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But first from fox at 3 o'clock in New York City the fight over same sex marriage rights has -- our nation's highest court for the first of two days of arguments.
But already some of the justices have suggested the court may not issue a ruling at all.
I did that.
Supporters and opponents out in force and -- they're all outside the Supreme Court in what is what is clearly one of the most highly anticipated is used to reach the nine justices this year.
In fact the court has agreed to release the same day audio.
From this week's argument which it has not done since the debate over president Obama's health care overhaul last year.
Public opinion over the issue has changed in significantly over the past decade.
The latest Fox News opinion poll shows 49% of registered voters favor gay marriage a jump from just 32% back in 03.
And that according to that same poll 53% of voters say that each individual state should be allowed decide whether same sex couples can legally married they're.
Today's case the appeal over California's proposition eight.
It amended the state constitution to reorganize marriage.
As only between a man and a woman before a judge and appeals court -- the measure on hold.
Opponents argue that prop eight violates the United States constitution clearly and the right of every citizen to equal protection under the law that's the equal protection clause.
That's the argument on behalf of supporters those supporters say the court should not interfere in the -- And in the democratic process we do not expect the nine justices to deliver their final rulings until June.
But today it would may have gotten some hints when just as if -- Kennedy a potential swing vote said the court may be entering uncharted waters.
-- bring covers the supreme court for us and is live there this afternoon so how it how is it possible that the judges could dismiss this case entirely.
-- said there is a technical legal term about standing into the right parties here to bring this case is the case and the controversy active and ready for this court to decide it.
You may remember that -- prop eight was passed in California both the attorney general there and the governor there said were not gonna defend it.
And that meant there was nobody to defend the State's -- so a number of supporters of prop eight.
Took up the fight themselves they are the ones who brought the case here today but because it's not the state officially acting on the half of the voters who passed out law.
There were numbered justices who -- questions about that's standing issue and whether or not even actually get to the merits of this case Jeff.
That good attorney for supporters of prop eight a guy I've ever heard how it what did he do to try to persuade a court.
Well he says first of all this is something that was passed through the democratic process that the -- shouldn't be in the business of overturning things that the voters had -- of the ballot box and chosen to do in California.
He said kids need a mom and a dad is the ideal situation and that's the traditional foundation of our society.
-- justice Anthony Kennedy then spoke -- -- asked about the children of same sex couples here's a bit of what he had to say.
There is an immediate.
What could be illegal entry and that's the voice of these children are some 40000.
Children in California according to the red -- That live with same sex parents.
And and today.
-- their parents.
Have full recognition schools that.
Voice of those children is important it don't you think.
And of course because he's potentially the swing vote in this case we're parsing everything the Justice Kennedy had to say today but important to note he also said he's not sure that this case.
Is ready for a decision or properly before the court this -- -- who what about the two lawyers who were arguing that this is just unconstitutional.
They did they said but what happened with prop -- as long as a remains in place there is discrimination in effect against a specific class against.
Same sex couples who want the same rights to -- as heterosexual couples and they said basically it's unconstitutional.
It doesn't meet -- equal protection clause test.
Well they want the court to move ahead to -- new territory but justice Samuel Alito was among those who said.
Maybe it's not time yet and may be we let this play out at the state level here's what he had to say.
Us to step in and render a decision -- on an assessment of the facts of this institution which is -- -- cell phones and the Internet anywhere we are not.
Who we do not have the ability to see the future.
On a question like that of such fundamental importance -- should not be left for the people.
Either acting through initiatives and referendums -- through their elected public finished.
Whether or not we get the merits on this case decision the justices will likely come in -- -- -- into breeding takes an institution that fewer than cell -- and interest and take right.
Think that the judge Fox News senior judicial analyst.
Just -- -- -- I was here.
You can make the argument that this isn't new at all I mean it seems like the argument that the people who are what prop eight out are making is.
If this group of people in society and are allowed to do something.
Whatever it is through the state.
-- this group should be allowed to do it to -- -- if in in numbers.
They are the minority.
Well you you have articulated.
In your own unique way ship the equal protection clause in the constitution.
The federal constitution.
Which says that the states must treat similarly situated people.
In a similar way.
If it's going to grant rights to one group it has to grant -- to -- similarly situated group that is the argument against proposition eight.
Just reading between the lines from Shannon's superb report shoes in the courtroom I wasn't.
I think that the court may very well say we're not ready to rule on this if that happens.
On the ninth Circuit Court of Appeals decision below stands.
And proposition eight is invalidated.
And same sex marriage will be -- in California and those 181000 couples who got married between the time the Supreme Court -- California -- lawful.
And the voters said it's unlawful will have valid marriages and the reason for that is -- she articulated the justices don't wanna get into this issue of standing.
Basically saying to a lawyer -- who are you.
You don't represent the state of California -- doesn't.
How did you get here you just can't walk in the courtroom and claim to speak in behalf of a movement the governor doesn't want this -- defended.
We don't wanna hear an argument about the law and the same thing will happen tomorrow about -- Where to those of -- correct where the president of the United States where everything was politics has said -- was unconstitutional -- prohibit the Justice Department from defending it.
So important to chief Justice Roberts will probably say tomorrow.
To the lawyers defending the defense of marriage act.
We're you know.
What are you doing here you don't represent the federal government so these are two very unique procedural quirks that the court may very well say we're now.
-- to hear either of these cases sitting in that and that person area I'm sorry.
The first scenario that you mentioned proposition eight goes away that affects California and California -- only correct in what we would expect to see.
In days months and years ahead is a series of lawsuits all over the country specific an individual to each state yes that's correct and then at some point.
As the tide turns in the polls show more than 80% of people under the eight under the age of 25.
Don't understand why in the world you would care who else gets married his long that doesn't involve you I mean -- and then eventually the government would recognize.
That when they say equal protection they -- people -- for everybody -- meant equal protection for women.
They admit equal protection for black people they meet equal protection for gay people they meet equal protection for all the people and if the majority doesn't like it.
That's too bad well that that is an argument that as you say we'll have to be made in.
Fifty mile forty -- California will be done in 49 different that litigation in each of their remaining.
49 states rather than all at once before the Supreme Court once -- -- -- Judge will follow this we should know something June more nervous tomorrow on this -- marriage act yes -- -- affected by.
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