>> that was attorney paul clement responding to supreme court justice elena kagan's questions.arked -- marc solomon was at the supreme court to hear the arguments wednesday and a challenge to the constitutionality to the defense of marriage act. about the significance of that interaction and what the court was light yesterday. >> sure. that interaction in particular was justice elena kagan highlighting the fact this law was created out of discrimination. it was really the first time the federal government has created its own sort of definition of marriage to exclude gay people because they're really afraid or congress was afraid of progress on the marriage front in hawaii. >> talk about this document. >> it was a house report that accompanies legislation. there is a report that talks about the purpose of the legislation. it is very clear in talking about moral disapproval of homosexuality. so it is pretty hard to get away from that. >> there were gasps in the room and she asked the question? >> yes. it was a reminder of where this law comes from and what its purpose is, and it

justices sonia sotomayor and elena kagan, both new to the bench, gave some of the strongest push backo scalia's premise. here with the lawyer representing shelby county, justice sotomayor directly challenging the comment. >> do you think the right to vote is a racial entitlement in section 5? >> no, the 15th amendment protects the right of all to vote and -- >> i asked a different question. do you think section 5 was voted for because it was a racial entitlement? >> well, congress -- >> you think there was no basis to find that -- >> may i say congress was reacting in 1964 to a problem of race discrimination which it thought was prevalent in certain jurisdictions. so to that extent as the intervenor said, yes, it was intended to protect those who had been discriminated against. if i might say, i think that -- >> do you think that racial discrimination in voting has ended? that there is none anywhere? >> i think the world is not perfect. >> julie, was she speaking to him or was she speaking to justice scalia? what was going on? where was she looking when she said that? >> i think often

today justice elena kagan pointed to the law's history. >> i will quote from the house of the court.gress decided to reflect an honor a collective moral judgment and to express disapproval of homosexuality. is that what happened? [inaudible] reaction, but not everyone was convinced that was the driving factor behind a landslide vote in both the house and senate including chief justice john roberts repeatedly questioned the implication. >> eighty-four, the same question. eighty-four senators base their votes on moral disapproval? >> formal disapproval ever since the obama administration announced it would not set lawmakers considering the 1996 legislation asked the clinton justice department for its view of the constitutionality three times and each time there were given the abcaeight. he argued that was hardly evidence of an improper animus. the case the line because of a plaintiff who married her card -- partner in canada. at the time his partner died the marriage was not derecognized in that state which left windsor with a hefty tax bill that would have been much smaller had they b

, obama nominee, between elena kagan and the lawyer for the anti gay rights side. they are having a tet-e-tet. >> what harm do you see happening and and what harm to the institution of marriage or to opposite-sex couples, how does this cause and effect work? >> once again, i would -- i would reiterate that we don't believe that's the correct legal question before the court, and that the correct question is whether or not redefining marriage to include same-sex couples would advance the interests of marriage as a -- >> well, then are you conceding the point that there is no harm or denigration to opposite sex marriage couples? are you conceding that? >> no, your honor being. i'm not conceding that. >> it seems you would have to address justice kagan's question. >> thank you, justice kennedy. >> you should have to answer the question then. reading the justice's intentions is like reading tea leaves. it's fun, but it tells you more about the reader than the readee. from the dominant focus of the arguments today, we know that justices care very much about how this case

heterosexual marriage licenses which different states have different laws form of i'll just let justice elena kagan -- i'll let her handle it. >> do we really think that congress was doing this for uniformity reasons? or do we think that congress's judgment was infested by the fear, by animus and so forth? >> jon: fascinating. mr. clement? >> the other point i would make but i want to get around to the animus point. but the other point i would make is when you look at congress doing something that is unusual, they deviated from it in the past. >> jon: i'm going to cut you off right there my friend. beautiful since you are only going to get around to the animus point eventually -- [laughter] -- perhaps we could go back to 1996 with some kind of crazy time machine and listen to some of congress's good reasons for having doma. let me just reiterate this is from 1996, not 1956. >> most people don't approve of homosexual conduct. >> it's inherently wrong and harmful to individual families and society. >> an attack upon god's principles. >> the very foundations of our society are endangered of being burn

