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 ProtectMarriage.com, 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 ProtectMarriage.com, 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:

https://twitter.com/JeffreyToobin/status/316530205973962753

[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. Sodom and Gormorah

    GOD will have the final judgement....

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

      "Sodom and Gormorah

      GOD will have the final judgement.."

      It is helpful to post both passages of Jude, 1:6 and 1:7 together, as they are meant to be read this way.

      New International Version (NIV)
      6 And the angels who did not keep their positions of authority but abandoned their proper dwelling—these he has kept in darkness, bound with everlasting chains for judgment on the great Day. 7 In a similar way, Sodom and Gomorrah and the surrounding towns gave themselves up to sexual immorality and perversion. They serve as an example of those who suffer the punishment of eternal fire.

      Note that the humans are exhibiting the same behaviors as the angels. Note, also, that the sexual immorality and perversion mentioned isn't homosexuality. Scholars who have studied this passage have concluded that the perversion alluded to is actually rape, which was rampant.

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

      Your God doesn't exist.

      March 26, 2013 at 11:57 am | Report abuse |
    • Gary TX

      ooops no god ... now what

      March 26, 2013 at 12:01 pm | Report abuse |
    • Con game

      @Gary, TX

      I am amazed, you from Texas – GOD fearing capital of the US – say "no God".

      Hey, Texans out there – there's a wolf in your cattle corrals.

      Best make hast...

      If Texas goes G & L, there goes the nation.

      GOD may have to find us a new country for GOD fearing people to live. HE did it many times before:

      Egypt to Israel

      Europe to America

      Next, America to ?????????

      Or, Eden to hell on earth.

      Watch out boys and girls (straight ones that is). Lock up you boys and girls, the G & L are out to poke and lick them.

      March 26, 2013 at 1:47 pm | Report abuse |
  2. otternobetter

    and who says the NRA has the largest lobby in washington...

    March 26, 2013 at 11:51 am | Report abuse |
  3. janice

    The questions they asked are scary. My God, allowing only couples past child bearing years to marry??? I won't even try to argue that one.

    March 26, 2013 at 11:52 am | Report abuse |
  4. Stop the Perversion

    Redefining Marriage today will have its consequences tomorrow.

    March 26, 2013 at 11:52 am | Report abuse |
    • Really?

      "Stop the Perversion"

      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 11:55 am | Report abuse |
    • where-are-they-now

      @Really. ..

      Did those associations study the impact to the Roman Empire, Greece, or Sodom and Gomorrah?

      March 26, 2013 at 12:07 pm | Report abuse |
    • Great Studies

      They didn't have to, where-are-they-now, they aren't prejudiced like you. They study and report only on the FACTS, fyi!

      March 26, 2013 at 12:39 pm | Report abuse |
    • Con game

      @Great Studies...

      So, Roman Empire didn't exist? Greek empire didn't exist? Sodom and Gomorrah didn't exist?

      The fact is, they did. The collapsed due to lack of a moral compass. They became self indulgent, self gratification was evident and failure to recognize their demise was happening.

      March 26, 2013 at 1:31 pm | Report abuse |
  5. Conrad Shull

    Some people yell for direct democracy, until the popular vote doesn't go their way.

    March 26, 2013 at 11:52 am | Report abuse |
    • Really?

      I know Al Gore had the popular vote and he still lost!

      March 26, 2013 at 12:02 pm | Report abuse |
    • ellid

      Since when are civil rights up for a vote?

      March 26, 2013 at 12:04 pm | Report abuse |
    • Ant

      If its civil rights than take your civil unions and be happy

      March 26, 2013 at 12:07 pm | Report abuse |
    • Okkkkkkayyyyy

      I'm not sure if you've realized this, but the Supreme Court is a important part of the United States democracy. All three branches of the government are there to provide checks and balances so that a popular vote in a small portion of the country doesn't speak for the entire nation. Democracy isn't just a popular vote, and rightly so, considering how easy it is to control, or at least heavily influence large groups of people.

      March 26, 2013 at 12:07 pm | Report abuse |
    • Charles Miller

      Conrad – you absolutely NAILED IT!I

      March 26, 2013 at 12:09 pm | Report abuse |
    • sam stone

      It is Civil Rights. If the state licenses marriage for straight, they must license marrige for gays. Separate but equal is not equal, and violates the 14th amendment

      March 26, 2013 at 12:11 pm | Report abuse |
  6. wnyguy

    Is that so? Then why is there more straight people who have the disease and have died of the disease than gay people? Maybe God is gay?

    March 26, 2013 at 11:54 am | Report abuse |
  7. Gary TX

    To the states giving so much trouble on this suject: Hey, if you let all people get married to whom they wish you will get a lot of business and thus a lot of money.. kinda like paying for folks not to be stupid

    March 26, 2013 at 11:55 am | Report abuse |
  8. Bobbb

    People are jumping to the red herring conclusion and using it to forward your disagreement, that this is a religious argument. It is not. It is fundamental human nature.

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

    if a man can marry a man and a woman can marry a woman the world will not be godly and in the bible we see that a man and woman are to be married ill will not stand on this its not right nor will any man or woman that loves guns and god .

