Defense of Prop. 8 draws sharp questions from liberal justices

By Noam N. Levey and David G. Savage

March 26, 2013 12 AM PT

WASHINGTON – The lawyer defending California’s ban on same-sex marriage drew skeptical questioning from swing justices Tuesday as the Supreme Court began two historic days of oral arguments considering the rights of gays and lesbians.

Charles J. Cooper, whose clients include citizens who voted for California’s 2008 Proposition 8 banning same-sex marriage, tried to convince the justices that states should have the right to limit marriage to heterosexual couples because they can produce children. Cooper warned that expanding marriage could have unkown but harmful effects.

But that drew sharp interrogation from the court’s liberal justices, and an emotionally tinged question from Justice Anthony Kennedy, widely seen as a key swing vote in the case.

PHOTOS: Supreme Court considers gay marriage

Kennedy, while acknowledging that the long-term effects of legalized gay marriage are unknown, suggested that the tens of thousands of children of gay and lesbian couples in California have a voice in the case as well. “They want their parents to have full recognition,” he said.

Justices Sonia Sotomayor, Elena Kagan, Stephen G. Breyer and Ruth Bader Ginsburg pounded Cooper for linking marriage to child-bearing, with Kagan asking if states could also prohibit couples over age 55 from getting married. Cooper responded that even in that case, at least one member of the marriage would likely still be fertile, a suggestion that drew laughter from the courtroom.

TRANSCRIPT: Oral arguments before justices

On the conservative wing of the court, Justice Antonin Scalia jumped most forcefully to Cooper’s defense, suggesting that it is unclear whether the children of gay couples may suffer long-term damage.

Cooper was also pressed hard on a key technical issue in the case that could foreclose a more sweeping ruling from the justices about whether gay and lesbian Americans have the right to marry.

Gay marriage through the years

The state of California, which would normally have responsibility for defending a ballot proposition, did not appeal after a federal judge in San Francisco struck down Proposition 8 in 2010. Instead, the private citizens who sponsored the ballot measure, led by Dennis Hollingsworth, filed the appeal.

Several justices, including Chief Justice John G. Roberts, sounded skeptical Tuesday that Hollingsworth as a private citizen could defend the state’s laws.

“I don’t think we have ever allowed something like that,” Roberts said.