January 19, 2010
By Julia Rosen
We are back from the long holiday weekend and had a short day today, with Judge Walker adjourning early to deal with some other business.
Today Brian Leubitz liveblogged the morning, with Rick Jacobs taking over the duties for the afternoon.
Thanks to everyone who introduced themselves this morning in the welcome thread that now has more than
300 400 comments. Our Trial Trackers are amazing. The stories you have been sharing have been painful and inspiring to read.
We are now over 700,000 views, 5,000 comments and 80 blog posts in a week and a half. Just incredible.
The daily summary is below. All of the livebloggers today seemed to think that the defendants were hurting themselves with their line of questioning on the statistics during the cross-exams this afternoon. What do you think? How did the day go?
Had the trial begun today rather than last Monday, the anti-science folks on the other side would have said that the rain meant that the elements were conspiring against the gays because last week we began with the vigil under clear, crisp skies.
We begin today at 0830. Brian Leubitz is taking it from here. I’m in the room, but not doing the live blog right now.
Boutrous: Proponents filed a motion to expand the core groups for discovery so that it would now reach to Massachusetts. We have opposed. Proponents are withholding documents until the group is expanded. We object. We also want to open depo with Prentice (ED Protect Marriage) since we got 20,000 pages. We would like to reopen depo. Some of documents cast doubt on his prior claims that he had no connections to various groups. We’d like to have Magistrate Judge Spiro open depo.
Judge: First part is doc 474 re: John Doe and TV commercial. And there is a motion challenging Mag. Judge general discovery order. I am ready to rule on the latter order. Have you had opportunity to reply to query re: doc 474? I’ll look at that and either decide myself or refer to Spiro.
Two matters, then. Prentice depo and 474.
Cooper: I’ll reply by tomorrow.
Judge: First witness?
Herrera: Mayor Jerry Sanders of SD.
8:45 by Brian Leubitz: SF City Attorney Dennis Herrera calls San Diego Mayor Jerry Sanders
Judge: You need to review Mr. Flynn’s deposition, he needs to learn proper objection form
Jerry Sanders: States Name:
H: You are mayor of San Diego. You are Republican. What term are you in? Description of career:
Yes. I am a Republican in my second term. Before becoming mayor I signed up as a recruit in the San Diego PD. I rose through the ranks of the SDPD. In 1986, promoted to captain, and commander in 1990. Command of half of the city and in charge of Internal Affairs. He was promoted to Chief of police in 1993 and retired in 1999. Between 1999 and 2005, I was president/CEO of San Diego United Way. He then reconstituted the American Red Cross San Diego Chapter.
H: Are you gay/married?
S: Not gay, am married. I have two daughters. One daughter is straight the other is lesbian.
What was your relationship with the older daughter, Lisa.
S: Lisa was basically my shadow. We had a very close relationship. We were pretty much inseperable on the weekends.
How did you learn Lisa was a lesbian.
Lisa called me in her sophomore year in college, and said that she wanted to talk to wife and I. She told us that she was a lesbian, and in a lesbian relationship.
I felt overwhelming love. I understood how difficult it was for her. I told her that we loved her more than ever. I would support her. I told her that it was very tough on gay people in society.
I was concerned because I seen what had happened to people who were openly gay. I saw a sargeant who came out in the 1970s who was driven out of the police department. I have seen violence against the gay community simply because they were gay. We had a series of gay bashings in San Diego. I had heard the slurs and the comments that people made.
Herrera: Did you take a position in your first campaign on marriage equality?
Sanders: I took a position that domestic partnership was a fair alternative. I took the position because San Diego was in a tough spot. I thought civil unions were fair.
H: Did you change your position?
S: I changed my position in September 2007. The city council passed a resolution on behalf of the City of San Diego to file an amicus on behalf of marriage equality in San Francisco’s marriage case.
H: Did you make an announcement at that time? And was it widely available?
S: Yes, I did. I believe it was on YouTube.
The Court plays this video:
Cooper: Points to two-page table of statistics for each state. Stats for CA total column is 84,397 same sex couples, number used in your expert report. Across row unmarried 60,994. Then we see 18,000 legal same sex marriages, which is estimate you all made. Different between census number (which is 84,397-60,994) vs. yours, but that’s just different methodology?
C: Now you use same sex marriage rates in Massachusetts are predictor for CA.
