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. Really?

    Nothing at all to do with religious beliefs.


    Social science has shown that the concerns often raised about children of lesbian and gay parents—concerns that are generally grounded in prejudice against and stereotypes about gay people—are unfounded. Overall, the research indicates that the children of lesbian and gay parents do not differ from the children of heterosexual parents in their development, adjustment, or overall well-being.

    March 26, 2013 at 12:32 pm | Report abuse |
  2. Troy

    There is a monumental event today for our beautiful country. Something that has been an injustice for a long time has a chance to be turned on its head and made right after all of these years. I hope by the end of the night I can say I'm proud to be an American. Of Course I'm talking about the US Men's National Team trying to win it's first ever World Cup Qualifying match in Estadio Azteca tonight. Is there something else going on I didn't know about?

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

      And thank goodness FIFA dismissed the Costa Rica protest and the result of Blizzardgate will stand! Let's go USA! 🙂

      March 26, 2013 at 1:37 pm | Report abuse |
  3. adam

    I pray that, the Justices and everybody involved will open their eyes and realize, we are all NOT created equal and they have the chance to change this. This is pretty simple, I am a gay man and I dont have the same rights as a straight man. I would like to marry my partner and have all the same rights as a man/woman who are married. Why cant' this be understood by all, we just want to be happy and live our lives day to day, just like everybody else. We are NO different than anybody else, we work, have kids, have pets, have families, have hobbies/interests and just want what we should have coming. We want equal rights!!! Please, hear our concerns and heartaches.....

    March 26, 2013 at 12:33 pm | Report abuse |
  4. Just Think

    Marriage should be defined as a joint partnership between two loving adults. Nothing more, nothing less. The bible is not real and therefore should not determine any decisions the government of any country makes. Those who oppose inequality in any form will be looked upon in the future and frowned upon. For once in your life, imagine the fairy tail you were indoctrinated on does not exist and see how your world would be different. Think for yourself. Use the teachings of Jesus Christ as a moral compass of compassion and universal love for all living things and not as a way to pick and choose which passages of the bible you want to believe. I really hope this country has a shred of common sense and does the right thing.

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

      point of order.....the bible is indeed real. The contents? maybe not so much. But the book itself does exist.

      March 26, 2013 at 1:55 pm | Report abuse |
  5. tvnyc

    Only a man and a woman should marry.

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

      good for you. the law will soon allow otherwise. you can deal with it in a healthy manner or you can let it eat you up. either way works for me

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

      'Only a man and a woman should marry'


      March 26, 2013 at 1:56 pm | Report abuse |
  6. Seth

    Gay marriage is here to stay. Deniers need to accept it now.

    March 26, 2013 at 12:35 pm | Report abuse |
  7. Whatever

    I for one cannot look a gay friend in the eye and tell him or her that they don't have the right to be as happy that marriage has made me. I'm all for it and it's no ones business to decide who can be happy and who can't. If you are against it, you are nothing but a bigot!

    March 26, 2013 at 12:35 pm | Report abuse |
  8. Ben

    The SCOTUS will rule exactly like the PUTUS told them to

    March 26, 2013 at 12:36 pm | Report abuse |
  9. gunnykang32

    marriage is between man and woman, nature is between man and woman, i dont see a man and a man marrying and giving birth and experiencing true wonders of nature, instead they use science destroying the very circle of life.

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

      what authority do you have to speak for nature?

      marriage equality is coming.

      deal with it.

      March 26, 2013 at 12:40 pm | Report abuse |
    • Joe

      Amen, couldn't agree more !!

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

      Oooohhhhh, scary science. Get an education, then you can come back and preach to us about nature.

      March 26, 2013 at 12:45 pm | Report abuse |
    • Solitairedog

      Lesbians can and do have children the same way straight women do; insemination. That "can't have children" argument is totally bogus.

