and justice kagan was extremely skeptical. if your only rationale is the monthcreation argument and then, you go in and the justices are extremely skeptical so kagan saying, what about couples that are 55 or older? do you then deny them marriage licenses? would it be constitutional to do that? and the guy had no response. i mean, they are wedged in. i can't remember if it was pete or if it was the legal analyst before who said, this is all they've got. if this is the only thing that they can argue for denying same sex couples the right to marry, where do they go? >> no one can come out of those, a utilities saying which way they believed definitively these justices will go. the confidence from the plaintiffs who even said on "meet the press" that they don't expect this to be close at all. but, and i hate this notion of reading the tea leaves, but no one can say with certainty we've the argument you just presented. >> i just wrote a piece trying to -- >> you want to manage expectations why? >> because remember during the health

meaning justices scalia and sotomayor and kagan?> i think that a lot of people were surprised to hear justice scalia refer to the voting rights act as a racial entitlement. no one knows what he was actually thinking, but i think the word entitlement suggests somehow that you're getting something you didn't earn, and for many of us we think of the voting rights act and the right to vote as sort of an equality mandate for all americans. it's an equality mandate, not some kind of an entitlement, something that when the voters of texas -- and in texas, african-americans and latinos, federal courts found that they were intentionally discriminated against. their right to vote, section 5's ability to stop that, that's not a racial entitlement. that's american justice. >> i don't believe, dale, that voting is a racial entitlement. i don't know how anyone could make such a statement, but giving him the benefit of the doubt, it was bone-headed what he said at best. as i read the full context, he seemed to be saying we never unwind benefits th

maybe you can finish your answer to justice kagan. >> i'm sorry.s female justices are struggling to explain however awesome it may be for a man like strom thurmond to never outlive his fertility, a woman in a heterosexual marriage over the age of 55 is not likely to get pregnant with her husband or anybody else, even if her husband is the picture of aged procreative vigor. you guys do understand that, right? the whole thing about two, both of them, the man and woman being over 55. it doesn't matter how old strom thurmond was himself here. gah! sorry. joining us now is the chief justice professor of constitutional law at nyu law school. he was in the courtroom today. thank you for being here tonight. >> thank you for having me, rachel. >> that pained squall, where nobody realizes what she is talking about makes me crazy. not the most important thing that happened today. what we learned about how these judges may likely rule on this case or was it learning about how they feel about gay people and gay rights in general in a way that might apply to tom

. >> 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 several ways to decide this case from a very broad-sweeping conclusion with respect to the rights of our citizens in this country, to a narrower ruling that would be limited basically to california. >> opposing attorney austin nimocks agreed the court was conflicted and the outcome

and congress had, as judge kagan identified earlier, a very substantial record of continuing need before it when it -- >> can i ask you just a little bit about that record. do you know how many submissions there were for preclearance to the attorney general in 2005? >> i don't know the precise number, but many thousands.

are cherry picking floor debates lowlights highlighting the morality arguments we'll have justice kagan read from the summary of deliberation in 1996 to see if the writers of defense of marriage act did so with moral intent. >> i'm going to quote from the house report here 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? >> does the house report say that? [laughter] >> jon: does it -- is that what it says? if it pleases the court, i'd like to wipe my brow comically now. [ laughter ] ooooh, perhaps approach the bench -- [laughter] but with moral arguments no longer availability to opponents of same-sex marriage what is left for the conservatives to argue? let's let justice scalia take a crack at it. >> if you redefine marriage to same sex couples you must permit adoption by same sex couples. >> jon: everything sounds so far. this say disagreement among sociologists as to what the consequences of raising a child in the sex of a -- in a single sex family whether it's harmful to the ch

>> i did not claim that power, justice kagan.based on the record by congress to determine whether the record justifies discrimination. >> you referred to the problem identified by the tool for picking up the states, which was literary test, et cetera. i suspect the problem with the denial or abridgment by the state of right to vote on the basis of race and color. and that test was a way of picking out places for that problem existed. now with my version of the problem is the problem, insert is not solved. if your version of the problems come up with a receipt test is a problem, you have a much smaller case. so how would your opinion do we decide what is the problem the congress is addressing the voting rights act? >> you look at katzen back in the four corners of the voting rights act. it responds to the use of devices. that problem has been resolved definitively, so it can't be the basis of further legislation. but we talk about here is congress looks and said could solve that. section five has done its work. people register vot

