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Supreme Court Rules On Federal Marriage Law; Court Strikes Down Part Of Federal Marriage Law

Aired June 26, 2013 - 10:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


(COMMERCIAL BREAK)

WOLF BLITZER, CNN ANCHOR: I'm Wolf Blitzer in Washington with our breaking news coverage. This is the final day for the United States Supreme Court to issue opinions this term. We're expecting rulings literally at any moment now on two landmark cases on the future of same-sex marriage in the United States. Both will test whether gay and lesbian couples have a constitutional right to get married.

Jake Tapper is over at the U.S. Supreme Court with our legal analysts. He will bring us the rulings. And our correspondents will bring us reaction. Don Lemon, Dan Simon, Dana Bash, Brian Todd, they are all standing by.

And the chief national correspondent John King, and our chief political analyst Gloria Bowler, they are here in our Washington studios. Let's go to Brian Todd though, first. He is outside the United States Supreme Court. Brian, a lot of folks are anxiously awaiting the decisions on these two critically important cases.

BRIAN TODD, CNN CORRESPONDENT: That's right, Wolf. Very anxiously awaiting, a couple of people around here have said they're nervous because the moment is at hand, the decision coming down in minutes. I have one same-sex couple with me here. Molly Wagner and Sharon Burke, they are students at American University. They have braved the swamp- like heat of Washington, D.C., to be here. Molly, why?

UNIDENTIFIED FEMALE: You know, they said the decision's coming down today, and we just felt it was really important that we get here and show that this is something really important to us, and that we're here, we're not going away, and the decision impacts us directly.

TODD: What about you, Sharon?

UNIDENTIFIED FEMALE: I'm hoping the court is on the right side of history this time. I just wanted to come down here and let everyone know that -- that we're not going anywhere.

TODD: Are you a little nervous, moments away here?

UNIDENTIFIED FEMALE: Nervous and cautiously optimistic.

TODD: All right, guys, thank you. Anyway, we've got --

BLITZER: Brian, hold on for a moment, because I want to alert our viewers, the justices have now announced that a critically important case, the defense of marriage act, whether it is constitutional or not constitutional, has been reached. This is the United States versus Windsor.

John King is over at the magic wall for us. John, explain what this case is all about, the defense of marriage act or DOMA, as it's called.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Let's take a look. The case is called United States versus Windsor. This is not a question of whether or not same-sex marriage is legal. It's a question about the practical effects that if a state does recognize the same-sex relationship, what happens when you apply for some federal benefits.

Because the federal government right now, it defines marriage as between a man and woman, so at issue in this case is whether DOMA, the defense of marriage act violates equal protection guarantees. Let's look at the argument. The government says, since the federal government does not recognize same-sex marriages, that you can't claim -- say the married rate for estate taxes. You can't get Social Security benefits for a surviving spouse.

Any federal benefits that might be available for a male-woman marriage are not available to a same-sex relationship. That is the argument. The respondent in this case is Edith Windsor, who has a same-sex spouse, passed away, and she wanted to get the benefit of the estate tax you would get if you are married. The federal government said we can't do that because the federal government does not recognize same- sex marriage.

So this, Wolf, is not a question of whether the court is going to embrace or deny the right -- a federal right to same-sex marriage. It's more about the practical effects of that question when you apply for legal benefits, and if you go through this as we play it through, I mean, there's a bigger question. I'll bring this up, as we await the other decision, as well.

Here's the issue. You have any red state or orange state, you either have recognition of same-sex marriage or at least broad recognition of civil unions and the rights of same-sex couples. What happens? The defense of marriage act decision that we're waiting for the details on, what happens to folks who have those relationships in these states, where they're recognized by the state either fully or mostly, their spouse passes away, then what happens?

BLITZER: A good point. John, hold on for a moment. Gloria, you spent a lot of time speaking to some of the attorneys involved in these gay marriage cases, two critically important ones. The defense of marriage act, we just heard John explain some of the background. It's interesting that on this particular case, it's a federal law, the defense of marriage act, which defines marriage as being only between a man and a woman. The Obama administration refused to defend the federal law.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: Right, exactly on Proposition 8 and on DOMA. I think that what we've seen over the years since these cases have been litigated is a real shift in public opinion on the question of same-sex marriage. And let's take a look at this.

