I think one couple had shortly after they were allowed to marry, but for some reason they said they decided to go ahead with the registered partnership.
Q. Now, if you had interviewed some same-sex couples who had registered partnerships after marriage became available, do you think they would have told you that they chose registered partnerships -- a registered partnership over marriage because they believed it to be culturally and socially second rate to marriage?
A. Would I have expected them to say that that was the reason? No, no.
Q. Professor Badgett, what was AB-205? Do you recognize that?
A. I -- as I recall, that was the law that added to the rights and responsibilities of registered partnership here in California.
Q. And you analyzed that law in a report, didn't you, back in 2003?
A. Yes. I looked at the fiscal impact of that law, of that legislation.
Q. And was the purpose of that report to support passage of AB-205?
A. The purpose of the report was to find out whether or not it would cost the state money on net.
Q. And have you analyzed domestic partnership legislation and the fiscal impacts of proposed domestic partnership legislation in other states?
A. Yes, I have.
Q. And where and when did you do that?
A. The actual domestic partner legislation, we analyzed that in the State of Washington.
Q. And when was that?
A. A few years ago. I don't remember the exact year. We looked at that same kind of legislation in New Mexico, also, 2005-2006, sometime in that time period. Other -- those are the two that I can recall right now.
Q. Did you prepare a report in connection with the proposal in Oregon?
A. Yes, that's right. That was also a domestic partnership. I think we did do one there, too.
Q. Do you recall when that was?
A. That was more recent, in the last couple of years.
Q. Would you look at tab 18 of your binder? (Witness complied.)
Q. And is that the document that was prepared by the Williams Institute in connection with --
A. Yes.
Q. (Continuing) -- with the Oregon proposal?
A. Yes, it is.
Q. And you participated in that?
A. I did.
MR. COOPER: And that's DIX-2679, your Honor. I would like to move it into evidence.
MR. BOIES: No objection, your Honor.
THE COURT: Very well. 2679 DIX is admitted. (Defendants' Exhibit 2679 received in evidence.)
BY MR. COOPER:
Q. And in connection with proposals for enactment of domestic partnership legislation, you have supported those, have you not?
A. Me, personally?
Q. Yes.
A. I might have thought they were a good idea. I don't know that I actually supported them in any other kind of meaningful way. I did research on them. That's a different issue.
Q. You don't recall writing any type of newspaper articles about pending domestic partnership legislation?
A. As I said, I might have. I don't -- I know I have written op-ed pieces. Sometimes they were related to specific pieces of legislation and in some cases I said I thought it was a good idea. Most of the time I simply said, here's what effect it was going to have.
Q. But you have said that passage of the domestic partnership law was a good idea, have you not?
A. I might have. I haven't looked at those essays for awhile.
Q. Would you return to tab 19 of your binder? (Witness complied.)
Q. And that is a reprint from the Williams Institute's website of an op-ed piece that you wrote in October of 2006 entitled What's Good For Same-Sex Couples Is Good For Colorado. Do you recall that now?
A. Yes. That was another example of domestic partnership legislation that we did some research on.
Q. And you did support that? (Brief pause.)
A. Actually, in this -- I don't say that I support it anywhere in this essay.
MR. COOPER: Your Honor, I would like to move that document into evidence. It's --
MR. BOIES: No objection.
MR. COOPER: DIX-2680.
THE COURT: DIX-2680 is admitted. (Defendants' Exhibit 2680 received in evidence.)
MR. COOPER: Thank you, your Honor.
BY MR. COOPER:
Q. If you would turn now, Professor Badgett, to the document behind tab nine, please? (Witness complied.)
Q. Professor, I would represent to you that these are the domestic partnership statistics for 2000 to 2009 that were provided to us on a certified copy basis by the Secretary of State's office.
MR. COOPER: And this is DIX-2647, your Honor. I have would like to move that into evidence.
MR. BOIES: Your Honor, subject to the ability to check the authentication, we have no objection.
THE COURT: Very well. And so subject, DIX-2647 is in. (Defendants' Exhibit 2647 received in evidence.) (Brief pause.)
BY MR. COOPER:
Q. I want to invite your attention, Professor Badgett, to the statistics. Again, these are for domestic partnership registrations, statistics for 2008. Do you see the row of statistics for 2008?
A. Yes.
Q. And they align with columns for each month, right? And so each month the number of domestic partnership registrations is recorded in the appropriate location for the year, correct?
A. Well, I don't know that these are correct, but I understand the principle, yes.
Q. Okay. And I want to invite your attention to the months during which marriage was legal in California. And that began when; do you recall, Professor?
A. In June of 2008.
Q. Okay. June of 2008. And it essentially ended on election day or the day after election, November 4th of that year, correct?
A. Yes.
Q. And so the first full month that marriage was available, how many domestic partnerships were registered? That's July of that year.
A. 356.
Q. When you look right above it for the number of domestic partnerships that were registered in 2007, you see that the number there is 510, correct?
A. Yes.
Q. Okay. And so, indeed, the domestic partnership registrations did decline from the previous month, but they still maintained at roughly 70 percent, if my math is correct, of the previous month's -- of the previous year's, I beg your pardon, previous year's domestic partnership registrations, correct?
A. Whatever the percentage is, yes, on some portion.
Q. If you look at the number directly beneath the number of registrations for July of 2008 -- and that is the number for July of 2009 -- you see that the number there is 332 domestic partnerships, which is actually about 24 fewer than had been registered in July of 2008, when marriage was an alternative for these domestic partnerships, correct?
A. It was an option in July of 2008, but not in July of 2009, right.
Q. That's right. And the number of registered partnerships actually declined from the number that were registered in July of 2008 to July of, 2009, correct?
A. Yes.
Q. And in the next month, August, we see the figure 286 domestic partnerships were registered, which was about 60 percent or so, if my math is correct, of the 489 from the previous year, the August of 2007, and about 70 percent of the number the following year, 412. So there were still a very substantial number of registered partnerships in August of 2008, correct?
A. There were 286, yes.
Q. And if you -- and we could compare these relationships for the other two months, the two full months in the period when same-sex marriage was lawful. But if you look -- if you just look at the numbers, for example, for all 11 months in 2008 -- excuse me. If you look at the numbers for all 12 months in 2008, you see there's 4,489 throughout that year. And the number for just 11 months in 2009 is 4,067 registered domestic partnerships, correct?
A. That's the number, yes.
Q. And if you -- and I -- I ask you to accept my math on this. But if you eliminate December of 2008 from the number of domestic partnerships registered in that year and you compare the 11 -- first 11 months of 2008 to the first 11 months of 2009, the number of registered partnerships is 4,065 in 2008 versus 4,067 in 2009. I ask you to accept my mathematical representation.
A. Okay.
Q. So the rate of registration of domestic partnership was quite substantial during the period when marriage was available and, in fact, is completely comparable to the number of registered partnerships in 2009; is that not correct?
A. That's the number that I calculated earlier with just sort a different time period of 2007. Yes, I acknowledge that there were registered partnerships during the time that marriage was an option, also.
Q. Do you believe that these California same-sex couples chose domestic partnerships over marriage because they believed it to be culturally and socially second rate when compared to marriage?
MR. BOIES: Objection, your Honor. Misstates the exhibit.
THE COURT: Objection overruled.
A. Well, I don't know that some of those of 18,000 couples who married didn't also register a domestic partnership in order to hedge their bets against the outcome of the election. So I don't know exactly conclusion we could draw from comparing 2008 to 2009.
Q. I would like you to turn now back to your expert report, please, and paragraph 40. (Witness complied.)
Q. Now, in your testimony, and in this report, you argue that there are a number of same-sex couples who will not register a domestic partnership, but who would get married if they had the option to do so?
A. Yes.
Q. And this is the place in your expert report where you -- where you attempt to quantify what that number is, is it not?
A. Yes.
Q. Okay. And I would like to just go through that paragraph with you. "It is possible to estimate the increase in the number of currently non-registered same-sex domestic partners who would marry if they could and, thereby, gain the legal protections of marriage. To estimate the eventually count of married same-sex couples I multiplied the proportion of couples marrying in Massachusetts between 2004 and 2008 calculated earlier, which is 64 percent, by the number of same-sex couples in California, 84,397, to get the number of same-sex couples likely to marry in California, which is 54,014. That is 64 percent of the 84,400. "Next I subtract the number of currently registered same-sex domestic partnerships in California, calculated earlier as 46,266. The difference between likely marriages and current domestic partnerships is 7,748." Now, Dr. Badgett, you calculate this off the number of same-sex couples in California, right? And where does that figure come from?
A. That 84,000, that came from the American Community Survey in 2008.
Q. In 2008?
A. Yes.
Q. And that -- that number was a -- was, apparently, an improvement in previous numbers of calculations of same-sex couples, is that correct?
A. In the 2008 American Community Survey the Census Bureau made some improvements to their processing of old data that I think led to better counts of couples, yes.
Q. And it reduced significantly the previous estimates, did it not, of is same-sex couples?
A. In both Massachusetts and California, yes.
Q. Professor, of the 84,400 same-sex couples in California, how many of those are married?
A. I'm sorry. Could you ask that again?
Q. I'm asking: How many of the -- how many of the 84,400 same-sex couples in California, according to the A.C.S. 2008 survey, how many are married?
A. How many are actually married or how many --
Q. Well, wasn't it your estimate, I think you testified to earlier, that there are 18,000 same-sex couples who were married during that period in 2008?
A. That was the estimate of the number who married in that time period. There may be couples in California who married in other places, too; Canada, Massachusetts.
Q. Well, now, shouldn't those individuals be deducted from the 84,400 before you arrive at your 7,750 estimate of people who would -- who would get married but will not enter a domestic partnership? That is, before you actually apply your 64 percent multiplier from Massachusetts, shouldn't they be deducted?
A. No, no. They would just be part of the -- that 64 percent of couples who actually did marry. That's where those 18,000 would be.
Q. Well, what you are saying here, as I read the paragraph, is that there are non-registered domestic partners who, if permitted, would get married, and that those non-registered domestic partners are the number that you derive when you subtract 64 percent of 84,000, that is 54,000, from the 84,000, correct?
THE COURT: I'm afraid I got lost in the numbers. (Laughter.)
MR. COOPER: This is --
THE WITNESS: We need a blackboard.
THE COURT: I'm sure the witness has figured it out though.
MR. COOPER: This is, indeed, a complicated methodology that the witness has used.
