Supreme Court expresses skepticism over upholding Prop. 8

By Noam N. Levey and David G. Savage

March 26, 2013 12 AM PT

WASHINGTON — The Supreme Court asked skeptical questions Tuesday of former Reagan administration lawyer Charles J. Cooper about his assertion that California’s ban on gay marriage should be upheld.

Chief Justice John G. Roberts, Jr. questioned Cooper as to whether his clients had standing to challenge lower court decisions overturning Proposition 8.

Justice Anthony Kennedy, seen as the swing vote on the issue, asked about the rights of children whose parents are already married.

“They want their parents to have full recognition,” Kennedy said to Cooper.

PHOTOS: Supreme Court considers gay marriage

Cooper was the first lawyer to speak as the justices began hearing arguments on whether gays and lesbians have a constitutional right to marry in a California case that could transform the law nationwide.

Cooper and Theodore Olson were lined up on opposite sides, with Olson contending an equal right to marry is basic to American liberty and Cooper saying the decision on changing state marriage laws should be left to the voters in each state.

TRANSCRIPT: Oral arguments before justices

The Obama administration’s top courtroom lawyer was also planning to make a brief presentation to argue that California’s Proposition 8 and its ban on same-sex marriage should be struck down as unjust discrimination against gays and lesbians.

Cooper, an Alabama native who is known for his conservative views and gracious manner, was the first to speak. Cooper was given 30 minutes to argue for upholding California’s ban and for allowing the voters of each state to decide for themselves on whether to “redefine” marriage.

Gay marriage through the years

Next up was Olson, a Washington attorney who came from Los Angeles in the early 1980s to join the Reagan Justice Department. Olson, a prominent Republican stalwart and a conservative legal star, joined with Democratic attorney David Boies in 2009 to challenge California’s ban on same-sex marriage. Olson will have 20 minutes to argue that denying marriage to committed gay and lesbian couples denies them the “equal protection of the laws” promised by the Constitution.

U.S. Solicitor General Donald Verrilli, representing the United States and the Obama administration, opted to join Olson’s side as a “friend of the court.” He will have 10 minutes to urge the justices to rule broadly against discrimination based on a person’s sexual orientation.