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. Gary TX

    can everyone just mind their own beezwax? really who cares let them get married .. there's plenty of folks breaking that deal at the moment anyway .. do you think your special holding a bible .. well you are not

    March 26, 2013 at 12:13 pm | Report abuse |
  2. Jonathan

    I'm a conservative republican. In law school I studied how national legalization might have some legal implications that must be overcome, but these are not big hurdles. In the grand scheme of things I can't for the life of me figure out why people will work so endlessly to keep others from being happy. Yes the religious folk have a right if so chosen to keep a certain type of marriage out of a certain church, but secularly speaking, why keep people who love each other from making it official in the eyes of the law and state. In my opinion this has become such a partisan issue that neither side wants to bend and admit defeat, but if we look at it and realize we are doing nothing but fighting ourselves, maybe we can see some real progress in this country

    March 26, 2013 at 12:16 pm | Report abuse |
    • Pastapharian

      Outstanding comment. If only other conservative republicans allowed themselves the freedom to use their brain. Very well said.

      March 26, 2013 at 12:33 pm | Report abuse |
    • Will

      Nicely said.

      March 26, 2013 at 12:33 pm | Report abuse |
  3. Bobbb

    men are equal to men and women are equal to women when it comes to marriage. men and women are equal when it comes to employment and housing rights and those tangible areas of life. marital Relationships are a different specter of life.

    March 26, 2013 at 12:17 pm | Report abuse |
    • KT

      "men are equal to men and women are equal to women when it comes to marriage. men and women are equal when it comes to employment and housing rights and those tangible areas of life. marital Relationships are a different specter of life.
      So, Bobbb, what you are saying is we should have equality, except when we shouldn't? How are marital relationships different? Please enlighten me 😉

      March 26, 2013 at 12:28 pm | Report abuse |
  4. John

    The people affected by these marriage challenges are the participants........If there was ever a good example of "it's none of your business", this is it, but of course some people lead such shallow lives that it is more important for them to worry about the "morals" of others than about their own actions.

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

      MrObvious: you should change your screen name to mr clueless.

      March 26, 2013 at 12:36 pm | Report abuse |
  5. Jdoe

    As a Christian, I'm so tired of this. As much as many people don't want to hear it, God gave us the freewill to do as we like. No, I might not like or agree with it, but it's not my place to judge or try to prevent it. Just like I don't go around stopping people from lying or murdering, I don't see why Christians feel like its their responsibility to take choice away from other people.

    March 26, 2013 at 12:19 pm | Report abuse |
  6. chatt1966

    We must stop calling it "gay marriage". Gay partnership maybe; gay union maybe. But, marriage will always be biblically defined by God as being between one man and one woman.

    March 26, 2013 at 12:20 pm | Report abuse |
    • Brad

      The bible is made up so your arguement is irrelevant.

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

      I agree. Most of us agree that it is offensive to tell someone how to live their life right? Why should we redefine something that the church ordaines and the state chooses to accept? I don't bust up in your house and tell you how to cook your dinner, so don't come in mine and tell me how to cook mine. Go blaze your own trail.

      March 26, 2013 at 12:25 pm | Report abuse |
    • cedar rapids

      'But, marriage will always be biblically defined by God as being between one man and one woman.'

      Your religion claims that. Of course Hindus would say marriage came from Lord Brahma. So I guess one of you is wrong. In reality marriage was around before either religions so the point is moot.

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

      Marriage is a concept that predates the words and existence of Jesus. Even in the old testament, marriage was defined differently. Stop making up your own rules and pick up a book.

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

      You do realize that there were marriages before the bible was written right? And that marriages were based on ownership rights and many variations of marriage existed. The world is not 5000 years old and the bible is not the oldest book of record.

      March 26, 2013 at 12:30 pm | Report abuse |
    • Art Vandalay

      Wow, get off your self-righteous pedastal! People have been getting married long before the bible was written by MAN and even today, NON-Christians (5 billion of them in this world) get married without needing permission from the so-called Christian God.

      March 26, 2013 at 12:34 pm | Report abuse |
    • Joe

      Bible says alot of things that are crap, like people of different religions and races should not marry, its a book of fiction, remember that.

