Kristin Perry, et al v. Arnold Schwarzenegger, et al

Filing 4

Filed (ECF) Appellants Martin F. Gutierrez, Dennis Hollingsworth, Mark A. Jansson, Gail J. Knight and ProtectMarriage.com - Yes on 8, A Project of California Renewal EMERGENCY Motion to stay lower court action. Date of service: 08/12/2010. [7438690] (CJC)

Exhibit B

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mother and its father.

It's good for the mother, who is less

likely to have -- to raise the child by herself, and it's good for the father because it establishes and it fixes his rights in and obligations to his child. But perhaps most importantly, your Honor, from the state's perspective, channeling naturally procreative relationships into enduring committed marital unions decreases the likelihood that the state itself will have to help provide for the child's upbringing and that society will suffer the social ills that are often associated with children who are not raised in intact families. President Obama recently noted this reality when he said this: "We know the statistics; that children who grow up without a father are five times more likely to live in poverty and commit crime, nine times more likely to drop out of schools, and 20 times more likely to end up in prison." THE COURT: How does permitting same-sex couples to

marry in any way diminish the procreative aspect or function of marriage or denigrate the institution of marriage for heterosexuals? MR. COOPER: institution. Your Honor, because it will change the

As you -- as you noted in a question, or at least

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him. Q. A. Q. why? A. The word "marriage" has a special meaning. It's why we're How long have you been in this relationship? March will be nine years. When you said you wanted nothing more than to marry him,

here today. today.

If it wasn't so important, we wouldn't be here

I want to be able to share the joy and the happiness that my parents felt, my brother felt, my friends, my co-workers, my neighbors, of having the opportunity to be married. It's the logical next step for us. Q. Do you believe that if you are married, that that would

change the relationship that you have, at all? A. Absolutely. I think -- I think one's capacity to love can I think one's capacity to be committed to And I'm confident

absolutely grow.

another individual can absolutely expand. that that would happen with us. Q.

Do you believe that if you were able to be married, that

would affect your relationships with your family and your community? A. Q. A. Absolutely. How so? It's that I would be able to partake in family gatherings,

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it's different, probably, if you were living as a heterosexual person, but for me might have always been their mom and in their entire lives I have been out, so... Q. Have you and Sandy entered into a registered domestic

partnership in California? A. Q. A. Q. A. Q. A. Yes. Tell us when you did that? That was in August of 2004. Was that easy to do? Yeah. Does California make it simple?

It was a -- I think it was a form.

That you submit to the state? That we -- we completed it. I think we had to have it

notarized and then we mailed it in. Q. What does domestic partnership mean to you compared to

marriage? A. Well, we are registered domestic partners based on just So

legal advice that we received for creating an estate plan.

we saw a lawyer who works with couples on those things and we completed a number of forms; a durable power of attorney, last will and testament, and she recommended we also do the domestic partnership agreement at the same time. So there were just a

number of those kinds of documents that we completed. Q. You regard it as something of a property transaction or

estate planning transaction? A. It was -- well, that's when -- we did ours during that

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beautiful as our marriage. Q. The Supreme Court subsequently in May of 2008 said you had How did you feel about

a constitutional right to get married. that? A.

I felt great, that the Court thought we had -- felt we had That was exciting.

a constitutional right to get married.

It was also cloaked, though, in this dissension that felt very familiar. Q. A. What do you mean "dissension"? Well, the dissension that was sort of the political

brewing of some activist groups that disagreed with gay marriage, wanting to put something together to invalidate that court decision. Q. A. Q. You mean, you were aware of that at the time? I was aware reading in the paper about -- about that. Well, did you consider, well, the California Supreme Court We want to get married. We

has said that we can get married. tried it once before. right to do it. A.

Now we are told we have a constitutional

Let's do it? And I really felt

We thought about it and discussed it.

very strongly that at my age I don't want to be humiliated any more. It's not okay. We did get married. In fact, we got married twice

and we could get married a third time and it could get taken away, and then we get married a fourth time. And, for me, it

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felt like it made a circus out of our lives and I don't want to be party to that. I told Kris I want to marry you in the worst way, but I want it to be permanent and I don't want any possibility of it being taken away from us. So let's wait until we know for

sure that we can be permanently married. We didn't want to do it for any -- for any other reason. And we did have friends that had gotten married and we

were proud for them and thrilled for them and, also, worried for them, that they would have the same experience that we had had. Q. Tell me all the ways that -- let me withdraw that for a

moment and ask you about domestic partnership. You and Kris entered into a domestic partnership. Explain to the Court in your words why you did that and what that relationship means to you compared to what you are seeking here today? A. Okay. First of all, for me, there is -- domestic So

partnership doesn't indicate anything about a relationship. it's hard for me to put it in those terms. It feels like it's a legal agreement between two parties that spell out responsibilities and duties, like fidicuary duties that you have towards each other, and those duties are -- mirrored some of those similar types of duties that are, of course, found in marriage.