>> 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

and finally justice kagan said could the state of california pass a law that says people over 55 can'tried because they can't have children. and he said what about older people, the man could have children will. and justice kagan said i assure you, if two 55-year-old people get married, they are not a lot of children coming from that marriage. >> joe john, i want to get color as to whether it seemed as though they may be inclined towards not deciding, whether there is jurisdiction to start with with the people who took up the banner to uphold prop 8. because that's one of the building things here. >> it's as if the justices were trying to find an argument that they really liked. and it didn't look like they found any arguments they liked that much. the thing that struck me and i think struck both of us was justice kennedy who a lot of people said could be the swing vote and wrote a previous decision on gay rights, he was questioning whether this issue was properly before the court. so, yeah, there is a question about whether the court is ready to move on this. they also questioned the

>> i didn't think he wanted to question justice kagan's reading of the record. so what he's saying is that you would then have to invalidate it. >> but he also -- he also said that there were -- there were a lot of other motives for congress to pass the law and so he wasn't buying her idea that that was the only motive that congress had. >> yeah. you could really hate somebody as a murderer, but also believe that murderer objectively should be denied the right to murder somebody, obviously. to carry the thing to its fruition here. i think it's fascinating, the whole question about doma and how howard's developed it. do you have a real problem if you allow this condition to continue, basically put a situation where a gay couple comes from new york, gets down to mississippi, they get all the rights of social security and all that stuff but they just don't get the title marriage in the state they're living in. does that mean they have to carry through and pull the thread on the suit so there's nothing left of the suit? there's nothing left of doma because you can't

justices scalia and sotomayor and kagan?of people were surprised to hear justice scalia refer to the voting rights act as an entitlement. no one knows what he was actually thinking, but the word xwil entitlement suggests are you getting something that you didn't earn and we think of the voting rights act as sort of an equality mandate for all americans. equality mandate. not an entitlement. when the voters of texas and african-american latinos, federal courts found they were intentionally discriminated against. section 5's ability to stop that, that's not entitlement, that's american justice. >> i don't believe, dale, that voting is a racial entitlement. i don't know how anyone could make that statement. giving him the benefit of the doubt, it's bone headed. he seems to say we never unwind benefits for-to-a specific demographic. is he right? >> i don't think he meant that. i think he's trying to say is articulate the argument that racial discrimination is largely a thing of the past and we don't need the civil rights act, th

so, that is the argument that justice kagan offered in response to what justice scalia said about it being a racial entitlement, brianna. >> bhawhat about those who say is no longer needed because race relations are improved since the law was first passed? >> that's what the mayor is making. these provisions are a burdensome and unwarranted, but the justices, sotomayor and kagan said that the justices would approve, alabama would meet that having no satate-wide leader elected across the state of alabama. that's the fight. in shelby county they said things improved to a point that this is no longer needed. >> this is really going to be a nail biter judging by the oral arguments, victor, since you couldn't really tell where the justices stood and it seems that it is possible this changes. we'll keep an eye on that and come back to you in selma. thanks. >>> senator mitch mcconnell accuses a liberal group using racial slurs to criticize his wife. former labor secretary elaine cho. sent out a tweet that implies cho's asian background is linked with u.s. jobs moving to china. she moved to

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

>> justice kagan, that would be a -- a very tough question. it's by no means the question before the court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and carefully detailed -- >> well, i just -- if you would on the hypothetical -- could a state just assign to anybody the ability to do this? >> your honor, i think it very well might. it very well might be able to decide that any citizen could step forward and represent the interests of the state and the people in that state -- >> well, that would be -- i'm sorry, are you finished? >> yes, your honor. >> ok. that may be true in terms of who they want to represent, but a state can't authorize anyone to proceed in federal court, because that would leave the definition under article iii of the federal constitution as to who can bring -- who has standing to bring claims up to each state. and i don't think we've ever allowed anything like that. >> but, your honor, i guess the point i want to make is that there is no question the s

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

>> justice kagan, that would be a -- a very tough question. no means the question before the court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and carefully detailed >> well, i just -- if you would on the hypothetical -- could a state just assign to anybody the ability to do this? >> your honor, i think it very well might. it very well might be able to decide that any citizen could step forward and represent the interests of the state and the people in that state -- >> well, that would be -- i'm sorry, are you finished? >> yes, your honor. >> ok. that may be true in terms of who they want to represent, but a state can't authorize anyone to proceed in federal court, because that would leave the definition under article iii of the federal constitution as to who can bring -- who has standing to bring claims up to each state. and i don't think we've ever allowed anything like that. >> but, your honor, i guess the point i want to make is that there is no question the state has st

meaning justices scalia and sotomayor and kagan?k that a lot of people were surprised to hear justice scalia refer to the voting rights act as a racial entitlement. i think that the language -- no one knows exactly what he was thinking, but the word entitlement suggests that somehow you are getting something that you didn't earn. for many of us we think of the voting rights act and the right to vote as sort of an equality mandate for all americans. it's an equality mandate, not some kind of an entitlement, something that when the voters of texas -- and in texas, african-americans and latinos, federal courts found that they were intentionally discriminated against. their right to vote, section 5's ability to stop that, that's not a racial entitlement. that's american justice. >> i don't believe, dale, that voting is a racial entitlement. i don't know how anyone could make such a statement, but giving him the benefit of the doubt, it was bone-headed what he said at best. as i read the full context, he seemed to be saying we never unwi

