At Supreme Court, Marriage Equality Foes’ Best Argument Is That They’re Losing

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On Tuesday, the Supreme Court heard oral arguments in the first of two marriage equality cases, and the best argument the chief defender of California’s ban on same-sex marriage could muster was that his side would ultimately lose.

Americans’ understanding of marriage is “changing and changing rapidly in this country, as people throughout the country engage in an earnest debate over whether the age-old definition of marriage should be changed to include same sex couples,” argued Charles Cooper, who represented Californians supporting Proposition 8, California’s ban on same-sex marriage. He was trying to convince the justices that Prop 8 does not violate the constitutional rights of same-sex couples. In doing so, though, he acknowledged that acceptance of same-sex marriage rights is galloping forward, and he argued that the Supreme Court should allow that process to continue without interference from the Supreme Court. In other words, Californians whose marriage rights were taken from them at the ballot box should wait patiently for the country to evolve as quickly as ambitious Democratic politicians. (On Wednesday, the court will hear a challenge to the Defense of Marriage Act, which bans federal recognition of same-sex marriages performed in states when they are legal.)

It’s never a good idea to predict the results of a Supreme Court case based on oral arguments, and the strongest presentation at the Court isn’t always the one that wins. But from his first, hoarse remarks, it was clear that Cooper had walked into the heat of battle lightly armed. An experienced litigator who served in the Reagan-era Justice Department, Cooper took up the defense of California’s Proposition 8 after state officials declined to back the law in court. He was supposed to argue that California had a legitimate interest (other than simple bigotry) in banning same-sex couples from getting married, but he had difficulty finding one.

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At Supreme Court, Marriage Equality Foes’ Best Argument Is That They’re Losing

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