it wasn't just an observation from justice alito. ltiple justices asked questions along those lines and it highlights the fact that the supreme court is not a legislature. we have legislative bodies for a reason to deal with these hot-button social issues, that's why i the supreme court expressed skepticism. but we've been saying we don't need a 50-state mandate on same-sex marriage in the country. what we need the supreme court to do is let the american people deal with this through their state institutions. >> i do know that justice kennedy talked about the standing on whether your defendants had standing. do you have the right to bring this case? is that concerning for you, that the standing issue itself. it's not concerning for us at all. standing comes up on a regular basis in federal court and especially with the supreme court and also the california supreme court unanimously ruled that the proponents of proposition 8 have the legal right to defend proposition 8 and defend the interests of the state. making us really indistingui

--well, we said this was a we said this was a close question, and our interests are, justice alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with the court tomorrow. with respect to the merits, two fundamental points lead to the conclusion that there's an equal protection violation here. first, every warning flag that warrants exacting scrutiny is present in this case. of petitioners' defense proposition 8 requires the court to ignore those warning flags and instead apply highly deferential lee optical rational basis review as though proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law. >> general verrilli, i could understand your argument if you were talking about the entire united states, but you -- your brief says it's only eight or nine states, the states that permit civil unions, and that's -- brings up a question that was asked before. so a state that has made considerable progress has to go all the way, but at least the governm

. >> justice alito, i think it makes perfect sense in this context, because every each individual house has a constitutional rule before a statute is repealed. and so yes, it takes two of them to make the law. but each of their's participation is necessary to repeal a law. so if the executive wants to go into court and effectively seek the judicial repeal of a law, it makes sense that one house can essentially vindicate its role in our constitutional scheme by saying, wait a minute, we passed that law; it can't be repealed without our participation. >> well, if the law is passed by a bare majority of one of the houses, then each member of that of that house who was part of the majority has the same interest in defending its constitutionality. >> i don't think that's right after raines, justice alito. in raines, this court carefully distinguished between the situation of an individual legislator and the situation of one of the houses as a whole. and it specifically said this might be a different case if we had that kind of vote. and that's what you have here. that's what you had in chadh

as justice alito said in court this morning, gay marriage is "newer than cellphones or the internet."h, and it was 30 years before everybody had cell phones. what's the hurry, gays? [laughter] the problem is -- the problem is, these days gays are everywhere. 57% of amercans now say that they have a family member or close friend who is gay. up 12% since 2007. and that takes its toll. for example, ohio republican and republican from ohio rob portman. >> conservative republican senator rob portman, who has opposed gay marriage in the past, stunned washington by saying he now favors it. his reason, his son had told him he was gay. >> stephen: he changed his mind because he has a gay son which is not just wrong but it's undemocratic. because his other two children are straight. what happened to majority rule? [laughter] [cheers and applause] portman's just the latest victim of the long gay con. here's how the scam works. first, a gay person decides to get born into a conservative family, gains their trust by letting them love and raise them, and then 21 short years later-- boom!-- they spr

rather tenuous, but today, question, and our interests are, justice alito, in tomorrow's issues where we have briefed the court tomorrow. with respect to the merits, two fundamental points lead to the conclusion that there's an equal protection violation here. first, every warning flag that warrants exacting scrutiny is present in this case. and petitioners' defense of proposition 8 requires the court to ignore those warning flags and instead apply highly deferential lee optical rational basis review as though proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law. >> general verrilli, i could understand your argument if you were talking about the entire united states, but you -- your brief says it's only eight or nine states, the states that permit civil unions, and that's -- brings up a question that was asked before. so a state that has made considerable progress has to go all the way, but at least the government's position is, if it has done -- the state has done absolutely nothing at all,

. >> and then the question was, as justice alito put it, why? he says, we go back to the 17th century, as far as you want, and there is no law that says there is any kind of expectation in a homeowner that a person won't walk up to the dog -- to the door with a dog on a leash and sniff, which, as he says -- which your opponents say is what happened here. and your response to that is? >> my response to that is that any entry onto private property in the 1700's was a trespass, was the tort of trespass, unless it was with consent. >> what about, mr. blumberg, the government cited many, many pages in the record, i just took the first one, petition -- appendix to the petition, 104 and 105. the court said, the officer and the dog were lawfully present at the defendant's front door, and we were told that that was conceded by you a number of times. >> absolutely not, justice ginsburg. what i -- what i said in the florida supreme court, i was given a hypothet about an officer coming up by himself without the dog to knock on the front door and talk to the