>> justice kagan, that would be a -- a very tough question. it's by no means the question before the court, because -- because it isn't any citizen, it's -- it is the -- it is the official proponents that have a specific and carefully detailed -- >> well, i just -- if you would on the hypothetical -- could a state just assign to anybody the ability to do this? >> your honor, i think it very well might. it very well might be able to decide that any citizen could step forward and represent the interests of the state and the people in that state -- >> well, that would be -- i'm sorry, are you finished? >> yes, your honor. >> ok. that may be true in terms of who they want to represent, but a state can't authorize anyone to proceed in federal court, because that would leave the definition under article iii of the federal constitution as to who can bring -- who has standing to bring claims up to each state. and i don't think we've ever allowed anything like that. >> but, your honor, i guess the point i want to make is that there is no question the s

cooper that actually began with justice kagan. asked him what harm is there to the institution of marriage or to opposite-sex couples if marriage were extended to include same-sex partners? >> and mr. cooper gave kind of a general answer that we don't know yet. we can't predict the future. we don't know what harms might result. but it was justice scalia who interjected and said, well, i can give you a concrete one. if same-sex marriage is permitted, then states will have to recognize adoptions by same-sex couples. and there is a dispute in sociological data in studies about whether children raised by same-sex parents are harmed or not harmed. so that is what justice kennedy was responding to. but that's been one of the key arguments against proposition 8, and i think that may have been one of mr. cooper's weaker points in response to justice kennedy. however, mr. cooper did consistently argue that these are policy questions that ought to be decided by the states not the supreme court. >> woodruff: marcia, there's another noteworth

we heard it from justice kagan. we heard her ask at one point-- she talked about moral disapproval of home's sexuality. how does that play out in the court today and how important is that tho deciding this case? >> more important is that the obama administration rejected. they readily said in court doma was not driven by animous. in fact, they said doma-- what is called rational basis reviewsh the federal standard under equal protection when we evaluate laws-- the obama solicitor general, verrilli, said if rational base review is the tet doma would survive. this lou-- they said congress made a mistake in passing it but was not trying to discriminate. >> woodruff: so what role do you see discrimination playing in the outcome here? >> i see it playing a role. in 1996, it was really clear that the law was you take state marriage laws as you find them. you fold married people-- whether they have differences in racial restriction in the past or first cousins, second cousins if you were married in the state, they changed

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

but u justice kagan pointed to a bill in 1996 that ly showed that the bill passed in a climate of quotelike and moral judgment of homosexuals. >> michael: after the hearing, house minority leader, nancy pelosi said that her house colleagues had been wrong to pass the bill in 1996 and she praised edie. >> edie is a very courageous brave woman. it was a joy just to see her sitting there in the court held held high that her marriage and the fight that she is make for other people. this is as big as our country, as big as our constitution as big as being a beacon of equal propersian to the world. >> michael: the spineless cowards on the other side of the aisle did not speak to the press, and john boehner said that house republicans would continue to defend doma. eric cantor and the rest of the laughable leadership didn't say anything at all. then again in washington polling speaks louder than anything, and the most recent polls show popular sentiment is moving against republicans. a significant number of americans want the supreme court to overturn doma. a cnn orc poll finds that 56% of ame

>> justice kagan, there is a three-prong test. even if you treat that as injury, it does not meet the requirements for standing on appeal, because the government has not asked this court to remedy that injury. the government has not asked this court to overturn the rulings below so it doesn't have to pay the $365,000. it has asked this court to affirm. and the case or controversy requirement that we're talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief. if the government or any party is not bound with respect to standing by its articulated request for a remedy, what that does is it enables the court to fill in, to reshape. and for a doctrine that is supposed to be limiting the occasions for judicial review of constitutionality, that is troubling. >> but don't we often separate those two things, ask whether there's injury for article iii purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met,