A. So 64 percent of the 84,000 couples in California are the number likely to marry, about 54,014?
BY MR. COOPER:
Q. Yes.
A. And it's within that that the 18,000 couples who actually ended up being able to get married would fall into? They would be part of that 54,000?
Q. But they are already married. They are already married. Of the 84,000 same-sex couples, 18,000, according to your estimate, are already married?
A. Yes.
Q. And so they certainly wouldn't be marrying again, would they?
A. No. They wouldn't be marrying again, but there's still a substantial group that would be part of that 54,000 who are not currently registered domestic partners. So there may be an additional 36,000 or so who would get married, if they could, on top that 18,000. Adding those two groups together and subtracting off the number of currently registered domestic partnerships, it would give you about 7,000 people who would get married if they were able to.
Q. If you deducted the 18,000 from the 84,000, you would not get 7,750, would you, Dr. Badgett?
A. No, but I think it's appropriate to include the 18,000 who not only want to get married, but happened to be able to get married and did get married during that period of time as part of the prediction of the number of same-sex couples likely to marry in California.
Q. You think it's appropriate to include them in the number of people who would get married if they could, the ones --
A. They have shown that they already would, yes.
Q. Okay, okay. They already are?
A. That's right. That's a pretty good measure.
THE COURT: How are you doing on time, Mr. Cooper?
MR. COOPER: Your Honor, this would be a perfectly fine place to take our lunch break.
THE COURT: Well, that would be fine. How much longer do you think you have with this witness?
MR. COOPER: I think I have a couple of hours, your Honor.
THE COURT: Another couple of hours?
MR. COOPER: I do.
THE COURT: Well, then, we better proceed on a full stomach. So we will take our luncheon recess at this time and let's resume at 1:30.
MR. COOPER: Thank you. (Whereupon at 12:33 p.m. proceedings were adjourned for noon recess.)
THE COURT: Mr. Cooper, you may continue your cross-examination of the witness.
MR. COOPER: Thank you, Your Honor. And good afternoon. CROSS-EXAMINATION RESUMED
BY MR. COOPER:
Q. Good afternoon, Professor Badgett. Would you turn to the document behind tab 11 of your binder, please. This is PX1271. I think it's also listed as PX1039. I do believe it's been introduced, by now, into evidence. But this is a document entitled "Same-Sex Spouses and Unmarried Partners in the American Community Survey 2008." It's a Williams Institute document. Do you recognize it?
A. Yes, I do.
Q. Okay. And it's by your colleague, Gary Gates; is that right?
A. Yes, it is.
Q. October 2009. And I want you to turn to page i, little i, the executive summary, and the first bullet point on that page. And I'll read it, if I may. "The 2008 estimate of nearly 565,000 same-sex couples marked a decline from the peak estimate of 780,000 couples in 2006. This is likely a result of improvements made to the 2008 ACS survey instrument and in data-processing procedures." And then the next little bullet under that says: "The entire decline was in the number of reported same-sex spousal couples." Now, we had a short exchange about this earlier this morning, Dr. Badgett. Could you describe what the nature of the census of the ACS improvement or at least revision of its -- of its instrument and the process that brought about this reduction in the estimates from previous years?
A. Yes, I'd be happy to. My understanding is that the Census Bureau made two changes that resulted in this change in the number. One of them -- well, actually, maybe I should just describe the -- the issue overall. The question is: What happens when a same-sex couple says that one of the parties is the husband or wife of the other person. And in the case of -- the concern here is that some of those individuals might be actually different-sex couples, who had marked the "sex" box wrong.
Q. Just miscoded the --
A. That's right.
Q. -- the box?
A. That's right. So the two things the Census Bureau did were designed to reduce the number of inadvertent markings of that box, of the "sex" box. And the -- the -- okay. So that's -- that's the sort of general thing that they were trying to do. So they did two things. First, they said, We're going to change the form. Instead of having a fairly complex form, that seemed to give some respondents trouble, they streamlined it. It actually ends up looking more like the Census form now, where each individual in the household is marked in relationship to the household -- or reference person in the household. The second thing they did was to note that sometimes respondents actually made a mistake on the form, realized it, and then corrected it. But the Census Bureau procedures did not allow for their data entry people to take into account that correction. Because what it looked like to the data entry people was that person had marked both boxes, male and female. And the rule, the processing rule that the Census Bureau used to have, was to just take the first box, which is "male." But in this new, revised procedure, what they realized was that sometimes you can tell exactly what people are trying to do on those forms. And so they allowed the data entry people to make a judgment about whether or not it looked like they were correcting it and changing it. So they believe they have better data on the sex of individuals, and that they've reduced this miscoding problem that resulted in some different-sex couples, who are married, being inadvertently put into the data as same-sex couples.
Q. Thank you. Thank you. And let me ask you to page back in this document to the appendix, and in particular to the Appendix Table 2, page number -- there is no page number, so it would be Appendix Table 2. It's just before you get to the references. And it is a -- it is a 2-page table of statistics relating to each state. Do you see that?
A. Yes, I do.
Q. Okay. And if you look at the statistics for California, under the column marked "Same-Sex couples," in the "Total" column you have "84,397." And that's the number that -- that is used in your expert report and we discussed earlier this morning, for the total number of same-sex couples in California, right?
A. Yes, that's correct.
Q. And as you go across that -- the row pertaining to California, the number of same-sex spouses, according to the ACS 2008 survey, is 23,403. Continuing on to the right on that row, the number in this survey for same-sex unmarried partners is 60,994, which is just the difference between the total number and the number of same-sex spouses. And then to the far right-hand column is the number 18,000 legal marriages. Now, that -- those 18,000 legal marriages represent the estimate that you and your colleagues made with respect to California; is that correct?
A. That's correct.
Q. Okay. And so it's -- there's a difference between the estimate from the Census of 23,000-and-change, and your estimate of 18,000. But I take it those are just differences in the methodologies that were used?
A. It's -- yes, they are very, very different methodologies. That's the simplest way to answer it, yes.
Q. Okay. Now, this morning we talked about, in your paragraph 40, where you use the marriage rate over a 4-year period, in Massachusetts, of 64 percent to -- to calculate the number of marriages that you would estimate would take place in California, if same-sex marriage were -- were lawful, of the people who will not enter or register a domestic partnership. Now, that assumes, though, does it not, that same-sex marriage rates in Massachusetts are a reliable predictor of what same-sex marriage rates would be in California, correct?
A. Yes.
Q. Are you aware of any reasons why that might not be so?
A. No. I think it would be the case, that it's a reliable predictor.
Q. Now, in Massachusetts, same-sex couples do not have the option of registering as a domestic partnership, do they?
A. No, that's correct.
Q. So it's either marriage or cohabitation in Massachusetts?
A. There may have been some same-sex couples in Massachusetts who had gotten a civil union in Vermont or a domestic partnership in California. That's possible.
Q. But in terms of actually recognizing, under Massachusetts law, a same-sex relationship, it's just marriage, correct?
A. Yes, that's correct.
Q. And in California, if Proposition 8 is invalidated, same-sex couples will be able to choose between marriage, cohabitation, or a domestic partnership; will they not?
A. I don't know. It's possible that a legislature would get rid of domestic partnership.
Q. Well, at least -- at least right now, unless the legislature takes action right now, that would be the case if Proposition 8 were invalidated; would it not?
A. Well, the legislatures of Vermont and Connecticut and New Hampshire ended the civil union status when they allowed same-sex couples to marry. So California might well do the same thing. I don't know what they'll do.
Q. But there was a period of time when either status was available to Californians, correct?
A. Yes, that's correct.
Q. Now, I want to refer you to your deposition. I think it's behind tab 3 of your binder. And I want to refer you to page 179, line 7. Let me know when you're there. Have you found the page?
A. Yes.
Q. At line 7 the question is asked: "And so I just want to know whether, in your opinion, the consequences, whatever they may be, of same-sex marriage in Massachusetts will be identical to the consequences of same-sex marriage in California." "ANSWER: Again, so the consequences to individual -- to married individuals? "QUESTION: We can start there. That would be fine. "ANSWER: Some of the benefits of marriage might differ slightly across the different states. In terms of the consequences to individuals, I think that the other difference is that in California people would have a choice of domestic partnership, which they don't have in Massachusetts. So those are two differences between the states." Do you recall that testimony?
A. I do. That was one place that we discussed this issue. I believe there were some others.
Q. Okay. Now, so if Massachusetts had had the option of domestic partnership available, presumably some people would elect to register domestic partnerships, just as they had in -- they did in California, when both were available, and just as they do in the Netherlands. Do you agree with that?
A. I don't know.
Q. Well, if that premise is accurate, shouldn't your 64 percent marriage rate be adjusted, in order to account for the same-sex couples in Massachusetts who would have opted for a domestic partnership, if that had been available?
A. I don't think so, actually. If you look at the numbers -- percentages of same-sex couples who married just in those six months, as I believe I mentioned, the -- you know, that initial kind of voting with their feet for marriage, was roughly 17 to 20 percent of California's same-sex couples. And the -- the -- if you think about if you just double that, so that you've got a whole year instead of just six months, then you have almost the same first year take-up rate of marriage for same-sex couples in Massachusetts. That's a very clear suggestion that couples will be responding in the same way. Excuse me. Could I get some more water, please?
THE COURT: Yes. We will take care of that.
THE WITNESS: Thank you.
BY MR. COOPER:
Q. So I take it your answer is, no, you don't think that your 64 percent metric should be adjusted to account for that point?
A. No. It might be that many couples will get married, and 64 percent of the couples will get married, and even more will also have domestic partnership.
Q. Now, there are also some disincentives for California same-sex couples to get married, that Massachusetts same-sex couples do not have. Is that not true?
A. I'm not aware of any.
Q. I want you to turn to tab 12 in your binder. And in particular, to page 13. I'm sorry. Before you do...
MR. COOPER: If you will let me back up, Your Honor. Forgive me. I was advised by one of my colleagues that I was -- I was wrong in my impression that PX1271, the document we previously discussed, had been admitted into evidence. And I would like to do so now.
MR. BOIES: No objection.
THE COURT: 1271 is admitted. (Plaintiffs' Exhibits 1271 received in evidence.)
BY MR. COOPER:
Q. Okay. And the document behind tab 12 is entitled, "Marriage, Registration, and Dissolution by Same-Sex Couples in the United States." It is PX1263. Do you recognize that document?