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Q.

Well, let's look at what you said in your deposition in And that's tab 2 of your witness binder. And I

the Iowa case.

would like to direct your attention to page 55, lines 12 through 14. A. Q. A. Page 55 is under tab 2; is that right? Yes. I see. Oh, I need my reading glasses for this. Which

page? Q. A. Q. 55. It's in the upper right-hand corner.

Uh-huh. And in line 12 you were asked: "Are you familiar with the institution of marriage in the most populated countries on the planet, China and India?" And you answered: "No, not really. I mean, no."

The consequences of same-sex marriage is an impossible question to answer. A. Q. A. Yes or no?

You're asking me to say yes or no? I am. Right. I believe no one predicts the future that

accurately. Q. And you're not an expert on marriage practices in ancient

Greece, correct? A. I am not an expert on that. I am somewhat familiar with

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Q.

Okay.

And do you agree with the statement you made there,

which is, "One could point to earlier watersheds, but perhaps none quite so explicit as this particular turning point"? you agree with that statement? A. As I said there, perhaps -- and that was how I responded But it's arguably a Do

to you -- that one could argue about this. highly-distinctive turning point. Q.

As a historian, you do not assume that progress is the

rule of history, correct? A. Q. A. Q. That's correct. Marriage is a very complex institution, correct? Indeed. There is a long, ongoing series of arguments among

historians, competing theories about how we find the causes of any major phenomenon, correct? A. Q. A. Q. A. Q. A. Q. Yes. Some historians prefer to weight ideas, correct? True. Others prefer to weight economic factors, correct? Yes. Some weigh pure contingency of how things occur, correct? Give it more weight, yes. But to you, the most reasonable historical explanation

gives some weight to all of these factors, so that none of them operates solely on its own, correct?

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people be in love to get married, correct? A. Q. Not at all. Marriage, in your opinion, is a status which implies one's

having grown up, is that correct? A. I think that is part of the social meaning, that it is

seen as a mark of adulthood, settling down. Q. Another social meaning of marriage has been that it is the

way to found a household, a living unit that is an economic partnership and that involves a commitment to one's partner, correct? A. Q. Yes. Marriage also has a whole set of romantic meanings for

people, correct? A. Q. Yes. And this is broadcast to us all the time in our public

culture, correct? A. Q. Yes. So the public culture has an impact on the social meaning

of marriage, correct? A. Q. Yes, it does. The social meaning of marriage unquestionably has real

world consequences, correct? A. Q. Social meaning exists in the real world, yes. And just so the record is clear, the social meaning of "Yes" or

marriage unquestionably has real world consequences?

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"no." A. Q. Yes. That it is far easier to say that the social meaning of

marriage has consequences than to measure the consequences, correct? A. Q. I'm going to say, yes. For the generality of people, the social meanings of

marriage are highly influential in their own personal views of the institution, correct? A. Q. Yes. One way the social meaning of marriage changes is through

actual social practices, correct? A. Q. Yes. Another way the social meaning of marriage changes is

through economic transformations, correct? A. Economic transformations have a great impact on the social

meaning of marriage, yes. Q. Another way the social meaning of marriage changes is

through ideas and ideology, correct? A. Q. A. Q. These things are all bound up together, yes. So that's a yes? Yes. There are also technological reasons why the social

meaning of marriage changes, correct? A. Yes, specifically with -- with respect to the technology

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of birth control and other reproductive technologies. Q. And the law very definitely has an impact on the social

meaning of marriage, correct? A. Q. Yes. How a given person thinks about gay marriage, their own or

others, it's usually quite affected by quite small scale factors; how they were brought up, who their friends are, what their religion is, what they have observed and their own personal experience, correct? A. Q. Yes. Now, let me ask you some questions about the state of

marriage today. In your opinion, morality has been uncoupled from marriage, correct? A. If -- if you are quoting my work there, that was a

statement made in a context in which I made the point that whereas in the past adultery and fornication were crimes that were punished by the state; that the state enforced those morally disapproved actions that -- in support of marriage, and in support of making marriage the only licensed legitimate place where sex could take place. And I think what I was describing in making that claim about morality being uncoupled was that we have a much broader and more flexible set of social mores about sex, marriage and morality in the past couple of generations.

