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On Prop. 8, Supreme Court gives few hints of sweeping gay marriage ruling

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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.

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.

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