Live Updates: Gay Marriage at the Supreme Court

By Z. Byron Wolf March 26, 2013

Youths hold banners during a vigil organized by the School Without Walls GSA in front of the US Supreme Court in Washington on March 25, 2013 to demand equal justice before the law for LGBT people ahead of the marriage equality cases to be heard at the court on March 26 and 27. (Nicholas Kamm/AFP/Getty Images)

Refresh here throughout the day for color from inside and outside the Supreme Court as justices hear arguments on gay marriage.

All times are E.T.

The headline:

Supreme Court justices struggled with the notion of creating a new federal right for same-sex couples to marry.

CLICK HERE for a transcript of the oral arguments.

Even justices who didn't have a problem with same sex marriage weren't sure that now is the time for the court to impose its will on the states. Read the lead story HERE.

Today started two days of arguments at the Supreme Court over gay marriage. The justices will consider two separate cases.

First up, on Tuesday: whether the California gay marriage ban enacted by Proposition 8 is constitutional.

Then, on Wednesday, lawmakers will hear arguments about the federal Defense of Marriage Act, which was passed with broad bipartisan support in 1996 and signed into law by President Bill Clinton. DOMA defines marriage as between one man and a woman and denies federal benefits to same-sex couples who are legally married in their states.

But as states begin to OK gay marriage - nine currently allow it - same-sex married couples will expect the same federal benefits that straight couples get.

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2:03 p.m. Democratic Senators Stampede for Gay Marriage - ABC's Rick Klein notes a "this is a stunning exodus of lawmakers who've been in public office for decades, and who represent red and purple states."

There has rarely been such a swift move on a social issue in such a short period of time - a mark of how the debate has shifted, and has even been flipped on its head.

Not long ago, it was opponents of gay marriage bringing gay marriage up as a wedge issue. Those voices are remarkably silent now. And it's easy to imagine the wedge cutting in the opposite direction in the not-so-distant future.

It's increasingly hard to picture any Democratic candidate for president opposing gay marriage in 2016, and we heard from Karl Rove on "This Week" that it's easy to picture at least one Republican 2016er supporting gay marriage.

Make that 5. Sen. Jon Tester, D-Mont, announced his support for gay marriage in a posting on Facebook. He also changed his profile picture to that red symbol for marriage equality.

1:27 p.m. VIDEO - Ted Olsen and David Boies and the Faces of Same-Sex Marriage - The men who squared off in Bush v. Gore but joined together in opposing Prop. 8, talk about the arguments. They're joined by Sandy Stier, one of the San Francisco women who brought the challenge to Prop. 8.

Olsen argues there are four ways for supporters of same-sex marriage to win:

1. The Supreme Court decides the supporters of Prop. 8 aren't injured by gay marriage so they can't bring the case. 2. Because California already gives civil unions to gays and lesbians, it can't deny them others. 3. The court could decide that since California allows gays and lesbians to live together and have children it can't keep them from marrying. 4. Its just wrong. It is not consistent with the ideals of this country to deny gays and lesbians rights other people have.

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1:12 p.m. - Rob Reiner, Top Lobbyist for Gay Marriage -

ABC's Rick Klein reports: Terry Moran and I just caught up with actor and director Rob Reiner outside the Supreme Court. Reiner was inside the building for the arguments, and was a driving force behind the group that sought to bring the Prop 8 case to the high court. Reiner's not hazarding any guesses on where the court will come down, but he did engage on another question: What "Meathead" - his famous character on "All in the Family" - would tell Archie Bunker on the subject. He had an interesting take - and you'll recall the groundbreaking 1970s series did tackle hot-button social issues, including homosexuality, long before TV typically went there. We'll have the full interview on our ABC News/Yahoo News! show "Top Line" tomorrow…

1:02 p.m. - Video from in front of the court this morning with supporters of both same-sex and traditional marriage:

12:32 p.m. - Facebook Friends of Gay Marriage

Supporters of gay marriage on Facebook have been changing their profile picture to a red version of the Human Rights Campaign logo. Have you seen it in your feed?

11:58 Terry Moran on Tea Leaves -

"After covering this court for a while I gen feel that reading tea leaves is a bad exercise." But after seeing the arguments, he feels that the court is likely to leave Prop 8 alone and let states continue their experiment on gay marriage. On the issue of the federal Defense of Marriage Act, Moran says seems likely that the court will overturn it.

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11:06 a.m. Justice Anthony Kennedy Seen as Swing Vote

He seems skeptical of the argument that gay marriage hurts children.

BUT. According to SCOTUSBLOG, Kennedy also seems skeptical of striking down Prop. 8. He asks about dismissing the case instead.