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MR. THOMPSON:

Your Honor, we would ask the Court to

take judicial notice of DIX81. THE COURT: BY MR. THOMPSON: Q. And, Professor, I would like to direct your attention to And on the right-hand column, third Very well.

page 7 of this book.

sentence from the bottom, Mr. Rauch -- and Mr. Rauch is an advocate for same-sex marriage, correct? A. Q. A. Q. Yes. And he's openly gay; is that correct? Yes. Okay. And he says:

"Some gay marriage opponents may be bigoted or homophobic, or otherwise out to get gay people. But most of them are motivated by a

sincere desire to do what's best for their marriages, their children, their society." Isn't it true that there are some people among the 7 million Californians who voted for Prop 8 who fall into precisely this category? A. You know, it's difficult for me to know the variety of

reasons in which people -- which people opposed marriage. It's easier for me to comment on the sort of arguments that were made against marriage equality by the Prop 8 advocates, than to assess the various reasons that

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people might have opposed this. Q. So you just don't know why people opposed Prop 8 -- I

mean, supported Prop 8? A. Well, I assume that there were a range of reasons that But that the -- an underlying premise

people supported Prop 8.

of them was that gay relationships were unequal. Q. But were some of the people within that range -- and I

understand it's a range and that there are all sorts of reasons -- but would some of the people in California, some of the 7 million who voted for Proposition 8, fall into the category that Mr. Rauch indicates here? A. Yes. But we have to ask why people believe that opposing

marriage equality is best for their marriages, their children, and society. MR. THOMPSON: Okay. Your Honor, I would like

permission to play a very short video, which is DIX 2553. THE COURT: DIX, again? 2553, Your Honor.

MR. THOMPSON: THE COURT:

Thank you, sir. Your Honor, before we play it, might we

MS. STEWART:

have a description of it so I know whether to object or not? MR. THOMPSON: Yes. This is a video of Carrie --

it's a very short video, which has the excerpt of Carrie Prejean's statements, and then Mayor Gavin Newsom's reaction as to her motivation for having the religious

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research on heterosexual couples, which I believe is relevant. It's based on research on same-sex couples showing similarity. So it's really based both on that evidence, that empirical research, and theories and explanations about why those patterns exist. So it's based on those. And then it's also informed

by this one piece of information that you referred to. Q. And that is the only empirical study or survey in this

case that has been done on whether there are physical or psychological benefits from same-sex marriage, correct? A. Q. As far as I know, that's correct. And, similarly, as far as you're aware, there have not

been any studies, empirical studies, done on domestic -comparing whether there are physical and psychological benefits from domestic partnerships, as compared to same-sex marriage; isn't that right? A. Studies comparing individuals in -- in same-sex domestic

partnerships and in same-sex marriages. Q. To see if there would be a difference between the two. We

don't know that either, do we? A. I think we have many reasons to estimate what we would But, no, there have not been studies of that.

find. Q.

And you would agree, as a researcher with 35 years of

experience, that it would be important for us to study same-sex marriage and whether there are, in fact, the physical and

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it's not enough for a married partner to treat you well and be kind and thoughtful, but you have to also be able to develop a relationship in which you find your soulmate and which -- so the suggestion has been that shifting American values about individualism may have been one of many factors that contribute. And the reason I talked about these factors was because none of these factors is linked or is due to the gay civil rights moment. That was really the point I was -- one of

the points I was trying to make, was that the increase in the divorce rate was independent of the push for marriage equality for same-sex couples. Q. Now, looking at -- turning to page 13 of your expert

report where you have a chart that, I think, lists or sets forth the divorce statistics in Massachusetts that you were -that you spoke of on direct, you have four years worth of data listed, is that right? A. The four years before same-sex marriage and then the four

years starting with -Q. A. Q. And the four years after? Yeah. And you would agree that this is not a tremendously large

amount of data from which to draw conclusions; isn't that right? A. It's a total of eight years of data. You know, I don't

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know what large or small would mean in this capacity. It's only four years since marriage began because that's -- those are the most recent government statistics available. Q. And as we look at them in Massachusetts, we see that in

2004 -- of all of the years listed, in 2004 there was the highest marriage rate, correct? A. Q. A. Q. A. Q. Correct. 6.5 percent? Correct. And it went down in 2005 to 6.2 percent? Yes. And it went down to 5.9 percent in 2006. Stayed at 5.9

percent for 2007, and we don't know 2008 and 2009 based on the evidence that you have put in; isn't that right? A. What I would -- your reading of these numbers is quite What I would comment about is that if you look at

correct.

these kinds of data -- not just in Massachusetts, but in other states -- what you see is that there are always year-to-year minor fluctuations. And so that's why when I looked at these data, my interpretation of them is really an interpretation of no change, because the fact that the rate goes up two percent -.2 percent one year or down, you know, a small fraction of a percent the next, I think is kind of haphazard variation in the

