Our top story on Midday Edition, many Californians once thought that the battle over our state proposition eight would be the first legal issue that brought the question of same-sex marriage before the US Supreme Court. But the justices let that opportunity pass. Today however the US Supreme Court heard arguments for and against same-sex marriage. It's a huge day at the court, hopeful spectators waited over the weekend to get in and the justices expanded the time for arguments to 2.5 hours. Joining me to talk about those are nuts are Glenn Smith professor of constitutional law at California Western school of law. And Dan Eden or frequent legal analyst with the law firm. Glenn you monitor the action of the sprinkler today. . How would you characterize the arguments and atmosphere? I think the arguments were largely what we would have expected in terms of the big picture question of to what extent should this issue of same-sex marriage be decided democratically versus the court stepping in. There was discussions about what is marriage, about procreation, protection, or is it about respecting the dignity of married people. Questions about past precedents, what do they mean and what would be the effect of holding that states cannot discriminate, would that open it up to multiple partner marriages? It was typical and I think people who were trying to listen to Justice Kennedy inevitably didn't learn a lot more than they would have before the argument. 2.5 hours, that's longer than usual for arguments. What struck you about the arguments? It was very interesting. Both sides agreed that the fundamental question is who gets to decide? When you look at the transcript that is very clear. They frame the question very differently. Those who are supporting the ban on same-sex marriage say that question is answered in terms of whether the state get to decide or whether the federal government gets to decide. Those who believe in same-sex marriage and are opposing these bands say this is whether the individuals who love each other get to decide or whether the government itself gets to decide. Whether it's a federal versus state, or whether it is a question of the individual versus the government, overarching this is whether the Supreme Court itself ought to be the one to resolve this once and for all. Where does this particular case originate and what is the best guess as to why the Supreme Court agreed to hear it? This case originates from the sixth circuit and involves the opinion, the only judicial you a circuit court which held that state have the right to Bain -- to not -- they have the right not to grant same-sex marriages and they don't have to recognize from other states. All the other circuit courts want to get other way. Why did they take this? They were backed into a corner because ultimately now there is a conflict among the circuits and that's one of the reasons why the court sometimes has to step into issues it might want to avoid. So really, the case technically is about whether these state laws are constitutional but it's really ultimately about the question of whether that's a legitimate choice for any state in our country and if it is, that's going to raise all kinds of questions about what it means for the many states who are having same-sex marriage under court orders assuming the theory of the law, which perhaps the Supreme Court will have [ Indiscernible ]. This contract between the circuit courts. And that's why the Supreme Court took this case. But there been other controversies over same-sex marriage legislation before harkening back to our own proposition eight here in California. Why didn't that result in a US Supreme Court decision? The essential question was presented in proposition eight as to whether those kinds of bands are constitutional or not but the Supreme Court essentially punted on a technical or standard question and said those were trying to uphold proposition eight simply don't have the standing or right to defend it because it is too general and the governor of the states that we are not going to defend it. The court punted and said you don't have standing, we will have to consider this again and validating proposition eight, they can't avoid a question is time. It is squarely presented. At the Supreme Court is going to answer fundamentally whether the 14th amendment of the United States Constitution requires states to issue licenses to people of the same-sex. Bringing us onto the two central questions, tell us what they are. The two central questions are one, whether states have to issue licenses on marriages performed between people of the same sex, couples of the same-sex. The second is whether states have to recognize marriages lawfully performed between members of the same-sex even if the state itself doesn't recognize them. In both questions are fundamentally under the 14th amendment, equal protection laws or fundamental right to liberty some believe encompasses a fundamental right to marriage. Explain a little bit more for us if you would Glenn, what does the 14th amendment have to do with same-sex marriage? Two commands, very general. 