We have asked this question back to 2003 about whether you think marriage is between gay and lesbian couples should be recognized as valid. And if you go back to 2003, you see that 31 percent of the American public said, you know what, we don't think -- it should be recognized.

And now, 55 percent so in one decade, support for same-sex marriage has almost doubled in this country. And so, the question today we have before the court is the court effectively going to follow public opinion on this, Wolf, which has really shifted dramatically.

BLITZER: And we do know that a decision has been reached. We're going through the writings of the justices. We want to be precise, obviously, and make sure we fully understand what these justices have decided. At issue in this first case, the defense of marriage act, Gloria, the specific question is whether or not it's constitutional to prevent federal benefits going --

BORGER: Right.

BLITZER: -- couples of the same sex.

BORGER: And if you are legally married in a state, the question is whether the federal government should recognize your benefits. That's the key question here for the defense of marriage act.

BLITZER: And we should know momentarily what the justices have decided. Tom Foreman is taking a much closer look at the defense of marriage act as well -- Tom.

TOM FOREMAN, CNN CORRESPONDENT: Wolf, right now, about 300 people are inside the chambers there. We can't take you there with any live cameras, but we can virtually set the scene. They're listening to what the justices are saying about this. Just at last March they listened to the justices discuss this.

Justice Roberts had a concern back then about the very thing John King mentioned a minute ago about the Obama administration. He pointed out the Obama administration would not defend it in court because they said it was unconstitutional and yet they enforced it as the law. He said, I don't see why he doesn't have the courage of his convictions.

Justice Kagan was concerned about it was enacted, that this was moralizing not lawmaking by Congress. She said Congress decided to reflect collective moral judgment and disapproval of homosexuality. Justice Kennedy considered a very key vote in all of this and the key of part of thing said basically he wanted to know if this was even something that Congress should be involved in.

The question is whether or not the federal government has the authority to regulate marriage at all, and Justice Ginsburg jumped in on that issue you were discussing a while ago about how some states have approved it. But then, she said, the federal government comes in to say, no joint tax return, no marital deduction, no Social Security benefits, one might well ask, what kind of marriage is this. That's what the justices were saying back in the spring, Wolf. Now we're going to see what decision this summer has brought.

BLITZER: Tom Foreman, thanks very much. Obviously, a lot at stake right now in this first case, whether or not the defense of marriage act, which President Bill Clinton actually signed into law back in the '90s is or is not constitutional. There's a lot at stake, of course, for everyone, including the president of the United States.

Jessica Yellin is traveling with the president -- actually, let's go to Jessica in a moment. But Jake Tapper is over at the U.S. Supreme Court. Jake, I understand you've gone through the paperwork now and you're ready to tell our viewers what the justices have decided.

JAKE TAPPER, HOST, CNN'S "THE LEAD": That's right, Wolf. This is a landmark ruling about whether or not the federal government's refusal to recognize same-sex marriages, people who have been married legally according to the laws of their state, whether the federal government's refusal to recognize them is constitutional or not.

I'm going to bring in Jeff Toobin who has been going over the decision. Jeff, it seems like the court has said -- the court -- the federal government does not have a right to not recognize these marriages.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: DOMA is gone. This is a major broadly written opinion, which strikes down the law on the ground that it discriminates against gay people. This isn't a decision about states' rights. This isn't a narrowly written decision. This is a decision that says the federal government, by passing DOMA, demeans those persons who are in a lawful same-sex marriage.

That's the -- that's a quote from the opinion. This opinion says that the federal government cannot discriminate against people who have valid same-sex marriages. They are entitled to file joint tax -- federal tax returns. They are entitled to Social Security survivor's benefits. They are entitled to be informed when their spouses are killed in action. This is a decision that says gay people have equal rights under the federal constitution when it comes to this statute.

TAPPER: And, Jonathan Turley, I want to bring you in, because Jeff is making the point here that this was not a decision made on states' rights grounds. This is not the court saying, we leave this up to the states. This is the court saying, under the equal protection clause in the constitution, the federal government cannot do this. That could be significant when it comes to this other ruling that we are expecting on California's ban on same-sex marriage.

JONATHAN TURLEY, LAW PROFESSOR, GEORGE WASHINGTON UNIVERSITY: You know, it's a fascinating, even a breathtaking decision, because Kennedy went way beyond where he had to go. And this has always been viewed as an incrementalist court, a court that wants to not get ahead of its skis on issues of social division.