. >> reporter: justice elena kagan all with her take. >> if happened in 1996, i'm quoting from the house report here, doing decided to reflect in honor collective moral judgment and express moral disapproval of homosexuality. >> reporter: the elderly woman at the center of the case. for now reporting live in washington d.c., ktvu channel 2 news. >>> house minority leader nancy pelosi says she is confident the supreme court will strike down the defense of marriage act. >> as big as our constitution and big as our country itself, it's personal as every marriage in our country. >> pelosi said she believes doma does not have a rational basis which is one of the criteria for the law to stand. >>> after hearing two historic cases on gay marriage what could the supreme court decide and the ramifications? >> there maybe a new plea deal in the aurora, colorado theater shooting case. james holmes lawyer say holmes is willing to plead guilty. prosecutors have not yet set to accept the offer. he's charged with multiple counts of the first degree murder. >>> the sheriff in pima county arizona release

justices sonja sotomayor and elena kagan, gave some of the strongest pushbacks, with the lawyer representingunty, sotomayor directly challenges the racial entitlement comment. >> do you think that the right to vote is a racial entitlement in section 5? >> no. the 15th amendment protects the right of all to vote. >> i asked a different question. do you think section 5 was voted for because it was a racial entitlement. >> well, congress -- >> you think there was no basis. >> congress was reacting in 1964 to a problem of race incrimination, which it thought was prevalent in certain jurisdictions, so to that extent, yes, it was intended to protect those who had been discriminated against. if i might say, i think that. >> do you think racial discrimination in voting has ended? there is none anywhere? >> i think the world is not perfect. >> julie, was she speaking to him or speaking to justice scalia? where was she looking? >> you think often the justices and in this cases likely too, the justices are talking as much to each other as they are to the litigant. >> using him -- >> as a prop. that's n

. >> justice elena kagan questioned whether lawmakers paed doma to make a statement. >> what happenedn 1996 and i'm going to quote from the house report here is congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality. >> justice anthony kennedy is considered a swing vote. he expressed concern that the law stips on the state's rights to authorize marriages 83-year-old windsor is the plaintiff. she paid $363,000 in estate taxes when her spouse after their canadian wedding died. >> say his name had been theo, i would have paid no tax. >> after court some opponents to same-sex marriage were pessimistic. >> i think being a realist here we're going to see the defensive marriage act go down. >> that decision is expected in late june. now, the supreme court dawnielle notingham kpix 5. >> wind sor won her case in lower courts and would likely still get her refund if the supreme court dismisses the case. >>> we're getting a clear picture of just how those broken bolts on the new bay bridge work and why replacing them might be a lot har

telling the court that all congress was doing was setting one federal standard for marriage, but elena kagan challenged that claim, reading from the original documents on the bill and suggesting something darker may have been at work. >> i'm going to quote from the house report here. is that congress decided to reflect and honor a collective moral judgement and to express moral disapproval of homosexuality. is that what happened in 1996? >> reporter: but for millions of americans, same-sex marriage is about bedrock beliefs. >> we're not motivated by hate. we're not motivated by bigotry. we just believe that when the god of the bible created the institution, he didn't get our advice on it. he defined it and i really believe that he got it right. >> reporter: edie had her day in court. she wasn't alone. >> today is like a spectacular event for me. it's a lifetime kind of event. and i know it's the spirit of my late spouse is right here watching and listening and would be very proud and happy where we've come to. >> reporter: edie was in the front row, inside the court. she had headphones on, s