A. I do.
Q. And you participated in its preparation; didn't you?
A. I did.
Q. In July of 2008?
A. Yes.
Q. Okay. And if you'll turn to page 13, please. Now, in figure 8, there are three bar -- bar -- bars in a chart, indicating the average monthly registration of domestic partnerships in California in three different periods: The period 2000 to 2001; the period of 2002 to 2004; and the period 2005 to the present. And, of course, the present was, you know, at least through July 2008. And it indicates that -- that after 2005, after AB205 had been passed, domestic partnerships actually became less popular as an option among same-sex couples; is that right?
A. No, I don't think that indicates that at all.
Q. No? Well, it does certainly indicate that there was a decline, does it not, in the average monthly registrations after -- after 2005?
A. There was a decline, probably, because of fulfilling some of the pent-up demand earlier on.
Q. The pent-up demand for domestic partnership?
A. For some form of legal recognition. In this case, domestic partnership, yes.
Q. And you don't think that the passage of AB205 had anything to do with it?
A. In terms of the numbers?
Q. Uh-huh.
A. Uhm, no, I don't think it had anything to do with it. But I -- as I said, it's hard to -- I think we note this in the report, it's actually very hard to -- to deal with California because the law changed so many times.
Q. Well, now, but AB205 actually was the statute that extended, quite comprehensively, all of the rights and benefits of marriage to domestic partnerships; attempted, essentially, to equalize the two statuses, correct?
A. That may -- that appears to have been one of the goals, yes.
Q. Now, turn to the next page, if you will. And Table 3 there has statistics for a number of jurisdictions, including California, with respect to dissolutions of legally recognized same-sex couple relationships by year. And you'll note that in 2004, the number of dissolutions spiked enormously. It went from 733 in 2003, which itself was up from 296 in 2002, to a much larger number in 2004, of 2,513 dissolutions. So not only was the new registrations -- were the new registrations after 2005, did they decline significantly, but in the -- in the anticipation of 2005, dissolutions spiked. Isn't that right?
A. There was an increase. And most of that increase was right before -- was in the last couple of months of 2004. So there was a spike. The question about what that means is a different matter.
Q. Well, doesn't your report suggest an explanation, Professor Badgett, for what that means? I refer you to -- again, back to page 13, in the first full paragraph beginning "Registration..." In the second sentence there it reads: "In California, domestic partnership was established in 2000, and then significantly expanded in 2002 and again in 2005, when community property was established and the legislature decreed that domestic partners would have all the rights and responsibilities associated with marriage." And then in the next paragraph, towards the end -- actually, it's the last sentence of that paragraph, the report. "While the 2002 expansion of domestic partner rights in California led to higher monthly registrations, the rate slowed somewhat after the comprehensive reforms in 2005, that included community property. Although, the month figures were still much higher than in the earlier phase." Elsewhere in the report, the author suggests that subjecting the couples to the community property regime that came about as a result of the passage of AB205, was the explanation for the decline in monthly registrations and the spike in dissolutions, just before the statute was passed. Do you see that?
A. Yes. I want to look at our footnotes. So the question is whether or not community property might have had something to do with that spike in dissolutions. It's a difficult question to answer because we don't -- no one studied this in a great deal of detail. And I thought -- maybe I'm just remembering my book or some other publication, where we talk about the honest confusion that was apparent for some couples about what the tax and other financial consequences of having community property might be. I can refer you to many media accounts of this phenomenon that was noted, that journalists talked to many individuals who said their relationships were not ending, but their tax advisors had -- their accountants had no idea what the potential consequences might be, and that to be on the safe side they were dissolving their relationship in that case. And, you know, I'm not an attorney, but I do know that subsequent to -- to the change in the law, there were lots of questions that had to be answered. So there was much confusion because domestic partnership is something that's -- you know, was kind of created here in California, this particular version of it. So I think no one knew exactly what that was going to mean.
Q. Where in this report does the -- do you and your coauthors discuss those points?
A. Uhm, in this particular report, I'm not finding it, in kind of looking through it very quickly. It's possible that I'm thinking about a different context where we've talked about it.
Q. Let me --
A. As I said, it might have been in my book.
Q. I'm sorry.
A. I don't know.
Q. Let me refer you to a footnote, footnote on page 33. It's footnote number 18. And listed there are nine community property states. And Massachusetts is not listed as among them, is it?
A. No.
Q. Okay. Let me now invite your attention to paragraph 45 of your expert report.
A. Okay.
Q. Now, this is the paragraph, is it not, or the place in your report where you calculate, attempt to quantify, the number of unemployed partners who would -- who would not be eligible for healthcare benefits from the employer; is that essentially correct?
A. They're not necessarily unemployed. They are either not employed or their employers don't offer them benefits.
Q. And how many uncovered partners did you -- did you calculate? I think the number is actually over on page 16, towards the end of that paragraph.
A. Yes, almost 1600. 1,581 partners.
Q. And in the sentence where you identify that number, you say: "That leaves approximately 1,581 uncovered partners, who I assume would be covered if they were spouses." So you assume that all of those uncovered partners would qualify and would -- if they were part of a married couple, would be able to get employer benefits as spouses, correct?
A. Yes.
Q. I want you to refer, now, to tab 13 of your binder.
MR. COOPER: Your Honor, this is PX1261. I think it was introduced by -- into evidence by Mr. Boies. It's the California Employer Health Benefit Survey dated December 2008.
BY MR. COOPER:
Q. Now, this was the survey you relied on in connection with your opinions on this subject matter; is that correct?
A. Yes.
Q. Okay. I want you to turn to page 4, please. Now, according to this survey, California employers offer coverage to their employees -- or, at least, I should have said, 70 percent of all California employers offer coverage to their employers -- employees. 30 percent don't offer any healthcare coverage, correct?
A. That's correct.
Q. Okay. And this says nothing -- and I can't find anything in the survey, frankly, that says or that would inform as to whether or not the 70 percent of California employees -- employers who offer healthcare benefits to their employees, also offer family benefits. That is, benefits that would extend to a spouse, as opposed to individual benefits. But it's -- it's clear, is it not, then, that -- that one can't assume that every one of these uncovered partners would be covered if they were a spouse?
A. Uhm, my understanding, from talking to the person who works with the California Healthcare Foundation, that it was her understanding that virtually all of these employers also offer spousal coverage.
Q. Okay. So even if all 70 do, all 70 percent of California employees [sic] offer family coverage, only 70 percent do?
A. Yes. And I took that into account in my calculation.
Q. You did take that into account?
A. I did. I think I said so in the paragraph that you referred to earlier.
Q. And turn, as well, to page 18, please. Now, in your paragraph 45, you further assume that each one of the uncovered employees would have to pay $5,909 in a premium to -- to obtain their own coverage. That would be a premium expense that the employer would otherwise bear by himself. That's your assumption in your paragraph, correct?
A. Yes.
Q. Now, on page 18, the -- the survey indicates that employers rarely pay for all of family coverage; there is a significant portion that the employee himself or herself has to actually pay. And according to this -- to this survey, the employee's share is 3,000 -- essentially, $3,200, as compared to the $10,000-and-change contribution by the employer. Did you account for that, in your analysis?
A. I don't think I did, in calculating the absolute total -- additional total spending for couples, to the extent that take-up rates are quite high for health insurance when it's offered. But I did not take that into account in adding up the total now.
Q. Well, speaking of take-up rates, turn to the page number 9 in your tab. Now, not all employees are eligible for coverage by their employer, correct?
A. That's correct. Some -- sometimes employers require them to be full-time, for instance.
Q. Exactly. And, according to this, in California, 79 percent of employees are eligible for employer coverage. This, again, doesn't tell us whether that's individual coverage or family coverage, or both. But -- but at least 79 percent are eligible for individual coverage. But only 79 percent. 20 percent are not eligible at all; isn't that correct?
A. Yes, that's correct.
Q. Okay. And not all the eligible employees actually take it up. And in light of the cost of the premium, that certainly is not surprising. And according to this -- to this survey, 83 percent of those who are eligible actually take it up. So the take-up rate, while it is high, it is certainly not a hundred percent, correct?
A. That's what this suggests, yes.
Q. So the net of that is that 65 percent, only 65 percent of employees are actually covered by their employer in the state of California; is that correct?
A. Yes, I believe that's what that says. Within firms offering coverage, yes.
Q. Okay. Let's turn, now, all the way to paragraph 91 of your expert report. And, actually, perhaps, it makes more sense to turn to paragraph 90. And this is a series of paragraphs that contains your analysis and your calculations relating to the issue of wedding-related business generation and tax revenue, correct?
A. Yes.
Q. Which you testified specifically about in your direct testimony. And I do want, now, to focus on paragraph 91. And in this paragraph you're referring back to the study. I think you had -- it was introduced in direct testimony, and you had a conversation with Mr. Boies about the study you had done on this subject, previous to your expert report, correct?
A. Yes.
Q. Okay. In this paragraph, you're referring to that study.
1 "In that study, my colleagues and I used methods and data that are consistent with our prior studies. We estimated that the number of couples who would marry if allowed by predicting the number of couples that would wish to marry in California, and subtracting the number of couples that already did marry. Based on figures from Massachusetts, discussed previously, we predict that approximately half of California same-sex couples would marry in the first three years of having the option to do so. Half of the 120,639 same-sex couples in California, counted in the American Community Survey (an average of the 2004 to 2006 surveys) would be 51,320 couples." Now, previously, in your expert report, in at least three different locations, you've used the number of same-sex couples as the 84,400 that we looked at a moment ago, from the ACS 2008 survey, correct?
A. Yes.
Q. Okay. And -- but now you're using the substantially higher number of same-sex couples in California that are derived from the previous surveys, which the Census has now basically said were inflated; is that correct?
A. Yes. I'm not worried about that, though.
Q. And using that number, you've -- you have concluded that 51,320 couples, same-sex couples, would marry if -- over a 3-year period, correct?
A. That's right. We're just looking at a 3-year period here.
Q. All right. Let's continue with paragraph 92. "We estimated the number of legal same-sex marriages between June 16, 2008, and November 4th, 2008, through a survey of California county clerks that allowed us to compare marriages in the summer of 2007 and 2008, resulting in an estimate of 18,000 same-sex couples who married." And we've talked about the 18,000 same-sex marriage estimate previously. I want to skip, for purposes of time only, the next two sentences and pick up with: "We used data from the San Francisco County Clerk's Office, to determine the percentage of out-of-state same-sex marriages that occurred before Proposition 8's passage" -- then you have in parentheticals, "19.3 percent" -- "and applied that percentage to the entire state. Of the 18,000 married couples, we estimated the number of resident and out-of-state same-sex couples married in California to be 14,384, and 3,746 respectively." So, Professor Badgett, using the 19.3 percent metric from San Francisco, you applied that to the 18,000 estimate of same-sex marriages, and determined how many were effective -- of that number, were in state and how many could be estimated as likely being out of state, correct?