TAPPER: We've seen that this week with other decisions that have been splitting the baby, as it were.

TURLEY: That's exactly right. Here, Kennedy goes out of his way to say we're not doing this on states ground. This is about equal protection. It's about the dignity of marriage. This is about marriage. It doesn't matter whether it's between a man and a woman or two men or two women. And in that sense, it's the other shoe dropping after Lawrence because this was the question left dangling in Lawrence.

When the Supreme Court said you can't criminalize homosexual relationships, but the court really doggedly avoided the marriage question. Kennedy is just bursting on the scene here and saying, it is marriage and it's all marriage. You can't deny it to these couples.

TAPPER: And this was 17 years ago that Bill Clinton, President Bill Clinton, signed the defense of marriage law into law, saying that the federal government will not recognize same-sex marriages, no matter what the states do. Jeff, as soon as you saw who had written the opinion, Kennedy, and who he had -- who he was joined by, the four for want of a better term, liberal justices on the court, you knew what the decision was.

TOOBIN: Well, the thing that's so -- many extraordinary things about this decision. We now know what the first line of Anthony Kennedy's obituary, many years in the future, will be. He is the justice who is the author of the three most important gay rights decisions in the history of the Supreme Court.

He wrote Lawrence V. Texas which said in 2003 that gay people couldn't be thrown in prison for having consensual sex. He wrote the Roemer decision, which struck down a Colorado law that discriminated against gay people. And here, he has now written the opinion that says the federal government cannot put validly married gay people into a separate and lesser category of rights holders.

TAPPER: I want to go to Brian Todd, who's outside the Supreme Court right now where there are many, many same-sex couples, and straight couples, straight individual, celebrating this decision. Brian, who is with you now?

TODD: Jake, they are certainly celebrating. I talked to these two ladies before the ruling. Now I'm going to talk to them after, because they were nervous before the ruling, but now they're just happy. This is Molly Wagner and Sharon Burke. Molly, first your reaction.

UNIDENTIFIED FEMALE: I don't even have words. I'm just so happy, and just overwhelmed with emotion. I couldn't be more proud of my country and of the Supreme Court today. I'm so happy to be here and be a part of it.

TODD: Sharon, how about you?

UNIDENTIFIED FEMALE: We'll wait for Prop 8, but this is a major victory for everyone in the community. TODD: All right, Sharon, Molly, congratulations. A little bit of chanting here, Jake, as they're waiting in anticipation of the Prop 8 ruling. And I'll throw it back to you.

TAPPER: All right, thank you so much. Just to reiterate for those just joining us, there has been a 5-4 decision in the Supreme Court striking down the part of the defense of marriage act, which says the federal government does not have to recognize same-sex couples. That is no longer the law of the land.

Justice Kennedy writing the majority decision, the majority opinion said that that is a violation of the equal protection clause of the constitution. Jeff Toobin, this is going to have a lot of specific ramifications for individuals. This case was brought by a woman who had to pay $363,000 in tax taxes.

Because even though she was married according to the laws of Canada, where she and her same-sex partner were married, the federal government did not recognize that, and, therefore, she had to pay $363,000 in taxes. This is going to mean real things to real people.

TOOBIN: Real things to real people, to thousands of couples, whether it be same-sex marriages, legal in 12 states and the District of Columbia. A lot of people have been married. All of them have been denied the privileges of marriage under federal law. Now, they will have it. That means joint tax returns. That means Social Security survivor benefits.

It means -- there are hundreds of references to marriage in federal law. These gay people are now married under federal law. That's a dramatic, dramatic change in their status. It's an improvement in they're status. We are, of course, still waiting for the decision in the Proposition 8 case. I think it is -- I don't want to draw any conclusions about what they might do in Proposition 8 based on this decision, but it certainly makes that decision quite interesting --

TAPPER: It suggests -- it suggests, and we don't know what the court will rule in the Proposition 8 ban on same-sex marriage in California, but the suggestion that Kennedy says that this is a violation of the equal protection clause of the constitution, suggests that that's something he won't be able to ignore for the next ruling.

TOOBIN: Let me just read one sentence here, which I think tells you a little bit about the tone of the opinion. "DOMA instructs all federal officials, indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriage of others," unquote.