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data, and I don't take those as necessarily serious indicators of anything. To me, these -- what stands out to me is aside from what looks like the impact of gay people getting married the first year, increasing that number, the numbers just kind of look the same to me. Q. Have you undertaken a comprehensive analysis of the

marriage and divorce rates in the neighboring states to Massachusetts? A. Q. No, I have not. How about nationally? You have not done a comprehensive

analysis of what the divorce rates during this time frame were nationally either, have you? A. No. The only point I was trying to make here was that

Massachusetts is a state that permits civil same-sex marriage, and that it would be informative to look at in that state what the patterns were leading up to -- prior to same-sex marriage and following. I don't make any claims beyond that about what

these data show. Q. And looking just for a moment at the divorce rate starting

in 2004, the year that same-sex marriage was allowed in Massachusetts, the data, as you present it, 2.2 percent in 2004, 2.2 percent in 2005, 2.3 in 2006 and 2.3 in 2007. going up slightly in 2006 and 2007, correct? A. And still winding up lower than they had been in the four So

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years preceding the introduction of same-sex marriage. So, I mean, I -- we can try to make something out of a difference between .3 -- you know, 2.3 and 2.4. But I think

given the fact that these numbers bounce around a little bit in all states across years, that I was certainly not claiming that the divorce rate went down as a result of same-sex marriage. But if we want to look at minor variations in divorce, the average divorce rate is lower after same-sex marriage than before, but I interpret it as really the same. Q. And, again, I don't know if it shows a pattern or not We have four years and you would agree you have got

either.

four years, including the year when same-sex marriage was allowed in Massachusetts, and we have that year through 2007 and that's the data that we have? A. Q. Correct. And you would agree that it would be helpful to have

several more additional years worth of data to be able to draw conclusions one way or the other, wouldn't you? A. Q. I'm sure we will have those data soon. I'm sure we will. And just to finish up, Dr. Peplau, as to whether same-sex marriage will have any effect on public attitudes towards individualism or commitments over time, you can only speculate about that issue because you have not actually done any study of it, isn't that right?

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A.

Well, the issue is, do I think that -- I'm sorry. Could you repeat the question?

It may

be late in the day. Q. Sure.

Whether same-sex marriage will have any effect on

public attitudes towards individualism or commitment over time is something you can only speculate about because you have not studied it and know of no studies, isn't that right? A. So the question is, do I think that permitting same-sex

marriage might over time lead Americans to become more or less individualistic, or do I think it might lead them to value commitment more or less over time? Q. Is that the question?

Well, really, have you studied that issue so -- where you

can offer an expert opinion on it? A. My general opinion, my overarching opinion that same-sex

marriage will not cause harm, is based on my consideration of a lot of research on marriage, on same-sex couples, our understanding of theories and so on. And all of the evidence and the theories I know and can think of are on the side of saying no harm. And then on the side of what theory might there be about why there would be harm or what data might there be to suggest harm, there is nothing. (indicating). And so I have great confidence in that conclusion, but it is the case that that -- that that opinion of mine is not based on my having done an empirical study over time of So it's kind of like this

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same-sex marriage will or won't influence the public's attitudes about individualism or commitment. MS. MOSS: THE COURT: Thank you. Very well. One moment. Any redirect, Mr. Dusseault? Very briefly.

MR. DUSSEAULT:

Yes, your Honor.

REDIRECT EXAMINATION BY MR. DUSSEAULT: Q. Dr. Peplau, Ms. Moss asked you some questions at the

beginning of cross-examination about enforceable trust and whether there was enforceable trust in a domestic partnership; do you recall that? A. Q. Yes, I do. Do you have a view as to whether there is a greater degree

of enforceable trust in a marriage than a domestic partnership? A. Q. I think it would be greater in marriage. Ms. Moss also asked you about barriers to exit and whether

there were barriers to exit in domestic partnership; do you recall that? A. Q. Yes, I do. Do you have an opinion as to whether there are greater

barriers to exit from marriage than from domestic partnerships? A. Q. I believe there are greater barriers in marriage. Ms. Moss asked you about a piece of work from 1985 that's

at Tab 4 of your binder, Exhibit 1233, talking about exclusivity. Do you recall that?

Case3:09-cv-02292-VRW Document464 Filed01/15/10 Page5 of 322 674 PROCEEDINGS

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. THE COURT: JANUARY 14, 2010

PROCEEDINGS 8:42 A.M.

Very well.

Good morning, Counsel.

