LISTEN AND READ FOR YOURSELF: Audio and Transcript of Prop. 8 Hearing

(Download a PDF of the transcript) Text as provided by the Supreme Court:

Washington, D.C.
Tuesday, March 26, 2013

APPEARANCES:
CHARLES J. COOPER, ESQ., Washington, D.C.; on behalf of

Petitioners.
THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf of

Respondents.
DONALD B. VERRILLI, JR., ESQ., Solicitor General,
Department of Justice, Washington, D.C.; for United
States, as amicus curiae, supporting Respondents.

(10:07 a.m.)

CHIEF JUSTICE ROBERTS: We'll hear argument this morning in Case 12-144, Hollingsworth v. Perry. Mr. Cooper?

ORAL ARGUMENT OF CHARLES J. COOPER ON BEHALF OF THE PETITIONERS

MR. COOPER (pictured left): Thank you, Mr. Chief Justice, and may it please the Court: New York's highest court, in a case similar to this one, remarked that until quite recently, it was an accepted truth for almost everyone who ever lived in any society in which marriage existed -­

CHIEF JUSTICE ROBERTS: Mr. Cooper, we have jurisdictional and merits issues here. Maybe it'd be best if you could begin with the standing issue.

MR. COOPER: I'd be happy to, Mr. Chief Justice. Your Honor, the official proponents of Proposition 8, the initiative, have standing to defend that measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.

JUSTICE GINSBURG: Have we ever granted standing to proponents of ballot initiatives?

MR. COOPER: No, Your Honor, the Court has not done that. But the Court has never had before it a clear expression from a unanimous State's high court that -­

JUSTICE GINSBURG: Well, this is -- this is -- the concern is certainly, the proponents are interested in getting it on the ballot and seeing that all of the proper procedures are followed, but once it's passed, they have no proprietary interest in it. It's law for them just as it is for everyone else. So how are they distinguishable from the California citizenry in general?

MR. COOPER: They're distinguishable, Your Honor, because the Constitution of the State of California and its election code provide, according to the unanimous interpretation of the California Supreme Court, that the official proponents, in addition to the other official responsibilities and authorities that they have in the initiative process, that those official proponents also have the authority and the responsibility to defend the validity of that initiative -
­
JUSTICE SCALIA: I guess the attorney general of this State doesn't have any proprietary interest either, does he?

MR. COOPER: No, Your Honor, nor did -­

JUSTICE SCALIA: But -- but he can defend it, can't he -­

MR. COOPER: -- nor did -­

JUSTICE SCALIA: -- because the law says he can defend it.

MR. COOPER: That's right, Your Honor. Nor did the legislative leaders in the Karcher case have -­

JUSTICE KAGAN: Could the State -­

MR. COOPER: -- any particular enforcement -­

JUSTICE KAGAN: -- could -- could the State assign to any citizen the rights to defend a judgment of this kind?

MR. COOPER: Justice Kagan, that would be a -- a very tough question. It's -- it's by no means the question before the Court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and -- and carefully detailed -­

JUSTICE KAGAN: Well, I just -- if you would on the hypothetical: Could a State just assign to anybody the ability to do this?

MR. COOPER: Your Honor, I think it very well might. It very well might be able to decide that any citizen could step forward and represent the interests of the State and the people in that State -­

CHIEF JUSTICE ROBERTS: Well, that would be -- I'm sorry, are you finished?

MR. COOPER: Yes, Your Honor.