January 19, 2010
by Brian Leubitz
Lee Badgett (L), research director., PhD in Economics from Cal
David Boies (D) examination.
B: Starts with basics. Offers documents into evidence. Defense objects to some of them.
Back from 15 minute recess.
B: Hav e you written articles?
L: Yes, I’ve written a number of articles about same-sex marriage. I’ve written 2 books about marriage equality, and edited a third one. One called “When Gay People Get Married”
D: Admit the book into evidence. In 2008, did you co-author any materials relating to same-sex marriage.
L: Yes. I probably authored quite a few, some related to California. A colleague and I estimated the fiscal impact of allowing gay marriage on California budget.
D: In 2005, did you author a similar article on the effect of marriage equality on the budget?
D: Have you been invited to speak at other universities.
L: I’ve been invited by many universities at many institutions around the nation and world. She lists lots of schools… I’ve also given talks at law schools…lists schools. Foreign schools…lists schools. All on the subject of marriage for same-sex couples.
D: American Psychological Association. What is Sec 44?
L: Yes. It focuses on LGBT concerns. President of 44 invited me.
D: Have you had papers accepted for conferences?
L: yes. Lists lots of groups.
D: Have you been asked to peer review articles about this subject?
L: yes…lists them.
11:02: D: Have you ever been asked to testify for the government?
L: Yes, in front of committees of both houses of Congress, testified before California Senate, and many other states.
D: Want to offer her as expert. No objection
L: Look at Demonstrative 10. A slide that shows her four points
· Prop 8 inflichts substantial economic harm on same-sex couples residing in CA and their children.
· Permitting same-sex couples to marry will not adversely affect different-sex couples, children, or the institution of marriage.
· Same-sex couples are similar to different-sex couples in most economic and demographic respects
· Prop 8 imposes substantial economic losses on Californa and its counties and municipalities.
D: What is the first point damages to same-sex couples.
L: Marriage reduces transaction costs. States and employers give specific benefits
D: Another slide with a big list of ways same-sex couple are harmed.
· Marriage confers numerous econ benefits, many of which are not provided by DPs
o Greater specialization of labor (families than can do that better are better off economically)
o Reduced transaction costs (wills and other agreements)
o Add’l health and other insurance benefits
o Greater economies of scale (Living together decreases costs)
o Stronger statement of commitment ( People understand what marriage means. That is what makes other economic benefits available)
o Greater validation and social acceptance of relationship (marriage is not just a commitment b/w individuals, but benefits come from outside recognition)
o More positive workplace outcomes from reduced discrimination (Research shows that gay and lesbians who believe they are feeling discrimination, get different work experiences. In the case of same-sex couples who aren’t allowed to marry, they may feel they are being discriminated. That feeling might hurt their work performance, decrease odds of promotions…)
· Some of these costs may not be quantifiable, but they are substantial, and are imposed on virtually all california same-sex couples who would marry if they could. (The costs are well-known, but they are tough to get a number on. But, they might be quite large. Domestic partnerships just aren’t the same thing. People who have DPs would still suffer costs b/c they couldn’t marry.)
D: You said some people who haven’t gotten DPs who would marry?
L: yes, I’ve seen a lot of research showing that.
D: Another slide showing disparity b/w marriages and domestic partnerships during time that same-sex marriage is allowed. 18,000 vs about 2000
D: Another slide.
L: Shows percentage of number of couples that got took up domestic partnerships, civil unions, and marriages in the first year that they were allowed. 37% took up marriages in first year. 12% for civil unions, 10% for domestic partnerships. In California, only 5% registered in 2000, the first year DPs were available. In six months, 21% of same-sex couples were married.
D: Another slide. Damages to couples who don’t want DP but do want marriage.
L: Goes through slide.
· Lack of access to health insurance
· Increased state taxes
· Increased transaction costs
D: Can you quantify?
L: For some. They are likely to be in the thousands of dollars per year, for thousands of couples.
D: Why do same-sex couples who want to marry don’t want DPs?
L: A variety of reasons. They might see DPs as second-class citizens. They see less value of DP. The data suggests that people prefer marriage. The difference in the value is that marriage is an institution that is recognized by lots of people. Marriage has much more meaning.
D: How does it hurt children?
L: Well, one way is that to the extent it costs the couple more money, it won’t go to the children.
D: Publication on survey with Mass Dept. of Public Health
L: Sample was from a mailing list that was working with DPH. It provides a good point of reference.
· Over 72% of respondents felt more committed to their parents
· Almost 70 percent felt more accepted by their communities
· 93 percent of those raising children agreed that their children were happier and better off as a result of their marriage. (Children were more able to relate to their peers)
D: Does this have meaning for California?
L: Yes. In the United States, there are many similarities. Demographics are similar. Many similarities show that we can apply Massachusetts statistics to California
D: Prop 8 harms children being raised by Same-Sex Couples in CA slide
L: Same-sex couples in CA are raising 37,300 children under age 18. One in 10 of CA’s adopted children live w/lesbian or gay parent. Both different-sex and same-sex couples in CA with their own children have, on average, 2 children
D: Are you aware of prof orgs that say that not allowing same-sex marriages harms those children?
L: Yes. Am. Medical Association, especially with respect to health insurance.
D: Can you summarize impact of s-s marriage on different sex marriages?
L: Yes, I looked at a lot of data. Behavior, data, and relationships do not bear out any evidence that same-sex marriages hurt different-sex marriages.
D: Can you generalize from other states to California?
L: You need to be careful to control for other variables.
