Monday, October 26, 2009
In Battle Over Gay Marriage, Timing May Be Key
In a San Francisco courtroom two weeks ago, a prominent lawyer opposed to same-sex marriage made a concession that could mark a turning point in the legal wars over the purpose and meaning of marriage.
The lawyer, Charles J. Cooper, has studied the matter deeply, and his erudite briefs are steeped in history. He cannot have been blindsided by the question Judge Vaughn R. Walker asked him: What would be the harm of permitting gay men and lesbians to marry?
“Your honor, my answer is: I don’t know,” Mr. Cooper said. “I don’t know.”
A couple of hours later, Judge Walker denied Mr. Cooper’s motion to dismiss a lawsuit seeking to establish a constitutional right to same-sex marriage. The concession and the ruling that followed it have transformed a federal lawsuit that had been viewed with suspicion by many gay rights advocates into something with the scent of promise.
The suit, filed in May by Theodore B. Olson and David Boies, made the bold claim that California’s voters violated the federal Constitution last year when they overrode a decision of the state’s Supreme Court allowing same-sex marriages.
The suit was, gay rights advocates said then, the wrong claim in the wrong court in the wrong state at the wrong time. There was wariness about Mr. Olson, a former solicitor general in the Bush administration, and there was frustration about what some viewed as his meddling in a carefully plotted and methodical strategy focused on state-by-state litigation and lobbying.
Those objections are waning. The ship has sailed, said Kenji Yoshino, a law professor at New York University, and gay rights advocates “need to focus on getting it to the right destination.” He added that Judge Walker’s refusal to dismiss the case “was a major victory for Olson and Boies.”
In the courtroom, Mr. Cooper’s arguments seemed to fall of their own weight. The government should be allowed to favor opposite-sex marriages, Mr. Cooper said, in order “to channel naturally procreative sexual activity between men and women into stable, enduring unions.”
Judge Walker appeared puzzled. “The last marriage that I performed,” the judge said, “involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”
Mr. Cooper said no.
“And I might say it was a very happy relationship,” Judge Walker said.
“I rejoice to hear that,” Mr. Cooper responded, returning to his theme that only procreation matters.
Later in the argument, Mr. Olson added his own observation. “My mother was married three years ago,” he said. “And she, at the time, was 87 and married someone who was the same age.”
[The rest is here.]