14th amendment says states can't deny equal protection of the law to people so the argument of course is by allowing opposite sex couples but not same-sex couples that is not equal. In a way that violates the 14th amendment. And there are special protection and equal protection for sex discrimination and one of the arguments in this case is should sexual orientation discrimination generate that same kind of careful analysis? On the due process question, states can deny liberty without due process. And there are a number of privacy and rights issues that a been recognized for heterosexuals and the question is how expensive than broad are those notions liberty? Those are really the basic legal rubric here. For a layperson listening to this, obviously under equal protection and the law, obviously heterosexual couples are allowed to marry and in many places, same-sex couples are not allowed to marry. So on the face of it that would look like it is not equal protection under the law, but isn't it also a case that the government can make differentiation between people if they have good reason? That's right. The question is what standard applies and Glenn indirectly said or talked about this is what standard exactly applies when reviewing it? Is a rational basis where the government can have conceivable rational including procreation and so forth for justifying this or whether there is a heightened scrutiny or whether they have to look more closely or the government has come up with some sort of good reason to deny a fundamental right. The standard of review could be critical in deciding how this case comes out. What our opponents of same-sex marriage saying as to why states should be allowed to deny marriage licenses to people of the same-sex? They rejected what Stephen kept saying, deliver 10,000 years, this is about the fact that by having marriage recognize between opposite sex couples conceivably can procreate you are protecting the bond between a child and their biological parents and states do have some interest in doing that and of course members of the court on liberal wings said what about couples who cannot procreate? Hypothetical couple in the 70s, the husband can continue to procreate. Not an issue for the wife and there was all this back-and-forth but that's really the issue. The fundamental question is interest in procreation and protecting me bond between a child and the biological parents. And is there going to be enough to justify the different treatment? That they question the justices are going to have to answer. Even if you accept that the question is why does excluding same-sex marriage in any way help that bond or help promote heterosexual marriages identification with biological birth and that was one that liberals on the court really gave them a strong going over and I think that was the real theme of half of the first 90 minutes, even if states have this interest, how in the world are you serving them by not shoring up heterosexual marriage and excluding same-sex marriage? There's an argument to give, it sends a message that we are decoupling marriage from procreation. No argument and as Dan said, the rational basis test is very low. It could be met, but I think that was an interesting -- I was impressed by how much that was bandied around in the argument. How much do the argument had to do with what you're saying is one of the lawyers against same-sex marriage was saying that in a sense allowing same-sex marriage would make it less likely that heterosexual couples would Mary. And therefore they would procreate outside the bounds of marriage. Does that -- do think that's a strong argument? That certainly is one of the arguments that they're making and justice Scalia said you really don't have to answer the question at least rational basis as to whether excluding same-sex marriage would harm heterosexual marriage. That's not a question of -- you even have to get to and so that's why the standard of review is so critically important whether you accept the arguments that a been made about whether it affects heterosexual marriage or not. What are the strongest arguments being made by the proponents of same-sex marriage? I think they're basically saying that marriage has all kinds of important rights and benefits and responsibilities and especially has a huge impact on children. There are many same-sex marriages and many children affected by that and so it's basically just rank discrimination. Irrational discrimination. And I think if you look at it from the standpoint that the presumption is marriage in general and child protection is the norm, and why do we have this one strange deviation from it, that becomes a strong argument. The other side starts with the presumption that the state can have even an unenlightened policy as long as it is rational and if you start from that standpoint it becomes harder to explain why we should change. That's why it is the choice of are we going to just use the usual level of rational basis review that state laws are subjected to or are we going to something higher is really outcome determinant in this case. When you made the point read it may very beginning that a lot of people watching one justice Roberts. And Kennedy. Did they indicate by their questions in any way which side they might be leaning on? It's always as we have discussed before dangerous to make observations on oral arguments. I think that if anything came out of it, first of all the fact that Justice Kennedy did speak up early in the first argument and came down on the side of this has been a tradition for millennia seems to show that he is weighing that. He's got a concern about this long-standing addition on the one hand but also got a concern as he expressed later as we expected him to about the discriminatory impact against children in same-sex couples. So I think it was a little surprising that he was as evenhanded in the argument. I think that's going to cause some sleepless nights for proponents of same-sex marriage equality. On the other hand, I think Roberts, Justice Roberts was not -- showed that he wasn't really significantly flirting with the idea of crossing lines and supporting them across the board Which some people it speculated might happen. If you're looking for something good for justice Roberts he did suggest an off-the-cuff and gratuitously that maybe this could be dealt with as a matter of Sextus commission. The gender of the two partners determines whether you can marry or not could be dealt with that way. I read that more is just an interesting question and oral argument but if you're grasping for positive developments that would be one that would indicate that maybe that -- if as people have speculated he wants to come up with more of a consensus for the court and help his