Supreme Court appears deeply divided over same-sex marriage
March 26th, 2013
12:40 PM ET

Supreme Court appears deeply divided over same-sex marriage

  • The Supreme Court is hearing two cases this week in the appeals to state and federal laws restricting same-sex marriage.
  • The court today first tackles an appeal of California's ban on same-sex marriage, known as Proposition 8.
  • Tomorrow, the justices will hear oral arguments over the federal Defense of Marriage Act.
  • Live updates below. Also, read the full story.

[Updated at 12:48 p.m. ET] We're signing off on this end for now - check out our main story for more detail and analysis as it comes today. We answer your questions here, and want to hear from you here.

Don't forget to join us again here tomorrow, when the Supreme Court hears the second round of debate on same-sex marriage: the Defense of Marriage Act.

[Updated at 12:31 p.m. ET] Director Rob Reiner, who watched today’s oral arguments, is a vocal critic against Proposition 8. Here's what he had to say after court adjourned:

“Today is a historic day for all those who believe in freedom and equality. After more than four years of working our case through victories at the federal District and Circuit courts, we finally had an opportunity today to present our arguments in support of marriage equality for gay and lesbian Americans before the highest court in the land. This case has always been about the love shared by two individuals and about the central promise from our nation’s founding that all men are created equal and are endowed with inalienable rights, including the pursuit of happiness.

[Updated at 12:11 p.m. ET] Andrew Pugno, general counsel for, tells reporters outside the court that he believes both sides of the argument have agreed that it is impossible to know with certainly how society would change by redefining "a fundamental institution such as marriage.

[Updated at 12:04 p.m. ET] “Today we feel we clearly presented the winning case for marriage,” says Andrew Pugno, general counsel for, who is speaking with reporters now.

[Updated at 12:01 p.m. ET] Charles Cooper, lead counsel defending Proposition 8, told reporters that he couldn't sum up his argument in a couple of sentences. "We believe Proposition 8 is constitutional," he said, making a brief statement.

[Updated at 11:48 a.m. ET] Kris Perry, a plaintiff in the Prop 8 case, just spoke, saying: "In this country as children, we learn that there's a founding principle, that all men and women are created equal. … Unfortunately with the passage of Proposition 8, we learned that there are group of people in California who are not being treated equally."

"We look forward to a day when prop 8 is officially eliminated and equality is restored to the state of California."

[Updated at 11:45 a.m. ET] Republican Ted Olson and Democrat David Boies, who joined forces to argue against Prop 8, are speaking outside the courthouse now. What's important from today, Olson said, is "the American people were listening to the argument. The other side, nobody really offered a defense."

"We're very gratified they listened, they heard, they asked hard questions, (but) there is no denying where the right is, and we hope the court (rules that way) in June."

[Updated at 11:43 a.m. ET] According to Toobin, there were a lot of questions along these lines from Justices Scalia and Alito: We don’t know the effects of same sex parenting on children, so why don’t we wait and let the states go experiment? Why do we, the Supreme Court, have to get involved in this process?

Toobin said Roberts also seemed sympathetic to these questions.

[Updated at 11:39 a.m. ET] The attorney general and the governor of California have refused to defend Prop 8. So the question, Toobin says, is "Who can defend the law? Who has the standing?" The answer to that question will be key to resolving the case.

Conservative Justices Scalia, Alito and Roberts were "very hostile of idea of the court imposing same sex marriage," according to Toobin. The four Democratic justices seemed favorably disposed.

Justice Kennedy seemed like he was in the middle, he said things that would "give comfort for both sides," Toobin says. Kennedy suggested the issue was brought prematurely before the court.

[Updated at 11:37 a.m. ET] The justices seemed very focused on how Prop 8 affects children, with Justice Kagan at some point suggesting that California have a law allowing same-sex marriage for people past child-bearing age, Toobin said.

Kagan said, according to Toobin: “I assure you if two 55 year old people, there aren’t a lot of children (coming from that marriage).”

[Updated at 11:34 a.m. ET] "This was a deeply divided Supreme Court, a court that seemed groping for answers," CNN senior legal analyst Jeffrey Toobin said after watching the arguments. "Now I think its even harder to predict the result of this case after hearing this argument."