la laugh on the pro-gay side you got your kagan, breyer, wise latina and ginsburg who acted all surprise that the defense of marriage act makes the federal government treat gay couples differently from straight couples. >> you are saying there's two kinds of marriages the full marriage and skim milk marriage. >> stephen: yes, skim milk marriage. i have always suspected that skim milk was gay. for god sake it has homogenized on it. for pete's sake sean penn won an oscar for it. don't call me a bigot because i'm lactose intolerant. 2% that is straight missionary. half and half, come on. [ laughter ] and yogurt, i think we all know what that fruit is doing on the bottom. [ laughter ] plus, ladies and gentlemen, giving homosexual marriages federal recognition means giving them benefits meant for straight couples. >> think social security benefits, federal estate and income taxes as well as medical and family leave. same-sex couples who are legally married do not get them simply because they are gay. >> stephen: not simply because they are gay. because they are gay and we want to punish them

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

take a listen to elena kagan, justice kagan, make a pointed question about that point. >> because we 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 constitutional? >> no, your honor, it would not be constitutional. >> reporter: so, zoraida, as we've said, we've heard these different points of view, these different lines of questions, which makes it really hard to guess exactly where the court will go. >> really interesting to read it as well and listen to it, and a little bit of humor happened as well yesterday in the court. so today the court looks at doma. at issue here is whether house republicans have standing or legal authority to make the case. how might this affect any doma ruling? >> reporter: let's explain what this actually means. the obama administration is not defending doma. they basically abandoned it. so the house republicans picked up the baton. so the supreme court will have to decide whether the house republicans even have the legal authority to even decide this

justice kagan said that it was four times more adjusting for population data. the fact of the matter is that there is another piece of evidence in the record in this case where peyton mccrary looks at all of the section 2 cases, and what he shows is that the directional sense, that the ellen katz study pointed to dramatically understates the disparity under section 2. and so he found that 81 percent -- >> all of the noncovered states are worse in that regard than the nine covered states, is that correct? >> justice scalia -- >> every -- every one of them is worse. >> justice scalia, it's -- it's a fair question, and -- and i was speaking to the aggregate -- >> it's not just a fair one, it's the crucial question. congress has selected these nine states. now, is there some good reason for selecting these nine? >> what we see in the evidence is that of the top eight states with section --favorable section 2 outcomes, seven of them, seven of them are the covered jurisdictions. the eighth was bailed in under the other part of the mechanism that, as justice kennedy p

>> justice kagan, there is a three-prong test. even if you treat that as injury, it does not meet the requirements for standing on appeal, because the government has not asked this court to remedy that injury. the government has not asked this court to overturn the rulings below so it doesn't have to pay the $365,000. it has asked this court to affirm. and the case or controversy requirement that we're talking about are nested in an adversarial system where we rely on the parties to state their injuries and make their claims for relief. if the government or any party is not bound with respect to standing by its articulated request for a remedy, what that does is it enables the court to fill in, to reshape. and for a doctrine that is supposed to be limiting the occasions for judicial review of constitutionality, that is troubling. >> but don't we often separate those two things, ask whether there's injury for article iii purposes and causation and redressability, as you say, but then say, well, sometimes when all of those are met,

of surprising from justice kagan. she was saying well it is percolating. it perks. issues like this perk through the populace. and it's percolating now but, she seemed herself very concerned that this might not be yet the time to step in on a case like proposition 8. i don't know how she is ultimately going to vote. but even the "new york times" "the washington post" reporting the justices are very weary about stepping in and declaring that all these states, 41 states are wrong and how they define marriage justices even the liberal ones a broad based ruling i don't see it happening. >> this came out of nowhere. it really is a movement that came out of nowhere. >> laura: right. >> that's basically what she is saying. it's organic. it's going to be slow. who knows how this is going to turn out. >> laura: you are saying who knows how it's going to turn out you are defending "time" magazine saying it's over. >> it has won. i don't know if it's going to win tomorrow or in june or if it's going to win next year it has won.

as justice kagan said, it doesn't make any sense. why on earth would you think that banning marriage for gay people would have any effect on the behavior of straight people responsibly or not? it really was a remarkable series of exchanges. >> i would have thought, jonathan, they would have come up with a better argument than that. are you suggesting, then, that straight couples that get married and don't have children haven't lived up to their obligations to the country? what are we saying here? this is bizarre? what does this have to do with people's right to marry. >> right. think about this. chief justice roberts, married, has two adopted children. imagine the chief justice sitting there listening to that conversation. is his marriage any less valid than any of the other -- say, justice scalia who has a ton of children? he and his wife have a ton of children. is his marriage less than justice scalia's? i wouldn't say so. reverend sharpton, they're making this point, they're arguing this point because that's the only point, that's