legacy, maybe the gender discrimination would require the least departure or change from the current precedents and who knows we may see that. Going into these are all -- oral arguments, the general -- the common wisdom was that the court had already telegraphed that it was leaning towards making a ruling in support of same-sex marriage. Is there anything that happened today that change that? I don't think so. The people who are reading the tea leaves are going to make the decision depending on what kind of tea they have. I think this with ends up being. But getting back to Glenn's point about the Justice Kennedy, it's interesting because in 1986 he wrote an article with a speech that he had given in 1986, a couple years before he actually took the seat on the Supreme Court where he said that the writer states to be wrong in matters is a necessary component of [ Indiscernible ]. The citizens of the state have the political liberty to direct the governmental process to make decisions that might be wrong in the ideal sense subject to correction in the ordinary political process. That explains why it is he appeared so sympathetic to the idea that you want to do for this to a democratic process. The argument on the other side and those by the person who are Gertrude in favor was waiting for -- waiting around has never been a sufficient justification for the enforcement of a fundamental right under the 14th amendment that that begs the question of whether we're dealing with a fundamental right under the 14th amendment or not and that is the question. That the question the Supreme Court has to address. Many people are looking, Dan, I know that many big questions before the court have been decided unanimously. This does not look like it has any chance of being one of those. No chance. The only prediction you can make from this case and frankly what came before is have been unanimous, Brown versus the Board of Education. This is not definitely not going to be unanimous and it will be interesting to see how broadly or narrowly. It's another 5-4? Some theory or more moderate or narrow approach that gets justice Roberts on it would be 6-3. That's not surprising given first of all the ideological's blitz on the court all the cross currents I come together in terms of case precedents or the role of the court. This is a very momentous question and it's no accident it's going to divide them. I final question to both of you is there any chance that no matter which way the courts decide that it will have any impact on same-sex couples here in California? We were talking about this before. We have same-sex marriage in California because the only federal court decision that stood after the parties didn't have standing as Dan described is the federal district court decision which was based on some assumptions about the Constitution. If the Supreme Court goes contrary to those assumptions, any state that wants to can deny same-sex marriage equality, then at least the theoretical basis for that to start court decision is undercut and could be either challenged perhaps but more likely you could get another -- people could try to pass prop eight. I think as a practical matter the politics of that are so significantly shifted in California that it's unlikely that that would happen. But we could at least be subjected to judicial wrangling and political wrangling on this issue. That I think as you said in the interim was Californians think is been resolve for California. And which side and get to be lawyers and judges or do we get to be people themselves and that is really the fundamental question about the Democratic -- processes continue to work their way out and the strong Supreme Court order shortcut all of that and decide once and for all that it is a fundamental right with the consequence consequential repercussions of a decision that may not be as broadly as effective as might be. We are expecting it to come down in June. I've been speaking with Glenn Smith, at California Western school of law and attorney Dan Eaton, San Diego firm of McMahon thank you both.
Pivotal Supreme Court Justice Anthony Kennedy, whose vote could decide the same-sex marriage issue for the nation, did not tip his hand Tuesday in historic arguments at the Supreme Court. But Kennedy's record on the issue could give encouragement to gay and lesbian couples.
As advocates and protesters demonstrated outside, the author of the court's three prior gay rights rulings talked about the touchstones of dignity and concern for children in same-sex households that drove his favorable earlier opinions.
But he also worried about changing the definition of marriage from the union of a man and a woman, a meaning that he said has existed for "millennia-plus time."
"It's very difficult for the court to say 'We know better'" after barely a decade of experience with same-sex marriage in the United States, Kennedy told Mary Bonauto, a lawyer representing same-sex couples.
The 78-year-old justice's likely role as a key, perhaps decisive vote was reinforced during arguments that lasted 2½ hours in a rapt courtroom and appeared to divide the court's liberal and conservative justices over whether the Constitution gives same-sex couples the right to marry. Those couples can do so now in 36 states and the District of Columbia, and the court is weighing whether gay and lesbian unions should be allowed in all 50 states.
"Same-sex couples say, of course, 'We understand the nobility and the sacredness of marriage. We know we can't procreate, but we want the other attributes of it in order to show that we, too, have a dignity that can be fulfilled,'" Kennedy said in an exchange with lawyer John Bursch, who was defending the state marriage bans
Later, Kennedy also seemed concerned about adopted children in same-sex households if only one partner is considered a parent. "Under your view, it would be very difficult for same-sex couples to adopt those children," Kennedy said.