lieutenant governor, if i may, i want to play something justice alito said today. >> traditional marriagearound for thousands of years. same-sex marriage is very new. i think it was first adopted in the net herlands in 2000. so there isn't a lot of data about its effect. and it may turn out to be a -- a good thing. it may turn out not to be a good thing, as the supporters of proposition 8 apparently believe. >> so does justice alito have a point? this is relatively new. you only started handing out marriage licenses in 2004. >> yeah, i mean, sure. a absolutely factual what he's asserting. that said, what's the constitutional question? that's what we're supposed to be adjudicating, whether or not it's constitutional to deny people based on their sexual orientation to enter into marriage. let me just assert, i have no evidence whatsoever in places like spain, since 2005 and other countries of the world where marriage is an institution has been under any sort of assault or the sky is falling in. massachusetts and elsewhere in america we haven't seen that somehow there's been this devastating

starting with justice alito. >> same-sex marriage is very new.o step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet? >> then came the zinger from justice scalia. >> i'm curious, when it did become unconstitutional to exclude homosexual couples from marriage? >> when did it become unconstitutional to prohibit interracial marriages? >> don't give me a question to my question. >> and justice kagan challenges the opposing argument that marriage is about having children. >> suppose a state said, because we think that the focus of marriage really should be on procreation, we're not going to give marriage licenses anymore to any couple where both people are over the age of 55. would that be be constitutional? >> thank you, counsel. the case is submitted. >> in just 90 minutes, it was all over. >> it's now in the hands of the supreme court. it's been a long journey here for the last 3 1/2 years. >> now it's up to the nine justices to make a decision. >> the court has seve

justice alito agreed. >> you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the internet? >> reporter: but backers of prop 8 insist the voters have spoken. >> the place for the decision to be made regarding redefining marriage is with the people, not with the courts. >> reporter: even in the nine courts where same-sex marriage is legal, federal benefits are denied. that's what will be argued inside and outside the courts today. by lunchtime today, the court will have heard both sides of both arguments. we're not expecting a ruling in either case until june. tracie potts, nbc news, at the supreme court. >> thank you, tracie. we'll have more on the court's hearing of the defense of marriage act. we'll take you live at 5:00. >>> investigators need your help finding a man who molested and tried to kidnap a young girl. take a look at this surveillance video police have released near the intersection of 94 and b street. this is in oakland, video taken on monday. a 9-year-old girl was playing when the man grabb

justice alito asked one lawyer how he can prove gay marriage is a good thing when it's a newer invention than cell phones. just like the case against michael hardwick, that question is too narrow. gay marriage is new, but liberty and equality are very old. and long overdue. that does it for "the cycle." karen finny is in the chair for martin today. >> thanks, guys. good afternoon. it's wednesday, march 27th. bear aboehner and the boys say america has a spending problem. then they spend millions to protect something americans don't even want. >> historic arguments are sparking some intense debate. >> it did seem like there are at least five votes to strike it down. >> the case today is about edith windsor. >> it's about being left out from the rest of the country. >> i know the spirit of my late spouse is right here watching and listening. >> i think it's one of the fastest changing trends we've seen on a social matter in decades. >> marriage is between one man and one woman. >> it's not just what you say. it's how we say it. >> i don't believe we need to act like, you know, old testament

the fact is that at the same time, the justice alito understands some of those cultural issues. it is interesting. the supreme court of the united states today has no protestants on the supreme court. isn't that interesting? we basically have catholics and jews. >> i have been very worried about that, i will tell you. [laughter] >> i mentioned it because i thought it was keeping you up at night. the fact is that i have no doubts that they each will do what they said in their nomination, which is they would apply the law, and what justice roberts said is really probably a similar statement. judges are supposed to call balls and strikes. that does not mean that they don't understand -- as a matter of fact, why do you have a diverse jury? the appellate court is just another type of jury, right? the supreme court is a very different kind of jury because the supreme court, and having only had one case before them, i learned very quickly that president -- precedent is not as important as the justices, who will decide what the law is. they will change what the lot is if they get a majo

in other cases, justice alito has been willing to take leap in lightest new technology. positioning tracking devices can't be used to track us 24/7. so it was palpable to see alito and the other justices like kennedy, too, wrestling with this question of how far the court should get ahead of public opinion but recognizing on the other hand, if the right of marriage equality is a fundamental right, it shouldn't matter that we're uncertain about what the effects would be. it is time to declare it now. >> let me play another excerpt. justice roberts on labeling marriage. >> 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's it seems to me what the quarters of proposition 8 are saying. all you're interested in is the label and you insist on the definition of the label. >> your analysis of that comment? >> i thought that was a fascinating comment. absolutely right. supporters. marriage equality are saying, gay people are entitled to the sam

