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But we begin our show tonight with the historic civil rights cases that are going to be argued starting tomorrow in the united states supreme court. we now know what the ticktock will be like as far as how this gets argued. it starts at 10:00 a.m. eastern and the oral arguments in the case will last an hour. as always, there are no cameras in the courtroom. no still cameras and no video cameras. and there will be no live audio feed from the courtroom either. but we do know that the court plans to release the audio recording of the arguments not too long after they finish up tomorrow. so by this time tomorrow, right here on tomorrow night s show, we probably will have the audio tape of those arguments to play for you. the pro gay rights side of the case, the case that s arguing for striking down california s ban on gay marriage, that will be argued in part by this man, the nation s solicitor general, donnell furly. the obama administration has taken the pro gay rights side of this case, ....
Ones that are the improper pa y parties that are going to kick it and it guess back down to the district court and that could kick california and california only. listen for that procedural issue. another issue is how the court wrestles with this issue of political powerlessness you laid out earlier. on the one hand, you have 41 states that currently have restrictions on same-sex marriage, that do not allow same-sex marriage. on the other hand, you have polls like that abc/post poll that say 84% of americans are for same-sex marriage now. so what do we do with this? the other side of this, the proponents of prop 8 are going to argue that gays are so politically powerful, they don t need the special judicial solicitude that is offered by the court under this heightened scrutiny standard that plaintiffs are seeking. and the way to resolve this, i think, rachel swb , is to say, is a paradox of political power in the supreme court. you have to have an enormous amount of political power bef ....
Radar, including the supreme court. so unless we had had this enormous gay rights movement over many, many decades, we would never be at the court would have the question teed up before it whether gays are politically powerless or not. this is fascinating, followed by the doma cases, which are just as complicated, but also as far reach welcome the following day. i have absolutely no idea what s going to happen. the fact that chief justice john robert s lesbian cousin will be sitting in the audience tomorrow, hearing oral arguments as well, it s like the personal mix in all the middle of it. this is going to be an amazing one to watch. kenji, thank you so much for being here. ken kenji yoshina is a constitutional law professor. we ve got lots more coming up tonight, including news of national significance in both dakotas. and i swear i m not making that up and there are two separate stories. plus, what looks like basically an answer to a mystery that we covered on the show last ....
Pathetic. does that imbalance in the politics here, does the fact that the spokesperson on the right on this issue is maybe gary bauer and the spokesperson on the left of this issue is the leading legal likes of both the republican and democratic party. does that imbalance, politically, affect expectations for how the court is going to hear and rule on this case? and should it? joining us now is kengy osheena, the chief justice of constitution until law at nyu law school. he ll be in the courtroom tomorrow to hear the legal arguments in the prop 8 case. professor osheena, thanks very much for being here tonight. it s great to be here, rachel. first of all, can you sum upper fus up for us, what is th basic question the court will be deciding tomorrow? there are two claims being made, constitutionally. one is the freedom to marry claim, which is under the due process clause of the 14th amendment. the other is an equal protection claim, which says there has to be equal treatment, re ....
Table for same-sex couples as for opposite-sex couples. so the range of options that we have with those claims are, usually people frame it as 0 to 50. it s either no states or all 50 states. but there are actually three options in the middle. and i think that the court is most likely to do one of those threes. there are two ways to get to one state, a just california solution, we can talk about either of those. and there s an eight-state solution that says, there are currently eight states, will be nine when colorado does civil unions may 1st, but eight states that have everything but marriage. the argument there is, if you are giving all the rights and benefits and burdens of marriage to individuals but withholding only the word marriage, that s essentially a branding issue. it s a concern you ll tarnish the brand if you let gay people into the constitution. and that tarnishment claim is really is second class citizenship claim, so they could flip those and double the number of juris ....