D: Slide 32. Quote from Prof Allen, who was going to be a defense expert: “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.”
L: I agree with this statement. It is an example of things that you have to take into account when applying to California.
D: Some other trends you would consider when applying?
L: Divorce laws in Spain were made easier around same time as gay marriage was made legal.
Objection from defense counsel Cooper. L didn’t mention this in her deposition. Judge allows it, and says defense can file motion to strike if necessary.
D: Can you give example from Netherlands?
L: Yes, at the time, marriages were allowed to convert to partnerships, making divorce easier. Partnerships were given more responsibilities.
D: Any differences from applying data b/w states and different nations?
L: yes, it would be easier to compare from Massachusetts. Less cultural differences
Objection from defense. Another issue of disclosure in the deposition. Objection overruled.
D: Did you see any evidence of any adverse effects on the institution of marriage in Massachusetts?
L: No, neither for the couples nor their children.
D: What does Mass. Experience lead you to believe?
L: I believe that there would be no effect on different-sex couples.
D; You testified that there were many more similarities b/w same-sex and diff-sex couples than differences. What is that from?
L: Looking at the demographics.
D: Slide showing reasons same-sex couples wish to marry
· Just as with different-sex couples, same-sec couples are
o Raising children
o Engaged in positive assortative matching (people seek partners who are similar. People partner with people of similar race, age, economic positions, etc.)
o Seeking the economic benefits of marriage.
D: What economic benefits can you quantify for the state?
L: Some data we could quantify. Costs associated with weddings. Couples from other states.
Brian comment: Andy Pugno just walked in to overflow courtroom.
L: Continues to describe economic analysis of how she came to her numbers. Comes around $470 mil over three years. To the state itself, $40 million.
D: Other economic damages?
L: Yes, if people feel they are being discriminated they won’t be as productive.
D: Higher spending on means-tested programs?
L: yes, s-s couples who aren’t eligible for marriage will likely be
D: Higher costs for health care of uninsure same-sex partners
Yes, couples that can’t get married might need MediCAL or CHIP.
D: Loss of workers?
L: Yes, people might move to where they could get married. There is some data that has been analyzed, same-sex couples moved there. From the “creative class”, drivers of economic growth, were attracted to Mass b/c they could get married there. It was one of the reasons that couples married.
No more Qs from Boies.
Cross-Examination by Charles Cooper (C)
C: Prof., you have long been an advocate for legalizing same-sex marriage?
L: Yes, for many years, I have studied this for many years, and I do have the opinion that same-sex couples should be allowed to marry.
C: Would it be fair to call you a gay rights activist?
L: I’m not sure what you mean, but I do believe
C: You were given an award by the Advocate
C: You contributed No on 8.
C: You study sexual orientation?
L: Well, my general study is labor economics, but I study sexual orientation.
C: Are there problems defining sexual orientation?
L: yes there are several dimensions on how to quantify.
C: Introduces paper by Williams Institute on asking questions. Three dimensions of sexual orientation. Self-identification isn’t always in concordance with sexual attraction?
L: It is for most people.
C: What do you ask to determine sexual orientation based upon these dimensions?
L: It depends on the survey
C: You would need to assess the study.
L: Yes, you would need to think about those questions.
C: Are you familiar with the 1992 national health and life survey?
L: They asked about those dimensions in separate questions.
C: Complications with defining sexual orientation? There can be a wide range of classes of sexual orientation depending on what dimension is being used, is that correct?
L: yes, it happens rarely, but it does happen. Most people fit more neatly into gay or straight.
C: You said in your book that race and sex are more easily determined, there are not these types of problems?
L: No, I would disagree. There are many factors as to who identifies
Judge: What is indogeneity?
C: You discussed varying rates of partnerships in the Netherlands. Domestic Partnerships dropped after marriage was made available.
L: Same-sex couples have a choice in the Netherlands.
C: Opposite sex marriages have increasingly been replaced by registered partnerships?
L: I’d need to look at the data you have.
C: yes or No?
L: If these numbers are correct, then yes.
C: You refer to qualitative data for the statement that alternative status are deemed inferior?
L: I did interview people, 19 same-sex couples. 6 male same-sex couples, 13 female couples.
C: All but 2 had some postgraduate experience.
L: Yes, they did skew from my academic network. This type of research is not designed to be generalizable.
C: None of the couples had a partnership before?
L: Right, I think one of
C: What was AB 205?
L: I think that law added to the rights of DPs here in California. I looked at the fiscal impact of that legislation. The purpose of the report was to find out whether it would cost the state money on net.
C: Goes through other reports in other states. You have supported other legislation in other states?
L: I did research on them, which was different. I might have supported DP legislation in the past.
C: Goes through some essays that Badgett wrote. Presents DP statistics from the Sec. Of State. Look at the statistics for 2008. Look to the months marriage was legal in California. How many DPs were registered in July 2008? 356. 510 were registered in July 2007. 332 in July 2009.
C: The number of DPs declined between 2008 and 2009.
C: Compares similar figures from October 2007-2009.
C: Compares first 11 months from 2008 to first 11 months of 2009. So the rate of registration of DP was substantial during the period marriage was similar to 2009?
L: Well, I don’t know if some of the 18,000 married couples didn’t also get DP’d as well.
C: How many of the 84.400 same-sex couples according to the Am. Community Survey are married?
L: 18,000 were married in California.
C: Shouldn’t the 18,000 couples be deducted?
L: No, I accounted for that.
C: Goes through a long question, that is rather unintelligible, something about numbers. L admits it.
Lunch break until 1:30.