A. That's correct.
Q. Okay. I can't get these two numbers to sum to 18,000, the 14,384 and the 3,746. They're not far off. By my calculation it's 18,130, but --
THE COURT: Perhaps you could ask if there's an explanation. (Laughter)
MR. COOPER: That is my question, Your Honor. Thank you.
THE COURT: All right. Good.
THE WITNESS: My guess is a typo.
BY MR. COOPER:
Q. Okay. Your paragraph continues: "As a result, we estimate that 36,936 additional in-state couples would marry if possible over the first three years that marriage is open to same-sex couples." Now, tell me how you derived the 36,936 number.
A. My hope is that it's the difference between the number at the end of paragraph 91, 51,320 couples who live in California that we estimate would marry, and the 14,384.
Q. Yes, it is. At least that's consistent with my math, as well. I just wanted to confirm that that is -- that is, in fact, the source of the -- of the number. Now, again, the 51,320 is derived from the earlier and overstated, according to the Census, estimate of the number of same-sex couples in California. If you use the 84,400 same-sex couples in California, that you've used consistently elsewhere in your report, the number of projected marriages would be half of 84,400, or 42,200. And you would deduct from that the 14,384, for a figure of 27,000, correct, substantially lower than the number you have?
A. That might well be. I don't think that's necessary to do. I used the earlier study that we had already done, because we have documented that in a lot of detail on our website, the Williams Institute website. And it seemed like a reasonable thing to update something that we had already done, so that people could understand better how we arrived at these particular figures. But, really, in the end, I don't think it makes very much of a difference. As I noted earlier, applying that 64 percent figure to California, to come up with what I think is the best estimate of the number of couples who would marry, is more than 51,000. Which just suggests it might take another six months or a year, or so, to get up to this -- this 51,320 figure. So it's simply a time period question, not -- wouldn't necessarily change the fact that there will be hundreds of millions of dollars lost in business, for the state's businesses.
Q. So just really doesn't much matter what number you use for the number of same-sex couples in California, then, does it, Dr. Badgett?
A. Well, these things are difficult to quantify, as I've said before. And, in this case, this is an example of an exercise where we -- we did our best to put some actual numbers that we think come -- that are highly -- that are very easy to justify, given what we know from the Census data, and from other states, and to come up with our -- with our best estimate over a particular period of time. And so we think it's a good estimate for what it is. It's hundreds of millions of dollars. That's our estimate. It's difficult to quantify very precisely, but I think we have a very, very good idea of what the order of magnitude would be.
Q. Let's turn, now, to paragraph 95, of your report. And this is where you talk about quantifying the number of people who would come to California to get married from high California tourism states. And you -- the paragraph cites the states of New Mexico, Arizona, Nevada, North Carolina, Oregon, Texas, and Washington as high-tourism states. And you conclude that the number of individuals coming over a 3-year period would be 31,120; is that correct?
A. That's correct.
Q. Now, the numbers you're using to estimate the same-sex couples in these high California tourism states also come from the ACS 2004-2006 inflated estimates, correct?
A. That's correct, that they come from those estimates, yes.
Q. Now, have you -- with respect to your calculation of the same-sex couples that will come from these states, have you attempted to adjust or discount this number, or does this number reflect an adjustment for the same-sex couples in these states who have already gone to Massachusetts, Iowa, Connecticut, Vermont, or New Hampshire to get married?
A. No. As I state very clearly, we did not alter these estimates, beyond accounting for the fact that some of the out-of-state couples who got married here in California might have already come from those states. So we took an estimate of that number out of that total.
Q. You took an estimate of what out of it?
A. We tried to estimate, of the roughly 3700 out-of-state couples who had come already to California to marry, our estimate of that, we figured some of those are likely to be from those states. So we did subtract that out. As I said, thus, we did not alter these estimates beyond accounting for those couples married in California prior to Proposition 8.
Q. Right. Okay. Well, don't you think that a lot of the same-sex couples who -- and a lot of the pent-up demand, or at least some of the pent-up demand that was willing to travel, have already gotten married, same-sex couples in these states have already gotten married, and that they will continue to get married between now and the time that California does enable, through whatever means, same-sex couples to marry?
A. I think those are two different questions, actually. One is about: Did it satisfy the pent-up demand? No, I don't think it has. If our estimate is anywhere close to correct, of 3700 couples, that's a tiny blip. That's not even 1 percent of all same-sex couples in the U.S. So I'm quite confident that that is not the pent-up demand of couples who would be willing to travel. As to whether or not, during whatever time period Proposition 8 is still the law in California, whether or not some of those couples might go somewhere else, that's entirely possible.
Q. Okay. So one would not expect the same-sex couples in those states, who want to marry, to wait for California to offer it, if it is available elsewhere, would they? Or at least not many of them?
A. No. Certainly, my estimate would be different if four or five years from now California, once again, let same-sex couples marry. This may be -- this is a loss to California. Whether or not it's temporary or permanent might depend on whether or not the law changes.
Q. Are you suggesting that the same-sex couples in these other states are going to be willing to wait four or five years to get married, for California to legalize same-sex marriage?
A. No. I'm not suggesting that at all. I'm simply calculating what I think the cost of Proposition 8 is to the state and to its municipalities.
THE COURT: All right. Ready to move on to another subject? (Laughter)
MR. COOPER: Very well, Your Honor.
BY MR. COOPER:
Q. Let's turn, now, to tab 15 in your binder. And, Professor Badgett, this is identified as defense Exhibit 1297. It is a Williams project study, policy study, entitled, "Equal Rights Fiscal Responsibility: The Impact of AB205 on California's Budget." And it indicates you were involved in the preparation of this document.
A. Yes, I was.
MR. COOPER: I'd like to introduce this into evidence, if it isn't already.
MR. BOIES: No objection if it isn't already.
THE COURT: Very well. 1297 is in, if it isn't. (Defendants' Exhibit 1297 received in evidence.)
BY MR. COOPER:
Q. I'd like to call your attention to page 7 of the document. And it's the first paragraph under Roman III, "Tax Revenues From Tourism." And the first sentence reads: "Analysis of other states' consideration of opening marriage to same-sex couples have argued that the first state to do so would experience a wave of increased tourism that would bring millions of additional tax revenues into state coffers." Now, there has been, and one would expect, a big first mover advantage to any state that was the first, as Massachusetts was, to adopt same-sex marriage. Is that not correct?
A. Yes, I think that is correct.
Q. Now, in this document, you consider three different scenarios, do you not, in terms of projecting the nonresident individuals who will come to California in order to -- in order to register domestic partnerships, correct?
A. Yes.
Q. And your first scenario is what you call an optimistic scenario, which would -- which would estimate that 64,000 couples in the western states will travel to California, and spend the average three to five days' stay for overnight visitors, and an average $91 per person per day. In the next paragraph you -- you articulate what you call a somewhat less optimistic but more realistic scenario assumes that the same proportion of those 64,000 western couples will become domestic partners as the proportion of same-sex couples in California who have registered. And you conclude, using that metric, that 28,160 visitors, under your realistic scenario, will travel to California to register domestic partnerships. And then in the next paragraph you have, a highly-pessimistic scenario is to assume that California will get the same number of couples as Vermont received. And you estimate that to be about 4700 out-of-state couples. But you say that is likely to be way too pessimistic. Now, have you ever gone back to assess how accurate those predictions were?
A. Yes, in a way. I mean, as you could see, we really were not very sure about what would happen. And things kept changing, in terms of the legal landscape across the country. And things kept changing in terms of the -- the status -- the rights and responsibilities that went to domestic partnerships in California. So it's hard to know exactly why this happened, but it turns out, I think, that our -- you know, our pessimistic scenario turned out to be the one that was closest to what actually happened. There are relatively few out-of-state couples who have registered their domestic partnerships in California. There were things, other things that changed during this time period that, I think, probably significantly dampened demand for domestic partnerships in California. That would include the fact that some other states had instituted some similar types of statuses. And shortly after we published this, I believe -- let me just check the date -- May 2003, just a few months after that, the Massachusetts Supreme Judicial Court said that same-sex couples would be allowed to marry there. And so that may have altered people's desire or demand for a status that is clearly less than marriage.
Q. We can estimate how many have come, can we not, to register domestic partnerships?
A. Not exactly. We know from the state's registry -- I counted them up. I think it's roughly 5 percent of registered same-sex partners -- registered domestic partners, excuse me, have addresses from outside of California.
Q. Okay. About 5 percent. And we also know from the document behind tab 12, that is PX1263, that an average -- you'll recall we discussed this -- an average of 462 domestic partnerships have been registered every month since 2005, at least as of the date of that document. And that would be, roughly, 17,000 or so. Actually, that's perhaps a little -- a little on the high side. And if you take 5 percent of that figure, you get 850 people, couples that have journeyed to California in order to register their partnerships. Quite a bit lower than your pessimistic estimation, and way, way lower than the others, as well. Correct?
A. Well, it depends on which number you look at. If you look at the total same sex -- or out-of-state couples who are registered domestic partners, there would be -- 5 percent would be a much larger number. But, as I said, a lot of things change. So it's not surprising that our pessimistic scenario was even too pessimistic.
Q. But -- (Simultaneous colloquy.)
A. -- but I think it makes it clear that we knew that there was considerable uncertainty in making that calculation at that time.
Q. Could you now turn back in your expert report to paragraph 33. It's on page 10. And I want to refer you to footnote 3, of that report.
A. I'm sorry. Actually, I'm looking at the wrong thing. Sorry, yes.
Q. Footnote 3 reads: "Massachusetts Department of Public Health had recorded 13,270 marriages by same-sex couples by the end of 2008. I adjusted for the possible surge of out-of-state couples marrying after they were allowed to wed in Massachusetts as of August 1, 2008." And so we're talking here about the individuals who came to Massachusetts in 2008, when it was opened to nonresident same-sex couples, correct?
A. Yes.
Q. Yes. In August of 2008. I -- "QUESTION: I adjusted for that possible surge" -- continuing on -- "by calculating the average weddings in August-December of 2005 to 2007. Legally, those were to be in-state couples only. And subtracting that from the number of marriages in August-December of 2008. That difference is a reasonable estimate of the number of out-of-state couples coming to Massachusetts to marry. I subtract that total from 13,270 to get 12,506." Okay. So if you then subtract 12,506 from 13,270, you get the number that you estimate of nonresident -- nonresidents of Massachusetts coming in to Massachusetts during that 5-month period, correct?
