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Brief Thought on Lee Badgett’s Testimony

Trial analysis

By Paul Hogarth

Lee Badgett is providing — and re-inforcing — much of the same evidence that Prof. Peplau and economist Edward Egan provided.  That marriage equality is good public policy, and has a beneficial economic and psychological benefit.  Badgett’s statistics comparing how many gay couples got married in California when it was legal — relative to domestic partnerships — is analogous to the data that Peplau gave for Massachusetts couples.  But again, this evidence is not likely to be very relevant — unless the federal Courts take the unprecedented move that gays are a “suspect class” (following the lead of California, Iowa and Connecticut.)

But what I found most helpful was the evidence that gay marriage doesn’t hurt heterosexual couples.  This goes towards disproving a “rational basis” that the Court might dream up to justify Prop 8.  Nobody’s come out directly to say it hurts straight marriage, but if this gets raised by the defense — or the Court — it will be important to have evidence that such a basis is just merely irrational.


  • 1. jstueart  |  January 19, 2010 at 6:22 am

    I'm beginning to think that "irrational" might be the modus operandi of the whole Prop 8 movement.

  • 2. Patrick Regan  |  January 19, 2010 at 6:24 am

    I've always thought that. But I see your point 😉

  • 3. paulhogarth  |  January 19, 2010 at 6:26 am

    Well, yeah … that's kind of what we're trying to prove. If we can prove there was no basis to pass Prop 8 besides irrational prejudice, we win. That's why every "reason" cited for Prop 8 is being traced back to being irrational.

    If that's the thrust of this case, well that's the whole point.

  • 4. Steffi  |  January 19, 2010 at 6:26 am

    I feel that the ban on ss-marriages would hurt my yet-to-come hetero marriage. cause a marriage that strengthens inequality and prejudice can't be seen as something fully valuable. I would always feel bad for grasping a thing and take it for granted that is not accessable for all people equally. I might even consider not to marry as long as there's still this injustice (though I admit that once this time comes I might change my mind because I would want the benefits from marriages if not for me then for my yet-to-come spouse and children – just as everybody wants…)

  • 5. Patrick Regan  |  January 19, 2010 at 6:34 am

    I am in the same boat Steffi. I agree with you 100%. My fiancee' and I feel that this is an unfair thing that we have… the right to marry each other. Our friends dont' have that right. It makes me feel like my soon-to-be marriage is broken because of that.

  • 6. Raven  |  January 19, 2010 at 6:34 am

    I have a close friend with a child and another on the way who is not getting married for this very reason, Steffi. 🙂

  • 7. evenevan  |  January 19, 2010 at 6:27 am

    I often wonder if same sex marriage were made legal cross country tomorrow, would it actually HELP heterosexual marriage?

    There's got to be some societal benefit from the fact that you have thousands of couples across the country who wholeheartedly embrace marriage and celebrate it! It sends the message that marriage is a good thing and should be cherished by anyone, regardless of their sexual orientation.

    Besides that, there's probably going to be some "keeping up with the Joneses…" with heterosexual couples not about to be out done by gay or lesbian couples. That's GOT to be good for the wedding industry!

  • 8. James Sweet  |  January 19, 2010 at 6:32 am

    Yeah, I and another commenter were speculating on this last week… It's not incredible to imagine that a committed-but-unmarried heterosexual couple might be inspired to tie the knot by the marriage of a gay friend. I imagine the magnitude of this effect would be relatively small, but who knows.

    The same goes for procreation. Since my wife and I had a baby, two members of our social circle got pregnant, and another couple got engaged. Anecdotally, this is a common experience, i.e. a friend having a child inspires people to get pregnant.

    So again, it's not at all incredible to imagine that a straight couple might be inspired to have a baby because of a gay couple they know becoming parents.

  • 9. Boston  |  January 19, 2010 at 6:55 am

    Interesting line of thought. One thing that ss-marriage does is absolutely make the definition of marriage something other than a religious institution of procreation. The cookie cutter marriage mentality will not work anymore. (Not that it ever worked very well.) The checklist marriage could become less relevant:
    1. marriage
    2. house
    3. dog
    4. kids
    5. affair
    6. divorce

    It seems very possible that ss marriage would put increased emphasis on commitment, love, and partnership in hetero and ss-marriage, and less on social expectations. Let's try it and find out!

  • 10. Scottie  |  January 19, 2010 at 6:30 am

    If the court were to actually say gays are a suspect class, that would pretty much require revisiting every law based on homosexuality in the future, correct?

  • 11. paulhogarth  |  January 19, 2010 at 6:32 am

    Yes. It would be ground-breaking and transformative, and have an impact far beyond just the marriage issue.

