Former Solicitor General Theodore Olson, representing two same-sex couples challenging Prop. 8, told the justices that marriage is a fundamental right of all Americans, regardless of gender. He said the exclusion of gay and lesbian couples from marriage renders them second-class citizens.
“This is a measure that walls off the institution of marriage,” he said. Getting married is not society’s right, but an individual right, he added.
“This court again and again and again has said the right to get married … is a personal right. It’s part of the right of privacy, association, liberty, and the pursuit of happiness,” Mr. Olson said.
Washington Lawyer Charles Cooper told the court that the concept of marriage as a union of one man and one woman has prevailed throughout most of human history and need not be redefined now.
Mr. Cooper, representing leaders of the Prop. 8 campaign, said the concept of marriage is at the center of an earnest national debate. “The question before this court is whether the Constitution puts a stop to that ongoing democratic debate and answers this question for all 50 states,” he said.
He urged the justices not to issue a constitutional ruling imposing same-sex marriage nationwide. Instead, he said the states should continue to be free to decide for themselves how to approach the issue.
The question of harm
Justice Elena Kagan wanted to know what harm would come to the institution of marriage or to opposite-sex married couples if the definition of marriage expanded to include same-sex couples.
Cooper said it wasn’t the correct legal question. “The correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage,” he said.
"Are you conceding that there is no harm,” Kennedy asked.
Cooper replied that redefining marriage would have real-world consequences, but that it was impossible to foresee accurately what those adverse consequences might be.
“I think it is better for California to hit the pause button and await additional information from the jurisdictions where this experiment is still maturing,” he said.