      March 26, 2013 at 1:15 pm | Report abuse |
  7. NFL

    The same "forcing a moral code onto others" could be said in 1967...if marriage is recognized and conducted by the government (not everyone is married in a church or religious place), and given benefits based on their status as married, then all Americans should have that same civil right to life, liberty, and the pursuit of happiness.

    March 26, 2013 at 12:20 pm | Report abuse |
  8. sheetiorn

    "Why should the Supreme Court get involved in this?" sums it up best. Oh, and I cannot tell you how many african americans I have talked to who are offended at the notion that this can be compared to segregation and the civil rights movement. "Gay" is not a race, gender, or ethnic group. Stop trying to treat it like one.

    March 26, 2013 at 12:22 pm | Report abuse |
  9. Daniel Taylor

    In the end, you can call it what you want and you can choose to do it if you want. But don't get upset if someone of a religion doesn't consider you married under the eyes of God.

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

      no sure they really care what any deity has to say on the matter.

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

      I was referring to them getting upset when someone else has a problem with it.

      And even then, there are some gays who claim it is okay in Christianity which I straight up don't understand.

      March 26, 2013 at 12:33 pm | Report abuse |
    • Leopardess111

      Yeahhhhhhh I don't think many people will care what you think about their personal affairs. Who are you, and why does your opinion matter??

      March 26, 2013 at 1:15 pm | Report abuse |
  10. BAN G.A.Y MARRIAGE!!!!


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

      Ain't going to happen. Marriage equality is coming. If it bothers you, choke on it

      March 26, 2013 at 12:33 pm | Report abuse |
    • Really?

      "BAN G.A.Y MARRIAGE!!!!


      That's why it's already legal in 11 states.

      March 26, 2013 at 12:36 pm | Report abuse |
    • Whatever

      Char is right but far too nice on what I'd like to say to you!

      March 26, 2013 at 12:38 pm | Report abuse |
    • Joe

      Why stop there? Ban interratial marrage and marrage of people with different religions.

      March 26, 2013 at 1:08 pm | Report abuse |
  11. Char

    I can not believe that this is even an issue in what is suppose to be a free country...all men created....blah blah...people should be ashamed of themselves

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

    Revolting pictures CNN. Can we get a filter please? Your audience is leaving.

    March 26, 2013 at 12:30 pm | Report abuse |
    • Sam

      Good riddance!

      March 26, 2013 at 12:36 pm | Report abuse |
  13. palintwit

    Tea Party Patriots have been going out to the barn to 'do it' with sheep and cows now for years.

    March 26, 2013 at 12:31 pm | Report abuse |
  14. Bob

    Do you honestly believe that if it becomes a secular right that the next step is the government forcing churches to perform marrages regardless of their beliefs.
    Chruch-run orphanages were forced to either close or comply with allowing gays to adopt.

    March 26, 2013 at 12:31 pm | Report abuse |
    • Sandy

      No, actually Church run orphanages who accepted money from the government could either comply or continue on without government funding. They weren't forced to do anything, but now we get to hear from people whining about how their religious freedom was violated because the government isn't handing out free money anymore.

      March 26, 2013 at 12:34 pm | Report abuse |
  15. Mr Obvious

    Why dont gays care about how they are affecting innocent children?
    Is it not something we all should care deeply about?

    March 26, 2013 at 12:32 pm | Report abuse |
    • Nelson

      You are a very uneducated person. Your fear of the unknown is speaking for you. Grow a pair and read a book.

      March 26, 2013 at 12:34 pm | Report abuse |
    • KT

      Mr Obvious,
      "Why dont gays care about how they are affecting innocent children?
      Is it not something we all should care deeply about?"
      Yes, I believe gays do care deeping about how their marriage will affect their children, which is why they want to get married in the first place – so that their kids have two legal parents who are treated equally before the law.
      Oh, and by the way, you might want to read up on your literature, because any peer-reviewed study has shown that children of gays and lesbians are just as well adjusted as children of straight couples (and some studies have even shown that children raised by two women are even more well-adjusted – sorry to disapoint you!)

      March 26, 2013 at 12:37 pm | Report abuse |
    • Joseph

      Mr Obvious, once again you make it very obvoious that a person with no knowledge can demonstrate it very clearly.

      March 26, 2013 at 2:20 pm | Report abuse |
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