(Counsel greet the Court.) THE COURT: Let's see. First order of business, I

have communicated to judge -- Chief Judge Kozinski, in light of the Supreme Court's decision yesterday, that I'm requesting that this case be withdrawn from the Ninth Circuit pilot project. And he indicated that he would approve that request.

And so that should take care of the broadcasting matter. And we have motions that have been filed on behalf of Mr. Garlow and Mr. McPherson. And the clerk informs me counsel

for those parties are here present. MR. MCCARTHY: THE COURT: Correct, Your Honor. Fine. I was

All right.

MR. MCCARTHY:

Vincent McCarthy, Your Honor.

admitted pro hac vice into this court very recently. THE COURT: or the day before. MR. MCCARTHY: THE COURT: I understand. Yes. I believe I signed that yesterday,

Well, welcome. Thank you.

MR. MCCARTHY: THE COURT:

You've got quite a lineup of lawyers

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MR. COOPER:

As the Court knows, I'm sure, we have

put in a letter to the Court asking that the recording of the proceedings be halted. I do believe that in the light of the stay, that the court's local rule would prohibit continued tape recording of the proceedings. THE COURT: I don't believe so. I read your letter.

It does not quote the local rule. The local rule permits remote -- perhaps if we get the local rule -MR. BOUTROUS: THE COURT: Your Honor, I have a copy.

Oh, there we go.

(Whereupon, document was tendered to the Court.) THE COURT: The local rule permits the recording for

purposes the -- of taking the recording for purposes of use in chambers and that is customarily done when we have these remote courtrooms or the overflow courtrooms. And I think it would be

quite helpful to me in preparing the findings of fact to have that recording. So that's the purpose for which the recording is going to be made going forward. But it's not going to be for

purposes of public broadcasting or televising. And you will notice the local rules states that: "The taking of photographs, public

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that -- minority stress doesn't affect of single person in the same way. Q. It is a potential.

Thank you for that clarification. Are you aware that same-sex marriage has been legal

since 2004 in Massachusetts? A. Q. Yes. Do LGB individuals suffer from a lower prevalence of

mental health disorders in Massachusetts than in California? A. Well, the first answer is I don't really know, but that's

now how I -- I wouldn't expect it exactly in that way that you are suggesting; that that would be the test of that, because Massachusetts is not, you know, an isolate in the United States and, you know, it would be more complicated for me to assess. So that alone would not change everything. just one aspect of it. So it's

And, certainly, I would think that

people in Massachusetts who are gay would feel more supported and welcome, so to speak. So in that sense, it would reduce

the stress that they have somewhat. Q. A. Q. A. Q. But your answer is you don't know, correct? Well, I don't -- I don't have the data on that. You don't have data? Right. Okay. Thank you.

Do LGB individuals suffer from a lower prevalence of mood, anxiety and substance use problems that do not meet the

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criteria for formal psychiatric disorders in Massachusetts and in California? A. Again, the study wasn't done in the way that you are

describing it, although a study was done looking at states where there's greater rights for gay and lesbian people, and it did show those things that you are alluding to. So it wasn't exactly done in the way that you are saying. It wasn't Massachusetts versus California. But in

general in the United States states that offer more protections, gay and lesbian populations there fare better than in states that do not offer such protections. So to the extent that you can use that as a suggestion that it does have this effect that you are alluding to, but I don't know of a study that compared California to Massachusetts on any of those outcomes. Q. Okay. And I was planning to ask you about the other

outcomes, but the answer would be the same? A. Q. Right. I don't know of a study that tested it either way.

Thank you. Are you aware that same-sex marriage has been legal

since 2001 in the Netherlands? A. I am going to believe you on that. I'm aware that it's

legal. Q. A. I will represent to you that it was. Okay.

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Q.

Do LGB individuals suffer from a lower prevalence of

mental disorders in the Netherlands than in California? A. I -- I actually don't know the answer to that, although

there are studies that -- I don't know the answer to that. Q. Would your answer be the same if I asked about the other

outcomes you identified? A. Right. I don't -- I don't know the comparison. Honestly,

I don't know that I can tell you the rates of all the disorders specifically to California, so I couldn't compare them. Most of the studies that I relied on were national studies that were not separated by state. Q. Okay. Thank you.

Now, you are aware that California allows same-sex couples to register as domestic partners, correct? A. Q. Yes, I've learned that. And you believe that, quote, domestic partnership has

almost no meaning, and, to some extent, it's incomprehensible to people as a social institution, correct? A. Q. Yes. And I apologize, I said "quote." That's -- that was from

your deposition? A. Q. Correct. And for opposing counsel's benefit, I'll identify that as

the transcript at page 80, 9 to 11. A. I believe I talked about it today, as well.

