A Day of Drama and Data

Same sex marriage supporters are still lamenting the fact that the Prop 8 trial is not unfolding on television.

But what they would witness is not a neat, exciting package of drama, exposition, drama, but more like drama, exposition, more exposition, and still more exposition.

Tuesday was a study in that contrasts: The emotional, and even gripping testimony of San Diego Mayor Jerry Sanders, who switched his stance and supported same-sex marriage in 2007, and the technical and detailed testimony of Lee Badgett, a U Mass researcher who provided an array of statistics on the economic boost of marriage to same-sex couples and families — and the lack of impact on heterosexual couples. It was the latter that took up the bulk of the day.

While judges and litigators are used to the dense portions of proceedings — on Tuesday, the trial got in to Census methodology — Badgett’s testimony and cross examination appeared to test the patience of Judge Vaughn Walker. After lengthy questioning of Badgett from Prop 8 lead counsel Charles Cooper, the judge finally interjected, “All right, ready to move on to the next subject.” Cooper himself had a habit of rocking back and forth in his leather chair while listening to direct examinations.

Sanders testified how he planned to veto a City Council resolution to file a legal brief in support of same-sex marriage, until he had a last-minute change of heart after meeting with a number of gay friends and community leaders.

In fact, a video was played of his 2007 press conference where he announced his decision, tearfully telling the reporters that he “decided to lead with my heart.”

After the video played, Sanders told the court, “Now that we’ve established that I cry in public…”

His daughter, Lisa, a lesbian, was sitting in the courtroom, but Sanders admitted that he was trying not to look her way lest he breakdown again.

Explaining his emotion, Sanders said, “The fact that I believed civil unions were equal really shook me,” adding that he’s come around to believe that “if the government tolerates discrimination against anyone, it becomes and excuse by the people to do the same thing.”

Brian Raum, attorney for the defendants, tried to show that there were political motivations behind his switcheroo on gay marriage, pointing to the ability of gay politicians to win City Council seats. And he also pointed to Sanders’ endorsement by the Log Cabin Republicans, although the mayor minimized their influence, noting that the time he spoke to them, attendance was just four members.

Raum also asked him repeatedly whether those who voted for Prop 8, or were, like Sanders once was, opposed to same-sex marriage, were unreasonable, especially if their position is for religious reasons.

“I believe a goof faith belief doesn’t negate the fact that it is grounded in prejudice,” Sanders said.

It’s hard to know how Walker will weigh the drama vs. the data, or if he will be swayed by either.

So far, he seems to have an upper limit on patence for lenthy cross examination, especially when it gets into minutia.

When Cooper, in his soft raspy twang, ran through a series of calculations, Walker said, “I’m afraid I got lost in the numbers.” The courtroom erupted in laughter.

That isn’t to say what has been presented isn’t important. The data presented on Tuesday are part of the plaintiffs’ efforts to show how different marriage is from domestic partnership, and how the distinction has economic as well as social ramifications.

Badgett contended that states like California that offered marriage to same sex couples saw a spike in such nuptials, far greater than those who sought domestic partnerships.

But Cooper pointed out that domestic partnerships in California remained about the same in 2008 and 2009, even though marriage was offered in the former year but not in the latter.

In other words, for many couples, wasn’t domestic partnership enough?

Not so, Badgett shot back, pointing out that many couples obtained a marriage and domestic partnership to hedge against the possibility that Prop 8 would pass.

And on it went.

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