They make this bold prediction, which we will revisit in June when the court issues its decision:

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Click below for photos from the day:

Hollingsworth v. Perry Plaintiffs Kris Perry and Sandy Stier (back) and Paul Katami and Jeff Zarrillo (front) preapre to leave for the US Supreme Court on March 26, 2013 in Washington, DC. Same-sex marriage takes center stage at the US Supreme Court on Tuesday as the justices begin hearing oral arguments on the emotionally-charged issue that has split the nation. (Jewel Samad/AFP/Getty Images)

10:52 p.m. The First Prediction from SCOTUSBLOG -

The well-respected Supreme Court publication Sctousblog, which had reporters inside the court for arguments, emerges without many details, but offers this first-blush prediction on Twitter. They say Prop 8 is unlikely to be upheld or the court would not decide the merits of the case. Of course, recall that predictions after the Obamacare arguments ended up being very different than the decision.

10:45 - A Bigger Crowd Than For Obamacare?

10:39 - White House Advisor Will Watch Proceedings ABC's Ann Compton passes along this tweet from Valerie Jarrett, one of President Obama's top advisors.

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10:09 a.m. The Opposition Arrives

ABC's Matt Larotonda reports from the Supreme Court:

Gay rights demonstrators dwarfed their opposition outside the court by hundreds, if not thousands… Until moments ago. A massive counter protest has arrived up First street, a toting a mix of tea party symbols and religious signs. By numbers, the advocates of same sex marriage clearly outnumber opponents.

One thing is certain: Advocates of traditional marriage are certainly louder. A full band with drums and bag pipes are in the procession.

The arrival comes as arguments begin inside the court.

Several thousand are outside the court as arguments are underway, with a roughly even mix of those who support gay marriage and those who believe it should remain between a man and a woman.

In that crowd is Thomas Peters of the National Organization for Marriage, which supports the Defense of Marriage Act.

He said he formed his views "just by looking at which families do best."

"It's very clear from the social science that a mother and a father do better for a whole bunch of reasons," he said, adding he was "disturbed" by homosexuals' portrayal in media.

"This is one issue the people are capable of answering themselves," referring to decisions of the court over state or federal democratic processes.

On the other side is former Marine Ian Finkenbinder, who was arrested along with Dan Choi, the activist former Army officer, in 2010 for protesting Dont Ask Dont Tell on these same court steps.

"He's got closing arguments [Thursday] stemming from that arrest, so I'm down here spreading the word for the trial," he said. "He'd love to see the courtroom packed in support for him."

Finkenbinder and other volunteers were handing out postcards in the crowd advertising what they perceive as hypocrisy of the Obama administration for openly supporting gay rights but failing to drop charges against Choi.

Sarah Parnass adds:

The traditional marriage advocates who were scarce earlier in the morning are now filling the street outside the Supreme Court in a parade line. Families with small children tout signs promoting "God's marriage" which they say is between one man and one woman.

On either side of the line, gay marriage advocates fill the sidewalks. Police ride and march by, trying to keep a clear aisle between the two groups, but the gay rights protesters are creeping in.

Both groups yell, in both English and Spanish. "Si se puede!" vs. "No se puede!"

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10 a.m. Where is Gay Marriage Legal (And Where Is It Not?)

Arguments should be getting underway in the court on the Prop 8 case. Click below for our interactive infographic:

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9:47 p.m. American Approval of Supreme Court Americans used to have a more favorable view of the Supreme Court. Back in 1985 a PEW poll found 64 percent of Americans to have a favorable view of the Supreme Court. That view has fallen in recent decades. A poll out Monday by PEW found 52 percent of Americans have a favorable view of the court. But the unfavorable view has risen only slightly in that time - from 28 in 1985 percent to 31 percent today. There is also a partisan divide. Republicans' view of the court has tumbled - from 80 percent favorable to 47 percent favorable since 2008. Democrats' favorability has fallen from 64 percent to 56 percent. Read the PEW poll HERE.

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9:11 a.m. - Opening Thoughts from ABC's Supreme Court Correspondent Terry Moran -

A glorious morning here at the Supreme Court. The scores of people who have waited in line for days for a seat inside the court braved rain, snow, sleet and cold-though only sixty or so will actually make it in. A few of them were just placeholders-paid to endure the weather for the well-to-do. And this morning, we found out who some of the well-to-do were. At the front of the line this morning-Hollywood actor/director and liberal activist Rob Reiner, and former Republican Party chairman Ken Mehlman, who came out as a gay man in 2010 and has fought for marriage rights. On the broad plaza in front of the Supreme Court are several hundred protestors. Their flags, banners, and placards shine in the bright spring sunshine. Most here are supportive of gay marriage, it seems. The striking thing, to me, is the tone of the protests and debates out here. Often in contentious Supreme Court cases-Obamacare comes to mind-tempers flare in front of the Court, there's screaming and yelling, it's loud and a little ugly. Today, however, seems different. Something about marriage, maybe; something about the activists and protestors here-on BOTH sides-seems to have encouraged a certain civility. No one I heard is calling anyone nasty names; no one is mocking anyone else's religion or beliefs. They're talking. It's rare in our hollering republic of noise. It's the way it should be.

