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Tonight s supreme court justices are deciding what to do about same-sex marriage. they heard arguments today and we have rarely released same-day audio from them this evening. correspondent shannon bream has our story. reporter: as the justices jugged two key questions today, first, whether there s a constitutional right to same-sex marriage. while the same-sex couples who brought the case say they want the right opposite couples have long enjoyed, chief justice john roberts framed it differently. you are not seeking to join the institution. you are seeking to change what the institution is. reporter: a swing vote justice kennedy spoke about giving it away to nine elected judges. this definition has been with us for a millenia and it s very difficult for the court to say oh yeah we know better. ....
reporter: but others including steven briar, believe preventing the violation of the 14th amendment due process. don t let them participate in this space of institution, that that violates the 14th amendment. reporter: the justices also weighed in another question must states that do not prevent same-sex marriage give full recognition to those marriages if performed in other states where it is legal? 36 states in the district of columbia now permit same-sex marriage with alabama in legal limbo. but the decision was made by judges and in only 11 of them did a popular vote or legislative measure pass approving same-sex marriage. justice sonia sotomayor say states almost always recognize marriages performed elsewhere. people who are not permitted to be married in a lot of states go and do that and they come back to their home states and ....
Milinea. it s very difficult for the court to say oh well we know better. you don t let them participate in this basic institution that that violates the 14th amendment. people who are not permitted to be married in a lot of states go and do that and they come back to their home states and the home states follow the rule of marriage celebration. well, the arguments today. it s very rare that we get to hear same day audio from the u.s. supreme court. we did today in this big case about same sex marriage. we don t often try to divine how justices are going to come down based on their questions and their arguments, but it is clear that this court is guided. and the swing vote may be as it has been before justice anthony kennedy. as you look at new fox news polls on the issue of same sex marriage you can see favor legalizing same sex marriage 48%. oppose 44% and how that has ....