. >> justice elena kagan suggested congress's judgment was infected by fear when it drew up the law. >> well, here's what happened in 1996, and i'm going to quote from the house report here, is that congress decided to reflect and honor collective moral judgment and to discuss moral disapproval of homosexuality. is that what happened in 1996? >> does the house report say that? of course the house report says that. and if that's enough to invalidate the statute, then you should invalidate the statute, but that's never been your approach, especially under rational basis or even rational basis plus, if that's what you're suggesting. we're not going to strike down a statute just because a couple legislators may have had an improper motive. >> but attorney paul clement, who we heard there, said congress was simply concerned about preserving the uniform treatment of couples when it passed doma. concerns of justice scalia and roberts questioned the idea of a change of national attitude. >> why are you so confident in that judgment? how many states permit gay couples to nine, your honor. >>

interested in is the label and you insist on changing the definition of the label. >> meanwhile, elena kagane bench, says this whole notion about whether or not supporting same-sex marriage will actually affect men and women having children, take a listen at what she had to say about that. >> that because we think that the focus of marriage really should be on pro-creation we're not going to give marriage licenses anymore to any couple where both people are over the age of 55? would that be constitutional? >> no, your honor, it would not be constitutional. >> now, zoraida, i started by saying that yesterday, we don't have any more clarity of what they'll do maybe today we'll have a little bit more. >> well, today, actually the court is looking at doma. and at issue here is whether house republicans have standing to make the case. can you explain to us what that means? >> that's right. it's very simple. basically the obama administration is not defending the defense of marriage act. normally the solicitor general of the u.s. is the one who goes to the supreme court and defends it. they're not

cooper found that marriage is about pro creation, but justice elena kagan challenged this argument. >> if you arory the age of 55, you don't help us serve the government's interest in regulating pro creation, through marriage so why is that different? >> your honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the relationship are infer tile. >> i can assure you if both the women and man are over 55, there are not a lot of children coming out of that marriage. >> a lesson in fertility. justice stephen breyer acknowledged, there are a lot of people who get married who can't have children. and what of the same-couples who do have children? cooper argued harm could be done to them and anthony kennedy pointed to the tens of thousands of california children already living with gay parents. >> there are some 40,000 children in california according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. the voice of those children is important in this case, don't you thin

today from the supreme court, you hear the audience gasping at something justice elena kagan says. >>when you look at congress doing something that is unusual, that deviates from how they've proceeded in the past, you have to ask, was there a good reason. and in 1996, something's happening that is in a sense forcing grease to choose between its historic practice of deferring to the states and its historic practice performing uniformity. >> well, what is what happened in 1996, and i'm going to quote from the house report here, is that congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality in 1996? >> is that what the report says? of course it's what the report says. >> you could hear the audience react, gasping incredulous at the way congress thought way back when in the '90s. amazing stuff. joining us is mary bonauto, whose legal work revolutionized gay capital rights. in massachusetts she won the case that caused the state to legalize same-sex marriage and last year she helped persuade a federal appeals court that doma was

elena kagan has never been married. the others are married, although ruth bader ginsburg is widowed now. >> some don't have biological children. justice roberts does not have biological children. >> he has two adopted children. fascinating story in the "l.a. times" today came out about how john roberts' cousin, who is an out lesbian woman from san francisco who wants to marry her partner, will be chief justice roberts' guest at the argument. now, i don't think that suggests exactly how he's going to vote, but john roberts comes from a very conservative catholic family in northern indiana, and he has a close gay relative. i just think that is indicative of how much the country has changed over the years. >> all right. jeff toobin, attorney general harris, thank you so much. >> the argument will be heard tomorrow and wednesday as well but a decision is not expected until june. for more, go to cnn.com. >>> next, an anxious night for amanda knox. italy's supreme court will decide if she is to be retried for the murder of co