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Have you done any research to determine whether, since it adopted AB205 -- and that's this bill we were just talking about -- LGB individuals in California suffer from worse mental health outcomes than LGB individuals in any jurisdiction that recognizes same-sex relationships as marriages? A. Q. No. Okay. Now, at your deposition -- I would like you to turn

to -- you made a statement, and I want to confirm that it was, in fact, a statement that you made. if you would. And it's -- turn to tab 7, And

That's a transcript of your deposition.

look at page 149.

And the pages are a little confusing.

There's four on each page. A. Q. That's okay. And it's actually page 38 in the continuous pagination at

the bottom, if that's helpful. A. I got it. MR. DUSSEAULT: Your Honor, I'd object if it's not

being offered to impeach anything. THE COURT: Why are you offering it? I was going to ask him whether he

MR. NIELSON: agreed with it. with it, first.

Perhaps I should ask him whether he agreed And then if he doesn't -Why don't you ask him the statement -Yes, exactly.

THE COURT:

MR. NIELSON:

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a grandmother, and that we needed to look more broadly at the environment in which children were raised. And I absolutely still believe that that's the case. And I think that's entirely consistent, with what I've been saying. Q. The increase in father's absence is particularly troubling

because it is consistently associated with poor school achievement, diminished involvement in the labor force, early child bearing, and heightened levels of risk-taking behavior, correct? A. Again, this is something that we talked about earlier. There are those associations. Why do those

That is correct.

The interesting question is:

associations come about and how can we understand those associations? Q. And boys growing up without fathers seem especially prone

to exhibit problems in the areas of sex role and gender identity development, school performance, psychosocial adjustment, and self-control, correct? A. And I think some of those findings have held up, and some

of those conclusions have not been substantiated by a lot of the recent research. Q. Well, let's look at -- just to make sure we're getting on

the right page on the time frame, if you look at tab 15 in your binder, this is an article from 2000.

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heterosexual. But none of the studies that are reviewed here are themselves studies that focus on adjustment of children. think that's the case. Q. Yes. I

You are not aware of any study that looks at the specific

benefits flowing to children whose parents are together under domestic partnership law in California, correct? A. Q. I'm not aware of any study of that, no. And we don't have any studies that look at the behavioral

outcomes for children with married same-sex parents, correct? A. Q. That's correct. And on aggregate, the children being raised by gays and

lesbians are comparable in their outcomes to those being raised by heterosexual parents, correct? A. Q. Sorry. Could you repeat that?

On aggregate, the children being raised by gays and

lesbians are comparable in their outcomes to those being raised by heterosexual parents, correct? A. Q. That's correct. And that's true even though none of those gay and lesbian

couples were married, correct? A. Q. That's correct. Thank you. MR. THOMPSON: THE COURT: No further questions, your Honor. Mr. McGill, redirect?

Very well.

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A.

I was asked some questions.

I don't know that I read it

thoroughly. questions. Q. Okay.

It was presented to me, and then I was asked

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. Q. Generally, yes. 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. They are

Many children are not raised by biological parents.

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.

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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. equal." Q. Okay. So you disagree with the premise that's being put So I don't know that we can say "all things being

forth by Mr. Blankenhorn? A. I do. THE COURT: MR. RAUM: THE COURT: MR. RAUM: Is DIX1475 in? This is -Is it in evidence? Yes, it is, Your Honor. It was admitted

into evidence on Thursday, in connection with Dr. Cott. THE COURT: MR. RAUM: BY MR. RAUM: Q. Would you also agree that some people who voted in favor Very well. Professor Cott, I should say.

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.

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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 Would you

they feel that marriage is tied to procreation. 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. Q. I do. 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. not? In fact, you shared that sentiment at one time; did you

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California, as further examples of undemocratic judicial activism foisted on an unwilling public." Now, I don't suppose you agree with that comment, do

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? No, I don't agree with that either. 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

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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: THE COURT: Your Honor, one moment, please. Certainly.

(Discussion held off the record amongst defense counsel.) MR. COOPER: I have no further questions, your Honor.

Thank you, Dr. Badgett. THE COURT: MR. BOIES: Very well. Mr. Boise, redirect?

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. Q. Yes. 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 I think that there are challenges and

them as "difficulties."

that's why we see some changes from time to time in terms of how we measure those characteristics on surveys.

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question yesterday, a single election result is -- or a single piece of legislation should not be considered to be the basis for a conclusion. Q. All right. It's a piece of evidence.