      March 26, 2013 at 12:46 pm | Report abuse |
    • Unruly

      The real in justice is that the people of California (and yes they are tax payers too) had already voted on this and it was the will of the people to keep marriage traditional. This stunt is an attempt by liberals to force their agenda on the people of California and try to ram this issue down there throats.

      March 26, 2013 at 12:47 pm | Report abuse |
    • blah9999

      Man/Woman married couples who can't become pregnant use science all the time.

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

      unruly: you do not get to vote on others' civil rights.

      It's "their", not "there"

      March 26, 2013 at 12:52 pm | Report abuse |
    • S

      Tomorrow people will fall in love with animals (dog, cat or even lion) and would like to marry them..... Imagine someone walking around with a lioness wife, or with a gorilla husband!!!!! is this the human right?

      March 26, 2013 at 12:52 pm | Report abuse |
    • cedar rapids

      'S – Tomorrow people will fall in love with animals (dog, cat or even lion) and would like to marry them..... Imagine someone walking around with a lioness wife, or with a gorilla husband!!!!! is this the human right?'

      was that meant to be a serious question?

      March 26, 2013 at 1:24 pm | Report abuse |
  10. ME

    IT ISNT,

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

      another stupid bigoted argument. neither children nor animals can consent.

      March 26, 2013 at 12:41 pm | Report abuse |
    • sam stone

      the supreme court will not attempt to rule on right or wrong. they will rule (i suspect in a manner with which you disagree) on legal or illegal.

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

      Wow, temper tantrum much?

      March 26, 2013 at 12:45 pm | Report abuse |
    • Joel

      I think your caps lock is on, and your grammar is off.

      March 26, 2013 at 12:46 pm | Report abuse |
    • Pastapharian

      Your equating of relationships between two consenting adults with pedophilia and bestiality really tells us all we need to know: you're a moron.

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

      Yes, I'm sure nobody could tell you anything. Your mind is rock hard and your heart is steel.

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

      WHat is this "IT" you're talking about – using ALL CAPS?

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

      I think I know my cat better than anyone else. Like I said. Laws can change.

      Oh, and I live in San Fran.

      March 26, 2013 at 1:03 pm | Report abuse |
  11. sam stone

    The fall of rome was more likely caused by making the church the official religion

    March 26, 2013 at 12:37 pm | Report abuse |
  12. Bob

    I don't really care how it comes out I would just like to see an end to all the talk – this means no rainbow anything, no parades, etc. Just be happy if you win and shut up please. If you lose well so be it there is no where else to appeal to so again please just accept and shut up. Be happy with the person your with and that is all that counts no matter the outcome.

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

      Sorry. Nobody is going back in to the closet of silence for you. If we don't win our rights or if we do, we will continue to be out and unhidden. If your sensitivities don't like it, well... I've never been particularly fond of straight arrogance and I will not be subject to it. None of us will anymore.... win or lose.

      March 26, 2013 at 12:51 pm | Report abuse |
  13. Pastapharian

    I love how the best argument in favor of Prop 8 is based on some made up fairy tale from 2000 years ago involving talking snakes and magic sky zombies. Really weak, and way more offensive than who marries whom.

    March 26, 2013 at 12:40 pm | Report abuse |
  14. Really?

    Assertions that heterosexual couples are inherently better parents than same sex couples, or that the children of lesbian or gay parents fare worse than children of heterosexual parents, have no support in the scientific research literature. On the contrary, the scientific research that has directly compared outcomes for children with gay and lesbian parents with outcomes for children with heterosexual parents has consistently shown that the former are as fit and capable as the latter and that their children are as psychologically healthy and well adjusted as children reared by heterosexual parents

    March 26, 2013 at 12:41 pm | Report abuse |
    • Seriously?

      Methinks thou doth protest too much

      March 26, 2013 at 1:04 pm | Report abuse |
  15. Nope

    It's a man and a woman. Sorry Ellen- you don't count.

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