The federal statute is invalid. For no legitimate purpose, overcomes the purpose and effect, to disparage and to injure those whom the state by its marriage laws sought to protect in personhood and dignity. That's a pretty broad statement that gay people have equal rights to straight people.

TAPPER: And just to get into the specifics of what this might mean. There are 12 states plus the District of Columbia that currently recognize same-sex marriage, or are about to, because Minnesota and Rhode Island, they passed same-sex marriage, it will happen in August. What does this mean in the 36 states where same-sex marriage has been banned or is not allowed? What does this ruling mean, Jonathan Turley?

TURLEY: Well, we're waiting for that second opinion to determine whether there still remains a prominent state law issue here. You know, the court could have rendered this decision on the equal protections grounds, but still, in the second opinion, recognize state -- the right of states to make this decision.

And that's why this is the important linchpin. The language of this opinion is broad, and it would seem to indicate that there are equal protection rights that extend beyond the narrower question of federal benefits.

But remember, right now, what this means is that if you can get through a state that recognizes your marriage, the federal government will recognize it as well. But you still must be married in a state that recognizes a union between two men and two women.

TAPPER: And that's a minority. That's only 12 states and the District of Columbia right now.

TURLEY: That's right. And so, the question is, is there still this live torpedo in the water of a state law issue? Is Kennedy, who's a big believer in federalism, going to support the right of the court and say, we're going to leave this up to the states? We've answered what the federal government can't do, but we have not said what the states can or cannot do.

TAPPER: I want to go to Brian Todd right now. We keep hearing all these cheers behind us. We're only a block away from the Supreme Court. We keep hearing cheers from the activists very excited about the ruling, that the federal government no longer has the right to discriminate against same-sex marriages. They have to acknowledge them and accept them and bestow upon them federal benefits if they -- the couple was married in a state where same-sex marriage is legal. Brian Todd, tell us who you're with right now.

TODD: This is Phil Adie. This is Catholics for Equality, the name of your group, I take it.

UNIDENTIFIED MALE: I'm actually the former executive director. We disbanded the organization last year.

TODD: All right, what's your reaction to the striking down of the key provision of the defense of marriage act, denying benefits?

UNIDENTIFIED MALE: It's a historic day. Not just for LGBT people. Not just for Catholics, but for every American and every person across the globe. This will have ripple effect in countries we don't even realize have LGBT concerns.

TODD: We're moments away from the Proposition 8 ruling. We could hear it any minute now. What is your sincerest hope for that? UNIDENTIFIED MALE: Well, that either they'll rule it unconstitutional or at the very least they will honor the lower court ruling and decide not to hear the case, which I think is more probable, but we'll see.

TODD: All right, Phil, thank you very much for joining us. A real sense of jubilation here, Jake, after the first ruling. The second ruling may be minutes or seconds away. The crowd is a little less charged right now because they're a little more nervous. So we'll throw it back to you.

TAPPER: All right, and as we go over the Proposition 8 decision, we're going to throw it back to Wolf Blitzer in the CNN Washington, D.C., bureau to chew over this huge, momentous decision, basically saying that the defense of marriage act passed in 1996, signed by President Clinton, is no longer the law of the land -- Wolf.

BLITZER: Jake, we'll get back to you as soon as we know what the decision is on the Proposition 8 ban on same-sex marriage in California. That should be coming up momentarily. But right now, I want to go to Senegal, Dakar, Senegal. The president of the United State is on his way there.

Chief White House correspondent Jessica Yellin is already on the ground. Jessica, this is a major win for the president, who opposed that defense of marriage act and refused to allowed federal lawyers to support this federal law before the justices of the Supreme Court.

JESSICA YELLIN, CNN CHIEF WHITE HOUSE CORRESPONDENT: That's right, Wolf. And the president considers gay civil rights a legacy issue and one of his greatest domestic achievements. So the further advancement of gay civil rights will no doubt be cheering for him. I'm told they were planning to watch coverage of the decision on Air Force One, because the president took off from Washington, D.C., before the court issued its decision.

So the president learning this as he is headed here to Senegal, some irony in the fact that he will be making his first remarks about this decision here in Senegal, a country in which homosexuality is illegal. But President Obama also now has some complications of his own, potentially.