. >> right, and we had justice alito, one of the most powerful conservatives in town, and he said listens immigration reform is going to happen. just wait until we start running ads that say immigration reform will create 10 million new democrats, all of whom are here because they broke the law. then talk to me about whether it can pass, and that's the pressure we're seeing put on marco rubio. and rubio is a linchpin. if rubio backs immigration reform, i think we collectively think it happens. >> absolutely. >> if he backs out, it's done. >> absolutely. i think if he backs out, if he's not up there as one of the faces, i think it is over. >> and speaking of rubio, obviously, he's going to run in 2016, and hillary clinton probably is going to run. >> probably. >> and is very worried about a marco rubio, young, obviously new face for the republican party. in a meeting last week, you were saying you've now come full circle to thinking that hillary clinton is going to run. you were skeptical before, why? >> i was skeptical because of her health, because i didn't think she wanted to do this a

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 to see when you look at this issue it looks like these men and women are afraid of it in some sense because it is so divisive, sean. >> sean: and what jay said, they don't want -- roe vs wade was always bad law and i think that they-- >> well, i disagree.

. >> i don't think that's right after raines, justice alito. in raines, this court carefully distinguished between the situation of an individual legislator and the situation of one of the houses as a whole. and it specifically said this might be a different case if we had that kind of vote. and that's what you have here. that's what you had in chadha. and again, i do think that -- i mean, the only alternatives here are really to say that the executive absolutely must enforce these laws, and if they don't, i mean, because after all -- you know, i -- i really don't understand why it's -- if they're not going to -- if they've made a determination that the law is unconstitutional, why it makes any sense for them to continue to enforce the law and put executive officers in the position of doing something that the president has determined is unconstitutional. i mean, think about the qualified immunity implications of that for a minute. so that's problematic enough. but if they're going to be able to do that and get anything more than a consent judgm

four years later there have been unintended consequences, and as justice alito pointed out, we're talkingut something or the internet and cell phones. very, very careful before we move down this path of redefining marriage. so this is a process that is being aggressively, vigorously debated at the state level across the nation. i do not think that we need a one-size-fits-all government solution. lou: i wondered, traditionally the right of states to define marriage. they seek to define marriage in contravention of what has always been the case. it is an odd twist because they could very well, these justices. it's up to the states to define. it is curious to me that the law says and customs says that the states can define marriage. overwhelming proposition eight, the most democratic the expression that we have. >> one is preserving. >> i don't have time, but i do have time for your reaction. >> and mr. question. lou: this is complicated. >> at gallegus 5050 it was to the jury is still out. >> the breakdown. >> well, what the republicans do, and they have to realize that 50 percent of their

justice alito said, what if they did not use the word marriage? what if they used a mistake couples that are certified or something like that? again you get down to the basic issues. -- what if they used domestic couples that are certified or something like that? again you get down to the basic issues. that federalism in great has to collapse. justice kennedy may not agree. seemednnedy and roberts to be very attracted to this federalism argument. i do not buy the federalism argument. i'm not sure. i like the equal protection argument. credentialegal or we could have this sort of way station on the way to an eventual, political resolution >> we always wonder whether amicus briefs are having an effect. one of them that seems to have caught justice kennedy's eye is by professors leon katz and harvey mansfield, saying that social science is newer than cell phones and the internet and -- they haveholars points they want to make. their research is sometimes not very rigorous. justice kennedy was swayed, it seemed,. what would you have said? >> to me, th

they want the court to move ahead but justice alito said it's not time yet. >> you want us to step in and render a decision based on the effects of this institution which is newer then cell phones and the internet? we do not have the ability to see the future. on the question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or elect public officials. >> whether or not we get to the merits a decision will likely come in late june. >> shepard: an institution newer than cell phones. interesting take. judge not a not a is here. you can make the argument this is not knew at all. seems the argument that wantprof people in society are allow today do, some whatever it is, through the state, then this group should be allowed to do it, too, especially if, in numbers, they are the minority. >> you have articulated in your own unique way, shep, the equal protection clause in the constitution. the federal constitution. which says that the states must treat similarly situated people in a similar way. it's going to

