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Prop 8 Trial Liveblog Week Two – Afternoon (24)

Hello from the Phillip Burton Federal Courthouse. We return to defense counsel Cooper cross-examining Prof. Badgett.

B: The question is what happens when a same-sex couple says that one of the parties is not the husband or wife of the other person. Concern here is that some of those individuals are different-sex couples who marked the pass wrong.

Census did two things: 1) they changed the form. Each individual marked to a reference person in the household
2) recognized that people made a mark on the form, changed it and corrected it, but the data entry people did not correct it, by rule.

Allowed data entry people to make a judgment.

This has reduced the miscoding problem.

C: Look at this table of statistics. Relative to each state. The stats for California, for same-sex couples you have 84,397. That’s the number used in the expert report.

B: That’s correct.

C: But number of same-sex spouses is 23,000, Number for same-sex unmarried partnership around 61,000. Far-right hand column is 18,000 legal marriages. That represents the estimate you and your colleagues made.

Difference between Census est. of 23,000 and your estimate of 18,000. Just differences in methodologies?

B: Yes.

C: Would invalidation of Prop 8 end domestic partnerships?

B: It’s possible, that’s what happened in Connecticut and Massachusetts.

C: But there was a period of time when either option available to Californians.

B: That’s correct.

C: If Mass. had the option of domestic partnerships available, at least some people would opt for that. Do you agree with that?

B: Don’t know.

C: If that’s accurate, shouldn’t your statistics be adjusted?

B: I don’t think so. If you look at my stats, 17-20% of California’s same-sex couples opted for marriage in six months. You have the same take-up rate in Massachusetts.

C: So your answer is no, you don’t think the 64% metric should be adjusted.

B: No, i think 64% should be married, and more will get domestic partnerships.

C: There are also penalties for getting married in California that don’t exist in Massachusetts.

B: Not aware of any.

C: Look at this document, you participated in its preparation in July of 2008.

B: I did.

C: Look at this figure. There are three bars in a chart indicating average monthly registration of domestic partnerships in different times. Indicates that after 2005, domestic partnerships became less popular in CA. Right?

B: No, I don’t think it indicates that at all.

C: There was a decline in domestic partnership rates, right?

B: Yes, there was a decline, perhaps because of prior pent-up demand.

C: You don’t think passage of AB205 had anything to do with it?

B: No. But it’s hard to deal with CA because the law changed so many times.

C: But AB205 attempted to equalize status for same-sex couples.

B: That appears to have been the goal.

C: In 2004, the number of dissolutions in domestic partnerships went up dramatically.

B: There was a spike, it’s not clear what that means.

C: You said “In CA, domestic partnership started in 2000, expanded in 2002 and again in 2005… rate slowed in 2005 after additional benefits, though still higher than earlier phase.” Subjecting couples to community property regime in 2005 was explanation for decline in monthly registrations and the spike in dissolutions before the statute was passed.

B: I see that. (Looking at the footnotes)

B: Nobody’s studied this in great detail. There was a lot of confusion among couples with community property. Many media accounts where couples said their relationships weren’t ending but they didn’t know tax implications, so they were dissolving their partnership. Much confusion. This was basically created in California, and nobody knew what that was going to mean.

C: Where do you in your report discuss those points.

B: Possible that we talked about it in a different context.

C: You cite unemployed partners not eligible for health care benefits from employers.

B: Not necessary unemployed, could be that their employer doesn’t offer benefits and their spouse’s employer does.

C: How many uncovered partners?

B: Almost 1,600. 1,581 partners.

C: You assume they would be covered if they were spouses.

C: 70% of California employers offer coverage to employees. 30% don’t offer coverage. I don’t see anything in the survey saying that the 70% offering coverage also offer family benefits. So it’s clear that one can’t assume that all of these partners would be covered.

B: My understand from the California Health Foundation was that almost all of these would be covered.

C: But only 70% offer coverage.

B: I took that into account in my calculation.

C: You further assume that each uncovered employee would pay $5,199 in a premium to pay for their own coverage, which employer would otherwise bear by himself. Yes?

B: Yes.

C: But employers rarely pay for all of family coverage. There’s a significant portion that the employee pays. The employee’s share is $3,200. Did you account for that in your analysis? (I guess Cooper’s point is that same-sex couples are only cheated out of less money by virtue of their sexual orientation, so, you know, deal with it.)

B: I did not take that into account when adding up the total.

C: not all employees are eligible are coverage by employer

B: yes, sometimes employers require them to be full-time

C: according to this, 79% of employees in CA are eligible for individual coverage. 20% not eligible, correct?

B: Yes, that’s correct.

C: And not all the eligible employees take it up. 83% of those eligible take it up. So not full.

B: Yes.

C: So actually, only 65% of employees covered by employer.

B: Within firms offering coverage, yes. (but cooper’s not accounting for the fact that some two-income households only use one employer for the health care, which is the POINT)

C: Let’s move on.

B: You talked about a study you had done previously. Your methodology used figures from MA to determine how many CA couples would marry if they had the option of doing so. You estimated 50% would marry.

In your expert report, in three different locations you used same-sex couples total number as 84,000. In this document, you’re using a substantially higher number of same-sex couples, derived from previous surveys from a Census report that they said was inflated.

C: Yes, I’m not worried about that though.

B: Using that number, you concluded 51,000 couples would marry over a three-year period.

C: Yes, we’re looking at three years.

B: You used a survey of California clerks to estimate that 18,000 same-sex couples married from June to November. You said you used data from out of state estimates.