Tuesday's arguments offered the first public indication of where the justices stand in the dispute over whether states can continue defining marriage as the union of a man and a woman, or whether the Constitution gives gay and lesbian couples the right to marry. In the court's last look at same-sex marriage in 2013, the justices struck down part of the federal anti-gay marriage law. Federal courts with few exceptions have relied on Kennedy's opinion in that case to invalidate gay marriage bans in state after state.
The court divided 5-4 in that case, with the liberals joining Kennedy in the majority. Their questions on Tuesday suggested they would vote to extend same-sex marriage nationwide, while conservative justices' questions and comments were much more skeptical.
Justices Stephen Breyer and Sonia Sotomayor both said marriage was a fundamental right and a state would need a truly compelling reason to deny it to a class of people. Justice Ruth Bader Ginsburg said heterosexual couples would retain the same marriage benefits they currently have, whether or not same-sex couples also could marry.
Bursch argued repeatedly that states could prohibit same-sex unions because marriage always has been about biological bonds between parents and their children.
Justice Elena Kagan said some people have difficulty with that argument, finding it "hard to see how permitting samesex marriage discourages people from being bonded with their biological children."
If the definition of marriage is changed, Bursch said, "then adults could think, rightly, that this relationship is more about adults and not about the kids."
The actual cases before the court involve same-sex couples in which both partners want recognition as adoptive parents. In one case, Detroit-area nurses April DeBoer and Jayne Rowse are seeking joint adoption of their four children, and Bursch was quick to say he was not talking about them.
"We all agree that they are bonded to their kids and have their best interest at heart," he said.
Most of the questions from conservative justices appeared skeptical of gay-marriage arguments.
Chief Justice Roberts said gay couples seeking to marry are not seeking to join the institution of marriage. "You're seeking to change what the institution is," he said to Bonauto.
Roberts also said people would be more accepting of change achieved through the democratic process, rather than imposed by courts. Only 11 states have granted marriage rights to same-sex couples through the ballot or the legislature. Court rulings are responsible for all the others.
Yet the chief justice also questioned the states' argument.
"If Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can't. Why isn't that a straightforward question of sexual discrimination?" he asked.
Justice Samuel Alito suggested that basing marriage on lasting bonds and emotional commitment — instead of providing stable homes for children — might open the right to marry to siblings who live together, close friends who are not romantically or sexually involved and groups of more than two people. "What would be the logic of denying them the same right?" Alito asked.
Justice Antonin Scalia said he worried that a court decision in favor of same-sex marriage would force ministers to stop officiating at weddings altogether if they refused to perform same-sex weddings. Bonauto and some of Scalia's colleagues tried to persuade him that ministers have a right to refuse any couple for religious reasons.
Scalia also said the issue is not whether there should be same-sex marriage "but who should decide the point," embracing the states' argument.
Justice Clarence Thomas asked no questions, as is his custom.
The session was interrupted once by a protester who yelled that supporters of gay marriage "will burn in hell." He was removed by security.
In the last part of the session, devoted to whether states have to recognize same-sex marriages from elsewhere, both Kennedy and Roberts directed skeptical questions to a lawyer for same-sex couples, Douglas Hallward-Driemeier.
Why should one state "have to yield" in recognizing a marriage from another state? Kennedy asked.
And Roberts suggested that states' rights would be undermined if residents of states that forbid same-sex unions could get married elsewhere, then return home and demand recognition.
"One state would basically set the policy for the entire nation," he said.
People on both sides of the issue gathered outside the marble courthouse.
"Homo sex is a sin," read one sign. A man shouted into a microphone that gays violate the laws of God, while a group of same-sex advocates tried to drown him out by singing "The Star-Spangled Banner."
Cheers went up when the court's doors opened, allowing a lucky few who lined up days ago to get inside.
The cases before the court come from Kentucky, Michigan, Ohio and Tennessee, four of the 14 remaining states that allow only heterosexual marriage. Those four had marriage bans upheld by the federal appeals court in Cincinnati in November, the only federal appeals court that has ruled in favor of the states since the Supreme Court 2013 ruling.
Massachusetts was the first state to allow same-sex marriage, in 2004. As recently as last October, barely a third of the states permitted it.
The Supreme Court decision is expected in late June.