[Updated at 11:31 a.m. ET] Oral arguments have wrapped up, according to CNN Supreme Court producer Bill Mears. They went just a bit over schedule, lasting about one hour and 20 minutes.

[Updated at 11:23 a.m. ET] While we wait on word from the courthouse, consider this: A new CNN/ORC International Poll indicates that 53% of Americans support same-sex marriage. In the same survey, 57% of respondents said they had a family member or close friend who is gay or lesbian.

Here's a look at the issue, by the numbers.

[Updated at 11:06 a.m. ET] The same-sex marriage debate is a huge issue, and the lawyers inside were penciled in for an hour to make their cases. Doesn't sound like much time, but to be fair, the oral arguments regarding the Affordable Care Act (aka "Obamacare") last March lasted roughly two hours.

Tomorrow's DOMA arguments have been given one hour and 50 minutes. We'll see if they stay on schedule today.

[Updated at 10:46 a.m. ET] If all is going to plan, Jean Podrasky, a lesbian whose first cousin happens to be Chief Justice John Roberts, is inside the court hearing the arguments.

"I know that my cousin is a good man," she wrote in an op-ed this week. "I feel confident that John is wise enough to see that society is becoming more accepting of the humanity of same-sex couples and the simple truth that we deserve to be treated with dignity, respect, and equality under the law."

You might see a lot of red avatars with a “=” equal sign in your Twitter feed today. Supporters of marriage rights for same-sex couples are wearing red today to show their support – both on their persons and their social media accounts. That includes Maryland Gov. Martin O’Malley.

[Updated at 10:39 a.m. ET] You can find a reminder of who’s who among the nine justices here.

Try clicking on each photo to learn more about the men and women who will decide the legal fate of same-sex marriage (for now anyway) – see where they were born and educated, their career highlights and their religion.

[Updated at 10:30 a.m. ET] Inside, we expect Republican Ted Olson and Democrat David Boies joining forces in pushing for legal recognition of same-sex marriage. Prominent Washington attorney Charles Cooper will lead the defense of Proposition 8, the California referendum against same-sex marriage.

Fun fact: Olson and Boies argued opposite sides of the landmark 2000 Bush v. Gore case, which decided that presidential election.

[Updated at 10:23 a.m. ET] The temperature is rising a bit and so is the volume. Thousands have amassed in front of the U.S. Supreme court as the morning warms up.

If everything is proceeding as scheduled, oral arguments should be getting started inside the courtroom.

[Updated at 10:11 a.m. ET] The atmosphere probably pretty somber inside the court, but outside the speakers are blaring with music and the occasional chant: "Gay, straight, black, white - marriage is a civil right!"

CNN contributors David Frum and LZ Granderson have both taken to the mic, keeping the crowd charged up.

"No agency of the government can do for anyone what loving spouses do for each other," Frum said. "Today your families gather before this house of law to claim the right to live as others do without fear."

"I did not come here to ask anybody permission to love. I did not come here to (seek ) approval," said Granderson. "… I am here because 14 times the Supreme Court (ruled that marriage is) a fundamental right, and gay and lesbian couples deserve their fundamental rights!”

"Same-sex couples are not here asking for a seat at the table because we've always been here," he added. "We're not here at the steps of Supreme Court to beg. ... I too sing, America."

[Updated at 10 a.m. ET] Nope, we don't have cameras in the courtroom, but the high court should be in session at this point. After a few minutes of routine business, oral arguments should get underway at about 10:15 a.m. In addition to Jeffrey Toobin, CNN has Correspondent Joe Johns and Supreme Court producer Bill Mears watching the arguments firsthand. Stay tuned here for developments.

[Updated at 9:50 a.m. ET] As the justices gather, the court of public opinion is already weighing in - certainly on Twitter. At 9:30 a.m. ET, five of the top U.S. trends were related to the hearing today. Though, this being Twitter, #ThoughtsInBed was also riding high.