C: Yes.

B: I can’t get these numbers to sum to 18,000. They’re not far off. It’s 18,130 by my calculation.

Walker: You should ask if there’s an explanation.

C: That is my question, your honor.

B: Yes, it’s a typo.

C: You say that 36,936 couples would marry over the next three years. How did you derive that number.

B: I hope it’s the difference between the couples in total we estimate would marry and those who did.

C: That’s consistent with my math. But that’s derived from the overstated number of same-sex couples from the Census. If you use the smaller number, only 42,000 would marry, less the 14,000 which did, leading to around 27-28,000.

B: You could do that, I wouldn’t say you have to. Really, in the end, I don;’t think it makes much of a difference. As I said, applying that 64% figure to California is more than 51,000, suggesting it might take a little longer to get up to that figure. Doesn’t change the fact that there would be hundreds of millions of dollars.

C: So the number doesn’t matter?

B: It’s difficult to quanitfy. We did our best using Census data to use a best estimate over a particular time. We have a good idea of the order of magnitude.

C: You try to quantify who would come to CA to get married from “high-tourism” states outside CA. You conclude 31,120 would come in from out of state over a three-year period.

B: Yes.

C: Numbers you’re using also come from the ACS survey, the inflated estimates, correct?

B: Yes, they come from those estimates.

C: Don’t you think the pent-up demand willing to travel may have gotten married in other states allowing same-sex marriage, and wouldn’t they continue to get married in other states while this is being hashed out?

B: Did it satisfy the pent-up demand? No. If the pent-up demand is close to correct, then the couples willing to travel is just a small blip. But during whatever time period Prop. 8 is still the law, it’s possible they would travel elsewhere.

B: My estimate would be different four or five years down the road. This is a loss to CA, whether or not it’s temporary, permanent depends on what the law states.

C: Are you saying these couples would wait 4-5 years?

B: No, I’m putting together the cost of Proposition 8.

Walker: Move on to another subject now?

C: OK. Here’s a Williams Project study about the impact of AB 205 (domestic partnership law) on CA budget. Entering it as an exhibit.

Walker: It’s in.

C: Under “tax revenues from tourism,” there’s an analysis of opening marriage to same-sex couples. Says the first state to do so would get the “first-mover advantage. Yes?

B: That’s correct.

C: You put out three different scenarios to project domestic partnership registration from out-of-state couples.

B: Yes.

C: Optimistic scenario – 64,000 couples in Western states would spend 3-5 days getting domestic partnerships.

Somewhat less optimistic scenario, assumes 28,160 visitors.

Pessimistic scenario, that California would get same visitors as Vermont, 4,700 couples.

Have you ever gone back to assess predictions?

B: We were not very sure about what would happen. Things kept changing. Pessimistic scenario was correct, relatively few registered domestic partnerships in CA. MA legalized same-sex couples, and that made domestic partnerships less attractive.

C: Do we have numbers?

B: About 5% have registered.

C: About 472 domestic partners have been registered every month, about 17,000 or so total. 5% of that figure is 850 couples who journeyed to CA to register partnerships. Quite a bit lower.

B: Depends on which number you look at. If you look at the total registered partners, 5% is higher. But things change, there was considerable uncertainty.

C: Let’s look at out-of-state couples coming to MA after they legalized same-sex marriage. They opened it to non-residents in August 2008. You adjusted calculations by looking at weddings between 2005 and 2007 from in state. Looked at that data, and you estimate non-residents during 5-month period, and what is that number.

B: Roughly 700.

C: About 764, according to my math. To annualize that over a year, what would the extrapolation be?

B: Same-sex couples like to get married in the summer, like different-sex couples. They had to make plans, learn of the new law. I don’t think we can draw conclusions from the long run.

C: But if you did extrapolate.

B: I wouldn’t.

C: I’m asking a hypothetical.

B: I would get a number that’s too low. It would be about…

C: 1,800 or so?

B: For that particular exercise. But I don’t think that would be a good number.

C: But if you multiply that by three, over a three-year period, you get around 5,500 people coming to MA.

C: Here’s a letter you wrote to a gov’t official in MA. It has a heading “Number of Same-Sex Couples Who Would Marry.” You said it’s the conclusion would be that 32,200 domestic same-sex couples would travel to MA to marry.

B: Yes.

C: That does not compare very closely to the hypothetical based upon your calculations, of around 5,500.

B: You start with a number that’s too low, if you multiply it by three, it’s ever further away.

C: Do you still believe 32,200 would travel to MA?

B: WE make these estimates with the best info we have at the time. Things keep changing. Now, Vermont, New Hampshire, Connecticut and Iowa allow same-sex marriage. So MA has competition for those couples.

C: Did they allow marriage when MA opened their window.

B: No, they didn’t.

C: You favor legalizing same-sex marriage?

B: I think it’s good for a lot of people and doesn’t harm anyone.

C: Would you change your opinion if it cost the gov’t money?

B: No, I wouldn’t, it’s not the basis of my opinion.

C: Do you think anyone would change their opinion?

B: I would have no way of knowing that.

C: Would anyone who opposed same-sex marriage change their opinion based on fiscal implications?

B: I don’t know.

C: Did you see ballot material for Prop 8?

B: I may have.

C: In those ballot materials, the state advised the voters of the fiscal effects of Prop 8. They said that the measure would have little impact on state or local governments. Do you agree with that?

B: No, I don’t.

C: Do you believe that the voters of CA were lied to?

B: I don’t know.

short recess.

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