A. That's correct.
Q. And what is that number?
A. It's roughly 700.
Q. About 764, according to my math, if it's -- if it's correct. And so that's how many came during a 5-month period. And to adjust -- to try to annualize that over a year, what would your rough estimate be, in terms of how many non-residents would come to Massachusetts, using this as the rate of -- the rate of subscription?
A. Well, I wouldn't use the data from this year to make that kind of extrapolation. The law didn't change until July of 2008. Actually, most same-sex couples like to get married in the summer, like different-sex couples do. So there wasn't much time for people from other states to know, to learn about the change in the law, to realize they could come to Massachusetts, to make plans, to get their relatives on board to go on a trip there, whatever they felt like they wanted to do in order to celebrate those weddings. So I don't think we would be able to really draw many conclusions from that, about the longer run number of same-sex couples coming there to marry from other states.
Q. Okay. Well, if you did use it, though, if you do use it --
A. Well, I wouldn't.
Q. If you did.
A. Uh-huh.
Q. So I'm asking a hypothetical. If you did, about how many would you project, at that rate, would come to Massachusetts over a 1-year period?
A. Uhm, I -- I would get a number that's too low. I don't know. What would 700 be by the number of months? Five months? Inflating it by 7 -- I don't know. 712, something like that. It would be a higher number.
Q. It would be about -- (Simultaneous colloquy.)
Q. -- 1800 or so. Do you think that seems like it's in the ballpark?
A. For that particular exercise. But, again, as I said, as an estimate of the number of same-sex couples who would come from out of state. I don't think it would be a very good one.
Q. Okay. But, then, if you multiplied that by 3, assuming again my hypothetical, that that is a useful metric to use, your calculation for the number of -- that came to Massachusetts during the first five months it was possible to do so, then you get around 5500 people over a 3-year period coming to Massachusetts. Professor, I want you to turn your binder to tab number 16. And that is marked as defense Exhibit 742. And it appears to be a memorandum from you and your colleague, Mr. Sears, to Daniel O'Connell, Secretary of Housing and Economic Development. And I trust that's for the State of Massachusetts, correct?
A. That's correct.
Q. Okay. And this is dated June 30th, 2008, correct?
A. Yes.
Q. Okay. And if you'll turn to page 2 -- unfortunately, the pages are not numbered, but it's the -- actually, I think counts to the third page in. Are you there? It basically has a heading, Number of same-sex couples who will marry.
A. Yes.
Q. Yes. Okay. Now, I want to invite your attention to the very last line on that page. It is the conclusion of a lot of analysis and calculations that precede it. But the -- but the sentence reads: "Altogether, we estimate that 32,200 domestic same-sex couples would travel to Massachusetts to marry." Do you see that?
A. Yes, I do.
Q. Okay. And that does not compare very closely, does it, Professor Badgett, to the hypothetical I asked you to indulge, based upon your calculations for the out-of-town same-sex couples who would come to Massachusetts, of around 5500, over a 3-year period, does it?
A. You started with a number that I think is too low. If you multiply it by three, it's even farther away from the figure that I think would be more reasonable to -- to estimate for Massachusetts.
Q. Do you continue to believe that 32,200 is reasonable, in light of your calculation in paragraph 32 of this report?
A. We make these estimates with the best information we have at the time, looking at the state of the law in any given place. As we talked about a little while ago, things keep changing. And now Vermont, Connecticut, and New Hampshire, and Iowa, allow same-sex couples to marry. So Massachusetts will -- will and does have some competition for those couples.
Q. Did those states allow same-sex couples to marry when Massachusetts opened its marriage window to out-of-town same-sex couples?
A. No, they didn't.
Q. All right. Professor Badgett, again, you favor legalizing same-sex marriage, correct?
A. I have said that I think it is -- based on my research, I think it's something that's good for a lot of people, and doesn't hurt anyone else; that's correct.
Q. Would you consider -- or reconsider, I should say, your position on same-sex marriage if legalizing it would cost the government money rather than save the government money, as you believe it would?
A. My opinion is not really based on whether or not it saves governments money or not. My role in doing these kinds of calculations is just to make those estimates with the best data I can find, to the best of my ability.
Q. Do you know of anyone who favors same-sex marriage, who would change their position if it could be demonstrated that legalizing same-sex marriage would cost the government money rather than save it money?
A. I don't know. I would have no way of knowing that.
Q. You don't -- you don't -- as you sit here today, you don't know of anybody who you think is in that category to know this?
A. No one who has ever said that to me, no.
Q. Do you know of anyone who opposes same-sex marriage, who would change their positions based upon the fiscal implications for state and local governments of legalizing or not legalizing same-sex marriage?
A. Again, I don't know.
Q. Are you familiar with the official ballot materials for the Proposition 8 election?
A. I've seen the -- the short summary that was on the ballot, actually. And I might have, at one point, looked at some of the language in the larger materials. I don't recall.
Q. Okay. Well, let me represent to you that -- and it's been introduced. It's in evidence, I think, Plaintiff's Exhibit No. 1. But in those official ballot materials, the State advised the voters of the fiscal effects of Proposition 8. And it advised the voters that: "Over the long-run, this measure would likely have little impact on state or local governments." Do you agree with that?
A. No, I don't.
Q. Okay. Do you believe that the voters of California were entitled to rely upon it when they went to the polls?
A. I don't know. My understanding is, they are required to have some kind of fiscal statement.
MR. COOPER: Your Honor, I don't know if this is a good time for you, but if the Court would entertain a short break, I might be able to tighten things up going forward.
THE COURT: That's an offer I can hardly refuse. Ten minutes?
MR. COOPER: That would be good.
THE COURT: Is that going to be enough?
MR. COOPER: Yes. Thank you.
THE COURT: We will take ten minutes and resume, then, with a shortened cross-examination of the witness. (Recess taken from 2:39 to 2:55 p.m.)
THE COURT: Mr. Cooper.
MR. COOPER: Thank you, Your Honor. Your Honor, we have another witness binder we want to hand up to the witness and to the Court. We're done with the big one, Professor Badgett. May I approach the witness, Your Honor?
THE COURT: Yes, you may.
MR. COOPER: Thank you.
BY MR. COOPER:
Q. Professor Badgett, I want to turn now to page 36 of your expert report, and paragraph 110.
A. Sorry. I put this away. Okay. I'm sorry, which page?
Q. Page 36, towards the end, paragraph 110. And in that paragraph you -- you're speaking now to the proposition that allowing same-sex couples to marry has had and will have no adverse impacts on heterosexual marriage. And in paragraph 110 you say: "Based on my research and experience, I believe it is unlikely that heterosexual marriages would be discouraged or made unstable if same-sex couples were allowed to marry, or, in the case of California, be permitted to continue marrying but for Proposition 8. For example, data from the Netherlands, the first country to allow same-sex couples to marry, suggests that heterosexual marriage trends do not change" --
A. I'm sorry to interrupt. I was looking on the wrong page. I thought you said page 36.
Q. I did say 36. It's your initial report.
A. Okay. Maybe I -- okay. Maybe I do have -- paragraph --
Q. Paragraph 110.
A. 110.
Q. Yes.
A. I'm sorry.
Q. Why don't you just go ahead and read that, and catch up with me, if you will.
A. Yes. Okay.
Q. And to conclude, then, the paragraph: "For example, data from Netherlands, the first country to allow same-sex couples to marry, suggests that heterosexual marriage trends do not change when same-sex couples are permitted to marry." Professor Badgett, would you please open the binder that I've given you, the small one, to tab number 1.
MR. COOPER: And what I have behind tab number 1 is a demonstrative, Your Honor, as well as defense Exhibit 1887, which is -- which is a collection of statistics on the marriage rate in the Netherlands. And if -- with the Court's permission, I would publish the demonstrative to the -- to the television screen.
BY MR. COOPER:
Q. Now, Dr. Badgett, what this -- what this demonstrative attempts to display is the marriage rate that is marriages per 1,000 inhabitants in the Netherlands, over the course of time from 1994 to 2008. And what it reflects is a marriage rate that is relatively stable, from 5.4 marriages per 1,000 inhabitants, to 5.1 in 2001. That is from 1994 to 2001. And then from 2001, that is 5.1 marriages per 1,000, to 4.6 marriages per 1,000 in 2008. And if we turn to tab 2, what I've submit to you we have calculated here is the average yearly rate of change in the marriage rate for the Netherlands from 1994 to 2000, the year before same-sex marriage was adopted in the Netherlands. And, according to our calculations, the average yearly increase during that period was zero 0.02 percent. Every year, the rate increased an average, with variation, obviously, between years within the period, but overall increased .02 percent. And if you'll turn, now, to tab 3, the next tab is the marriage rate, and the average yearly rate of change in the Netherlands for the period in which same-sex marriage was adopted, and thereafter, 2001 to 2005. And you'll see that the average annual rate of change now declines. It declines to .07 percent, through the year that is the most recent year in which we have data, 2008. Now, that is a change between those two periods, the period before same-sex marriage was adopted, and the period in which and after -- the year in which and after same-sex marriage was adopted in the Netherlands, a rate of -- of change that is 450 percent, a decrease that -- that is 450 percent from the previous period. Dr. Badgett, now, notwithstanding the accepted and understood difficulties of -- and the various considerations and variables that go into social phenomenon of this kind, like the marriage rate, it is clear that at least from the time that the Netherlands adopted same-sex marriage until now, the marriage rate has declined significantly, correct?
MR. BOIES: Objection.
THE COURT: What ground?
MR. BOIES: He has in the question all sorts of assumptions.
THE COURT: I beg your pardon?
MR. BOIES: He has in the question all sorts of assumptions and misstatements of the statistics.
THE COURT: Isn't that a matter you can take up on cross -- or redirect?
MR. BOIES: It is. It's such a long question --
THE COURT: Well, it was a long question. I will be more sympathetic to that objection, Mr. Boies. (Laughter)
MR. COOPER: Let me try to shorten it up, Your Honor.
BY MR. COOPER:
Q. The marriage rate in the Netherlands has declined significantly since same-sex marriage was --
THE COURT: How about just asking if it has, if the rate of marriage has declined.
MR. COOPER: Thank you for that friendly suggestion, Your Honor. I appreciate that.