Here’s what some people are saying:

And pics from our senior legal analyst:

[Updated at 9:43 a.m. ET] Today's arguments have sparked conversation beyond the steps of the Supreme Court. Supporters and opponents of same-sex marriage are capturing the moment on social media. Here's one from NOH8 Campaign, who support marriage equality:

Opponents of same-sex marriage have also shown up in droves in Washington, but the rallies have kept peaceful. Here's a tweet from Alliance Defending Freedom:

[Updated at 9:26 a.m. ET] Less than an hour away from the start of oral arguments and protests outside the Supreme Court are gaining momentum. Supporters of same-sex marriage and LGBT rights are holding a rally, celebrating the historic significance of today's events.

"We are all participants of American history today - let's get this party started!" two of the organizers shouted at a cheering audience.

The crowd is holding signs, saying, "Married with pride" and "Marriage is love, commitment and family."

"Condemn hatred, embrace marriage!" the crowd chanted.

Among the speakers is retired Lt. Col. Linda Campbell, a 25-year military veteran, who was allowed to bury her partner, Nancy Lynchild, at Willamette National Cemetery. It is believed to be the first case of its kind, the same-sex spouse of a member of the military to be buried in a national cemetery.

"I know the spirit of my spouse Nancy is smiling on us today," Campbell said today.

[Updated at 8:34 a.m. ET] Looks like Justice Kennedy will definitely be the one to watch today.

"What am I looking to? Justice Kennedy in his questioning," said California Lt. Gov. Gavin Newsom who, as San Francisco mayor in 2004, stoked controversy by ordering City Hall to issue marriage licenses to same-sex couples.

He told CNN's "Starting Point" this morning that Kennedy would be key because he wrote the majority opinion in the 1996 case of Romer V. Evans in Colorado. The case dealt with Amendment 2, a Colorado initiative that banned state government from passing laws prohibiting discrimination against the LGBT community. The Supreme Court struck down the law in a 6-3 vote.

[Updated at 8:15 a.m. ET] Protesters are braving temperatures in 30s outside the high court this morning to make their stand in the same-sex marriage debate. Rainbow flags are flapping next to American ones as demonstrators bundled in thick coats and scarves hold up banners reading "The nation is ready for Marriage Equality" and "Faith Alliance to preserve the sanctity of marriage as defined by God."

[Updated at 7:55 a.m. ET] Today's oral arguments will focus on Proposition 8, a ballot initiative that was approved by California voters in a 52-48% vote in November 2008. The vote happened less than six months after the state Supreme Court ruled marriage was a fundamental right that must be extended to same-sex couples.

Its approval immediately ended same-sex marriages in the state, but opponents of the measure challenged it in court and have succeeded in convincing federal judges at the district and appellate levels to find the ban unconstitutional.

The Supreme Court will open its doors to the public and the media at 8 a.m. ET, two hours before oral arguments are scheduled to start.

[Updated at 7:23 a.m. ET] The justice to keep an eye on is Anthony Kennedy, who may be the crucial fifth vote on either side, says CNN's senior legal analyst Jeffrey Toobin.

"I will be listening to what Justice Anthony Kennedy says," Toobin said about the oral arguments. The four Democratic appointees - Justices Ginsburg, Breyer, Sotomayor and Kagan - will likely all vote for marriage equality.

"The most likely person to give the fifth vote is Anthony Kennedy," Toobin said.

Toobin likened the same-sex marriage argument to Loving v. Virginia, a landmark civil rights decision by the Supreme Court in 1967 that deemed laws prohibiting interracial marriages unconstitutional.

[Posted at 7:11 a.m. ET] Supreme Court justices this morning will launch an epic dialogue when they hear oral arguments in the first of two appeals to state and federal laws restricting same-sex marriage.

The first round today will deal with an appeal of California's Proposition 8, which defines marriage as between a man and a woman. The second round, scheduled for tomorrow, will tackle the 1996 federal Defense of Marriage Act (DOMA) and a constitutional appeal over same-sex marriage and "equal protection."

The arguments will start at 10 a.m. ET today, but don't expect a decision until at least June.

soundoff (585 Responses)
  1. Con game

    Don't fall into the trap of confusing Marriage and S-EXual encounters.