including justice alito who said the idea of same-sex is nurer than cell phones and internet. >> on astion like, that why should it not be left for the people, either acting in true initiative or referendum or through electing public officials? >> after california attorney general and governor opted not to defend prop 8 in court, supporters of the initiative took up the legal fight. arguing that marriage is a unique relationship that must be protected. 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

justice alito made the point this is newer than the internet and cell phones.move slowly on this. the evidence does not suggest that children do beth with just two parents or three parents. the evidence says a mom and a dad. from a public policy standpoint, our preference is that children have a mom and a dat. now, to where we are today and this debate, that states have the right to do what they have done, 30 states have placed marriage, the natural definition, the federal government should remember that. >> yes, but there are studies also, especially from the american academy of pediatrics which suggests that having a two-person home, even if its a same-sex couple is actually beneficial for children, so there are questions about your facts on that question. i would like to ask you, though -- >> well, but that's -- >> let me finish. >> it's interesting they failed to acknowledge one of the most widespread deep surveys on that that mar regneres did out of texas, they completely ignored that. >> on the surveying there was questions about funding, as well as the q

. >> justice alito, there's no question the voting rights act has done enormous good. it's one of the most successful acts in the 20th century and one could go further than not. but when congress decided to reauthorize it in 2006, why would you comment on congress under the conference in proportionality standard to make a determination of coverage? maybe the whole country should be covered or maybe certain parts of the country should be covered based on a formula that is grounded in up to date statistics. but why wasn't that required by the congruence in proportionality standards? >> suppose congress in 1965 had basic coverage formula on voting statistics are made to 19, 46 years earlier, to think katzenbach would come out the same way? >> now, it was different than what congress did in 1965. it is not an say. in 1965 this court upheld four separate times over the years and it seems to me the question before congress on proportionality or the reasonably adopted formula in northwest houston is whether the judgments retain that geographic coverage of sufficient relations

there was something that justice alito said yesterday. i only bring in yesterday's in because there are cross-platform issues here with regard to just how broad these justices might act. let's listen. >> traditional marriage has been around for thousands of years. same-sex marriage is very new. i think it was first adopted in the netherlands in 2000. so there isn't a lot of data about its effect. and it may turn out to be a good thing. it may turn out not to be a good thing, as the supporters of proposition 8 apparently believe. but you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet. i mean, we are not -- we do not have the ability to see the future. >> so, professor turley, when i hear the words "institution that's newer than the internet," would those who argue against that say maybe the institution, legally, is newer than the internet. but the love has been around forever, and freedom has been around forever. and equal protection has been

anthony kennedy, the likely swing vote, said the court was heading into "uncharted waters," and justice samuel alito echoed him, noting that gay marriage in america is less than ten years old. >> you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet? >> reporter: and justice antonin scalia was sharply skeptical that the court could create a constitutional right to gay marriage, after 200 years of laws banning it.

chief justice roberts, justice scalia, justice thomas, justice alito tend to be more traditional conservatives, big government conservatives. justice kennedy is usually conservative but he is more of a libertarian style conservative. and so he would be more sympathetic to the argument that, you know, the federal government needs to leave the states alone. that gay people need to be left alone. he has traditionally been very supportive of gay rights although today he is much more interested in the federalism argument than the gay rights argument. >> do you think -- i mean some people have said does it matter what your personal relationship to this issue is into whether you should rule on it? we take chief justice roberts, his first attorney in the courtroom, does that matter in terms of his ability to rule. >> i don't think so. certainly, it's not evidence of bias. justices are human beings. they have families. they have religions. they have racial backgrounds. they have had previous jobs. some of them have been active democrats or active republicans. you don't have to be sealed off from the wo

. >> that would make no difference, justice alito. has the federal government been hiding this term as it appears in the federal code, it is not regulating marriage as such and it is important to recognize that people who are married in their state based on the legislative acts or by recognition remain per -- remain very for purposes of state law. >> you started, i think by agreeing, maybe not, then uniformity in and of itself is not likely to prove sufficient at least on a rational basis. and why? because we can think of categories that are uniform. so far, what i have heard, is looking at it on the merits, there is certainly a lot of harm. on the plus side, we do not want courts deciding this. of course, as was just pointed out, in some states it is not courts. it is the voters. and then you say, but we want many courts deciding it. many courts might decide it. want to be able to have a list of really specific things that you are saying that justify this particular effort to achieve uniformity. i have those two i mentioned. what els

