Marriage of Ted Olson’s 87-Year-Old Mom Is Grist in Gay Marriage Case
In oral arguments two weeks ago, U.S. District Judge Vaughn Walker asked what harms may befall California if gays are allowed to marry there.
Charles Cooper, the lawyer for backers of Proposition 8 banning same-sex marriages, had an unusual answer, the New York Times reports. “Your honor, my answer is: I don’t know,” Cooper said. “I don’t know.”
Walker ruled against Cooper’s motion to dismiss and set a January trial date in the suit challenging the ban filed by lawyers Theodore Olson and David Boies.
Cooper had argued that the purpose of marriage was to channel procreative activity into enduring unions, but Walker questioned that assertion, the Times story says. Walker said the last marriage he performed “involved a groom who was 95 and the bride was 83. I did not demand that they prove that they intended to engage in procreative activity. Now, was I missing something?”
Olson offered his own example. “My mother was married three years ago,” he said. “And she, at the time, was 87 and married someone who was the same age.”
Cooper later clarified his “I don’t know” answer, the Associated Press reports. He argued the question is whether “the state is entitled, when dealing with radical proposals to make changes to bedrock institutions such as this … to take a wait-and-see attitude.”
The Times says Cooper’s concession “transformed a federal lawsuit that had been viewed with suspicion by many gay rights advocates into something with the scent of promise.” But the U.S. Supreme Court may not be on board, if the case eventually reaches that level.
Northwestern law professor Andrew Koppelman told the Times he has trouble identifying even one justice likely to agree with Olson and Boies.
