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Prop 8 Trial Liveblog Week Two – Afternoon II (25)

Before they get started, just a note about the amazing sophistry going on here. Cooper wants to discredit Badgett as a witness. So he’s just playing around with her numbers and strongly suggesting that they aren’t accurate. For example, he just took an unreliable sample of people who went into Massachusetts to get married and extrapolated that to get a lower number than Badgett previously estimated for that action. But Badgett clearly stated that the first five months of the change in law would be different and that there are all kinds of mitigating factors. Essentially, Cooper was saying, “Isn’t it true that my made-up numbers are lower than your numbers?” To which Badgett replied, “yeah, they’re made up.”

Cooper further is intimating that nobody would have voted for or against Prop 8 for fiscal reasons, so Badgett’s testimony is not germane. But that’s not the point of Badgett’s testimony. She’s saying that there’s a clear harm to individuals as well as the government for being denied marriage. The voting inclination has nothing to do with it.

OK, we’re back up…

Cooper brings out a new large binder for Badgett to use in testimony. Lots of trees being killed here.

C: Here’s a little where you say Prop. 8 and other marriage equality laws would have no adverse effects on heterosexual marriage. For instance, the Netherlands….

B: I can’t find the page…. OK, I found it.

C: You said data from the Netherlands suggests that hetereosexual couples aren’t affected by gay couples being permitted to marry. I have a data set from the Netherlands from 1994 to 2008. From 1994 to 2001, went from 5.4 to 5.1 marriages per 1000 residents. From 2001 to 2008, went from 5.1 to 4.6.

According to this data, from 1994 to 2001 average increase was 0.02%.

From 2001 to 2008, decreased 0.07%.

That’s a rate of change of 450%. (Again, fun with numbers)

Dr. Badgett, understanding the difficulties and variables going into social phemonena like this marriage rate, the rate has declined, right?

Plaintiffs object.

Walker: It was a long question, I’d be more sympathetic to that objection.

C: I’ll shorten it up. The rate of marriage has declined…

Walker: Ask her if it has.

C: OK, has the marriage rate declined since the adoption of same-sex marriage in the Netherlands?

B: In my opinion it has not declined significantly from the rates we would expect.

C: Here’s more data showing that unmarried couples with children have increase in the Netherlands, and more so since the adoption of same-sex marriage in 2001. Is that accurate?

B: This is like the other slide you showed. We see a trend here, but it’s not clear. There was a trend before 2001 and a trend after, if you didn’t tell anyone they wouldn’t be able to tell you from this data when same-sex marriage began.

C: Here’s another data set. The rate of unmarried couples with children as a percentage of all families in the Netherlands have gone up since same-sex marriage, right?

B: I’ve never calculated this data, but based on this chart, the rate of change before the introduction of same-sex marriage is exactly the same as the rate of change after.

C: Here’s another set of charts showing an uptick. (He’s seriously trying to make something out of a 0.3% uptick in the rate of change.)

B: These kinds of differences are very sensitive to the years you pick to start and end the calculation. These rates seem odd to me, frankly. I don’t really know the information. I’m seeing them for the first time.

C: Here’s a demonstrative of single-parent families in the Netherlands, again from 1994-2008. Number of single-parent families has substantially increase, correct?

B: I’d have to look at this data and see if it’s correct, and look at it amongst longer trends.

C: But looking just at this data, the number of single-parent families have substantially increased, right?

B: Again, I don’t know what this is supposed to be showing. The numbers that you’ve graphed here shows an increase.

C: Here’s single parents as a percent of all families in the Netherlands from 1994-2008.

B: Again, you have to look at data in a larger context. I’ve never seen it before.

C: This chart is single parents as a percent of all families and the average yearly rate of change. It calculates an increase of 0.032% from 1994-2000. Compare that from 2001-2008, after gay marriage. The average yearly rate of change is 0.08%. So there’s an average annual uptick in single parents of over 150%.

B: Yes, but it doesn’t make any sense to go from 5.6% to 6.4% and call it 150%.

C: That’s the average annual rate of change. (well, no, it’s not)

There are some objections and cross-talk being worked out. Cooper wants to admit the underlying data behind his Netherlands graphs. Judge Walker will take note of it.

C: Prof. Badgett, in your book, there’s a paragraph: “What path should change take in the US? Immediate or gradual?” Do you agree with those who say there should be a more gradual expansion of rights for same-sex couples, in order to see what the social impact will be?

B: I don’t think it’s necessary, I think we know.

C: How did you come to that.

B: Through a reasoned process, looking at different sorts of data. I don’t think it’s necessary to have a more gradual expansion of rights.

C: (Reading from Badgett’s book)

B: I think the pace of change has been quite measured.

C: (Reading from Badgett’s book)

B: My goal in the book was to look at the questions in this introduction and weigh them.

C: Do you think same-sex marriage has gone at a more measured pace?

B: That’s how I look at the data.

C: No further questions.

Judge Walker: Mr. Boies redirect.

Boies: You were asked about categorization about gays and lesbians. Are there difficulties in categorization on race and ethnicity?

Badgett: I think there are challenges, and we work through them in the data.

Boies: Let’s look at that demonstrative, the marriage rate for the Netherlands. This chart starts in 1994. Does this accurately reflect the long-term trends as you believe they exist?