Now that DOMA is struck down, there is this question of the states that do not recognize same-sex marriage and his administration has been preparing how will his agencies deal with the hundreds of federal benefits that go to same-sex couples in all these states that don't recognize same-sex marriage?

That'll be a question for the next days, as his lawyers read through this decision and see if the court gave his administration any guidance, or if that will be entirely up to the president and his team -- Wolf.

BLITZER: A 5-4 decision by these nine justices of the United States Supreme Court, rejecting the defense of marriage act. The five in the majority, Steven Brier, Ruth Bader Ginsburg, Sonja Sotomayor, Elena Kagan, and the key deciding Justice Anthony Kennedy. The four discenters, Antonin Scalia, Samuel Alito, Clarence Tomas, and the chief justice, John Roberts.

Let's get some reaction. Eric Schneiderman is joining us now. He is the New York state attorney general. Also joining us is Carrie Severino, the chief counsel and policy director of the Judicial Crisis Network. Attorney General Schneiderman, what's your reaction?

ERIC SCHNEIDERMAN, NEW YORK ATTORNEY GENERAL: Great decision, completely consistent with lots of Supreme Court rulings holding that marriage is a fundamental right. It's good that they went this far. I think it makes -- look, for Edith Windsor, who is a New Yorker, who was with her partner for over 40 years and has fought this through, congratulations to her.

This is about equality. And this means that marriages of people in my state, New York, and all over America, between same-sex couples, will be treated equally under 1,100 provisions of federal law that use the term "marriage" or define benefits according to marriage. It's a great win, not just for the gay community or for Edith. It's a great win for the American tradition of equal justice under law.

And I must say, I did not count on them moving this far. I think it makes it very difficult for them to reverse field on such a fundamental ruling about equality under the Fifth Amendment in the Prop 8 case. I look with interest, but for New Yorkers, for all the states that have legalized marriage, for all of our couples and everyone in America, this is an incredible victory.

BLITZER: All right, let's get some reaction from Carrie Severino right now. Carrie, before we get your reaction, what this does this is the same-sex couples who are legally married in the United States, they will now be able to file jointly on their tax returns, their marital deduction on tax returns will be applied. They will get Social Security survivor benefits, official notification of next of kin if their military spouse is killed in the line of duty, and spousal deduction for federal estate tax.

That was the issue in this specific case, the United States versus Windsor. Edith Windsor will now get $300,000 back from the U.S. government because that's the extra tax she had to pay when her partner passed away. What's your reaction to what the 5-4 decision means?

CARRIE SEVERINO, CHIEF COUNSEL AND POLICY DIRECTOR, JUDICIAL CRISIS NETWORK: Well, this is a disappointment for those who are worried about judicial supremacy, which is what Justice Scalia said in his opinion. This is a court reaching out that it wasn't even before, on procedural grounds, let alone reading into the constitution a right that isn't there.

But I think the silver lining is that we see, as the chief justice pointed out, that actually this is a somewhat narrow decision in terms of leaving it to the states really. It's amazing that 30 years ago you would never have seen this kind of decision based -- on the basis of the states having the sovereignty here. And I think that is a fundamental American principle we can all get behind. This is something that should be decided at a lower level by the states, by the citizens of the states and their representatives, rather than by the court. It's disappointing to see the representatives of the people in congress having been overruled here. But I take heart in the fact that this is an issue that will hopefully still continue to be worked on at the state level.

We see that in things like Roe v. Wade, when the Supreme Court goes in and tries to enforce a definition for the whole nation, and constitutionalize an issue that's not there, it often has a backlash and causes further division in our society. I'm hoping that doesn't happen. We'll see. I'm hoping that leaving some of the decisions to the states will still allow the people to be the proper sovereigns and not the courts.

BLITZER: And the president of the United States, his official Twitter account is now reacting to the decision by the Supreme Court, to go ahead and overturn the defense of marriage act @barackobama, it's a step forward for equality, and goes on, #loveislove.

Jake tapper, the first of two major decisions, we're awaiting the second major decision on the fate of Prop 8, which bans same-sex marriage in California.