    Will the next case be to allow pedifiles to marry young boys or girls. Is society evolving into "whatever feels good to a person" is the standard? Then, there is no moral compass.

    And when that occurs, societies end. By diseases, wars, and/or self destruction.

    March 26, 2013 at 12:42 pm | Report abuse |
    • sam stone

      pedophiles marry young men or girls? sorry, the RCC does not allow priests to marry

      children cannot consent
      animals cannot consent
      is this the best argument you morons have?

      March 26, 2013 at 12:47 pm | Report abuse |
    • Con game

      @Sam Stone...

      Thank you for spell check.

      You have lots of time just to comment on ever post.

      Take a break. Give some one else a chance to dump on us who don't believe the way you do.

      You are too important just to waste time posting opposition on the GOD fearing people of the Unites States.

      March 26, 2013 at 1:04 pm | Report abuse |
    • Seriously?

      What part about two consenting ADULTS escapes you?

      March 26, 2013 at 1:04 pm | Report abuse |
    • cedar rapids

      cats and dogs!
      living together!
      mass hysteria!

      March 26, 2013 at 1:26 pm | Report abuse |
    • sam stone

      Interesting you want to spend eternity with a being you fear. Stockholm Syndrome, I guess

      March 26, 2013 at 2:09 pm | Report abuse |
  2. Njeh

    Prov 14: 34 Righteousness exalteth a nation but sin is a reproach to any people.

    March 26, 2013 at 12:43 pm | Report abuse |
    • sam stone

      civil rights are not beholding to your iron age comic book

      March 26, 2013 at 12:48 pm | Report abuse |
  3. Pastapharian

    The ignorance, hatred, and blind stupidity being displayed by many of the posters against prop 8 is truly sad. I don't know where you people hide, but best you enter this century before it leaves you in the dust. It makes me sad for the future of our species.

    March 26, 2013 at 12:44 pm | Report abuse |
    • Jabbadahut

      It appears to me you can't except the majority vote of the people, instead people such as you can't except that not everyone condones your view!

      March 26, 2013 at 1:11 pm | Report abuse |
  4. sam stone

    clever remark, bigot

    March 26, 2013 at 12:45 pm | Report abuse |
  5. Jeremiah

    I prayed yesterday for this problem and God gave me a vision. I saw a 5-4 victory for Christians and for marriage. God told me he will never let America become another Sodom or Gomorrah.

    March 26, 2013 at 12:47 pm | Report abuse |
    • Joe

      How about if Gay marrage wins, you take steps to be with your god, I am sure he wants you home, we do not want you here.

      March 26, 2013 at 1:05 pm | Report abuse |
    • Seriously?

      Can you ask God if the Miami Heat will break the consecituve win streak?

      March 26, 2013 at 1:06 pm | Report abuse |
    • cedar rapids

      why didnt god give a d amn during slavery? why is it only gay marriage that apparently really gets his goat?

      March 26, 2013 at 1:28 pm | Report abuse |
    • sam stone

      A victory for marriage would be making it more inclusive

      March 26, 2013 at 2:10 pm | Report abuse |
  6. Bob

    The court doesn't usually favor prohibitionists.

    Naive, bigoted, anti-gay and anti-gun lobbyists will have to face this reality.

    March 26, 2013 at 12:47 pm | Report abuse |
  7. amazed2

    If gay marriage same arguement for group marriage. It never ends and it is wrong.

    March 26, 2013 at 12:48 pm | Report abuse |
  8. johnjon33

    I am not an experiment. I am a human being.

    March 26, 2013 at 12:48 pm | Report abuse |
  9. Tony

    unfortunately the moral fabric of this society is coming unravled more and more. if the supreme court upholds this abomonation it will be one of the worst days in us history. this "anything goes" mentality is going to be the downfall of this country. may GOD help us all.

    March 26, 2013 at 12:48 pm | Report abuse |
    • Joe

      God helps those who help themselves.