>> the supreme courts justice alito and kagan differing whether the court should intervene on the issue marriage. we are back, now, with a panel. at the end of a rare two days of arguments where do you think the court is on the constitutionality question of same-sex marriage and, also, on the defense of marriage act which denies federal benefits to same-sex couple would have been legally married in their states? >> it looks as if court will strike down part of the defense of marriage act on federalism. >>chris: a state issue and not a federal issue? >> and the federal government is putting a thumb on the scale by preferring traditional marriage to -- preferring states that picked traditional marriage and looks like they will not impose a universal constitutional right to same-sex marriage on the nation and i hope they don't and i guess i think they won't. >>chris: do you think they will leave prop 8 alone and, say, deny it on procedural grounds, the plaintiff didn't have standing or that they might decide, yes, prop 8 stands or falls in california but it does not impact other states? >>

justice alito said same-sex marriage is newer than cell phones or the internet. how can we know for sure that there is no potential damage to kids? now you may ask, which i certainly thing the cynical among us will ask, are they really concerned about kids or are they just looking for an excuse to maintain the discrimination against gay people? that is a question that is certainly below the surface here. >> because on the face of it, the case is not about children, although justices and courts have to be concerned about the welfare of kids. but this is about whether or not couples can get married. why are the justices going beyond that in the discussions? >> well, because one reason marriage exists and one reason marriage has been defined as between a man and woman, has been that this is how we -- the children come into the world, historically. this is the procreation, is a big part of marriage. and the opponent, the opponents of proposition 8, the supporters of same-sex marriage say wait a second, gay people have children. gay people are good parents. they shoul

justice alito comparing gay marriage to cell phones and the internet. let me let you listen to this. >> you want us to step in and render a decision based on an assessment of the effects of this institution which is newer than cell phones or the internet? we are not -- we do not have the ability to see the future. >> now, i mean, newer than cell phones or internet, i got that part. but if we are asking the court to step in in a relatively new kind of social challenge with same-sex marriage to those that are challenged by it, aren't people asking people to step in and stop it? so how do you judge not to do it, but it's too early to say it's all right to do it? >> yeah. i'm still trying to wrap my head around the analogy that the justice used. i don't quite get what he's saying. look, the american people, 58% in the "washington post" poll, 58% of the american people are there. you have more than 130 republicans who signed an amicus brief in the prop 8 saying same-sex marriage should be legal. you have 51% of republicans, 18 to 45, who say same-sex marriag

justice alito is not taking part in this decision, there's a small chance the justices could deadlock, the appeals court ruling for the ftc will prevail. sue? >> thank you very much, bertha. >>> so why are young people buying homes in retirement communities years ahead of the time they retire? diana olick is on the cusp of this new trend in housing. >>> at century village, retirement community in boca raton, senior citizens get in early for yoga, but not charlie roke. >> no, this is my little get away place. >> reporter: at 56, he's neither a senior citizen nor a retiree. what he is an astute buyer. >> i bought an apartment that not long ago was valued around $75,000 and i picked it up for $20,000. >> reporter: from the height in 2006 to the bottom in 2011, home prices in boca raton fell 53%. now they're heading up again and that has created a great opportunity for home buyers of any age. while the median age here at century village may be coming down, you still have to be 55 years old to live here. but that hasn't stopped younger investors from jumping right in, taking advantage of t

. >> nina, is there a possibility they could then say, just judging from what justice alito asked, youaged person looking like a middle schooler ride up on his bike and ask to register to vote and say yes, i'm a citizen. could they then challenge the federal law and say that's not adequate? how much leeway do they have based on this argument? >> the leeway is provided under the constitution, which he congress chooses to step in and regulate the national voter registration act. states must yield to that with respect to the hypothetical involving the boy on the bicycle what that perhaps doesn't recognize is all states take their voter registrants and run them through various databases to make sure they are who they are and driver's licenses and other databases. the question is what can be required of the applicant. of the individual at the time of the registration? congress says a simple post card. this certainly leaves the states free to do whatever checking they want to do on their own. >> maria theresa how is this targeting minority and largely latino voters? ha do you think arizona w