. >> reporter: justice elena kagan all with her take. >> if happened in 1996, i'm quoting from the house report here, doing decided to reflect in honor collective moral judgment and express moral disapproval of homosexuality. >> reporter: the elderly woman at the center of the case. for now reporting live in washington d.c., ktvu channel 2 news. >>> house minority leader nancy pelosi says she is confident the supreme court will strike down the defense of marriage act. >> as big as our constitution and big as our country itself, it's personal as every marriage in our country. >> pelosi said she believes doma does not have a rational basis which is one of the criteria for the law to stand. >>> after hearing two historic cases on gay marriage what could the supreme court decide and the ramifications? >> there maybe a new plea deal in the aurora, colorado theater shooting case. james holmes lawyer say holmes is willing to plead guilty. prosecutors have not yet set to accept the offer. he's charged with multiple counts of the first degree murder. >>> the sheriff in pima county arizona release

but justice elena kagan picked apart the premise, asking whether a state could deny a marriage license to people over 55. >> if you're over the age of 55, you don't help us serve the government's interest in regulating pro-creation through marriage. so why is that different? >> your honor, even with respect to couples over the age of 55, it is very rare that both couples -- both parties to the couple are infertile. and the traditional -- >> i can just assure you if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. >> reporter: just us it antonin scalia repeatedly tried to pin down attorney ted olson on when gays and lesbians first got the right to marriage. >> i'm curious, when -- when did it become unconstitutional to exclude homosexual couples from marriage? >> if i may answer this in the form of a rhetorical question. when did it become unconstitutional to prohibit interracial marriages? >> reporter: the question even got asked whether same-sex marriage has been around long enough to understand its social impact. justice

today, justice elena kagan asked how allowing same-sex marriage would undermine?what part do you see happening and when a how? what harm to the institution of marriage or to opposite sex couples? how does this cause and effect work? >> charles cooper representing the prop 8 supporters argued it's impossible to foresee how redefining marriage will ultimately impact society. several justices also noted that same-sex couples already have expansive rights in california. with that in mind, chief justice john roberts asked wh why? >> 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. that is what seems to me the supporters of proposition 8 is here. all you're interested in is the label and you insist to change the definition of the label. >> justice kennedy who many believe could serve in the swing vote signaled he is empathetic how the ruling will impact children of same-sex couples. >> there are 4,000 children in california -- 40,000 childr

jeffrey, you said the most dramatic moment in court today was when justice elena kagan revealed that lawmakers passed the 1996 law to make a moral judgment against gay people. take a listen. >> is what happened in 1996 -- and i'm going to quote from the house report here -- is that congress decided to reflect an honor, a collective moral judgment and to expect moral disapproval of homosexuality? is that what happened in 1996? >> does the house report say that? of course the house report says that. >> and then the attorney defending the law shrugs it off like it's no big deal. why was that such an important moment, jeff? >> it was a remarkable moment. you can hear on the clip a gasp in the courtroom. it was even louder when you were sitting right there because the attorney was saying this law was passed to expect the democratic process and just as kagan said, no, we want to express moral disapproval of homosexuality. the supreme court has said that moral disapproval is a constitutionally i am permissible purpose. so in some sense the gig was up because it showed all of these innocent

today, justice elena kagan pointed to the law's history. >> i am going to quote from the house reporte. congress decided to reflect and honor collective moral judgment. to express moral disapproval of homosexuality. is that what happens in 1996? >> reporter: there was an audible renext the courtroom. but not everyone was convinced that was the driving factor behind the landslide votes in both the house and senate. including chief justice john roberts who repeatedly questioned the implication. >> so, 84 same question i asked before. 84 senators base their vote op moral disapproval of gay people. >> former solicitor general paul clement represents the house members fighting to defend doma since the obama administration announced it would not said lawmakers considering the 1996 legislation asked the clinton justice department for its view of the constitutionality. three times. and each time they were given the okay. clemente argued that was hardly evidence of improper emetus. the case arrived by a woman who married her partner in canada. but at the time her partner died they were not rec