Badgett: No, there’s other data that goes back father.

Boies: Let’s look at your demonstrative on marriage rates in the Netherlands.

Badgett: This data starts in the 1960s. There’s a long-term change in marriage rates in the Netherlands starting in the 1970s and declining (shorter: Cooper cherry-picked the data).

Boies: The rate goes up from 2001-2002, and up again from 2007-2008. And if you look on this chart from 1994. That is the low point in the data, the valley between two mountains.

Badgett: Yes, 1994 or 1995.

Boies: If they had picked a date before 1994 or after 1994, the rate would have been different?

Badgett: Certainly.

Boies: Here’s that report from the defense witness who was withdrawn. He said decline in marriage rates is “no doubt part of a larger secular trend.” Do you agree?

Badgett: I do.

Boies: Here’s the average annual same-sex marriage rate in the Netherlands going back to the 1960s.

Badgett: This gets rid of the year-to-year variation, and shows that the long-term trend is downward for marriage rates in the Netherlands.

Boies: Does 2001 look like a special date here?

Badgett: No, not if you take out the year-to-year variation.

Boies: Here are divorce rates in the Netherlands. What does it show after 2001?

Badgett: Divorce rate decreased.

Boies: Now, you talked about a conversion rate that was also part of this (conversions from marriage to registered partnerships).

Badgett: Yes.

Boies: So this is the combined divorce rate and conversion rate.

Badgett: Yes.

Walker: These are conversions from marriage to registered partnerships?

Badgett: Yes.

Boies: These were a way of getting an easy, simple divorce.

Badgett: Yes, but they no longer allow this.

Badgett: Another thing that happened in 2001, was another law that made registered partnerships closer to marriage. Now, registered partners of women who have children have parental authority and responsibility.

Boies: From 2001-2002, first year after same-sex marriages allowed in Netherlands. Both opposite-sex and same-sex partnerships went down.

Badgett: Yes.

Boies: Better to look at US data to compare it to what might happen in the US, right?

Badgett: I think so.

Boies: Here are the marriage rates for different-sex couples in MA and the US. What does it show?

Badgett: A pretty staeady decline. Going down each year. Went up a bit from 2004-2005.

Boies: What happens to marriage rate in MA in 2004?

Badgett: It went up.

Boies: And these are just for different-sex couples, right?

Badgett: Yes.

Boies: What does this new demonstrative compare?

Badgett: This shows that the divorce rate has been declining throughout US and in MA, but the annual divorce rates declined in MA faster after 2004, when same-sex marriage was recognized.

Boies: So same-sex marriage only allowed in CA for six months in 2008, right?

Badgett: Yes.

Boies: So if you compare those six months to the comparable six months, the numbers are higher for domestic partnerships, right?

Badgett: Generally speaking, though it’s harder to say.

Boies: So Cooper asked you a lot of questions about how many same-sex couples would marry. Does it matter whether the number deprived of the right to marry is 30,000 or 40,000 or 50,000?

Badgett: No, there’s still an enormous economic harm to the state.

Boies: Here’s a new graph. What is it?

Badgett: It compares same-sex marriages to domestic partnerships in California over the period when same-sex marriage was legal. Shows 18,000 marriages and only 2,000 domestic partnerships.

Boies: What does that show.

Badgett: It shows that couples prefer marriage to domestic partnerships.

Boies: Here’s a piece from your book, please read it:

Badgett: Marriage has substance that partnerships lacked. That i chose to be with this person… People see marriage as more valuable than the alternative status, and that devalues the alternative status, because it’s seen as not as privileged.

Boies: When did gay marriage begin in the Netherlands?

Badget: April of 2001.

Boies: Would it be plausible that no babies were born in 2001 that could have been affected by same-sex marriage in the Netherlands, as a factor of time?

Badgett: That’s plausible.

Boies: Now, in the period after 2002, is there any comparable period that had a comparable increase in unmarried couples to what there was in 1999-2001?

Badgett: Yes, that’s a small increase, I believe.

Boies: and the subsequent years are smaller than that?

Badgett: This chart is as close to a straight line as you’ll ever see.

Boies: Does this show any difference in unmarried couples as a result of same-sex marriage.

Badgett: Not to me.

Boies: Here’s the other demonstrative. After 2002 is there any year where unmarried couples as a percent of all families increase faster than .22 and .24, like it did just before 2002?

Badgett: Not really at all.

Boies: What would you conclude from this chart?

Badgett: You could conclude that the trend that existed before 2001 continued after 2001 with virtually no departure from that trend.

Boies: Did any question Mr. Cooper ask you go to the heart of the matter about whether or not gay couples are harmed by not being able to marry?

Badgett: No, I have not changed our opinion based on our discussion.

Boies: Was there anything he showed you or discussed with you that was inconsistent with your conclusion that the children of gay or lesbian couples would be hurt by their parents not being able to marry.

Badgett: I don’t think we discussed that at all, so no.

Boies: Was there anything he showed you or discussed with you that was inconsistent with your conclusion that the institution of marriage would be harmed?

Badgett: No I have seen no evidence that there would be any harm to the institution of marriage.

Boies: No further questions.


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David Dayen

David Dayen