B. Yes, I’d think it would be reliable predictor.
C: But Mass does not have DP; it only has marriage or cohabitation.
B: Some might have gotten DP in Vermont.
C: In California, couples can choose between marriage and DP?
B: Yes, unless legislature acts.
C: But that would require legislature to ac?
B: Other states did eliminate DP when they got marriage.
C: But CA had both for a time?
C: Reads from B’s depo. “Some of benefits of marriage might differ slightly across other states. Other difference is that they’d have choice in CA of DP or marriage.”
B: Yes, that’s what I said.
C: If Mass allowed DP, some would have chosen DP just as they do in Netherlands and did in CA? If that premise is accurate shouldn’t your 64% of same sex couples who married in Mass be reduced?
B: I don’t think so. In the six months that ss marriage legal in CA, 27% of ss couples married, so for a year it would be about the same as Mass (i.e., 54%).
C: Also some disincentives for ss couples to marry in CA that they don’t have in Mass?
B: Not aware of any.
C: Refers to Marriage Registration and Dissolution by SS Couples in US, a document you participated in preparing in July, 2008, page 13. Shows that there was decline in average monthly license of marriage or DP.
B: Hard to deal with California because the law changed so many times.
C: AB 205 extended quite extensively the rights of DPs to equalize with marriage.
B: That appears to have been the case.
C: Looks at dissolutions of legalized ss relationships. 2004 number spiked from 733 in 2003 to a much larger number in 2004 of 2,413 (ch) dissolutions. So not only did new registrations decline after AB 205 (which would have extended obligations of marriage, i.e., taxes), but dissolutions spiked in anticipation of enactment?
B: Could be.
C: Makes point that AB 205 brought about decline in registrations and spike in dissolutions (before enacted). He’s trying to show that gay people don’t want “permanent” relationships.
B: Enormous confusion among some couples about tax and community property issues. Journalists talked to many individuals who said their relationships were not ending, but they had not idea of what tax consequences would be and their attorneys and tax advisors said to dissolve. No one knew what DPs in California would mean, since this version (California’s) was unique.
[Brian Leubitz makes the excellent point that DP had state tax consequences, but unknown federal consequences, because federal law does not allow for DPs (or same sex marriage, thanks to DOMA). So this all might result in a gift tax.]
C: Makes point that Mass is not one of the nine community property states.
C: Talking about uncovered same sex partners who are not covered by employer benefits. According to survey, 70% of all CA employers offer coverage to employees; 30% offer none.
B: Yes and all 70% do offer family coverage (according to CA Wellness Foundation).
C: But only 70% offer coverage.
B: I took that into account in my data.
C: Employers rarely pay for all coverage. Significant portion employees pay: $3,000 vs. $10,000 paid by employer. Did you account for that in your analysis?
B: (looking at report) No, I did not.
C: Not all employees are eligible for coverage by employer?
C: You say 79% are eligible for coverage, but only 79%. 20% are not eligible at all?
C: Not all of those eligible take it up, which makes sense since premiums high. Net effect is that only 65% of all employees are covered by their employers in California.
[This is still going to go for a while. He’s trying to show that her conclusions are based on flawed data.]
C: You estimated some 51,320 same sex couples would marry based on your own data that do not match up the discrepancies discussed above (changes in the way the census does its same sex household calculations).
14,384 + 3,746=18,130 (her estimate for in-state vs. out of state couples respectively that married in CA). I can’t get those numbers to sum. They are close, but not exact.
Judge: Perhaps there’s an explanation. Perhaps you could ask her.
B: Looks like a typo.
C: Shows that there are only 27,000 or so couples that might marry in California, substantially lower than the number you estimated?
B: Doesn’t matter. Our methodology yields more than 51,000 will marry. It might take a few months or year to get to the number. Still, hundreds of millions of dollars would be lost by California.
C: Doesn’t really matter what number you use, does it?
B: Well, it’s not exact, but we know it will cost California hundreds of millions.
C: You site NC, Arizona, NV, Oregon, NM (and others) as high California tourism states and you conclude that (a large number of) same sex couples will come to CA to get married from these states, but they are from those inflated numbers?
B: They are from those numbers, yes.
C: Have you deducted the number that have already gone to IA, NH, Mass, CT to get married?
