Cooper says the court should defer to the democratic process. "[t]he definition of marriage has always been understood to be the virtually exclusive province of the states, which, subject only to clear constitutional constraints, have absolute right to prescribe the conditions upon which the marriage relation between their citizens shall be created. "
He says the lower court decision striking down the law "impugns the motives of over seven million California voters and countless other Americans who believe that traditional marriage continues to serve society's vital interests."
Olson and Boies respond in sweeping arguments that ask the court to find a fundamental right to gay marriage in the Constitution.
"The unmistakable purpose and effect of Proposition 8," they write, "is to stigmatize gay men and lesbians -- and them alone -- and enshrine in California's Constitution that they are unequal to everyone else, that their committed relationships are ineligible for the designation 'marriage' and that they are unworthy of that most important relation in life."
Opponents of Prop 8 dismiss the proponents' argument that Proposition 8 serves the interest of promoting responsible procreation. "There are many classes of heterosexual persons who cannot procreate unintentionally, including the old, the infertile, and the incarcerated."
They acknowledge that the federal system enables states to serve as "laboratories of democracy" but say "our Constitution does not permit states the power to experiment with the fundamental liberties of citizens."
Because the U.S. government has never been a party to the Prop 8 case, it did not have to weigh in on the case now that it is in front of the Supreme Court. But last month Solicitor General Donald B. Verrilli Jr. filed a brief with the court opposing Proposition 8, arguing that laws that ban gay marriage should be subject to heightened scrutiny from the courts.
The court has allotted one hour for arguments in the case, although because of the complexity of the issue, arguments could be extended. Charles J. Cooper will argue for petitioners. Theodore B. Olson will argue for respondents; Solicitor General Donald B. Verrilli Jr. for the government.
Click here to read about the second case, a challenge to the federal Defense of Marriage Act (DOMA).