Alex Witt   |  March 30, 2013

What may affect court’s same-sex marriage decision?

As justices review arguments from both sides on Prop 8 and DOMA, USA TODAY’s Richard Wolfe and The New Republic’s Jeffrey Rosen discuss the key points that could swap the court’s opinion on same sex marriage.

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This content comes from Closed Captioning that was broadcast along with this program.

>>> it could be june before we hear a historic ruling on the marriage equality cases being tackled by the supreme court . justices reviewing now arguments from both sides of the two big cases from last week. california 's prop 8 law that prohibits same-sex marriage and the federal defensive marriage act , joining me today, richard wolf and jeffrey rosen , legal affairs editor for the new republic. richard, we had justice elaine that kagan read an excerpt on the federal defense of marriage act .

>> i'm going to quote from the house report. congress decided to reflect an honor of collective moral judge the and to express moral disapproval of homosexuality. is that what happened in 1996 ?

>> we can hear the strong reaction that drew from inside the courtroom itself. was that a moment where it could be a reflection of the tipping point for the doma argument?

>> yeah, it was a moment that could be a tipping point for the doma argument but only probably for four justices. i felt what was interesting the former solicitor general who pretty much did very well trying to defend doma , the first thing he said, does the house report say that? then said of course the house report says that. i think she sort of trapped him into showing there was a certain amount of -- when the law was passed at least on the part of some of the lawmakers passing it, rather than allowing him to say we're trying to get federal law straightened out as it appear takens to marriage.

>> as this court is so concerned about states rights issues, don't they answer their own argument about the constitutionality of doma out of the gate with that concern in mind?

>> the state's rights issue is interesting because you have justice kennedy , who everybody knows in the middle on both of these issues saying that he would be inclined to throw doma out based on states rights , but then that could get him into a little bit of trouble on proposition 8 . because on proposition 8 , the state is expressing its will through the voters and he would have to say states rights apply to doma but not so much to prop 8.

>> when we look at prop 8, the fact that the state gave the right to citizens first before then taking it away by putting it on a ballot but then that ballot has gone up through the court system to be ruled as unconstitutional, it is a quagmire to see where this is going to go. jeffrey, earlier i had a chance to speak to james essex, a member of the legal council for edie windsor.

>> i think he is going to say there is jurisdiction because the question, is there a fight between miss windsor and the united states that is sufficient to require the government -- the court to decide it? and it's very easy, they have her money and won't give it back.

>> he believes the high court is on the verge of striking down doma . based on the arguments we've heard and coverage we've seen, is that an assessment that is likely?

>> it does seem likely. there was an hour of discussion of whether the court should hear the case. chief justice roberts was very testy with the solicitor general saying, why doesn't the president have the courage not to enforce laws he thinks aren't constitutional? but justice kennedy seemed inclined to decide on the merits and very taken with the states rights arguments. he said this is unprecedented and interferes with 1100 federal benefits and unprecedented interference with state autonomy and you better believe he's going to do something about it.

>> let's go back to justice kennedy , often considered to be the swing vote , not just in this instance but in many, but his comments directly about the prop 8 arguments.

>> the problem with the case is that you're really asking particularly because of the s estds you sight for to go in unchu unchartered waters. i wonder if the case is --

>> do they have the proper standing to be there before the court, scalia pointing out when asked saying that we've already crossed that river saying that they've got to move on them. does that in reference to prop 8 show kennedy looking for a way to minimize the scope of this ruling potentially, a way to narrow it so it's not something like -- that this would be something in regard to prop 8 that would be very narrow focused to california and marriage equality ?

>> it very much does. that was extremely significant comment . you heard the i am patience in kennedy 's voice, i don't know why we're hearing this case. it only takes four votes to hear a case before the supreme court . from what we can gather, the four conservatives voted to hear the case over the objection of the kennedy and five liberals and the question is whether the liberals won't do something unusual and say we were wrong to agree to hear the case to begin with, or else they could take the slightly broader approach and say there's no standing because california officials themselves are not defending the law and the agreed voters are not the right party to bring the case. either result would affirm the california court's ruling and allowing marriage to continue in california without imposing a broad rule on the entire nation.

>> more to be coming our way at the end of june. thank you for joining me. i appreciate it.