Dr. Linda Hirshman

I wish I had the Kleenex concession for the trial. Today, San Francisco presents Jerry Sanders, the Republican Mayor of San Diego, a pretty conservative Southern California town. Sanders will testify, first about his daughter, Lisa.

SANDERS: Well, Lisa was my first daughter. We had a very strong relationship. Excuse me. She was, basically, my shadow.

The reason you see “excuse me” in the transcript is that Sanders began to break up. He is so emotional, because he has to tell the court the story of why he signed on to support San Francisco in fighting for gay marriage. And that involves his lesbian daughter, Lisa. “I’m trying not to look at her,” he tells the Court, as he struggles not to cry. He testifies that, in 2007, when gays and lesbians were first challenging the opposite sex only marriage rule in California under the California state constitution, the San Diego City council passed a resolution to support San Francisco in fighting for same sex marriage. Sanders -- a Republican -- was preparing to veto the resolution, gay daughter or not. Civil unions were good enough.

The night before the press conference to announce his veto, he invited a group of individuals from the gay/lesbian community; “some of them neighbors, some of them friends, some of them acquaintances... I suppose what I expected was that they'd say civil unions are fine. I guess I was absolutely shocked at the depth of the hurt, the depth of the feeling, the depth of the comments that came from them. I remember one of our neighbors . . . said, basically: I walk by here -- my partner and I walk by here all the time, with our children. And you always stop, when you are doing yardwork, and say hello to them and talk to them. You know, we're a family just like you're a family.”

The video of the press conference where he announces he will sign the resolution, which you will see, is a classic in the California gay marriage wars. Asked why he was so broken up, he testifies that he “felt that I came very close to making a bad decision; one that would affect, literally, hundreds of thousands of people. I came very close to showing the prejudice that I obviously had to my daughter, to my staff, and to the community in San Diego.”

Sanders’ testimony makes another point the plaintiffs care about – that there are good, political reasons for the government not to discriminate in marriage, because, as a police officer, he saw how discrimination by leadership gave permission for people below to discriminate. “If government tolerates discrimination against anyone for any reason, it becomes an excuse for the public to do exactly the same thing. And I think that, as I look back on San Diego being a fairly conservative place, very different than San Francisco, discrimination took the form of violence against the gay community. And I don't think that's in government's interest for the community. I don't think it's in government's interest for governing itself.”

Cross-examining, Brian Raum from the advocacy group Alliance Defense Fund will bring out how effectively gays and lesbians have come into the political process in San Diego – serving on the City Council and the like. He tries to get Sanders to testify that the change didn’t cost him politically, but Sanders will have none of it. “I’m a Republican,” he testifies on redirect. They threatened to withdraw their endorsement. Finally, Raum tries to get Sanders to admit that in resisting gay marriage at first he was not motivated by animus or hatred and neither were some of the supporters of Prop 8. Sanders responds by trying to maintain a distinction between hatred, which he denies, and prejudice, which he admits to and charges other supporters with also.

Plaintiffs’ second witness is M.V. Lee Badgett, an economics professor at the University of Massachusetts, Amherst, and Director of the Williams Institute for Sexual Orientation Law and Public Policy at UCLA. Badgett testifies about the economic effect of same sex marriage for the couples involved (better) and the state of California (flowers, hotels, taxes) in much the same way as Edmund Egan did and also that same sex marriage doesn’t hurt opposite sex marriage.

Badgett gets interesting on cross. Charles Cooper tries to get her to admit that when the Netherlands started allowing same-sex marriage, the opposite sex marriage rate went down and the number of cohabiting couples went up. He does this by presenting her with the marriage rates from 1994 to 2008, which looks like the marriage rate was stable until same sex marriage in 2001 and then went abruptly down.

On redirect, Boies quickly establishes that if you look at all the Dutch data, “the marriage rate in the Netherlands which peaked in about 1970, and since then has been on a pretty steady decline with, you know, some variation from year to year.” So only by artificially cutting the trend line at a rogue year, 1994, did the defendants get the data to associate same sex marriage with a decline. This back and forth about gay marriage causing opposite sex marriage to decline is interesting, because the numbers are indisputable. One wonders why the defendants keep making an argument that is so easy to rebut.

~Dr. Linda Hirshman, Author and retired Professor of Political Philosophy

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