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.
Kennedy said he found substance in the point that sociological information about the impact of same-sex marriage is still new. “We have five years of information [about same-sex marriage] to weigh against 2,000 years of history or more [concerning traditional marriage],” he said.
But Kennedy wasn’t finished making his point. He said that on the other hand, children being raised by gay and lesbian parents in California want their parents to have full recognition and full status. They want it now.
“The voice of those children is important in this case, don’t you think,” Kennedy asked Cooper.
Although they could not be heard inside the courtroom, a large crowd of gay rights supporters gathered on the sidewalk in front of the Supreme Court, chanting and waiving signs.
Earlier, hundreds waited in line in 30-degree weather hoping for a seat in the courtroom. Some had been waiting since Thursday, camping outside the courthouse through snow and freezing rain over the weekend.
Inside, the courtroom was warm – and packed. Among notable attendees was Hollywood director and producer Rob Reiner, who was instrumental in organizing the legal talent and raising money to fund the Prop. 8 legal challenge.
Prior to the argument, Olson crossed the courtroom to greet Mr. Reiner and his entourage. He hugged each member and then after hugging Reiner, kissed him on the cheek.