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. But What About

    Gays are just like anybody else and should be able to marry and raise children just like anyone else. If you are concerned, just do a google search on these terms together: tumblr gay men. Or go to men2love on tumblr.

    March 26, 2013 at 1:00 pm | Report abuse |
  2. Joe

    Maybe they should be allowed, but when they have kids, they will be retarted like you!

    March 26, 2013 at 1:00 pm | Report abuse |
  3. SCParegien

    I see. You allow a short post to exist but a detailed opinion is sent into the void. i get it. we are your useful idiots. CNN is excrement.

    March 26, 2013 at 1:00 pm | Report abuse |
    • Seriously?

      There are words that will get kicked back such as se*, se*uality, heterose*ual, etc and any cuss words. Maybe that is why.

      March 26, 2013 at 1:09 pm | Report abuse |
    • Muri

      Obligatory "PC ate my awesome response" post from someone who can't click buttons.

      March 26, 2013 at 1:15 pm | Report abuse |
  4. Boater39

    Understand that this is not so much about the right to marry. It is about the right to have the TAX BENEFITS (and health benefits) of being married.

    March 26, 2013 at 1:01 pm | Report abuse |
  5. jim

    Hank 0 Joe 1

    March 26, 2013 at 1:04 pm | Report abuse |
  6. Tony

    States should end marriage licensing altogether. Marriage is a private arrangement between individuals. Traditional marriage proponents should support this view, because this case may result in forcing state governments to essentially "approve of" non-traditional marriage. It would be better if state governments were simply not involved at all.

    March 26, 2013 at 1:06 pm | Report abuse |
  7. Mr Obvious


    March 26, 2013 at 1:07 pm | Report abuse |
    • cedar rapids

      talking of 'sponge', it seems to be the limit of your intelligence.

      March 26, 2013 at 1:11 pm | Report abuse |
  8. Jim

    The people against this are the children of the people that opposed abolishing slavery. They are for the most part uneducated, close minded people that walk around with their bibles and permanent scowls on their faces.

    March 26, 2013 at 1:08 pm | Report abuse |
    • pjusa

      It must really be blissful to be ignorant.

      March 26, 2013 at 1:42 pm | Report abuse |
    • BC

      No...Sorry Jim..You can try and paint the picture of what type of people disagree with your gay lifestyle but the bottom line is more people believe it is wrong to be gay than people that think its ok....The only difference is you have a gay president with a mic....and CNN to push the agenda. Nobody really cares...its the ECONOMY st upid.

      March 26, 2013 at 1:58 pm | Report abuse |
  9. Michelle

    Nobody should have the right or feel they have the right to stop legal consenting adults from getting married, regardless of gender preference. The LGBT community are taxing paying American citizens who deserve the same rights that everyone else gets in this country. They are soldiers fighting the same wars, doctors taking care of the sick and teachers educating the youth just like "straight" America. We're all humans and should all be treated equally in the eyes of the law.

    March 26, 2013 at 1:09 pm | Report abuse |
  10. cedar rapids

    you are right, i do care. I believe that no child should ever be exposed to you, it would amount to child abuse.

    March 26, 2013 at 1:14 pm | Report abuse |
  11. Mr Obvious

    Hey Ceder,
    You are obviously one of the GAYS wanting it to be considered normal which means that nothing you say matters at all, since you are one of the evil ones.

    March 26, 2013 at 1:16 pm | Report abuse |
    • Joseph

      Mr Obvious that your a bigot, why do you hate your relatives so much? As you, like every other "straight" person, has a relative that is not. Get to know them, you will love them just as much or more.

      March 26, 2013 at 1:30 pm | Report abuse |
    • cedar rapids

      darn, i guess i will have to tell my wife and kids that i am apparently gay, and evil no less.
      meanwhile you will still be mr oblivious.

      March 26, 2013 at 1:36 pm | Report abuse |
    • BC


      March 26, 2013 at 1:59 pm | Report abuse |
  12. Joe

    Amazing to me that we have 10's of thousands of military in preparing for action against the tirant in N.Korea, and all CNN seems interested in is gays in america. Totally unbelievable

    March 26, 2013 at 1:17 pm | Report abuse |
    • Joseph

      And many of those 10's of thousand are gay hoping to see that their country considers them as let's just do that!

      March 26, 2013 at 1:34 pm | Report abuse |
    • sam stone

      tyrant is spelled with a "y"

      March 26, 2013 at 1:37 pm | Report abuse |
    • cedar rapids

      'Joe – Amazing to me that we have 10's of thousands of military in preparing for action against the tirant in N.Korea, and all CNN seems interested in is gays in america. Totally unbelievable'

      amazing that we have 10s of thousands of military in preparing for action against the tyrant in N. Korea and all you lot seem interested in is telling the gay members of that military that they have the right to possibly die for their country but not to marry in it.

      March 26, 2013 at 1:38 pm | Report abuse |
    • BC

      and you forgot gun control and womens rights...

      March 26, 2013 at 2:00 pm | Report abuse |
  13. dscon

    Republicans are hated by the anti-tolerance and anti-diversity
    But muslim bigotry/hatred is cool.

    March 26, 2013 at 1:21 pm | Report abuse |
    • cedar rapids

      'But muslim bigotry/hatred is cool'

      said one.

      March 26, 2013 at 1:40 pm | Report abuse |
  14. ViewPoint

    They have equal rights. They can marry the oppisite gender like everybody else. It isn't our fault they chose that way of life

    March 26, 2013 at 1:21 pm | Report abuse |
    • Joseph

      And please share with us the date when you made that "choice"....can you tell us where you were and what you were doing? Did you try the alternative prior to making the "choice"? Maybe you should teach a class on how to make the proper "choice".

      March 26, 2013 at 1:39 pm | Report abuse |
    • cedar rapids

      Its your fault that you insist on clinging to the idea that they choose to be gay.

      March 26, 2013 at 1:42 pm | Report abuse |
  15. James R. Ruston

    Since few gay couples have opted to become parents, I wonder why the Court spent so much time on this issue, especially given the obvious fact that a traditional marriage does not guarantee that children will be raised well.

    March 26, 2013 at 1:36 pm | Report abuse |
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