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Prop 8: What the justices said in Supreme Court arguments on California's gay marriage ban (Chart, Audio, PDF)

File: Same-sex marriage supporters wave a rainbow flag in front of the U.S. Supreme Court on March 26, 2013 in Washington, D.C.
Jewel Samad/AFP/Getty Images
Same-sex marriage supporters wave a rainbow flag in front of the US Supreme Court on March 26, 2013 in Washington, DC. The US Supreme Court on Tuesday takes up the emotionally charged issue of gay marriage as it considers arguments that it should make history and extend equal rights to same-sex couples. Waving US and rainbow flags, hundreds of gay marriage supporters braved the cold to rally outside the court along with a smaller group of opponents, some pushing strollers. Some slept outside in hopes of witnessing the historic hearing.

The Supreme Court suggested Tuesday it could find a way out of the case over California's Proposition 8 ban on same-sex marriage without issuing a major national ruling on whether gays have a right to marry.

Charles Cooper spoke first, as the lawyer defending Prop. 8 and Theodore Olson spoke after him, challenging the proposition. Later on, Donald Verrilli, Jr., the solicitor general, spoke. 

Below are some of the major issues discussed during the hearing with corresponding page numbers to read more. You can also listen to the complete oral arguments and read a transcript below.

justice arguments

John Roberts
  • The Chief Justice asked if opponents of Proposition 8 wanted to change the definition of "marriage" by including same-sex couples.
  • Roberts tells Olson: "If you tell a child that somebody has to be their friend, I suppose you can force the child to say, this is my friend, but it changes the definition of what it means to be a friend. And that's it seems to me what the – what supporters of Proposition 8 are saying here. You're – all you're interested in is the label and you insist on changing the definition of the label." (Page 44)
  • He questioned whether Cooper can defend Prop 8 when state officials have already decided not to defend it in court.
  • Roberts tells Cooper: "…a State can't authorize anyone to proceed in Federal court, because that would leave the definition under Article III of the Federal Constitution as to who can bring – who has standing to bring claims up to each State. And I don't think we've ever allowed anything like that." (Page 6)

Antonin Scalia
  • He expressed concerns that an issue with a specific law in California could become the law across the nation.
  • He suggested other states were moving slowly in dealing with the issue of the rights of same sex couples.
  • "Yeah, but the rest of the country has been cautious … And we're – and you are asking us to impose this on the whole country, not just California." (Page 57)
  • The justice suggests that some states may be going slow on the issue of gay marriage because there is still a question on what impact, if any, growing up in a same-sex household will have on children.
  • Scalia tells Cooper:"…let me — let me give you one — one concrete thing. I don't know why you don't mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there's — there's considerable disagreement among – among sociologists as to what the consequences of raising a child in a – in a single-sex family, whether that is harmful to the child or not. Some States do not — do not permit adoption by same-sex couples for that reason." (Page 19)

Anthony Kennedy
  • The potentially decisive vote on a closely divided court, Kennedy suggested the justices could dismiss the case with no ruling.
  • He also made clear he did not like the rationale of the federal appeals court that struck down Prop 8, even though it cited earlier opinions in favor of gay rights that Kennedy wrote.
  • He said he feared the court would go into "uncharted waters" if it embraced arguments advanced by gay marriage supporters. (Page 47)

Clarence Thomas
  • As is his custom, he did not participate in the oral arguments.

Ruth Bader Ginsburg
  • She focused on the cases cited by the lawyers that they asked the judges to consider in their rulings.
  • She indicated that they may not apply because the circumstances were different. For example, in the interracial marriage case, they were charged with a crime.
  • "I may – my memory may be wrong, but I think the case was that people of different races were arrested and charged with the crime of interracial cohabitation. And the Court said that that was invalid…Unlawful." (Page 67)

Stephen Breyer
  • He indicated that a state that does nothing in regards to the rights of gay couples seemed to be violating their rights.
  • "A state that does nothing for gay couples hurts them much more than a State that does something." (Page 53)

Samuel Alito
  • He described gay marriage as newer than such recent technological advances as cell phones and the Internet, and appeared to advocate a more cautious approach to the issue.
  • "You want us to assess the effect of same-sex marriage. It may turn out to be a good thing. It may turn out to be not a good thing." (Page 56)

Sonia Sotomayor
  • She questioned the argument that marriage was a fundamental right that the state could only regulate sparingly.
  • She wanted to know from opponents of Prop 8 where was the line between the rights of gay couples and a state's rights to pass laws.
  • "If you say that marriage is a fundamental right, what State restrictions could ever exist?" (Page 46)

Elena Kagan
  • She questioned the supporters of Prop 8 on how allowing gay couples, who cannot procreate, to marry, will harm the state's "principal interest in marriage" of regulating procreation.
  • "What harm (do) you see happening and when and how and – what – what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work?" (Page 16)

Sources:, Associated Press, KPCC Staff

Listen to the arguments: We've annotated the audio with the major talking points, but we want to hear from you. Comment on the parts that affect you or that you found interesting. Just type your thoughts into the box that says "Add your comment" and hit the post button.

Read the transcript and notes: Click the "Document" tab to read the transcript in full. To see highlights, click "Notes."