Charles J. Cooper, a Washington, D.C., attorney who heads the firm of Cooper & Carvin, will appeal the December ruling that found the state offered no compelling reason to justify sex discrimination in the state's marriage law, said Dorothy Sellers, deputy attorney general.
"This is a case that is going to have an impact on the state and the nation," Sellers said. "It affects state and federal constitutional issues. We need to go out and get the best lawyer we can get."
Dan Foley, attorney for the three same-sex couples who sued in 1991 for the right to marry, faulted the state's selection.
"Out of all the attorneys on the mainland, they chose one known for taking anti-
gay positions in court," Foley said yesterday. "In the past the state has said it was going to take the high road in defending this case."
Foley and mainland attorneys cited two of Cooper's writings that promoted discrimination, but were rejected by the U.S. Supreme Court in related cases:
A 1986 AIDS policy memo Cooper wrote as a U.S. assistant attorney general for the Reagan administration that allowed employers to fire infected employees based on fears that they could spread the virus, even if such fears were irrational.
A 1994 brief to the U.S. Supreme Court on behalf of several states to defend a Colorado constitutional amendment to deny gay men and lesbians equal protection.
Cooper could not be reached for comment. His firm directed calls about him to Cynthia Quinn, special assistant to Attorney General Margery Bronster.
Quinn said the state hired Cooper for his appellate expertise, especially in the area of constitutional law.
She also said the state found nothing in Cooper's writings or conversations to indicate that he has an anti-gay bias, and said the state would argue the case without diminishing gays and lesbians.
Quinn declined to comment on Cooper's 1986 memo or his Colorado brief because the state wasn't a party to them. But she added that the state didn't view the writings negatively, adding: "It's the nature of the adversarial process."
Sellers said Cooper was a clerk for William H. Rehnquist before Rehnquist became chief justice of the U.S. Supreme Court; worked for the Office of Legal Counsel, which gives advice to presidents; and worked for the Justice Department's Civil Rights Division.
She said the state advertised in legal journals and chose Cooper from about two dozen candidates. She said Cooper's hourly rate was $275, and that the state could spend up to $75,000.
Mark Barnes, a New York health-care attorney who was a civil rights attorney at the time of Cooper's 1986 memo, said the memo was appalling and "a sad day in the legal history of the epidemic."
The memo, to the U.S. Department of Health and Human Services, addressed applications of the 1973 Rehabilitation Act to people with AIDS or HIV. The act protected people with handicaps against discrimination by the federal government, contractors and recipients of federal money.
Cooper's memo said that people with AIDS were handicapped if the disease impaired them physically or mentally, and to discriminate because of its disabling effects may violate the act.
But it also said that the ability to spread AIDS was not a handicap and the act didn't restrict measures to prevent its spread.
"It said that an employer can't let someone go because they have AIDS but xxx could fire an employee because he thinks he could spread AIDS," Barnes said, adding that it allowed an employer to act on irrational fears.
The government used the memo to argue a case involving the firing of a woman with tuberculosis, but the U.S. Supreme Court rejected it in a 7-2 vote in which Rehnquist dissented, he said.
Barnes said the memo, dropped by the government in 1988, likely caused people who feared AIDS discrimination from getting tested.
Matt Coles, an attorney who argued against Colorado's Amendment 2, which would have prevented government protections for gay men and lesbians, said Cooper's brief defending the measure "was deeply unimpressive."
In his brief, Cooper said the lower court misinterpreted the U.S. Supreme Court's equal protection decisions to allow any and every "independently identifiable" interest group to overturn statewide constitutional provisions.
He also said that the new equal protection doctrine "has cast a long shadow of uncertainty not only over the traditional right of democratic self-government, but also over the concept of constitutionalism - of representative government tempered by individual liberty."
The U.S. Supreme Court rejected such arguments, saying the measure was based on anti-gay feelings and that people don't have the right to discriminate against a group of Americans because they don't like them, Coles said.
"The state (of Hawaii) is throwing it's money away," he said, referring to Cooper's hire.
Foley also questioned the financial wisdom of the state's decision, saying the $75,000 cap would almost double case costs. He said taxpayers already would pay an estimated $50,000 to $70,000 in fees for the same-sex couples, based on a court ruling.
"The state's own attorney (for the September trial in which the state lost) has said the state has little chance for success in the appeal," Foley said. "So why spend the money now?"