BY MR. COOPER:
Q. Has it, Professor Badgett, declined significantly since same-sex marriage was adopted in Netherlands?
A. In my opinion, it has not declined significantly from the rates that we would expect, no.
Q. Okay. I want you to turn, now, to tab 4. And behind tab 4 is a demonstrative dealing with the subject of unmarried couples with children in the Netherlands. And this is just the -- essentially, the raw data for every year from 1994 to 2008. And, at least according to my and our research, the only data available for -- on this -- on this statistic is from 1994 to 2008. In other words, there is no data available prior to that. And what this -- what this demonstrative shows is that the numbers of unmarried couples with children have escalated steeply and consistently over time, from 1994 to 2008, from 99,610 to 314,000 -- in 1994, to 314,566 in 2008. And the -- the -- the numbers have, again, steeply increased. Is that accurate?
A. This is just like the earlier slide that you showed. Although, the '94 stopping -- starting point makes a little more sense, I guess, if you can only find the data then. But, yeah, we see that there was a trend of increasing -- the increasing numbers of unmarried couples with children. Although, again, this is not -- it's not clear this is the right -- the right measure that you would want to use. But there was a -- there was a trend before and a trend after. I think, if you took that red line out there and showed it to everyone in this courtroom, nobody would be able to tell where same-sex couples got married.
Q. Well, let's -- let's turn to the next tab. And this computes the rate of unmarried couples with children as a percent of all families in the Netherlands. And it indicates that in 1994, 1.54 percent of all families were unmarried couples with children; but that percentage has escalated, to 2008, to 4.3 percent. And in 2001, the percentage was 2.84 percent. So the -- the rate has, as you would expect, given the increase in the numbers, but the rate that is the unmarried couples with children as a percent of all families in the Netherlands has increased significantly over this period of time, correct?
A. Well, I would use "rate" in an entirely different sense than you are using it here. First of all, I don't -- I have not ever calculated the statistic, and I don't know if this is, you know, appropriate, accurate, or not. But just looking at this graph, again, the rate of change over the years is exactly the same. It's quite clear. It's pretty much a straight line. There was a trend of the increase before, that is exactly equal to the trend of the -- of the increase afterwards. So there is no -- there's no break, whatsoever, to suggest that anything happened of importance in 2001.
Q. Well, let's look at the next tab. Because the yearly rate of change is calculated for the years 1994 through 2000 here. And that annual rate of change, with respect to unmarried couples with children as a percentage of all families, is calculated at .18 percent yearly increase year-on-year increase. If you turn to tab 7, the demonstrative behind tab 7, the average yearly rate of change is calculated for the years 2001 to 2008. And, as you can see, that rate of change is .21 percent year-on-year. And so there has been an uptick. Again, assuming the calculations, the math is correct, there has, indeed, been an uptick since 2001, an uptick that amounts to, yes, only .03 percent every year. But that -- that is, essentially, a 17 percent increase in the -- in the average yearly rate of change.
A. Well, you haven't explained to me what this point -- 0.21 yearly increase is. Is that the average increase from 2001 to 2002, and 2002 to 2003, et cetera, et cetera?
Q. Yes. Yes, it is.
A. Well, I mean, these kinds of differences are very sensitive to the years that you happen to pick to start and end the calculation. So, again, I can't comment on this, without having looked more closely at the data. This doesn't -- these rates seem odd to me, frankly. I don't know, as I said, what -- I'd have to look at these. I'm seeing these particular angles on the data for the first time.
Q. Fair enough. Fair enough. Let's turn, now, to tab 8, the demonstrative behind tab 8. And what this demonstrative displays are single-parent families in the Netherlands, just the numbers, the total number of single-parent families. And, again, the number of single-parent families since the time when the data began in the Netherlands being kept, 1994 to 2008, the number of single-parent families has very substantially increased; isn't that correct?
A. Again, I don't know. I'd have to look at this data and see if it's correct, and think about it with regard to trends, longer time period, probably, than you've got right here.
Q. Accepting the time period that I'm submitting to you -- and I don't ask you to agree with it, just to take it on its face -- it is clear that the number of single-parent families has very substantially increased over the period of time from 1994 to 2008, correct?
A. Again, as a measure of what? I don't really know exactly what the -- what this is supposed to be showing. I mean, the number -- the numbers that you've graphed here show an increase.
Q. And in the demonstrative behind tab number nine, this demonstrative exhibit shows single parents as a percent of all families in the Netherlands, and that percentages displayed here conform, do they not, to the rate -- or, excuse me, to the numbers and very substantially increased over the course of time from 1994 to 2008?
A. Again, it's -- you have to look at data in the larger context of other kinds of things that are changing and earlier trends. You know, I don't know. I haven't seen this data before, so.
Q. And the demonstrative behind tab number ten, this chart displays single parents as a percent of all families and the average yearly rate of change in the Netherlands for the period before same-sex marriage was adopted; that is, from 1994 to 2000. And it calculates a yearly increase in the rate of change as .032 percent, a modest increase from 1994 to 2000. (Document displayed)
Q. And compare that to the demonstrative exhibit behind tab number 11, which displays the single parents as a percent of all families and the average earlier rate of change in the Netherlands from including 2001 to 2008. And the yearly rate of change that is calculated here is .08 percent yearly increase, which computes to an average annual uptick in the percentage of single parents as a percentage of all families of over 150 percent; do you see that?
A. Yes. Although it doesn't make any sense to me to go to something that looks like 5.6 percent in 1994 and 6.4 percent in 2008 and call that 150 percent increase.
Q. That's the annual rate of change. Dr. Badgett, I want you to, if you will, please, turn to page six of your book. That is the book, When Gay People Get Married. I think it's behind tab eight of the large binder, or you can certainly turn to the actual book. It's page six.
THE COURT: Are we done with the second binder, Mr. Cooper?
MR. COOPER: Yes, we are, your Honor, although I would like to move into evidence the underlying statistical data from which these demonstratives were derived. It is -- and perhaps I should just go through them now. I apologize for not --
THE COURT: DIX-1887?
MR. COOPER: I'm sorry, your Honor?
THE COURT: Under tab one of the binder, that's DIX-1887?
MR. COOPER: Yes, your Honor.
THE COURT: Mr. Boies, any objection?
MR. BOIES: Your Honor, can I ask through the Court just a question. Is what is here the original copy of the original document or is this something that's been prepared by counsel summarizing the underlying materials?
MR. COOPER: No. It is the data that you get from Statistics Netherlands.
MR. BOIES: So this is just a copy from Statistics Netherlands.
MR. COOPER: Yes, it is.
MR. BOIES: I have no objection.
THE COURT: Very well. DIX-1887 is admitted. (Defendants' Exhibit 1887 received in evidence)
MR. COOPER: And DIX-2639.
THE COURT: Where is that?
MR. COOPER: That is related, your Honor, to the demonstrative behind chart number four, tab number four.
THE COURT: Very well. With that representation, 2639 is also admitted. (Defendants' Exhibit 2639 received in evidence.)
MR. COOPER: And an additional defense exhibit, DIX-2426 is related to the data associated with the demonstrative behind tab number five.
THE COURT: Okay. (Defendants' Exhibit 2426 received in evidence)
THE COURT: All right. Those are the underlying data.
MR. COOPER: And, your Honor, I have got, I think, just --
MR. BOIES: Your Honor --
MR. COOPER: One or two more. No. Actually, I think that may be it.
MR. BOIES: Could I ask a question through the Court? As I understand it, Defendant's Exhibit 2639 is supposed to be the back-up for demonstrative four; is that what I'm understanding?
THE COURT: Is that correct, Mr. Cooper?
MR. COOPER: Yes. Yes, it is your Honor, I think.
MR. BOIES: The numbers don't seem to match to me. Demonstrative four has data for 1994, and I'm not seeing data for 1994 on this back-up.
MR. COOPER: Oh, right. Your Honor, the -- as you can see from the heading of the demonstrative -- of the exhibit itself, "Size and Composition, Household Position in the Household, January 1." So it's data as of January 1 on -- 1995 is the data that actually relates to year 1994. So they -- they label, at least for this data, that it is as of January 1 of a year, not December 31 of a previous year.
THE COURT: I see. And if we do a little more arithmetic 56,057, 33,137, and 10,416 add up to 99,610, is that it?
MR. COOPER: That's it.
MR. BOIES: And do I understand that the data for -- that's labeled on 2001 here is the data for January 1 of 2002?
MR. COOPER: No. It's -- I'm not sure I understand the question. But the data for January 1, 2001 is the data that applies to the year 2000.
MR. BOIES: That's what I was asking.
MR. COOPER: Yeah, okay.
MR. BOIES: Thank you.
MR. COOPER: Yes. So I think the exhibits are in that pertain to this.
THE COURT: Very well.
MR. COOPER: Thank you, your Honor.
BY MR. COOPER:
Q. So, Professor Badgett, on page six of your book, the second full paragraph it begins with the words: "What path." Do you see that?
A. Yes. And it reads: "What path should change take in the United States, immediate or gradual? Do we need alternatives to marriage? Some observers want to see a more gradual expansion of rights for same-sex couples to see what the social impact will be." And now do you agree with those observers?
A. With respect to what?
Q. With respect to that statement, that: "...a more gradual expansion of rights for same-sex couples should take place in order to be able to see what the social impact will be?"
A. I don't think it's necessary to wait any longer to see what the social impact would be. I think we know.
Q. Do you believe that that view is a reasonable one to hold?
A. I have reached it through a reasoned process of looking at many different sources of data in different places and those -- everything that I've looked at leads me to the conclusion that there is no impact.
Q. So you don't believe that is a reasonable view, is that your testimony?
A. I don't think it's necessary in order -- I don't think it's necessary for us to wait and have a more gradual expansion of rights. We have been going through that in the United States already a gradual expansion of rights.
Q. (As read) "Others farther right on the political spectrum" -- the paragraph continues -- "see the big changes in the United States, especially in Vermont, Massachusetts and California, as further examples of undemocratic judicial activism foisted on an unwilling public." Now, I don't suppose you agree with that comment, do you?
A. No. As I discuss in the book, I think that the pace of change has been quite measured.
Q. And, finally: "Some in the gay community argue that change is happening too fast to avoid political backlash and that creating alternatives to marriage, both for same-sex couples and for other family forums, might be a better way go." Now, you obviously don't agree with that, right?
A. No, I don't agree with that either.
Q. But you believe that that view is a reasonable one to hold?
A. It's one that people offer and that we talk about. And my goal in the book was to take each of these questions that I posed in this introduction and to, you know, look at them from the perspective of data and reason.
