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Constitution. joining us is the chief justice professor at constitutional law at nyu law school. thank you for being here. that's a great title. >> thanks, ezra. >> my question is simple, why now? >> in part, the court is a passive institution. it can't reach out and grab cases. but i think there's an additional layer to your question. why didn't the court say we're not going to review this case? even if it's being petitioned to us. one of the cases that we didn't look at in your excellent introduction is a 1956 case called maine versus maine, this is right after brown versus board of educatio...

In 1967 supreme court ruled unanimously that race cannot be used as a basis to restrict marriage. this was a famous case. loving versus virginia. the amazingly named lovings were richard and mildred. in 1958 they travelled to washington, d.c. so they could get married. when they returned to virginia where interracial marriage was against the law, they were sentenced to a year in prison for getting married. when the judge in virginia sentenced them to prison he said "god created the races and placed them on separate continents. he did not intend for the races to mix." the lovings appealed that ...

Introduction is a 1956 case right after brown v. board of education when they are handing out these orders extending the principle at public accommodations. but it has a marriage case and gets rid of it and says this is too soon. and so it sits 11 years later to take it up. many of us thought this is exactly what's going to happen with the prop 8 case. the doma case is slightly different. but many of us thought the prop 8 case it's going to go back. it's going to be legal in california but nowhere else and the court is going to wait another ten years. >> so what are the implications -- the dif...

So it was crafted because it's a movement. they tend to be pro-state's rights and the liberals are pro-gay so arguing towards the middle, these are justice kennedy's favorite things. that's clearly a fifth vote for this case. we assume. so i think everyone imagined everyone since appellate court struck it down, that it leads to the supreme court to review the case. everyone thought they would take the case. i think they are going to do the right thing and strike it down. the other case is much more complicated. the doma case doesn't affect any state decisions. where the perry case, the outcome...

Do the loving vs. virginia move. right now, it would be washing out 41 states. >> so very quickly before we go, today is a good day for supporters of gay marriage. that's the bottom line? >> i think it's a great day. i think it's a great day because in the perry case, there's no question it's a great in respect to doma. for the perry case, it's a great day even though there might be skeptics because in that case there's a beautiful record, there's a trial in this case. whenever there's a trial, the pro-gay side wins. it's almost a per se rule. in red states like arkansas and florida, the gay r...