The Other Lawyer in Gay-Wed Case

Story originally appeared on the Wall Street Journal.

The face of the argument against gay marriage in the Supreme Court on Tuesday will be a lawyer with a genteel Southern tone and a record of championing conservative causes, including preserving gun rights and limiting affirmative action and gay rights.

Charles J. Cooper will defend Proposition 8, the gay-marriage ban California voters passed in 2008. He is less well known than his opponent, Ted Olson, a fellow conservative who shocked both sides when he challenged Proposition 8 in 2009 on behalf of two same-sex couples, saying it violated the Constitution.

Mr. Cooper's low profile is partly by design, say people who have worked with the 61-year-old Alabama native, known as Chuck. He has avoided discussing this case in the media, and his argument is rooted in deeply conservative views of both the justice system and the historical definition of marriage, they say. Keeping with his practice since the case began, Mr. Cooper declined an interview with The Wall Street Journal.

His Proposition 8 strategy has been notable in part because he has avoided putting homosexuality—or even the policy of same-sex marriage—on trial. Instead, he argues that the high court should allow citizens to deliberate the issues through democratic processes and should let states make their own rules about marriage.

"Chuck is a traditionalist," said Kenneth Starr, who was independent counsel during the administration of Bill Clinton and is now president of Baylor University. Mr. Starr has been a friend of Mr. Cooper's since they worked together in the Ronald Reagan administration. (Mr. Olson is another veteran of the Reagan White House.)

In 2010, the Republican National Lawyers Association named Mr. Cooper "Republican Lawyer of the Year."

Mr. Cooper has appeared before the Supreme Court before, including in the 1996 U.S. v. Winstar case, in which he successfully argued that the federal government violated contracts with certain banks by changing accounting rules during the savings and loan crisis.

ProtectMarriage.com, the group that put Proposition 8 on the ballot, chose Mr. Cooper's Washington-based firm, Cooper & Kirk, to lead its defense in part because he has "a strong and impressive background in civil rights and constitutional litigation," said Andy Pugno, the group's general counsel.

Early in his career, Mr. Cooper clerked for Justice William Rehnquist. During the Reagan administration, Mr. Cooper joined the Justice Department's Civil Rights Division and the Office of Legal Counsel, where he built a reputation as a legal "originalist," who staunchly defends the letter of the law. His thinking was that "you had to obey the law, and not what you wanted the law to be," said Nelson Lund, a George Mason University law professor who worked with Mr. Cooper at the time.

Even during their time together in the Reagan administration, Messrs. Cooper and Olson embodied different flavors of conservatism. "I remember that Ted wore very flamboyant ties and Chuck wore suspenders," said Roger Clegg—president of the Center for Equal Opportunity, a conservative think tank—who worked with both.

The Supreme Court is set to hear two cases this week that could be decisive for same-sex marriage: California's Proposition 8 and the Defense of Marriage Act. WSJ's Neil Hickey spoke to some same-sex marriage supporters who will be attending the cases.

In 1986, Mr. Cooper wrote a policy memo for the Reagan administration that argued a law prohibiting discrimination based on handicap didn't apply to employers who wanted to fire employees with AIDS, if the basis for the decision was fear of catching the disease. He later wrote a brief to the Supreme Court on behalf of several states, defending a Colorado constitutional amendment that denied gay men and lesbians equal protection. In 1997, Mr. Cooper defended Hawaii in the state's Supreme Court for not performing same-sex marriages, in one of the first major cases tied to the issue.

In the Proposition 8 case, Mr. Cooper may be best known for a 2009 moment in a San Francisco courtroom when U.S. District Court Judge Vaughn R. Walker asked him what harm would come from permitting same-sex marriage. "My answer is, I don't know," said Mr. Cooper, who is married. In a recent Supreme Court brief, he said the reason he didn't know was because same-sex marriage is "a very recent innovation" whose impact "can't possibly be known now."

Kate Kendell, the executive director of the National Center for Lesbian Rights, said she has appreciated that Mr. Cooper has "refused to make ad hominem attacks" against gay and lesbian people in his arguments, but adds that, "When the hard questions get asked about why we don't let same-sex couples get married, there is no longer an answer that is persuasive to most Americans."