Q. But you think, don't you, Professor Badgett, that social change with respect to same-sex marriage in this country is taking place at a sensible pace at this time with more liberal states taking the lead and providing examples that other states might some day follow, isn't that correct?
A. That's the conclusion that I draw from my look at the data on which states have made these changes, yes.
MR. COOPER: Your Honor, one moment, please.
THE COURT: Certainly. (Discussion held off the record amongst defense counsel.)
MR. COOPER: I have no further questions, your Honor. Thank you, Dr. Badgett.
THE COURT: Very well. Mr. Boise, redirect?
MR. BOIES: Thank you, your Honor.
REDIRECT EXAMINATION BY MR. BOIES:
Q. Good afternoon, Professor Badgett. You were asked earlier whether there were some difficulties in the categorization of gays and lesbians; do you recall that?
A. Yes.
Q. Are there difficulties in categorization of people based on race and religion as well?
A. Umm, like with sexual orientation, I wouldn't think of them as "difficulties." I think that there are challenges and that's why we see some changes from time to time in terms of how we measure those characteristics on surveys.
MR. BOIES: Could we put up the demonstrative that went from 79,677 to 74,030? It was the demonstrative that you used first. (Document displayed)
BY MR. BOIES:
Q. This is the marriage rate for the Netherlands.
A. Yes.
Q. Now, this chart starts in 1994. Does this accurately reflect the long-term trends as you believe they exist?
A. No. And there is quite readily available data that goes back considerably farther.
Q. Let me ask you to look at your demonstrative exhibit 30. (Document displayed)
Q. Can you explain what this exhibit shows?
A. This data starts in the 1960's, and what we see is a well-known change in the marriage rate in the Netherlands which peaked in about 1970, and since then has been on a pretty steady decline with, you know, some variation from year to year. But overall I think you can see quite clearly that there is a very clear long-term trend of downward -- of decreases in marriage rates over time.
Q. And there are some yearly variations, is that correct?
A. Yes, there are.
Q. And, for example, the marriage rate actually goes up from 2001 to 2002, correct?
A. That's correct.
Q. And goes up again from 2007 to 2008, correct?
A. Yes, that's right.
Q. And if you look on this chart at 1994 --
A. Yes.
Q. (Continuing) -- that is the low point between two -- sort of the valley between two mountains, correct?
A. It might be 1995. I can't quite tell from the data, but I think if the year is sort of in the middle, it might be '95.
Q. So either 1994 or 1995 is sort of the low point between two higher areas, correct?
A. Yes, yes.
Q. And if they had picked a date either before 1994 or after 1994, the percentages would be quite different, correct?
A. They could very well be quite different. Certainly, if they looked before 1994, they would be quite different.
Q. Now, let me ask you to look again at your demonstrative number 32, which we went over this morning. (Document displayed)
Q. This, of course, is from the person -- the professor that had been selected as a defendants' expert and then later withdrawn after this report was written, in which Professor Allen says: "In the Netherlands the total number of heterosexual marriages has slowly fallen since the introduction of same-sex marriage. Like most western countries, this is, no doubt, part of a larger secular trend." Do you see that?
A. Yes, I do.
Q. And do you agree with that?
A. I do agree with that.
Q. Let me ask you to look at Exhibit 49. (Document displayed)
Q. And this shows you, going all the way back to 1965, the average annual different-sex marriage rates in the Netherlands on a five-year basis, correct?
A. Yes.
Q. What does that show?
A. Well, it gets rid of a lot of the year-to-year variation, which makes it quite easy to see that the long-term trend is very clear. The long-term trend is towards lower marriage rates in the Netherlands.
Q. And is the trend after 2001 any different than the trend immediately preceding 2001?
A. No, not after you take out the year-to-year variation in this way.
Q. Now, in your book that was -- or, actually, in your report that was quoted to you, you talked about various trends related to marriage, and those include rates other than marriage rates?
A. Yes, that's correct.
Q. For example, do they include divorce rates?
A. Yes.
Q. Let me show you demonstrative Exhibit 33. (Document displayed)
Q. And this represents divorce rates in the Netherlands, 1996 to 2008, correct?
A. Yes, that's correct.
Q. And what does it show happened to divorce rates after 2001?
A. They decreased.
Q. Now, you mentioned that there was a conversion process that was introduced in the Netherlands that you thought needed to be taken into account in looking at divorce rates, correct?
A. That's right. Yes, that's an example of one of those confounding factors that we talked about before.
Q. And let me show you demonstrative Exhibit 55. (Document displayed)
Q. And this is the combined divorce and conversion rates in the Netherlands, 1990 to 2008, correct?
A. Yes, to the best of our abilities. The Statistics Netherlands does not actually provide the precise conversion figure -- I'm sorry. This is the conversion figures, but these aren't necessarily all dissolutions. I'm sorry. But that's right. These are dissolutions from marriages to registered partnerships in addition to divorces.
Q. That is, it includes all the conversions, but you don't know how many of those conversions actually related to dissolutions?
A. That's right. That's right. Some of them might not have in resulted in dissolutions.
Q. So this would have increased the number of divorces and conversions artificially to some extent, and how much you don't know.
A. That's right that's right, yes?
THE COURT: Let me ask you, Professor, is this a conversion from marriage to domestic partnership or --
THE WITNESS: Yes.
THE COURT: -- exactly what it is.
THE WITNESS: Yes.
THE COURT: That's what it is.
THE WITNESS: It's a conversion from marriage to registered partnerships, because they were creating a conversion -- my understanding is that they had to create a conversion process for people who were registered partners who could become married, and so they decided to allowed it to go in both directions.
BY MR. BOIES:
Q. And as you understood it was conversion to domestic partnership a way of getting an easy, simple divorce?
A. Yes. That's a way it's been used, although they no longer allow different -- they no longer allow anyone to convert a marriage into a registered partnership.
Q. Now, let me go back to the defendants' demonstrative that we had up before. (Brief pause.)
MR. BOIES: We are testing our technical capabilities shifting back and forth. Now, the demonstrative I want is the one that showed both the marriage rate and the domestic partnership rate that you showed. Is it possible to do that? You had a demonstrative that did that before your binder. (Brief pause.) (Document displayed)
BY MR. BOIES:
Q. Now, this shows Netherlands opposite-sex relationships, which include both marriage and domestic partnerships, correct?
A. That's what it appears to show, yes.
Q. Now, it shows an increase in domestic partnerships in 2001 to 2008. I believe you indicated there was a confounding factor that related to that, is that correct?
A. Yes, yes.
Q. And would you explain what that is now?
A. Well, there were two potential ones, I think, although I'm not positive because I had to look at this very quickly. I think they have taken out the conversion, so this would just be new registered partnerships. Another thing that happened in 2001, after the law that allowed same-sex couples to marry was implemented, was a second law that actually made registered partnerships much closer to marriage. They were already quite close in terms of their legal rights and responsibilities. They were virtually identical with a couple of exceptions. One of those exceptions was the relative ease of getting out of it; and the other was that there were no parental responsibilities attached to registered -- to the registered partner of a woman who gave birth to a child. But in 2001 they changed that so that now the partners of women who have -- the registered partners of women who have children are considered to have parental authority. They have responsibilities towards the children who are born into those registered partnerships.
Q. Now, if you look at this chart -- and I ask you to look at 2001 -- from 2001 to 2002, the first year after same-sex marriages were allowed, in the Netherlands both opposite-sex marriages and opposite-sex domestic partnerships went up, correct?
A. Yes. Clearly, yes.
Q. Now, you indicated that -- on your direct examination that while it was useful to look at the Netherlands and other foreign countries that permitted same-sex marriages, the best evidence was to look at states in the United States where that had happened, correct?
A. Yes, I think so.
Q. And let me ask you to look at demonstrative 41. (Document displayed)
Q. Now, this shows the marriage rates in Massachusetts for different-sex couples and the marriage rates in the United States from 2000 to 2007, correct?
A. Yes, that's right.
Q. And what does it show for the United States in terms of the marriage rate after 2004?
A. It's a pretty steady decline. There's a slight increase from 2003 to 2004, but otherwise it's going down each year.
Q. And 2004 was when Massachusetts in May 17th permitted same-sex marriages for the first time, correct?
A. Yes, that's correct.
Q. Now, what does the chart show happened to the marriage rate in Massachusetts after 2004?
A. This shows that the marriage rate actually increased.
Q. Prior to 2004, what had the marriage rate in Massachusetts been doing?
A. Well, since 2000, you can see -- well, from 2001 it's been a pretty steady decline.
Q. And the Massachusetts rates we are talking about are marriage rates just for different-sex couples, correct?
A. Yes. That's what this slide shows.
Q. Now, let me ask you to look at demonstrative 44. (Document displayed)
Q. And what does this demonstrative compare?
A. This is looking at the change in the average annual divorce rate before and after same-sex couples could marry in Massachusetts.
Q. And what does it show?
A. It shows that the divorce rate has been declining in Massachusetts and in the United States, but by a larger percentage change than average before and after same-sex marriage became possible.
Q. Let me make sure I understand what you are saying. First, you are saying that after same-sex marriages were permitted in Massachusetts, the annual divorce rates declined, correct?
A. Yes, yes. That's right.
Q. And you are saying that during that same period of time, annual divorce rates declined in the United States as a whole, but not by as much; is that correct?
A. That's right.
Q. I would like to direct your attention to Defendant's Exhibit 2647, which I think you have in one of the binders they gave you.
A. Okay. (Brief pause.)
Q. Do you have that in front of you?
A. Yes, I do.
THE COURT: Tab nine of the big binder, is that it?
MR. BOIES: I think so, your Honor. Yes, tab nine.
MR. COOPER: I'm sorry. I don't think I heard the number correctly.
MR. BOIES: 2647, tab nine.
MR. COOPER: Oh, yes.
BY MR. BOIES:
Q. Now, Mr. Cooper asked you to compare the 11 months --
A. Actually, you know, I'm sorry. I think I have the wrong one, too. Twenty-nine --
MR. BOIES: Can I approach, your Honor?
THE COURT: Try tab nine, I believe.
THE WITNESS: Tab nine, okay.
BY MR. BOIES:
Q. It is "Domestic Partnership Statistics 2000 to 2009."
A. Yes, okay.
Q. Now, Mr. Cooper asked you to compare the first 11 months of 2009 to the first 11 months of 2008; do you remember that?
A. Yes, I do.
Q. And he suggested that those two periods were completely comparable, despite the fact that same-sex marriage was allowed in 2008, but not in 2009, correct?