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9:09 a.m. - Watch Terry Moran's GMA report:

8:56 a.m. - Scalia's Past Comments Keep an eye on conservative Justice Antonin Scalia. He's not afraid to same some provocative things in general, and in particular on the subject of same-sex marriage and same-sex relationships. Back in 1996 Scalia was in the minority in Rumer v. Willis, the case in which the court first ruled in favor of gay rights. In that dissent Scalia seemed to equate sodomy with murder when he said: "Of course, it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even 'animus' toward such conduct." Click here for more of Scalia's comments on same-sex relationships. 8:25 a.m. - The Plaintiffs Arrive ABC's Sunlen Miller reports: Hand in hand, the two same-sex couples, plaintiffs in today's Supreme Court Proposition 8 case, departed for the Supreme Court this morning and declared hope that today will be the "the final chapter in a long four years." "Today I am hopeful," Kris Perry of Hollingsworth v. Perry said outside a row house in Northwest Washington, DC, her girlfriend standing by her side. "I am hopeful we will finally feel the equality and the inclusion that will come with the reversal of Proposition 8." Along with Kris Perry, the other plaintiff, Paul Katami also stood with his boyfriend and said he has "faith in our county's judicial system." "Like all Americans we believe that the institution of marriage helps to build stable and strong families, and that is why we are here," Katami said with his boyfriend by his side, "Jeff and I long to be married and start a family of our own. And have the equal rights that are guaranteed to all Americans that are in loving and committed relationships." Click Here to meet more of the stake-holders, including an Army spouse and a grieving widow.

7:24 a.m. - Who Stands in Line?

On a cold Tuesday morning activists waving American flags and blue banners bearing the Human Rights Campaign symbol line the sidewalk in front of the Supreme Court. Sporting gloves and puffy jackets, they display signs saying, "Marriage is a human right not a heterosexual privilege" and "the nation is ready for marriage equality." Two lines stretch from the beginning of the gate to the end of the sidewalk. The people in one line - the lawyer line - file in. The others, hoping for a ticket, stand by their lawn chairs.

Joey Williamson has been out here for 49 hours and he has at least another 24 to go. He is here from New York City waiting to hear the arguments against the Defense of Marriage Act tomorrow.

"Obviously these are hugely historic cases," Williamson says. He saw the state Supreme Court case back home in New York so tomorrow will wrap off a long saga for him. "We thought if we could see this case all the way to the end it would be super interesting."

Williamson also has a personal stake in the case. He hopes that when he one day gets married in New York, the federal government will recognize it.

So how is he keeping warm?

"Piling on clothes," he tells me. "There's not much staying warm out here."

A policeman walks up handing out red tickets, and Williamson tells him he's waiting for tomorrow. The officer assures him he can keep his spot in line as those here for today's case file in.

Click here to meet more of the people standing in line for days to hear the arguments.

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Who Has a Stake?

ABC News' Sarah Parnass has been gathering profiles on some of the people involved in the court cases and the people who have the biggest stakes in the outcome. There's a Southern California personal trainer with an infomercial, the daughter of a lesbian couple, a grieving widow who feels she's entitled to survivor benefits and the wife of a deployed soldier.

Read them all HERE .

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What You Need to Know About the Cases -

ABC News' Supreme Court watcher Ariane de Vogue has been following both cases for some time.

Tuesday: Prop 8

Click Here for her definitive cheat sheet on the Prop 8 case.

The first questions today are on of standing and injury. As de Vogue explains:

Opponents of Prop 8 argue that "standing" requires an injury and proponents of Prop 8 cannot show they will be harmed if same-sex couples marry. "Proponents have never contended - and do not contend before this court - that they would personally suffer any injury if gay men and lesbians were permitted to marry in California," write lawyers Theodore B. Olson and David Boies on behalf of gay couples who are challenging Prop 8.

Ted Olson and David Boies - the political odd couple arguing Prop 8 is unconstitutional, argue that if the court finds that proponents have no standing, then gay marriages should be able to resume in California.

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Wednesday: DOMA

It's a federal law, but two years ago the Obama administration made clear it would no longer defend the Defense of Marriage Act. Republicans in the House of Representatives stepped in and hired Paul Clement, who is arguing the case before the Supreme Court. So the executive branch is arguing against a law that has been on the books for 17 years.

Read more HERE about DOMA.

From de Vogue's reporting:

Similar to the arguments of supporters of Prop 8, Clement argues that in passing DOMA, Congress had a good reason to support traditional marriage. He targets the "tendency" of opposite-sex relationships to produce "unintended and unplanned offspring." Clement says that Congress was acting rationally when it passed DOMA: "Government from time immemorial has had an interest in having such unintended and unplanned offspring raised in a stable structure that improves their chances of success in life and avoids having them become a burden on society." In his briefs, Clement points out that the federal government is not invalidating any state same-sex marriage laws, but instead is ensuring that federal benefits are distributed uniformly throughout the states.

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Public Opinion - 58 Percent of Americans Support Gay Marriage

The turnaround in public opinion about gay marriage has been striking. Back in 2004, when a ballot initiative banning same-sex marriage in Ohio was credited with helping George W. Bush win that state and a second term in the White House, percentage support for gay marriage was in the 30s.

In an ABC News/Washington Post poll published last week, support had shot up to 58 percent.

Click below for our infographic on the shift in public opinion:

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