B: No. We tried to estimate of the roughly 3,400 couples who came from other states to marry were from those other states, so we subtracted them from our estimates?
C: But would you have to deduct the number of couples that will marry in those states that will marry in other states before California by whatever means enables ss marriage?
B: Did not.
C: One would not expect many of those couples in other states to wait for CA to allow marriage to marry here?
B: No. It will be a loss to CA no matter what. If it takes 4-5 years for CA to pass marriage, it will cost CA and its municipalities a lot of money.
Judge: (Smiling and irritated) Shall we move onto another subject?
C: Says you use highly pessimistic study to show that 28,000 would come to CA to marry, that the first state to offer marriage would have a big advantage. Did you ever revisit after the laws changed for DP, etc.?
B: Not sure why, but relatively few out of state couples have registered their DPs in CA (even though we were first). Dampening of demand because other states instituted similar types of statuses and shortly after we published this in May 2003, a few months after that, Mass Supreme Judicial Court allowed marriage there which may well have dampened interest in something less than marriage.
Roughly 5% of registered DPs have addresses outside of CA.
C: Average of 472 DPs registered since 2005, which is roughly 17,000 or so, which is a little on the high side. 5% of that figure is about 8%, which is quite a bit lower than your pessimistic scenario.
B: Depends upon what numbers you look at. We made the point that there was great uncertainty.
[Judge Walker looks somewhat bored. The point Cooper is making over and over again is the same point that Badgett is making: lots of factors created lots of changes. It’s actually the same argument that I heard the President of the Chamber of Commerce make this morning about the economy: if business does not have a clear understanding of government policy and union activity, it will not do well. So it’s okay for businesses to say they need stability in the law, but apparently it’s irrelevant for people in love who want to marry to have some stability. This seems like water torture. If we can marry, this problem is gone and nothing bad will happen. The rest, as the rabbis say, is commentary.]
C: Tries to get B to engage a hypothetical exercise.
B: You started in that hypothetical that is too low and I think if you multiply it by 3 it’s even lower.
C: Is the number 32,000 (ss couples who would come to Mass to marry) still accurate?
B: I doubt it. After Mass, NH, Vermont, CT, Iowa all started to allow marry so Mass may have lost some out of state marriages.
C: Do you support same sex marriage?
B: Yes, I do think it’s good for some people and won’t hurt anyone.
C: Do you know of anyone who would change their opinion on ss marriage because it would save the state money?
B: I don’t know.
C: Do you know of anyone who would change their opinion if it costs the state money?
B: I don’t know anyone who thinks that?
C: Shows voter guide that shows fiscal effect of Prop. 8 is negligible. Is that accurate?
C: Do you think voters were entitled to rely on this?
C: Good time for a break. It might allow us to tighten up the cross.
Judge: That’s an offer I can hardly refuse.
[Break at 2:40 for ten minutes.]
[So here’s the deal. Cooper is making up numbers and asking Badgett to then agree or disagree that his made up numbers are higher or lower than hers. And then he tries to say that there is change, but he does not allow her to include changes in the law in her estimates. He’s just trying to throw up a bunch of dust to impugn her. I don’t think it works. Let’s see what happens when he comes back and in the redirect by Boies.]
We are back for more.
[Cooper directs her to a page in her deposition book, which she had put away, but now she had to take it back out again. These are three-inch binders, huge black three hole affairs and there are dozens of them at various times.]
C: Reads from a report she wrote. “Data from Netherlands, the first country to allow ss marriage,” suggests that hetero couple marriage trends do not change. (Here we go again with the Netherlands.) (Putting up a slide of stats that attempts to display the marriages per 1,000 inhabitants in the Netherlands from 1994-2008).
Shows 5.4 to 5.1 per 1,000 1994-2000. Then goes from 5.1 to 4.6 marriages per 1,00 from 2001 to 2008. Shows another chart that they have calculated to show average yearly increase in the rate of marriage form 1994-2000 by .02% (which is, by any measure, statistically insignificant.) Then show average yearly change in rate of marriage of .007% from 2001-2008. This is a 450% decrease from the previous period.
[Okay, he’s right but it is all a rounding error!]
Cooper: Clear that marriage rate has declined significantly?
Objection: [hard to hear, but says it was a long question.]
Judge: Well, it was a long question, I’m much more sympathetic to that.
C: It is clear…
Judge: How about asking “if” it has declined significantly?
