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Topics In the News
Attorney Charles Cooper, Who Defended Proposition 8, Reveals Step-Daughter Is Engaged to Marry Woman
Posted by: Claude J. Summers on 04/17/14
Last updated on: 04/17/14
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Charles Cooper at a Proposition 8 press conference.

A forthcoming book about the legal battle over Proposition 8, the amendment that banned same-sex marriage in California from November 5, 2008 until June 28, 2013, reveals that Charles Cooper, the attorney who defended the measure, learned that his step-daughter is gay as the case wound through the appellate process. Moreover, Cooper is now helping plan his step-daughter's Massachusetts wedding to a woman in June.

The forthcoming book, Forcing the Spring: Inside the Fight for Marriage Equality by journalist Jo Becker, reveals that Cooper now describes his current opinion of same-sex marriage as "evolving." He told Becker, "My views evolve on issues of this kind the same way as other people's do, and how I view this down the road may not be the way I view it now, or how I viewed it ten years ago."

As Julie Pace reports for the Associated Press, the revelation is an unexpected footnote in the years-long debate over Proposition 8 and also offers a glimpse, through the eyes of one family, of the country's rapidly shifting opinions about gay marriage.

Cooper, like former Vice-President Dick Cheney and current Ohio Senator Rob Portman, apparently changed his mind about gay issues when he learned that one of his children is gay.

A prominent conservative attorney, Cooper made his reputation defending gun rights and opposing gay rights and affirmative action. A graduate of the University of Alabama Law School, he clerked for former Chief Justice William H. Rehnquist and served in the Justice Department during the Reagan administration as an Assistant Attorney General. In 1985, he succeeded Theodore Olson as head of the Justice Department's Office of Legal Counsel.

Among the high-profile anti-gay actions that Cooper has taken as a lawyer are the following. In 1986, he wrote a policy memo for the Reagan Justice Department arguing that laws prohibiting discrimination based on handicap do not protect those suffering from AIDS; in 1994 he submitted a brief to the Supreme Court on behalf of several states defending Colorado's infamous Amendment 2 that denied equal protection to gay men and lesbians; in 1997, he represented Hawaii in the state's Supreme Court in one of the first major cases concerning same-sex marriage.

Cooper told Pace that his family "is typical of families all across America," adding that "My daughter Ashley's path in life has led her to happiness with a lovely young woman named Casey, and our family and Casey's family are looking forward to celebrating their marriage in just a few weeks."

In the epic battle over Proposition 8, Cooper represented the proponents of the measure, ProtectMarriage.com, after it was challenged in federal court by the American Foundation for Equal Rights, which was represented by Olson and David Boies.

The long battle, which included a both a bruising and bitter campaign, as well as lawsuits in both state and federal courts, finally came to an end when the U.S. Supreme Court invalidated Proposition 8 over a question of standing. That ruling had the effect of upholding the landmark decision of Judge Vaughn Walker who declared the proposition unconstitutional after a trial that spanned twelve days in January and two days in June 2010.

In that trial, Olson and Boies systematically built their case around the history of marriage, the harm that denial of marriage rights does to gay and lesbian couples and their children, and the irrationality of the ban. Introducing a massive amount of evidence, they demonstrated that the ban was enacted out of animus against homosexuals and that it caused great harm to gay men and lesbians for no rational governmental purpose.

The Supreme Court's ruling on Proposition 8 was, paradoxically, both a major victory for marriage equality and a disappointing failure by the court to declare a fundamental right to marry the person one loves.

Rather than reach the merits of the case, the Supreme Court, in a decision written by Chief Justice Roberts and joined by an unusual coalition of Justices Scalia, Ginsburg, Breyer, and Kagan, ruled that the proponents of Proposition 8 lacked standing to appeal Judge Walker's opinion.

In order for the proponents of Proposition 8 to have standing to appeal in federal court, the Chief Justice wrote, they would have had to demonstrate "a concrete and particularized injury that is fairly traceable to the challenged conduct, and is likely to be redressed by a favorable judicial decision."

Chief Justice Roberts pointed out that the District Court had not ordered the proponents to do or refrain from doing anything. Their only interest in having the District Court order reversed was to vindicate the constitutional validity of a generally applicable California law, and they were neither agents of the state nor authorized to represent the state. "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."

While the litigation over Proposition 8 did not lead to the broad ruling that the American Foundation for Equal Rights had hoped and did not establish a fundamental constitutional right to same-sex marriage, Chief Justice Roberts' decision did validate a point that marriage equality activists have made over and over again: allowing gay and lesbian couples to marry harms no one. Even the most ardent opponents of same-sex marriage sustain no real injury when gay and lesbian couples are allowed to marry.

Indeed, during both the trial before Judge Walker and the appeal before the Ninth Circuit Court of Appeals and the Supreme Court, Cooper was unable to articulate any adverse effects of same-sex marriage. Even his star witness at the trial, David Blankenhorn, failed to explain exactly how allowing same-sex couples to marry would harm the institution. (Blankenhorn himself "evolved" on the issue and in 2012 announced that he no longer opposed same-sex marriage.)

The long battle against Proposition 8 served the important purpose of educating the public about marriage equality generally and, most importantly, the litigation finally succeeded in nullifying the discriminatory Proposition.

Interestingly, Becker's forthcoming book also reveals that during the litigation, Cooper's family began to consider two of the plaintiffs in the Prop 8 case, Kris Perry and Sandy Stier, as an inspiration for their daughter.

In a statement released to the Associated Press, Perry and Stier reacted to the revelation: "We were so moved to hear of the Cooper family's constant love and support of their own daughter, even as the Perry case was in full swing and Mr. Cooper was spending his days planning Prop 8's defence. Some may find this contrast between public and private jarring, but in our opinion, loving an LGBT child unequivocally is the single most important thing any parent can do. We are overjoyed for Ashley and her fiancée, and we wish them the very best."

In the video below, from March 2013, Cooper faces the press after presenting oral arguments at the Supreme Court of the United States in defense of Proposition 8.

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