>> reporter: that seems right, and you certainly had the statement from justice alito about how this is so new and how can we make a decision on something where the fact basis is so short and truncated for us? and i, so i think most people expect a ruling on the narrower side rather than a broad side. but i don't think anybody can be surprised given the pace of change, given the united states senators we see turning around, given the way the president, both in his campaign, in his inaugural, changed on this issue re terr rhetorically and stant ub stant. barney frank. he said, my continued attraction to men is more politically acceptable than my attraction to government. >> he's probably right. >> reporter: exactly. that tells you how tea leaves are changing. who knows. they could change here. i think that's not the general expectation in a dramatic way. >> john harwood, thank you so much. >>> with me here in new york, congressman charlie rangel. congressman, thank you so much for joining me. >> good being here. >> congressman, one of the things that strikes me is the dramat dramatic

but then justice alito toward the end of the oral argument, he said if we do get out ahead of it, aren'ting the democratic process? and he seemed to use that as his practicing mattic reason as opposed to the orange reining reason for letting prop 8 stand and letting the process play out in other states in the country. >> i would love to go and ask those people who want every child to have a mom and a dad if they are against divorce or against single parents. my question to you, it is unconstitutional to have laws that ban rights to one specific group of people. so why is it unlikely we'll get that 50 state solution that liberals were hoping for here? >> politics. that's the only reason. justice kennedy and i guess two more words, justice kennedy. he seemed genuinely frightened of the fact that the only remaining rationale he could support in the supreme court was the 50-state solution. he seem afraid of going that far. he said the california only solution, the ninth circuit did was rubbish. he said standing, they had standings to get into court. he did not lying the solicitor general's e

newer, as justice alito said, than internet or cell phones. so it really highlights the role of the court. the supreme court is not a legislature. it's not designed to be a legislature. justices have expressed reservations about the capacity of the court to answer this difficult question over this very important debate. that's why we have ballot boxes. that's why we have legislatures: to deal with these important issues so we can have the debate, see how things go over the course of time. that's all we're asking the supreme court to do. we don't need a 50-state mandate on same-sex marriage in this country. we need to leave it in the hands of the people. >> ifill: do you reject the point that justice ginsberg made today compare inning to the loving v. virginia case which allowed interracial marriage in virginia. do you not see any parallels in that? >> not at all. when the supreme court decided the loving case, it made very clear that marriage is color-blind but it's not gender blind because it said in that case that marriage is very fundamental

>> pete, do you think that justice alito's focus on o purpose and what really was the purpose, might suggest that he sees some sort of illegitimate state interest there in the statute? >> there were flickers of that, i think. i wondered about that myself. but whether he is willing to join the other six, i don't know. he seems skeptical on both sides, frankly. hard to know where he will be. he's not been an outspoken person on federalism or state rights in the past. so i wouldn't necessarily count him the sixth. but all it takes is five. >> you a right. nbc's pete williams. thanks as always, for the great insight. >> you bet. back for day two of same-sex marriage issue eats high court, is correspondent of huff post life, thanks for being back with us, mike. >> thanks for having me. >> one of the interesting aspects of this particular case where some somewhat surprising friend of the court briefs that were filed in support of striking down doma 1 from prominent republicans, one brief from a group of conservative and libertarian professors. another one from a group of 278 employers, inc

and contains all of these things that justice scalia and justice thomas and justice kennedy and justice alitove justices. if he wants to say it, that's fine. i got no problem with that and i know people who believe that should be contained within heller and the second amendment. it's just not. so when he suggests to dianne feinstein. >> or lectures. >> or lectures she is violating the second amendment that this impinges on second amendment right that is false. this isn't opinion. this is fact. read the damn case law. he keeps doing it and it's driving me crazy because he is supposedly a learned man. >> i think has leads to the next point. we are talking about politics. senator cruz has not just on these issues but on a variety of issues has decided he is going to stake out some turf that is right in the sweet spot of the most conservative, most populist, most red meat tea party elements of his party and decided to do it on a variety of things. he has done it on chuck hagel and done it throughout and with a tone of disrespect that is upsetting a lot of republicans and upsetting a lot of democr

>> well, we said this was a -- we said this was a close question, and our interests are, justice alito, in tomorrow's issues where we have briefed the matter thoroughly and will be prepared to discuss it with the court tomorrow. two respect to the merits, fundamental points lead to the conclusion that there's an equal protection violation here. first, every warning flag that warrants exacting scrutiny is present in this case. and petitioners' defense of proposition 8 requires the court to ignore those warning flags and instead apply highly deferential lee optical rational basis review as though proposition 8 were on a par with the law of treating opticians less favorably than optometrists, when it really is the polar opposite of such a law. >> general verrilli, i could understand your argument if you were talking about the entire united states, but you -- your brief says it's only eight or nine states, the states that permit civil unions, and that's -- brings up a question that was asked before. madestate that has considerable progress has to go all the way, but at least the government