A. He did.
Q. Now, in fact, same-sex marriage was only allowed for five or six months in 2008, correct?
A. Yes.
Q. And if you -- if you take just the months that same-sex marriage was allowed in 2009 and compare those with the same five months -- or five or six months in 2009, the difference is considerably greater, correct?
A. It looks like it would be, yes. (Brief pause.)
A. Yes. Although, as I think I mentioned before, I think that it's -- it's hard to draw any conclusions from a status that's been around for nine years at that point; but that's right, when same-sex couples had no choice, we do see a higher -- higher numbers.
Q. All right. Now, he also asked you to look at your report at Paragraph 91. Can you put that in front you? (Witness complied.)
A. Yes.
Q. And he asked you a lot of questions about the calculation of exactly how many thousands of California same-sex couples would marry if they were allowed to; do you recall that?
A. That's right.
Q. Now, for the point that you are making, does it make any difference whether the number of same-sex couples that are being deprived of the right to marry is 30,000 or 40,000 or 50,000?
A. No, no. There is still enormous economic harm to those couples, as well as to the state.
Q. Now, let me go to your demonstrative, Exhibit 12. (Document displayed)
Q. And if what does this demonstrative show?
A. Again, this is the -- our estimate of the number of couples who got married in those six months and compares it to the number of couples registering domestic partnerships in roughly that same time period.
Q. And it shows approximately 18,000 same-sex couples chose marriage and about 2,000 same-sex couples during the same period of time chose domestic partnerships, correct?
A. That's right.
Q. And what does that tell you about the preference of same-sex couples for marriage over domestic partnerships?
A. Well, like some of the other comparisons we made, I think shows that same-sex couples prefer marriage by a wide margin over domestic partnerships.
Q. Let me ask you to look at demonstrative 13. (Document displayed)
Q. What does this demonstrative show?
A. This shows, very clearly, the same point. It shows that marriage is preferred for same-sex couples over either civil unions or domestic partnerships then. As I said, in the comparison with California, the early version of domestic partnership was even less popular amongst same-sex couples.
Q. Now, let me ask you to look at your report, paragraph 40. (Witness complied.)
Q. Mr. Cooper read -- or, rather, asked you to read various portions of this paragraph 40; do you recall that?
A. Yes.
Q. Would you read paragraph 41 for context?
A. Okay. "In other, words allowing same-sex couples to marry would result in a near term increase of roughly 7,700 non-registered domestic partners residing in California who would benefit from the economic protections afforded by marriage, or nine percent of the same-sex couples living in California."
Q. Now, would you turn to paragraph 37 of your report? (Witness complied.)
Q. And Mr. Cooper read and asked you to read various portions of paragraph 37. For context, would you read paragraph 38?
A. (As read) "Whereas, getting married sends a message that is recognized by almost all individuals in a culture, the same-sex couple suggested in interviews that an alternative status is often understood to have a different and inferior meaning than marriage. Some of the couples saw registered partnership as lacking the deep emotional meaning of marriage and they tended to see registered partnership as dry and business-like. "In contrast to registered partnership, a new status that was created in 1998, part of the value of marriage is the clearly-recognized signal that it sends. According to one former Californian who was living in the Netherlands with her partner, a Dutch citizen, quote, one of the amazing things about marriage is people understand it, you know. Two-year-olds understand it. It's a social context and everyone knows what it means, end quote. "Her partner noted that marriage, quote, has substance that registered partnerships lacked. The ability to show, as she put it, quote, this is the woman that I have chosen to be with for the rest of my life, end quote."
Q. And what's the significance of that in your analysis?
A. In my opinion, it shows that individuals clearly not only see marriage as something that's more valuable that comes with added characteristics over some alternative status, but the alternative status in and of itself is devalued because it's seen as sending a message of inferiority.
Q. Let me ask you now to look at the small binder that was given you with the demonstratives. And I'm going to the demonstrative that is at tab four.
MR. BOIES: And maybe we can put that up on the screen? (Document displayed)
BY MR. BOIES:
Q. Mr. Cooper asked you some questions about this, and there's a portion of this chart that says there is a 215.8 percent increase; do you see that?
A. Yes, I do.
Q. And this purports to show the unmarried couples with children in the Netherlands. Now, when was same-sex marriage authorized in the Netherlands?
A. As of April, 2001.
Q. April, 2001. Now, since it takes about nine months, at least, to produce a baby, even if you start immediately, can we agree that it is unlikely that there were any children born to unmarried couples as a result of the passage of gay marriage prior to 2002?
A. That sounds quite plausible to me.
Q. Now, I apologize for doing this, but we didn't have these charts before and I'm going to ask you to do a little bit of arithmetic with me so I understand.
A. Okay.
Q. If you look at the change, the increase in unmarried couples with children from 1999 to 2001, do you see that?
A. Yes, I do.
Q. And that's an increase of, roughly, 34-and-a-half -- 34, 35,000, correct?
A. Yes, that's about right, roughly.
Q. Now, in the period after 2002, is there any comparable period that had a comparable increase?
A. I don't see any that come close to that, no.
Q. For example, from 2002 to 2004, the increase was about 32,000, is that correct?
A. 2002 to 2004, over a two-year period. Oh, I'm sorry. I was only looking at one-year periods. Yes. That's a smaller increase, I believe.
Q. Right.
A. Yeah.
Q. And each of the subsequent years, actually, are smaller than that, correct?
A. It looks like it. They come very close. This is about as close to a straight line as you will ever see in a demographic measure.
Q. Does this tell you anything at all about the effect of allowing gay marriage -- encouraging people to have -- unmarried couples to have children?
A. It certainly provides no evidence whatsoever for it, in my opinion.
Q. Now, if you look at the next demonstrative, the one behind tab five, this shows the unmarried couples with children as a percent of all families --
A. Yes.
Q. -- do you see that? And from 2000 to 2001 the percentage increased by .24 percent, correct?
A. Yes.
Q. And from 2001 to 2002 it was .22 percent, correct?
A. That looks right.
Q. Now, after 2002, is there any year where it increases by that magnitude; that is, by .22 or .24?
A. .22 or .24? Somewhere in between from '03 to '04 it looks like. And I believe in the other years it's less than that.
Q. Now, do you draw from this the conclusion that allowing same-sex marriage reduced the number of unmarried couples with children as a percent of all families?
A. That reduced it? No, I wouldn't conclude that at all either.
Q. What can you, if anything, conclude from this?
A. I think you can conclude that the trend that existed before 2001 continued after 2001 with virtually no departure from that trend, no departure that I can detect of any meaningful size.
Q. Do any of the questions that Mr. Cooper asked you go at all to the issue of whether gay and lesbian couples are substantially hurt by not being able to marry?
A. In terms of these figures here or in terms of the entire discussion --
Q. The entire examination. Is there anything -- is there anything that he covered or showed you during the entire examination, not just looking at these charts, that in any way is inconsistent with your conclusion that gay and lesbian couples are substantially hurt by not being able to marry?
A. No, no. I have not changed my opinion based on our discussion.
Q. Was there anything that he showed you or discussed with you during any part of the examination that in any way was inconsistent with your conclusion that gay and lesbian couples' children -- that is, children being raised by gay and lesbian couples -- are hurt by their parents not being allowed to marry?
A. No. I don't think we even discussed that at all. So, no, my opinion has not changed. I still think they would be hurt by their parents not being allowed to marry.
Q. Is there anything that you saw or heard at all during Mr. Cooper's examination that in any way is inconsistent with your conclusion that gay and lesbian couples' right to marry would not cause any harm to heterosexual couples or to the institution of marriage?
A. No. I still have seen no evidence that suggest that there would be any harm or any change to the institution of marriage.
MR. BOIES: Your Honor, I have no more questions.
THE COURT: Very well. Thank you, Professor, for your testimony. You may step down. (Witness excused.)
THE COURT: And regrettably, counsel, we are going to have to adjourn at this time for the day. I have a judges' meeting that I need to preside at and I don't want to disappoint my colleagues. So we will resume tomorrow morning at 8:30. And, let's see, our next witness is going to be?
MR. BOIES: Our next witness will be Mr. Ryan Kendall, but we will also be playing excerpts from the deposition of a couple of witnesses.
THE COURT: All right. Fine. Anything to take up?
MR. COOPER: No, your Honor.
THE COURT: See you tomorrow.
MR. BOUTROUS: Thank you, your Honor. (Whereupon at 3:56 p.m. further proceedings in the above-entitled cause was adjourned until Wednesday, January 20, 2010, at 8:30 a.m.)
----
I N D E X
PLAINTIFFS' WITNESSES PAGE VOL.
SANDERS, JERRY
(SWORN) 1264 6
Direct Examination by Mr. Herrera 1265 6
Cross Examination by Mr. Raum 1285 6
Redirect Examination by Mr. Herrera 1314 6
BADGETT, LEE
(SWORN) 1320 6
Direct Examination by Mr. Boise 1320 6
Cross Examination by Mr. Cooper 1369 6
Cross Examination Resumed by Mr. Cooper 1403 6
Redirect Examination by Mr. Boies 1457 6
I N D E X
PLAINTIFFS' EXHIBITS IDEN VOL. EVID VOL.
186 1272 6
1259 - 1272 1323 6
1271 1412 6
1274 - 1276 1323 6
1279 - 1287 1323 6
1289 - 1294 1323 6
1300 - 1305 1323 6
2321 1323 6
2342 1323 6
DEFENDANTS' EXHIBITS IDEN VOL. EVID VOL.
1108 1372 6
1297 1430 6
1887 1452 6
2339 1452 6
2426 1452 6
2648 1393 6
2679 1391 6
2680 1392 6
CERTIFICATE OF REPORTERS
We, KATHERINE POWELL SULLIVAN and DEBRA L. PAS,
Official Reporters for the United States Court, Northern District of California, hereby certify that the foregoing proceedings in C 09-2292 VRW, Kristin M. Perry, et al. vs. Arnold Schwarzenegger, in his official capacity as Governor of California, et al., were reported by us, certified shorthand reporters, and were thereafter transcribed under our direction into typewriting; that the foregoing is a full, complete and true record of said proceedings at the time of filing.
/s/ Katherine Powell Sullivan
Katherine Powell Sullivan, CSR #5812, RPR, CRR
U.S. Court Reporter
/s/ Debra L. Pas
Debra L. Pas, CSR #11916, RMR CRR
U.S. Court Reporter
Tuesday, January 19, 2010
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