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March 28th, 2013

Supreme Court Hears Arguments on Same-Sex Marriage


Published March 27, 2013

Two landmark cases regarding gay marriage will be argued before the nation’s highest court this week. The United States Supreme Court will first debate California’s Proposition 8 ban on same-sex marriage. Depending on how the justices weigh in on the issue, the court could potentially rule that same-sex marriage is a protected constitutional right, thus voiding national and state restrictions on gay marriage.


Justin Kenny of Akron Ohio holds a modified Stars and Stripes flag in front of the U.S. Supreme Court, on March 26, 2013, the day arguments on Proposition 8 were scheduled to begin.

What is “Prop 8”?

Proposition 8 was an initiative proposed on California ballots in the 2008 presidential election that asked California voters whether they were in favor of eliminating the rights of same-sex couples to marry. The ballot question was approved with 52 percent of Californians voting to ban same-sex marriage. This ban overruled the California Supreme Court decision made only months earlier, in June 2008, to legally recognize same-sex marriage.

On one side of the argument are two California couples who say the ban violates the Constitution’s Fourteenth Amendment, which guarantees all citizens equal protection under the law. On the other side are defenders of Proposition 8, who say it should be left to individual states to decide the legality of same-sex marriage.

In yesterday’s hearing, Justice Anthony M. Kennedy spoke about the estimated 40,000 children who have same-sex parents in California.

“The voices of these children are important, don’t you think?” Kennedy said.

He also said the consequences gay marriage may have for society are unclear when considering the history of traditional marriage and procreation.

However, several justices challenged that procreation was at the center of the debate, with Justice Stephen G. Breyer pointing out the number of opposite-sex couples who can’t have children, and Justice Elena Kagan saying the court cannot ban opposite-sex couples who get married over the age of 55.

The red "equals" sign went viral on social media March 26 in a push by the Human Rights Campaign to show support for same-sex marriage.

The red “equals” sign went viral on social media March 26 in a push by the Human Rights Campaign to show public support for same-sex marriage.

Possible outcomes

The Supreme Court may lean towards a ruling that only applies to California, or could produce a broad ruling with national implications. Here are some possible outcomes the court may decide on:

  1. Same-sex marriage is a constitutional right that would apply to all 50 states. “The Prop. 8 case has the potential to be the Brown v. Board of Education for gay rights,” UCLA School of Law Prof. Adam Winkler told
  2. Same-sex marriage is not constitutionally protected anywhere.
  3. The Supreme Court states there’s no difference between marriage and civil unions and recognizes same-sex civil unions or domestic partnerships in California and other states that currently have civil union or domestic partnership laws.
  4. Same-sex marriage is protected in California. The Supreme Court ruling may apply just to California because of the specific circumstances involved in the case.
  5. Dismiss the case on procedural grounds. Because the case is not defended by California’s governor and attorney general but by supporters of Proposition 8, it may be found that those supporters have no legitimate reason to bring the case to the Supreme Court.

To follow what’s happening in real time, follow @SCOTUSblog – a blog devoted to comprehensively covering the Supreme Court of the United States. Below are tweets from yesterday.




What’s next?

Today the Supreme Court will hear oral arguments over the federal Defense of Marriage Act (DOMA). Made official September 21, 1996, the law defines marriage as the legal union of one man and one woman and denies federal benefits to same-sex couples who are legally married in their states.

Although President Clinton originally signed DOMA into law, he has since reversed his position, stating publicly that he believes DOMA is “incompatible with our Constitution.”

Both the ruling on the constitutionality of Prop 8 and the challenge to DOMA will be decided by the end of June.

— Compiled by Mallory Sofastaii for NewsHour Extra

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