obama appointee elena kagan on the other hand questioning the attorney who argued to preserve california's same sex marriage ban and in his mind, preserve traditional marriage. >> it is very rare that both parties to the couple are infertile and the traditional -- >> if a couple -- i can just assure you if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. >> other justices questioned whether the case even belonged before the court, fueling speculation they will be looking for a way not to make any sweeping decision. in justice anthony kennedy gave voice to the danger of doing too much or too little. >> we have five years of information to weigh against 2,000 years of history or more. on the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. there are some 40,000 children in california, according to the red brief, that live with same sex parents and they want their parents to have full recognition and full status. the voice of those children is importan

justice elena kagan said congress itself was being discriminating when it passed the law. >> i'm going to quote from the house report here. congress decided to reflect an honor of collective moral judgments until and to express moral disapproval of homosexuality. is that what happened in 1996? >> you hear the gasps in the audience. the more liberal justices backed the idea that doma violated by withholding benefits from same-sex couples. >> the federal government then becomi becoming -- no social security benefits. your spouse is very sick, but you can't get leave. that set of attributes might ask what kind of marriage is this? >> the idea of skim milk marriage going viral late yesterday. kennedy likely to kft a swing vote arguing that the act seemed to run counter to the federal government's tradition of deferring to state when is it comes to defining marriage. >> you are at real risk of running in conflict with what has been thought to be the essence of the state's power to regulate marriage, divorce, custody. >> a conservative side. roberts rejected the assertion that the court need

. >> justice elena kagan tore into paul clement about what congress was thinking when it passed the lawars ago. >> i'm going to quote from the house report here. is that congress decided to reflect and honor a collective moral judgment and express moral disapproval of home sexuality. >> but perhaps an even larger problem for the defense of marriage act was that the federal government has started regulating as many as 1,100 spousal benefits in an area of the law that has traditionally been left to the states. justice anthony kennedy is seen by many as the potential swing vote. >> you are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody. >> the court is likely to meet later this week in chambers to take a first vote and provided they don't decide to rehear the case, they would likely begin the process of crafting a decision. we're not likely to hear anything from the court on this until late june. joe johns, cnn, washington. >> our thanks to joe. later this morning on "startin

of them had a problem because elena kagan was in the justice department's so she could not sit on the case. they took a case from new york. the two sides in this case involved the bush and obama administration. the obama administration chose not to defend block. they believe it is unconstitutional so the house republicans hired paul clement the solicitor general for george w. bush. he will get up and argue that congress made this decision and it is reasonable for the federal government to maintain the view they always had that marriages between a man and woman and that is all we need to recognize. verilli will argue that it is discriminatory and discriminates against gay couples and there is no justification for it. they are legally married there for you should say since matter, this state should go. an attorney from new york city is representing the plaintiff in the case, a woman named edie windsor who has been with her met in after they greenwich village in the 1960's and have been together for 40 years. they got married in toronto in 2007 and lived in new york and your spouse died

appointees in different ways, justice ruth bader ginsburg, stephen breyer, sonia sotomayor and elena kagan seemed simple thre eed syntheti. the others seemed sympathetic to the anti-same-sex marriage force. clarence thomas said nothing. and anthony kennedy the swing vote so often seemed to be groping for some sort of resolution. he said, some things that were sympathetic to one side, some sympathetic to the other, but i wouldn't venture a guess on his vote at this point. >> real quick here, that's a good summary inside the courtroom. sounds like -- what is the mood outside the courtroom? is it festive? sounds like a party going on out there. >> it is pretty festive. it's overwhelmingly pro-same-sex marriage force but was a few opponents here. they've been here all day long. it's very good natured crowd. it's not threatening in any way. it's the first amendment to the united states constitution in action put to use by people expressing their views. >> lots of action outside the supreme court. as we mentioned we're waiting for the audio from the supreme court hearing on same-sex marriage. we