  • 12. paulhogarth  |  January 19, 2010 at 6:32 am

    Which is why I (cynically) doubt this US Supreme Court would ever go that far.

  • 13. Patrick Regan  |  January 19, 2010 at 6:36 am

    Which is why I (cynically) doubt this US Supreme Court would ever go that far.

    While I also don't really think that will happen, I still have hope.

  • 14. Scottie  |  January 19, 2010 at 6:36 am

    I have doubts about the courts readiness to go that far but I sincerely hope they do. I hope that the testimony in this trial can address that or something. There's been discussion that this court's ruling might make the legal issue moot, negating the need for a Supreme Court ruling. And there's discussion that even if the Supreme Court were to rule on this, they could rule so narrowly that none of the issues we are hoping to be discussed will be. But I hope we press on so much that it becomes necessary to do that. Ugh.

  • 15. Kevin  |  January 19, 2010 at 6:39 am

    With Roberts at the helm I would anticipate as narrow a ruling as humanly possible.

  • 16. Leslie Wilde  |  January 19, 2010 at 6:43 am

    I have faith and belief that Ted Olsen knows the SCOTUS better than anyone, and he wouldn't have taken this case if he hadn't studied the argumentative path that would lead him to get the required 5 votes.

    It also helps that Anthony Kennedy is a friend of his and attended his wedding.

  • 17. michael  |  January 19, 2010 at 6:49 am

    Agree big time with that. Why take it and put their reputations on the line like this? They have a strong case, they know that high court and this will case will put them in the History books when we win!

  • 18. Grant  |  January 19, 2010 at 6:47 am

    Hi – although I've been following CC's coverage from day-one (fantastic job everryone) – this is my first post.

    After reading the defense cross in each case of the expert witnesses, defense always (or almost always) brings up the issue of whether the witness is a pro-gay activist, has donated to No on 8, supporter of ssm, etc.

    It seems the defense is trying to establish a bias on the part of the plaintiff's witnesses – will this be an important factor when the judge weighs the evidence?

  • 19. michael  |  January 19, 2010 at 6:52 am

    Not sure how that would work. Knowing something is wrong because you have researched it and contributing to right the wrongs is not activism rather a responsibility of Citizenship.

  • 20. Kevin  |  January 19, 2010 at 6:58 am

    It might be relevant if any of these individuals gave or wrote zealously (as in donating 90% of their income) for a cause falling under the sign of the "gay agenda." This does not appear to be the case.

  • 21. Stephie Michaels  |  January 19, 2010 at 7:09 am

    Just to ask a silly question … exactly what is a "suspect class" and how would a declaration of same help or hurt the effort to legalize same sex marriage? Thanks.

  • 22. paulhogarth  |  January 19, 2010 at 7:11 am

    See my prior post that will hopefully answer that question:

  • 23. Scottie  |  January 19, 2010 at 7:14 am

    A suspect class is a group that is the target of discrimination. Federal courts and the Supreme Court do not recognize gays as a suspect class yet, and if they were to do that it would mean that any law passed against gays would need a tougher level of scrutiny to pass – meaning, it wouldn't pass. Recognizing gays as a suspect class would mean that marriage couldn't be made illegal. Nor could pretty much anything else related to gays. It would change everything.

  • 24. James  |  January 19, 2010 at 7:11 am

    I read somewhere that the real reason Prop 8'ers want to preserve marriage for hets, is that gay couples would swoop up the best china and crystal patterns, leaving the uglier, less desirable patterns to the straights….

    I believe that is their interpretation of the "Gay Agenda."

  • 25. Stephie Michaels  |  January 19, 2010 at 7:39 am

    Thank you for the link, but in tht piece you do not define the term. You state four attributes, if you will, of the class (something that makes these folks different and can't be changed, as in skin color, etc.) But how is the term defined and what effect would it have? Are you perhaps saying that if my GLBT friends were so defined then marriage would be assured? If so, why so? I'm not trying to be a pain here, just to educate myself. And, yes, I am an analyst, born and bred. 🙂

  • 26. Aconite  |  January 19, 2010 at 9:08 am

    Stephie, IANAL (I Am Not A Lawyer), so I'll leave exact definitions to one.

    The short answer about why it matters if GLBT people form a "suspect class" is that if we do, the court has to give very, very close scrutiny to any laws that limit our rights. Those laws have to show exceptionally good cause for doing so. Prop8 can't pass that test, and neither can most (if not all) the anti-equality laws out there. In effect, a ruling that GLBTs are a suspect class would make it impossible for discriminatory laws to stand any longer.

    You'll probably find much better and fuller explanations in the threads following the second and third days of testimony, when the plaintiffs were examining witnesses who showed GLBTs have historically been discriminated against.

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