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. Reality

    Not for long. Welcome to reality my friends.

    March 26, 2013 at 11:33 am | Report abuse |
  2. Yuck

    I pay my Taxes, so why should anyone tell me who should I married??what ever happend about respect and minding your own business.what I do inside my Bed is no else's business.."if you judge me,you judge yourself"

    March 26, 2013 at 11:36 am | Report abuse |
  3. Zed

    who gives a hoot? Economies are collapsing, we can't develop clean energy that is worth a penny, North Korea is going ape, Iran has a radiating breath, China is teaching us English, Israel is exterminating the middle east, and you think this is going to change my day? Pfff...

    March 26, 2013 at 11:36 am | Report abuse |
  4. BeastMan

    Marriage should be between a man and anything living being you love. I love my dog.

    March 26, 2013 at 11:37 am | Report abuse |
    • Joseph

      That must have been your wife's justification

      March 26, 2013 at 11:53 am | Report abuse |
    • So Obvious

      Oh Joseph baby, you're great! You sure got his number! No wonder he's known as the BeastMan!!

      March 26, 2013 at 12:27 pm | Report abuse |
  5. Leopardess111

    I wish that all of these freakin Christian Bible freaks would secede from the USA. They could start their own bizzare country, with all of their so-called "God laws" and leave the rest of us to live our lives normally and equally. Seriously, this country has too many scary conservative people who ruin everything for the rest of us.

    March 26, 2013 at 11:38 am | Report abuse |
    • James Poster

      Even then they still wouldn't follow any of the biblical laws they didn't like. People trying to enforce biblical doctrine on others are all hypocrites. Not a single one of them follows all of the laws of the bible(s).

      March 26, 2013 at 11:43 am | Report abuse |
    • Divdar

      So, all those Bible freaks who say Gay marriage is okay are bad? Or is it just the ones that have different moral views then you? How is it okay for you to act on what you think is right, but others can't? That's hypocritical.

      And to you, James. You don't know anything about Christians. You're the hypocrite by trying to force your views on others and saying they can't do the same. I'm not saying either is right, but don't say one thing, then act another.

      March 26, 2013 at 11:51 am | Report abuse |
    • Salvation

      You know what's funny God has actually promised us Christians our own country for he said in his word that there will be a new heaven and new earth. This world with those who want us gone will be consumed in the lake of fire and the disobedient and the ungodly will burn with satan and his imps for eternity....

      March 26, 2013 at 11:51 am | Report abuse |
    • adnan

      In you dictionary normal means....sleeping with anyone you, cat, buddy...

      March 26, 2013 at 11:53 am | Report abuse |
    • Jesus Is Lord

      It's the morally minded conservatives who believed in and trusted God that gave you this great nation that you seem to take for granted.

      March 26, 2013 at 11:55 am | Report abuse |
    • Leopardess111

      It makes me sick that there are people who think it's any of their buisness what two consenting adults want to do with their lives. Live your own life the way you see fit. If you do not believe in marrying someone of the same gender, then just don't. Simple as that.

      March 26, 2013 at 11:59 am | Report abuse |
    • Whatever!!

      Then who would pay for all your wellfare programs, and these dumb a$$ politicians to make your case?

      March 26, 2013 at 12:04 pm | Report abuse |
  6. groundwave

    I am so sick of hearing about this issue. Most people really don't care. How is it that a subject of concern to only about 2% of the population can garner so much media attention.? I guess I have to hand it to the GLT whatever marketing arm for keeping this on the boil. Can we please get back to the economy, unemployment and everything else that's of real concern in peoples lives....

    March 26, 2013 at 11:38 am | Report abuse |
  7. Joe

    I agree that men should not be able to do this. However, I believe that two women, if they are both attractive, have every right to express their love for one another.

    March 26, 2013 at 11:39 am | Report abuse |
  8. justsayin

    Even if it is passed, it will not be marriage. Marriage is between a man and a woman and will never be accepted. You can say you could care less whether we accept is or not but you do care or you would just go after benefits which would be so much easier to do. So, either way, you will not get what you really want which is Exceptance as being married. Just fight for your benefits.

    March 26, 2013 at 11:40 am | Report abuse |
    • James Poster

      Like any of them care if you personally accept their marriage when you follow an antiquated book of myths involving a murderous and hypocritical deity. Things change. Marriage has, many times. Good luck denying that.

      March 26, 2013 at 11:46 am | Report abuse |
    • Melvin

      "Marriage is between a man and a woman and will never be accepted."

      The Scriptures at no point deal with homosexuality as an authentic sexual orientation, a given condition of being. The remarkably few Scriptural references to "homosexuality" deal rather with homosexual acts, not with homosexual orientation. Those acts are labeled as wrong out of the context of the times in which the writers wrote and perceived those acts to be either nonmasculine, idolatrous, exploitative, or pagan. The kind of relationships between two consenting adults of the same sex demonstrably abounding among us - relationships that are responsible and mutual, affirming and fulfilling - are not dealt with in the Scriptures.

      March 26, 2013 at 11:48 am | Report abuse |
    • Souljacker

      Exceptence? Learn to spell, and learn the issues. Benefits is EXACTLY what we are after – the religious right has hijacked the discussion and make it about a word.

      March 26, 2013 at 11:56 am | Report abuse |
  9. aamir

    its time for a GOD to grow up!

    March 26, 2013 at 11:40 am | Report abuse |
    • dscon

      what about allah?
      just fine?

      March 26, 2013 at 11:46 am | Report abuse |
  10. nilla

    Aren't straight troop deaths supposedly his gift to gays, too?

    March 26, 2013 at 11:40 am | Report abuse |
  11. Really?

    Anyone else noticing the reply isn't working so well.

    March 26, 2013 at 11:41 am | Report abuse |
  12. Really?

    "Marriage is a legal contract between two people. Not a right."

    The U S Supreme Court has already ruled that marriage is a civil right back in 1967.

    March 26, 2013 at 11:42 am | Report abuse |
  13. Get over it.

    Life is too short to worry about what other people are doing behind closed doors. Who cares. Live your own life. Don't try to interfere with other peoples lives. There are much bigger problems in the world that need attention than this.

    March 26, 2013 at 11:42 am | Report abuse |
  14. Tiznizzle12

    You gotta draw the line somewhere. Dudes with dudes is okay.... girly man dudes playing soccer takes it too far.

    March 26, 2013 at 11:46 am | Report abuse |
  15. Salvation

    O what a day of rejoicing there will be, when we(those born of the water and the spirit) see Jesus we will sing and shout the victory!!!! The blind continue to lead the blind and both will fall into the ditch...The wages of sin is death but the gift of God is eternal life. As in the days of Noe so it will be when the son of Man returns, Jesus is on his way back, for those who choose to oppose, you will be judged according to the word of God, who can not lie, neither is he the son of man to repent... It will be blessing when God has made the crooked places straight and has rid the world of SIN permanently! Then these abominable discussions will no longer be heard of again..Until then Jesus said occupy until I come which those who are born-again must do, so hang in there my fellow brothers and sisters in Christ, for those of us who will live godly will suffer persecution, and evil seducers will wax worse seducing and being seduced

    March 26, 2013 at 11:47 am | Report abuse |
    • Wow

      This is a great example of what is wrong with Christianity. Every decade they think the sky is falling and every decade goes by and nothing happens.

      March 26, 2013 at 11:50 am | Report abuse |
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