. >> sean: from ruth bader ginsburg to justice sotomayor and elena kagan, i was surprised at many of their questions, but you're right, you can't discern how they're going to vote based on the questioning. you can infer, but sometimes you could be wrong. what with what justice alito had to say, juan williams, he said we don't have an ability to see into the future. we're talking about an institution that's newer than cell phones and the internet. a pretty strong statement i felt from him. >> well, i think it was strong. the whole idea is, and i think that jay is exactly right. the argument today is largely about standing, but the overall tone was one of reluctance to make a ruling here and picks up on the man who is identified as the likely swing vote in in whole affair, which is justice kennedy, and kennedy just said recently why should nine unelected men or women, you know, who have a narrow legal background be allowed to make a decision of this momentous consequence for the entire society which is sort of, gee, i'm just a supreme court justice, why are you asking me? but i'm got t

this is the argument between justice elena kagan and paul clement, the attorney representing the house of representatives, republican side obviously. here's clement arguing congress was motivated by fear or dislike of gay people. rather they were acting to promote uniformity among the states and federal laws. let's look at this debate here. >> you have to understand that 1996, something's happening that is, in a sense, forcing congress to choose between its historic practice of deferring to the states and its historic practice of preferring uniformity. up until 1996 it essentially has it both ways. every state has the traditional definition. congress knows that's the definition that's imbedded in every federal law. fine, we can defer. >> is what happened in 1996, and i'm going to quote from the house report here, is that congress decided to reflect and honor a collective moral judgment and express moral disapproval of homosexuality. is that what happened in 1996? >> does the house report say that? of course the house report says that. if that's enough to invalidate the statute, then yo

. >> he was my former law school professor as was elena kagan. >> dozens of sports figures are layingroundwork for the possibility that an active nfl player may soon come out of the closet. at least 42 players signed a brief saying they support marriage equality. baltimore ravens linebacker brendan talked on the steps about a close teammate who is still in the shadows. >> so every day i go to lunch with a guy that lines up next to me and i love that player like he's a family member. so i talk to that man about my wife and kids and one day that man is going to talk to me about his husband and his kids. >> joining me now, hudson taylor, whose mission is to end homophobia in sports. we don't know the name of the player yet that brendan was referring to or if that player is preparing to come out. but there is a sense that something big is in fact about to drop in the nfl. do you know of any nfl athletes who are saying right now i'm ready, i want to do this, i want to come out? >> sure. well, you know, we know that there are closet athletes in the nfl and in all the professional leagues. w

but justice elena kagan asked based on that position what would stop a state from allowing marriage licenses to people too old to have children. which happens all the time now. that led to this exchange. let's listen. >> your honor, even with respect to couples over the age of 55 it is very rare that both couple -- both parties to the couple are infertile. and the traditional -- >> no, really, because if a couple -- i can just assure you if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage. >> well, that was a chuckle, but it was a point, governor, which is that not everybody marries even with the intent of having children. >> no. people that are incarcerated can get married. it's perverse. that's why we got into sterilization tests and whether or not you could sign off and whether or not a couple's sterile or fertile. it's a preposterous argument. fundamentally, that's the only argument they have, that marriage is about an institution, about procreation. we know better. justice kagan made the right point. >> few doubt where justic

we put together the audience and first justice elena kagan and then the chief justice john roberts. >going to report from the house is that congress decided to reflect and honor a collective moral judgment and to express moral disapproval of homosexuality. is that what happened in 1996? >> so, the same question i asked before, 84 senators based their vote on moral disapproval of gay people? >> the former solicitor general who is doma to the supreme court, said the lawmakers went to the clinton justice administration three times to ask whether the law would be constitutional. they were told it was, they voted for it. >> greta: so they're questioning, one of the things he we lawyers always it try to do, is to guess. want to take a stab at which way they would be leaning or too risky? >> it's always risky, but there are questions whether the federal government should be making any blanket pronouncement about marriage or better left to the state. >> and i mean, that's-- >> if they go to that question and not reaching the issue of gay marriage. >> and both have equal protection clause. is