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Today was it's clear these justices haven't resolved the fundamental questions in their mind, even kennedy. kennedy said the trend toward equality may reach a magnificent end or go over a cliff. that's a chill statement it gave insight that even kennedy isn't too clear. >> scalia seems to have had more of an antigay rights agenda on decision making on the court. i want to play a little exchange between him and ted olson, talking about whether or not gay marriage has been deemed unconstitutional. let's take a listen to that. >> when did it become unconstitutional to prohibit gays from marrying?...

That would have been illegal. we had a case in california that decided that marriage -- interracial marriage, much earlier than the rest of the country. let me say also to this point about where california is, you know, four years prior to prop 8, there was an initiative on the california ballot that didn't change the constitution, it changed the statute and made a definition of marriage. the vote in california was i think in the 60% -- over 60% of californians voted in that initiative to define marriage in a man and a woman and four years later that margin whittled down to a little over two p...

You may argue that the legalization of gay marriage is relatively new. but the idea of two people wanting to join themselves in holy matrimony as is old as time. what you said is exactly right. and we should put aside the words gay marriage forever. we're not talking about gay marriage. we're talking about the freedom to marry. something the supreme court has recognized in at least 14 cases, as something very important and justice thurgood marshall said one? one of the cases, the case of loving vs. virginia about interracial marriage, the freedom to marry is important to all people. what gay p...

Marriage will have real-world consequences and it's possible and to see the future accurately enough to know exactly what the real-world consequences would be. and among those real-world consequences, your honor, we would suggest adverse consequences. >> if traditional marriages suffer at the hand of crazy, new-fangled gay marriages, it says who knows? it might be bad. will that be strong enough cause to deny a fundamental right. court for today indicated it may not even try to wade into all of that to begin with. several justices on both sides of the ideological spectrum wondered if the court...

Court. justice kagan and others asked questions, and the attorneys on the anti gay side were unable to come up with a good reason and that's exactly what court after court and now state after state have found. >> eric, that's a great point that evan brings up, is that those who are in support of proposition 8 and against marriage equality have found themselves painted into the weird corner where they have to make the case where gay people getting married is somehow harmful to the institution of marriage or heterosexual couples which seems to be a losing prescription, it not? >> i agree with ev...