Bench Memos

Statement of Prop 8 Defender Chuck Cooper

In response to some recent developments, Chuck Cooper, the lead attorney for the proponents of California’s Proposition 8 in the litigation that challenged that initiative, has sent me a statement that I reproduce in full below.

As readers of this blog know, I followed the litigation, from the district court to the Ninth Circuit to the Supreme Court, very closely. I spoke or e-mailed with Chuck (as well as others), both by phone and by e-mail, on numerous occasions. On the core proposition in Chuck’s statement below—that he “devoted [himself] body and soul to the defense of Proposition 8”—I will firmly attest that I had no doubt at any time during the litigation, and I have no doubt now, that Chuck was thoroughly and tirelessly dedicated to defending Proposition 8. Indeed, I would describe his efforts, in the face of the overwhelming resources of the other side, some very biased judges, and lots of personal abuse, as nothing short of heroic.

Here is Chuck’s statement:

Almost a year has passed since the Supreme Court opened the way for same-sex marriages in California by deciding that my clients, four of the five official proponents of Proposition 8, lacked standing to defend in federal court the constitutionality of the 2008 measure reaffirming the State’s legal definition of marriage as the union of one man and one woman.

Jo Becker’s new book about the Proposition 8 case, Forcing the Spring, has brought the case back into the news, and some of the media attention has focused on the book’s pages relating to my daughter’s plans to marry a young woman in Massachusetts this summer. Our family knew, of course, that the irony in this would not be lost on the media, and we have been expecting this momentary public spotlight, as well as the comments, kind and unkind, that would inevitably follow along. Some of the comments, from both sides in the public debate over same-sex marriage, have carried the speculation that perhaps my heart was not in my defense of Proposition 8, that I was ambivalent about the outcome of the case.  Although I have declined all invitations to speak about my family, I cannot allow this suggestion to go unanswered.

Make no mistake, I believed then and I believe now, fervently, that Proposition 8 was a constitutional exercise of the right of California’s voters to decide this difficult and controversial public policy issue, and I and my colleagues devoted ourselves body and soul to the defense of Proposition 8 for four years. The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political, and moral values, and does not place it in the hands of federal judges.

Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned – if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision too.

Throughout every stage of the case, and long before my daughter told me she is gay, my colleagues and I expressed our genuine respect and good will for our opponents and other supporters of gay marriage. Here is what we said about them to the Supreme Court: “[T]hey are decent, thoughtful citizens from all walks of life, all political parties, and all races and creeds. They are our family members, our friends, our colleagues and coworkers, our community and business leaders, and our public officials.” But we insisted that the same is also true of the vast majority of Proposition 8’s supporters, and that their views on marriage are entitled to no less consideration and respect, both in the political process and in the courts. I believe these things no less now than I did then, and before then.

In a recent decision upholding a Michigan voter initiative prohibiting racial preferences in college admissions, Justice Kennedy, writing for a plurality of the Supreme Court, spoke of the fundamental right of citizenship in our democratic society; namely, the right “held not just by one person but by all in common . . . to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” The citizens of California no longer have the right to speak and debate and learn and then to decide the marriage issue through the electoral process; their right was nullified by a single federal judge in San Francisco. Elsewhere across the country, however, the political debate over marriage is intensifying, fueled by rapidly changing public attitudes on this issue. But regardless of how the citizens of each state decide this issue, it is their decision to make.


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