And one of the obstacles that gays and

lesbians face in California to realizing same-sex marriage rights is religiously-inspired opposition, correct? A. I would think that that's a national issue. That the

religions -- quoting the document that you submitted into evidence, that gay and lesbian advocacy organizations think they have a religion problem. Q. Right. And there are some individuals who voted for

Proposition 8 because of Old Testament Biblical prohibitions against same sex sexual contact, correct? A. Q. I think that that's a fair assumption. And there are some numbers of individuals who might have

voted for Proposition 8 because they believe their churches were going to be compelled to bless same-sex marriages, correct? A. I believe that they had been led to believe that. So I

think that there is some evidence that that could be true, yes. Q. And it's possible, in your opinion, that some people voted

in favor of Proposition 8 because of the negative reaction to the perception of activist judges, correct? A. I would think that that's possible, but less likely. So, scholars of American public opinion regularly

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bemoan the low levels of information that many voters have. It is certainly an argument that has been used by one side of the political spectrum to decry what they see as a form of judicial activism and to make the judiciary a scapegoat for their views. I'm not sure the degree to which that penetrates into the general public. I think many Americans don't fully

understand the judicial process or even the judicial appointment process. I am sure that it is the case that somewhere in California someone probably voted on the basis of not liking those darn judges. that might be. Q. All right. Now in your rebuttal report that you put in in But I can't really speak to what percentage

this case, you talked about the role of religion and how it may or may not inform views on same-sex marriage, correct? A. I did. I was responding to the expert report that had

been put in by -Q. And we have decades of research on abortion opinion,

social welfare, death penalty, to suggest that people's religious convictions shape their views of public policy, correct? A. Q. I think that's a fair conclusion. Various measures of religion are a fairly robust predictor

of lots of forms of political behavior, correct?

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27 is just the page at the bottom. BY MR. NIELSON: Q. All right. Now, have you had a chance to look at those

lines? A. Q. A. Yes. Did you give that testimony at your deposition? Yes. MR. NIELSON: Honor. He said: "Now, that said, if you are trying to predict for any specific individual whether their identity will predict their sexual behavior in the future, especially, that can be problematic." BY MR. NIELSON: Q. All right. Thank you. Okay. And I'd like to read that, Your

And we certainly know that people report that they have experienced a change in their sexual orientation at various points in their life, correct? A. Q. I'm sorry. Sorry. Could you say the question one more time.

We certainly know that people report that they

have experienced a change in their sexual orientation at various points in their life, correct? A. Q. Some people do report that, yes. Okay. Thank you.

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As I have said before, we don't really understand the origins of sexual orientation in men or in women. There are

many different competing theories, some biologically based, others based more on culture and individual experience. So I would say that what she is suggesting is that the available evidence doesn't support the idea of there being a strong biological factor that explains the development of sexual orientation in women. Q. A. Do you agree with that? Yes. I would agree that that is the case. And I would also say that I don't -- I believe that it's the case that we simply don't understand the origins of sexual orientation in either men or women. Q. Okay. Please turn to page 87 of the same document.

(Witness complied.) And under "An Alternative Perspective," that heading, do

you see that towards the bottom of the page on page 87? A. Q. Yes. She writes: "A comprehensive analysis of women's sexual orientation should begin with empirically grounded generalizations about women's experiences. The cumulative record of

research on women's sexual orientation supports three broad conclusions.

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A. Q.

For tangible benefits, I would not be able to name them. Okay. Thank you. Are

And you talked a little bit about hate crimes. hate crimes illegal in California? A. I think crime is illegal in California. (Laughter.) Q. Correct.

And are crimes -- and are crimes committed on

the basis of sexual orientation illegal in California? A. Yes, they are illegal in California. And, in fact, they

still continue to occur. Q. And do you believe there is a link between denying -- or

between defining marriage as a union of a man and a woman in hate crimes? A. Well, I think that it's -- as I said earlier, when we look

at structural stigma related to sexual orientation, it provides a context in which all sorts of things happen, all sorts of behaviors toward people in the stigmatized group. And so I would say that a direct relationship between those two is not empirically established, to my knowledge, but that structural stigma, as basically creating the atmosphere in which individual enactments of stigma occur, that there is potentially a relationship there, yes. MR. NIELSON: And, your Honor, I believe I'm

concluded, but I just want to quickly consult, if I may, for just a moment?

