Nightly News   |  March 26, 2013

Justices question wisdom of taking on gay marriage case

The US Supreme Court delved into the issue of gay marriage Tuesday, examining whether or not California’s Proposition 8 is unconstitutional. On Wednesday, SCOTUS will take up the Defense of Marriage Act. NBC’s Pete Williams reports.

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>>> good evening, the u.s. supreme court court today took on the right to marry someone of the same sex. they're taking on two cases over two days, and as with anything the court touches anything can happen. it's up to the ruling of the nine justices. public opinion has been changing fast on this subject. it's moved quickly in the past few years, to a place where most americans by a thin majority in opinion polls , most americans support gay marriage . today at the court you could hear some of the justices wonders if it's all moving too fast. today they took on california 's proposition 8 . it's where we begin tonight with our justice correspondent pete williams . he was there for today's argument, pete, good evening.

>> reporter: brian, good evening. it's risky to predict what the court will do based on the oral arguments. there seemed to be no need to issue a swift decision one way or the other.

>> marriage is a civil right.

>> one man, one woman.

>> reporter: strong passions on both sides were on display today. with court police trying to keep the two sides apart. two women in berkeley and two men in los angeles are challenging proposition 8 which stops same sex marriage in the state.

>> we're no different than anyone else. we deserve the same rights, marriage benefits us, it doesn't harm you, and that's why we're here.

>> reporter: conservative ted olson who joined with david boise.

>> this is not a democratic issue or republican issue or conservative or liberal. this is an issue of american constitutional rights .

>> reporter: defenders of prop 8 say, because only opposite sex couples can produce children, it makes sense to limit marriage to them.

>> it's not known what the changes on society would be by changing the institution of marriage.

>> suppose a state said, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses any more to any couple where both people are over the age of 55. would that be constitutional?

>> reporter: the court 's conservatives were equally skeptical that gay couples have a right to marry.

>> when did it become unconstitutional to exclude homosexual couples from marriage? 1791 ? 1868 , when the 14th amendment was adopted?

>> reporter: though gay couples in california have all the rights of married couples , letting them be called married would be a big change.

>> if you tell a child that someone has to be their friend, i suppose you can force the person to say, this is my friend, but it changes the definition of what it means to be a friend. and that's what it seems to me the supporters of proposition 8 are saying here.

>> you want us to step in and render a decision based on the assessment of the effects that is newer than cell phones or the internet?

>> you're really asking, particularly because of the sociological evidence you cite for us to go into unchartered waters. i just wonder if the case was properly granted.

>> so that could be what the court does, say it should not have taken the case in the first place because there's no clearance. that would leave the lower court ruling in tact that struck prop 8 down. same sex marriage could resume in california , but there would be no nationwide precedent.

>> it will be interesting to see how tomorrow's case is informed by tomorrow's discussion. pete williams will be there tomorrow