      We declare our right on this earth to be a man, to be a human being, to be respected as a human being, to be given the rights of a human being in this society, on this earth, in this day, which we intend to bring into existence by any means necessary.
      —Malcolm X, 1965[2]

      March 26, 2013 at 12:54 pm | Report abuse |
    • Taylor

      May "GOD" help us all? Where was this "GOD" when other minority groups were being thrown the waste side? Much like his "chosen people," the Jews? There is no "GOD." If there was, dont you things would be quite different right now? If "GOD" was so against this, why havent we seen breaking news from SCOTUS that a lightning bolt has struck the building burning all of the "sinners" inside of it? Take your fantasy/magical beliefs else where.

      March 26, 2013 at 12:59 pm | Report abuse |
    • Leopardess111

      I find the term "moral fabric'" confusing. What exactly does this refer to? People do "immoral" things all the time. Killing, cheating, robbing, etc. Where is the "moral fabric" when a husband beats his wife? Is this okay because they are in a "Normal" "God-given" marriage? Where is the "moral fabric" when politicians and banks and corporations are making billions of dollars and their bottom line workers can barely get by? I would think that you would be in favor of people being allowed to pronounce their love for each other. This seems to be a positive action in society compared with the actions of many others. Shouldn't we be celebrating love??

      March 26, 2013 at 1:26 pm | Report abuse |
  10. Banjo Ferret

    This pleases Tim the Destroyer of Worlds to see His minions taking steps forward to equality. Tim is both friend and ally to the LGBT community. Best wishes to His gay brothers and sisters! Ferretianism is the one true religion. Repent and secure your purple energy bubble! (banjoferret d c)

    March 26, 2013 at 12:49 pm | Report abuse |
  11. sam stone

    What's wrong, hank, you didn't enjoy it?

    March 26, 2013 at 12:49 pm | Report abuse |
  12. Really?


    The American Academy of Pediatrics, the American Counseling Association, the American Psychiatric Association, the American Psychological Association, the American School Counselor Association, the National Association of School Psychologists, and the National Association of SocialWorkers, together representing more than 480,000 mental health professionals, have all taken the position that homosexuality is not a mental disorder and thus is not something that needs to or can be “cured."

    March 26, 2013 at 12:49 pm | Report abuse |
  13. DPDinDC

    To: Unruly

    The real in justice is that the people of California (and yes they are tax payers too) had already voted on this and it was the will of the people to keep marriage traditional. This stunt is an attempt by liberals to force their agenda on the people of California and try to ram this issue down there throats.
    ... um – Lets look at the Morman Church who came in from Utah and dumped 10's of Millions into their campagin to take away marrige rights.

    March 26, 2013 at 12:50 pm | Report abuse |
    • chris hogan

      So, in 1967, when 70% of Americans were against interrracial marriages, there should have been a vote, right?

      March 26, 2013 at 1:01 pm | Report abuse |
  14. Joe

    Once again, it would appear that 99% of those in favor of SSM are also bible bashers. Funny how that works.. Also sad

    March 26, 2013 at 12:50 pm | Report abuse |
    • sam stone

      Once again, it appears that 99% of those who are against SSM are bible believers. Funny how that works

      March 26, 2013 at 12:56 pm | Report abuse |
    • cedar rapids

      'Once again, it would appear that 99% of those in favor of SSM are also bible bashers'

      actually the polls disagree with you. The population of the US that call themselves christian is about 76%. the population apparently in favor of ssm is 53% to 58%. That means that at the very least around 30% of the country that support ssm are also christian. That makes it what? around 90 million people?

      March 26, 2013 at 1:46 pm | Report abuse |
  15. James

    "God created Man and Women and thats the way it should be MAN AND WOMEN, NOT MAN AND MAN OR WOMEN AND WOMEN!."

    The scriptures actually say nothing about homosexuality as a psychosexual orientation. Our understandings of sexual orientation are distinctly modern ones that were not present in the minds of Scripture writers. A few passages of Scripture (seven at the most) object to certain types of same-sex expressions or acts. The particular acts in question, however, are sexual expressions which are exploitative, oppressive, commercialized, or offensive to ancient purity rituals. There is no Scriptural guidance for same-sex relationships which are loving and mutually respecting. Guidelines for these relationships should come from the same general Scriptural norms that apply to heterosexual relationships.

    March 26, 2013 at 12:50 pm | Report abuse |
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