B: It has not declined significantly.
C: (Shows another graph that shows numbers of unmarried couples with children in Netherlands from 99,610 in 1994 to 314,566 in 2008.) The numbers have steeply increased. Is that accurate?
B: This is same chart you showed before, although 1994 makes sense to start it out if that is earliest date of numbers. But if you look at that chart, no one in this room would be able to tell you when ss marriage passed (because the graph is a 45 degree angle and does not change at all in 2000 when ss marriage passed.)
C: Another chart that shows “rate of growth of families without children” has increased since 1994.
B: Again, it looks perfectly straight. “No one could look at this and see that anything significant happened in 2000.”
C: Shows graphs that show that average yearly rate of couples unmarried with kids increased by POINT 18 (eighteen basis points for you in finance) to POINT 21 percent from 2000-2008. Says it’s a 17% increase in rate of change post-same sex marriage.
B: Hard to see that.
[Cooper shows more and more of these that show miniscule changes. In this case he’s dealing with point 032%. That’s right, 3 basis points. Bond dealers don’t even that excited about these point shavings.]
B: Doesn’t make any sense to me. 5.6% in 1994 and 6.4% in 2008 and call that a 150% increase does not make any sense to me.
C: (Stumbling) That’s the change in the annual growth rate. (Pfifer: Figures Never Lie; Figurers do.)
[I know I’m biased, but this is really undermining Prop. 8’s case. They are using bizarrely drawn sets of data to derive bizarrely derived conclusions. Badgett summarized it all when she said that a change from 5.6% to 6.4% is by no means a 150% increase. This is just literally ridiculous, grasping at statistical toothpicks.]
Judge: Are we done with the big binder?
C: Well there are a few more demonstratives (charts).
C: Reads a bunch of statements from B’s book that suggest that we should go slow, including comments that some in the gay community that we should go slower so as not to engender backlash, that some on the right feel that the “judicial activists” have foisted their opinions on unwilling citizens.
B: I don’t agree with these statements. I wrote them in the introduction so that I could address them. I think the progress has been quite measured.
(Boies on redirect.)
Boies: Are their difficulties in measuring racial and ethnic differences in surveys?
B: Not so much.
Boies: Put up same chart that C used to show data about the change in marriage from 1994 to 2008? Accurate?
Boies: Let’s put up your chart.
B: Shows very clear long term trend from 1960 that shows clear long-term downward trend in marriage rates.
Boies: Shows that 1994 or 1995 was low point between two higher areas. If C had picked a date before 1994 or after 1995, the data would be quite different?
B: Yes, they would be quite different.
Boies: Defense expert: In the Netherlands the total number of heterosexual marriages has slowly fallen since ss marriage passed. No doubt part of a secular trend.” Defense expert then withdrew because he said that it’s a secular trend.
Boies: 9% marriage rates in 1960, dropping to 4.5% in 2008. Is rate any different after ss marriage passed?
B: No. When you look at data from 1960, you see that there has been no real change in the rate of decline of marriage.
[Brian Leubitz has the slides and is putting them up! You’ll see the nonsense in living Internet.]
[Final update of Day 6]
Boies: You said that better than looking at Netherlands for effects of ss marriage in US is to look at other US states.
Boies: Massachusetts shows a pretty steady decline of marriage from 2000-2007. Chart shows that marriage rate actually increased after May 17 2004 when ss couples could marry. And Mass rate of decline in marriage is lower than nation.
B: Divorce rate has actually declined since passage of marriage in Mass at a greater rate than in the US, where divorce rates also have declined since 2000.
[This is all hard to read, but the point is that Boies shows that divorce rates in the US have decreased since the passage of marriage and decreased even more in Massachusetts. In short, Mr. Cooper just pulled data right out of his ass to prove whatever point he wanted to prove.]
B: Chart shows that 18,000 married in five or six months of marriage in CA, but only 2,000 or so got DPs.
B: Chart shows that in the first year DP was allowed, 5% of ss couples chose it. In first year marriage allowed in US, 21% chose marriage. Clear that overwhelmingly greater number of ss couples choose marriage.
B: Reads again from report that reiterates point we have heard over and over that registered partnership in Netherlands is not as meaningful as marriage. Shows that individuals not only see marriage as more valuable than alternative status, but alternative status itself is devalued because it sends the message that it is devalued.
