Davina Kotulski

The Sky Is Falling: Prop 8 Trial Day 6

Filed By Davina Kotulski | January 19, 2010 7:30 PM | comments

Filed in: Marriage Equality, Politics, Politics
Tags: gay marriage, Lee Badgett, marriage equality, Prop 8, Prop 8 trial, Prop. 8, same-sex marriage

The attorney for the proponents of Prop 8, Cooper, cross-examined Lee Badgett, Ph.D., a professor of economics at the University of Massachusetts Amherst and the Research Director of the Williams' Institute at UCLA.

Cooper asserts that research suggests that many straight couples in the Netherlands are choosing to register as partners and not marry, and he is blaming this on gay marriage. How the heck he can scapegoat gay people for this, I do not know. It seems quite obvious to me that straight people in the Netherlands are choosing to be registered partners because it's an option. Just like same-sex couples in the Netherlands are choosing to marry - like my friends Martha (American) and Lin McDevitt-Pugh (Australian), who met while both were living in Amsterdam and fell in love.


Despite the fact that Martha and Lin are legally married in the Netherlands, the United States will not recognize their marriage under the so-called Defense of Marriage Act (DOMA). Martha, can bring her dog back to the United States, but her wife and her step-children are not recognized as legal family because of the DOMA law. I am hopeful that this case, or the case filed on behalf of married Massachusetts couples brought by GLAD, will lead the United States Supreme Court to find DOMA unconstitutional or Congress will find a way to undo this shameful law that they passed in 1996 during a panic over gay marriage.

Before I go any further in sharing Cooper's challenge to the research that the Williams' Institute at UCLA has conducted insinuating that their numbers are exaggerated, I ask: Why should a huge number of people have to be harmed by marriage discrimination before we step up and treat people with respect and dignity? Witnessing the harm marriage discrimination has on even one family is wrong. As Americans should we not speak out and work for equality for all people? As Rev. Dr. Martin Luther King, Jr. taught, shouldn't we assert the inherent worth and equality all people?

Badgett estimated that there were approximately 18,000 legal same-sex marriages.

Cooper asserted that Massachusetts couples do not have the option of domestic partnerships or civil unions, only marriage. His point, "Presumably some people would choose to register as domestic partnerships, just as they do in California and in the Netherlands. Shouldn't your 60% marriage rate be adjusted to account for the same-sex couples who would have opted for a domestic partnership?"

Badgett - "I don't think so. People voted with their feet, 25% of California same-sex couples got married in five months, and you double that for the whole year instead of just that six months."

Cooper - "So I take it your answer is no."

Cooper - "There are some disincentives for California same-sex couples to marry that same-sex couples in Massachusetts don't have, correct?"

Badgett - "No"

Cooper - "I was just advised by one of my colleagues that I was wrong about whether a document had been submitted."

Cooper - "After 205, domestic partnerships became less popular as an option among same-sex couples. Would you agree with that?"

Badgett - "No, I don't think passing AB 205 had anything to do with it."

Cooper noted the number of dissolutions of same-sex couple relationships by year.

  • 2002: 296
  • 2003: 733
  • 2004: 2,513

He was trying to make the point that people ended their domestic partnerships because they were given rights.

My observation is that people who ended their domestic partnerships were in relationships that had already ended where partners had been slow or lazy about filing their dissolution papers, like many straight people do with their divorce papers. When these individuals realized that if they didn't file a dissolution their ex-partner would have access to their community property and it would require them to go to court and not simply file a notarized piece of paper, they got online, found the dissolution forms, and got their butts to a notary.

Cooper was also suggesting that people terminated their domestic partnerships because they didn't want to share community property rights and notes that Massachusetts is not a community property state.

I would argue that heterosexuals who get all of their rights at once, including the 1,138 federal rights that come with marriage, are able to do pre-nups, whereas same-sex couples had no opportunity to consider how this new status would affect their tax status as it became law on January 1, 2005.

Badgett echoed my belief in her testimony by stating that "many tax attorneys advised same-sex couples to dissolve their domestic partnerships" until they understood the impact of this new law. Badgett noted that a domestic partnership was a unique status created in California and an unknown quantity.

I would also note that people chose not to become domestic partners because now Senator Mark Leno was simultaneously working to pass a marriage equality bill in the legislature. Also, many people who didn't want to wait to get married and were not inspired by domestic partnership went north to Canada to tie the knot. Those same California couples might have chosen to get married in Massachusetts, did not because of the 1913 law preventing couples from marrying in states that had mini-DOMA laws like California's Knight Initiative.

An hour into the cross-examination and Cooper continued to belabor the point that he believed the calculations Badgett has come to in the Williams' Institute reports are exaggerated.

As we make these estimates, things keep changing. Now Vermont, Iowa, Connecticut and New Hampshire allow same-sex couples the right to marry and so our financial estimates for Massachusetts may change based on the couples who get married in those other states.

Cooper asked Badgett, "Would you change your opinion if it cost the money government rather than save it?"

And then the court took a small break.

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