TAPPER: That's right, Wolf. And while we're waiting for the decision in the California ban on same-sex marriage, shorthanded at Proposition 8, Jeffrey Toobin, Jonathan Turley and I are going over and reading not only the opinion that has struck down the defense of marriage act, but also a very blistering dissent by Justice Scalia, who calls what the court did today, quote, "jaw-dropping." He uses the term "judicial supremacy." Jeff Toobin, this is a -- this is a -- I don't think I've read anything quite this pointed since the Stephens dissent in Bush V. Gore.

TOOBIN: You know, this is the culture wars come to one first street, across the street over there. I mean, the -- Antonin Scalia believes that the government is perfectly entitled to legislate morality, and lots of people agree with him. Here's a line --

TAPPER: The government, but not the court.

TOOBIN: Not his colleague -- not four of his -- five of his colleagues today.

TAPPER: Right.

TOOBIN: As I have observed before, he writes, Justice Scalia, the constitution does not forbid the government to enforce traditional, moral, and sexual norms. And that is a widely held belief. And he -- but he was outvoted this time, that gay people cannot have their sexuality demeaned, as Justice Kennedy wrote in the majority opinion. But that fight over the status of gay people and whether the government is allowed to discriminate against gay people, that's the heart of the dispute between the five justices and the majority, and the five in the minority -- or --

TAPPER: All right, I'm going to throw it back to you, Mr. Blitzer back in the D.C. Bureau.

BLITZER: All right, guys, stand by for a moment. We now know that there has been a decision in the second gay marriage gaze involving what's called Proposition 8 in California. That proposition rejected same-sex marriage. The case is called Hollingsworth versus Perry.

Let's get some background, because we're going through the paperwork right now. John King is once again joining us with a closer look at the second same-sex marriage case that the justices have now considered.

KING: And the big question, Wolf, is do we get a sweeping ruling from the court like we just did in DOMA, or is it a much more limited ruling to the states issues? The specific issues of this California case, it's worth remembering, California had same-sex marriage, then took it away, meaning the state supreme court said same-sex marriages were legal in the state, but voters took it away when Proposition 8 passed.

It passed from a statewide ballot initiative and it took away the rights of same-sex marriage. It defined marriage as between a man and woman in California. Here's the argument before the Supreme Court. The argument from the proponents of Prop 8, those who want marriage to be between a man and woman, they say it was passed by the voters. Therefore the state has endorsed Proposition 8.

The states should have the right to keep it. And they argued to the court that marriage -- Prop 8 should be legal and marriage should only be between a man and a woman, because, in their view, marriage is about procreation. That was the argument of Prop 8 supporters before the court. The petitioners responding said, no, Proposition 8 violates their equal protection clauses under the constitution, that a woman and a woman, or a man and a man, should have every right to get married.

As Gloria noted earlier, as we await the decision, again, a big question, the court could issue a sweeping ruling that says yea or nay, on the rights of same-sex marriage, or questioning about standing, more limited questions. But what do Americans think? About 55 percent of Americans now believe, a majority, but 44 percent say no, about whether the government should -- should marriages between gay and lesbian couples be recognized as valid.

And some other ones here, look at this by age. This is one of the defining things, the polling about the same-sex marriage, is the generational divide. Younger Americans, nearly 7 in 10 say, yes, marry who you love, regardless of sex. Older Americans, of course, say no. It's a generational question.

As we wait for this, Wolf, obviously the first question is how broad of a ruling do we get from the court? The second question, once you have the ruling, how does it play out back in California where Prop 8 is from, and in so many other states across the country having this conversation and legal debate.

BLITZER: Stand by, John. Good explanation of what's at stake in Hollingsworth versus Perry, the case involving what we call Proposition 8 in California, which overturned gay marriage, which had earlier been approved by the top justices out in California, Proposition 8, by a 52 percent vote during a referendum, rejected that. And now we're going to find out what the nine justices of the Supreme Court think about this, Gloria is here with us.

Gloria, you've spent a lot of time with the lawyers who were arguing against Proposition 8 before the Supreme Court.

BORGER: Right. I have and they were making the argument about the equal protection clause. Ted Olson and David Bois, one Democrat, one Republican, arguing that Prop 8 violates the equal protection clause of the constitution. They have said to me this is the last great civil rights fight of their generation.

So they would like to have a broad ruling such as the ruling you got on the defense of marriage act. However, just because you got that ruling on the defense of marriage act does not necessarily mean you're going to get it on Proposition 8.

And I can tell you whatever the ruling is on Proposition 8.