Boies: Shows Cooper’s chart that purports to show a 150% increase in rate of couples living outside of married with children, even though it’s a tiny number.
Boies: Look at rate of change from 1997-2001, see increase of 34,000 who are unmarried with children. In the period after 2002, is there any period that had a comparable increase?
B: I don’t see any that come close to that number.
Boies: For example from 2002-2004, about 17,000 and they get smaller after that?
B: Yes. It’s a straight line. It’s about as straight a line as you’ll ever see in statistical studies of population.
Boies: Does this show any proof whatsoever that there was an increase in rates after “gay marriage” was legal?
Boies: After 2002, is there any year in which rate of increase of unmarried couples with children approaches rate of increase was greater than form 1999-2000?
Boies: Did any of Mr. Cooper’s questions go to whether gay and lesbian couples can be substantially hurt by being denied marriage?
B: No. I have not changed my opinion.
Boies: Did he show you anything that children of gay and lesbian couples would be hurt by parents being allowed to marry?
B: No. He never mentioned it.
B: I’ve seen no evidence that would suggest there is any harm.
Judge: Regrettably, we have to adjourn. I have a judge’s meeting at which I must preside. Sorry to disappoint the lawyers.
Resume tomorrow at 8:30.
Prop. 8 not only does not like science, but they flim flam math. The numbers that they used undercut their case. When someone shows you cherry-picked statistics and then uses fake math to justify them — i.e., that the rate of increase derived by averaging silly numbers equals 150%, when as Prof. Badgett points out the actual numbers are 5.6%, increasing to 6.4% — everyone sees the game being played.
Dave Dayen over at FDL came over to Brian Leubitz and me after the proceedings ended and said, “are they trying to lose?” It’s not a throw away. Maybe they want to lose so that they can show that the court is overruling the people so that they can raise more money to hurt more people and elect more nuts. In some ways, today was more unsettling than many days last week, because today we saw their lead lawyer, Mr. Cooper, parsing numbers in an embarrassing fashion.
I’m guessing that Mr. Cooper believed in this presentation. If he did, this is indeed very upsetting.
An investment banker friend of mine visiting from Russia a few years ago said that from a distance he thought the US was more unstable than any other big country. I asked why. He said that from his perspective, he sees us fighting at a very shrill level over less than essential matters. In other words, it’s not as if we are fighting over capitalism vs. Bolshevism. I get his point. But the fact of the matter here is that I do think we are fighting for the essence of democracy and liberty.
The right of individuals to live as equals in this country is enshrined in the Declaration of Independence and the Constitution. Yet, we have religious extremists fostering dogmatic politics. This trial is a window into the soul of America. Gay or straight, conservative or liberal, does America believe in equality? That’s what’s on trial. And the outcome will go a long way toward answering my Russian friend’s questions.
One other point. I’ve had the chance to read some of the comments. Julia’s excellent post has highlighted what we’ve been seeing. You are fast becoming a community. It’s our job collectively to insure that this trial tracker community stays together and grows, but that this movement grows horizontally. The holy grail for the Courage Campaign and any online organizing entity that’s worth its salt, is to build communication from the many to the many. Put simply, we can send emails from those of us here who work for you and we must do that. But everything we do has to be about empowering you. Each of you. And each of you, to the extent you choose, can then empower others by telling your story.
That’s the elegant beauty of a movement. And we’re part of one that I first saw when Howard Dean was propelled to prominence in 2003. Remember that his early support and money were from the LGBT community, because in 2000, he had been the first governor in the country to institute civil unions. But then his voice against the war and for the people rang true. Millions followed and eventually that movement put Obama into the White House.
Thanks for leading, each of you, every single day.
Oh, one last thought. Early this morning as I was standing up to get off the airplane from LA to SF, two young women seated in the middle and window seats looked at me. One said, “Are you Rick Jacobs?” Well, I was stunned. I was so taken aback that I did not even have the presence of mind to ask their names. They had been in LA to visit the parents of one of the partners (maybe they are married?). The woman who began the conversation said, “We read the Prop 8 Trial Tracker. Thanks for doing it.” I was speechless. And I still sort of am.
This is really yours. It’s your trial. It’s your blog. It’s your movement. Don’t ever, ever let anyone tell you otherwise.
See you in the morning.