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institution or the possible participants in the institution become over time less loyal to it, less -- they understand it less. They -- they -- some of them -- they increasingly -- the It loses respect. And the It

institution loses esteem in the society.

loses its sense of being held in high regard.

institution becomes less and less able to carry out its contributions to the society. This concept of deinstitutionalization is, I think, a -- a critical one for people who are studying the status and future of any institution. But, in particular, it has been of great value to scholars looking at -- at recent trends in marriage, because in the United States, particularly in recent decades, the last three, four, five decades, there has been a marked process of deinstitutionalization of marriage, with very numerous and serious consequences for children and for society as a whole. So it's an absolutely pivotal concept, if we want to understand where the institution is going and what opportunities we may have to -- to come to its aid. Q. I think you did, just now, testify that the institution of

marriage is -- has been weakened, I think, to paraphrase your testimony, by deinstitutionalization already. What are some of the manifestations of that process? A. Well, if you look, for example, at rates of out-of-wedlock

childbearing, you know, five or six decades ago only a small

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fraction of U.S. children were born to unmarried parents. Whereas, the most latest data tell us that today about 38 percent of children in the U.S. are born to unmarried parents. So that over, say, a five-decade period, if you go back to 1960, that would be a very dramatic example. That rate

of growth over a five-decade period, I think, constitutes a very dramatic example of the weakening of the marriage institution. You also would need to look at rates of divorce. United States has probably the highest divorce rate in the world. And so, as a result, people are -- the weakening of the ideal of marital permanence suggests a lessening loyalty to the institution, and the rise of nonmarital cohabitation; the increasing mainstreaming of third-party participation in procreation and artificial assisted reproductive technologies that disturb the bond between the -- disturb the biological bond between the genitor and the child; and, last, but for our purposes certainly not least, the -- the spread of the idea and reality of same-sex marriage in the view of -- I think, the view of leading scholars, is another aspect or manifestation of this current trend of deinstitutionalization. And I meant to say just for our purposes today, you know, heterosexuals, you know, did the deinstitutionalizing. I The

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mean, you know, if we go back and look at the trends I described, it's very clear that this -- this was not -deinstitutionalization is not something that just cropped up a few years ago whenever we began discussing the possibility of extending equal marriage rights to gay and lesbian people. predates all that. But what I am saying is that the scholars are telling us that the process of deinstitutionalization would be furthered and accelerated significantly by adopting same-sex marriage. Q. Well, what impact, in your opinion, would redefining It

marriage to include same-sex couples have on marriage, in this deinstitutionalization process? A. It's hard to know because you're in some important ways,

you know, predicting what will happen in the future. My best judgment is that if we move toward a widespread adoption of same-sex marriage, I believe the effect will be to significantly further and in some respects culminate the process of deinstitutionalization of marriage. If -- if you take an institution that for all of its long history has been understood to have defined public purposes, and through changing its definition you transfer it from the public -- you transfer it from a child-centered public institution to an adult-centered private institution, a question of private ordering among couples, you have in some

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ways, you know, completed -- that's a culminating trend toward the erasure of marriage's public defined contribution to society. And I think that it's likely that, you know, that -as I say, this did not trigger the trend of deinstitutionalization. us now for a while. Deinstitutionalization has been with

But it's a live issue, and there are many

people who would like to reverse the trend. But I think the evidence is quite compelling that if we move to a widespread adoption of same-sex marriage, we will very significantly accelerate the process of deinstitutionalization. And the consequence of that will be to weaken the role of marriage, generally, in society. And the consequences

of that will be felt by everyone in the society. Q. You mentioned earlier other scholars who have recognized

the relationship between same-sex marriage or the prospect of it and deinstitutionalization. I want you to turn, now, to the

document behind tab 17 of your binder. A. Q. A. Yes. And what is that, please? This is an article by Andrew Cherlin, who's a prominent He teaches at Johns Hopkins. He is a

family sociologist.

proponent of same-sex marriage.

And this article is entitled,

"The Deinstitutionalization of American Marriage."

REBUTTAL ARGUMENT / OLSON

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Martin Luther King saying, you know, "You ought to ease up. The people aren't ready for these kind of changes. going to be a backlash." And his letter from a Birmingham jail explaining why he could not wait to press the civil rights of his fellow citizens is as compelling a statement on that subject that's ever been written. Now, we talked a little bit about -- oh, Mr. Cooper came up with something that I hadn't really heard about until the closing argument in this case. evidence. I really don't remember the There's

"The threat of irresponsible procreation." I tried to figure out what that means, because the

clients I represent don't present a threat of irresponsible procreation. They are interested in getting married to someone Mr. Cooper acknowledged they are not a threat

of the same sex.

of irresponsible procreation. On the other hand, heterosexual couples who practice sexual behavior outside their marriage are a big threat to irresponsible procreation, if that's what it's all about. if -THE COURT: Heterosexuals that have led to the So

deinstitutionalization of marriage, and heterosexuals ... (Simultaneous colloquy.) MR. OLSON: ... that's right. And people will run

out, and, yeah, "Well, that's it.

That's it."