    March 26, 2013 at 11:56 am | Report abuse |
    • Mike

      Whos bible? DO NOT force your "god" on me....Not everyone believes in your god....

      March 26, 2013 at 12:01 pm | Report abuse |
    • sam stone

      civil rights are not beholding to the bible

      March 26, 2013 at 12:13 pm | Report abuse |
  10. Lauren

    Where was this coverage during the anniversary of Roe V Wade ProLife's March on Washington? I may disagree with gay marriage but that does not mean I will not hear your opinion, statistics on it, etc. Thank you CNN for the TEENY TINY little link about 100+ people standing outside in D.C.....There were 500,000+ marchers.

    March 26, 2013 at 11:56 am | Report abuse |
    • maria

      Maybe it was on FOX news?

      March 26, 2013 at 12:12 pm | Report abuse |
  11. Bryansco

    You forgot about some blacks, Muslims, hispanics, Asians and others who do not support gay marriage. Quit think it is only white people. I know liberal media members want to paint that image for us all to think it is only white people who are evil and ahteful, but it is EVERY group, color, race or whatever you want to call it!

    March 26, 2013 at 11:57 am | Report abuse |
  12. VOS

    Hopefully the Supreme Court does the right thing and keeps the definition of marriage is between a man and a women. Even if they don't, I do not care what the law says, 2 of the same people married are not married. Its disgusting frankly.

    March 26, 2013 at 11:57 am | Report abuse |
    • Really?

      "Its disgusting frankly."

      Heterosexual behavior and homosexual behavior are normal aspects of human sexuality. Despite the persistence of stereotypes that portray lesbian, gay, and bisexual people as disturbed, several decades of research and clinical experience have led all mainstream medical and mental health organizations in this country to conclude that these orientations represent normal forms of human experience. 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 12:03 pm | Report abuse |
    • tbone

      Not a disease, its a choice.
      a choice made by those that have no ability to grasp the concept of right and wrong.
      Because to pretend that ramming the shaft into an exit hole is a good thing. right?
      That couldnt possibly be a medical problem down the road.

      March 26, 2013 at 12:06 pm | Report abuse |
    • betterdays

      A lot of people are disgusted by it. In fact, disgust is a normal reaction by many normal people to this normal behavior.

      But they will tell you that you're not "disgusted," that you are "afraid;" you have a "phobia" and therefore YOU are the one who is ill. And that's nonsense.

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

      Your definition of normal and my definition are clearly different. Normal is marriage between a man and women, period! But if you think what you are doing is considered normal to make you sleep better at night, have at it.

      March 26, 2013 at 12:18 pm | Report abuse |
    • sam stone

      "I have no idea how we as a country have allowed ramming from behind or licking box from the same gender have become acceptable."

      Why do you care? How does it effect you?

      March 26, 2013 at 12:21 pm | Report abuse |
    • VOS

      Well Sammy, whether it effects me or not is irrelevant. We live in America where I have a freedom of speach and a right to have an opinion on the matter, just like you do. You may not agree with my opinion and I may not agree with yours, but the fact is I am allowed to have an opinion. So get off your soap box and realize that their are 2 sides to every coin there fella.

      March 26, 2013 at 12:27 pm | Report abuse |
    • Someone

      To all those saying it's a choice...I didn't choose to be bis.exual. It's a part of human nature, defined by our biological makeup. Also, keep your religious arguments to yourself. I may be a Christian, but using the bible to back up your hate and disgust is wrong.

      March 26, 2013 at 12:28 pm | Report abuse |
    • VOS

      Where in any of this thread have we been talking about religion or the bible? Please find it for me. I know thats your only arguement but at least stick to what we are talking about here. If you want to argue with a religious person this is not the place.

      March 26, 2013 at 12:42 pm | Report abuse |
  13. otternobetter

    wow - stereotype much?

    March 26, 2013 at 11:59 am | Report abuse |
  14. Tim

    Where's my post at?

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

      Tim,

      Some misguided gays mistook your post for something that it wasn't and put it where it doesn't belong.

      March 26, 2013 at 12:13 pm | Report abuse |
    • where-are-they-now

      CNN political correct police are probably holding it.

      March 26, 2013 at 12:15 pm | Report abuse |
  15. where-are-they-now

    Where are those civilizations and large empires now that allowed same-s-ex to exist?

    Sodom and Gomorrah?

    Greece?

    Rome?

    They all ended up destroyed or ended in their downfall.

    This can happen here too.

    March 26, 2013 at 12:00 pm | Report abuse |
    • Mike

      LOL that's funny –

      March 26, 2013 at 12:02 pm | Report abuse |
    • Observer

      Look around, it already IS happening here.

      March 26, 2013 at 12:08 pm | Report abuse |
    • matt

      None of those civilations had hybrid cars, either. I'll follow your logic and say that's why they all fell.

      March 26, 2013 at 12:11 pm | Report abuse |
    • Jamie

      Wow, you are an idiot.

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

      Alll civilizations end.

      March 26, 2013 at 12:23 pm | Report abuse |
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