It may be that evolving “standards of decency” regarding homosexuality have given the Olson and Boies team a key advantage over its opposing counsel. Public opinion has changed enough so that many anti-gay claims can no longer be made in public. “In the early nineties, lawyers defending traditional marriage were willing to make these very broad anti-gay arguments,” Thomas Keck said, but that has become more difficult, and sometimes seems to leave advocates of traditional marriage rhetorically disarmed—especially, perhaps, in a courtroom in San Francisco.
For example, one of the arguments that the anti-gay-marriage side has increasingly turned to outside the courtroom is that allowing same-sex marriage would hurt heterosexual marriage. At the pretrial hearing, Judge Walker kept asking Charles Cooper, the lawyer defending Proposition 8, how exactly it did so. “I’m asking you to tell me,” he said at last, “how it would harm opposite-sex marriages.”
“All right,” Cooper said.
“All right,” Walker said. “Let’s play on the same playing field for once.”
There was a pause—it seemed like a long one to people in the courtroom, though it was probably only a few seconds. And Cooper said, “Your Honor, my answer is: I don’t know. I don’t know.”
"I don't know. I don't know."
The Yes on 8 lawyer can't explain his central beef with gay marriage: