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Anchored by Jake Tapper, The Lead airs at 4 p.m. ET on CNN.

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March 26th, 2013
06:09 PM ET

Is same-sex marriage "too new" for the Supreme Court?

The Supreme Court heard arguments in the Proposition 8 case today - California's voter-approved ban on same-sex marriage.

"Traditional marriage has been around for thousands of years," said Justice Samuel Alito. "Same-sex marriage is very new. I think it was first adopted in the Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a - a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe."

California's Lieutenant Governor Gavin Newsom knows firsthand the newness of same-sex marriage. As Mayor of San Francisco in 2004, having the city clerk issue marriage licenses to same-sex couples put Newsom in a firestorm.

"I know of no evidence whatsoever in places like Spain since 2005, and other countries in the world, where marriage as an institution has been under any sort of assault," says Newsom.

"That's not true at all," counters Brian Brown, co-founder and president of the National Organization for Marriage, saying opposite-sex marriages have been harmed, specifically when it comes to adopting children.

"In Illinois, in Massachusetts, in Washington, D.C. religious organizations [are] told that they can't adopt children because they're discriminating by not placing kids with same-sex couples," said Brown.

"What you're doing is putting a brand new idea into the law that there is absolutely no difference between a man and a woman coming together in marriage, and two men, or two women, and that those of us who think there is a difference are the functional equivalent of bigots," says Brown.

Same-sex couples believe that they have the rights under the constitution of the United States [to] due process, and equal protection to enter into the institution of marriage, says Newsom.

"People like [former president] George Bush ... thought it was important to change the constitution, because by definition, the president felt there was something wrong with it," says Newsom.

"This is not a decision the court should be making, the people of California have the right to have their voices heard," says Brown. "The majority of Americans who have voted to protect traditional marriage, you can't just say those people are discriminating and are bigots."

Based on arguments heard today, Brown adds, "I think we're going to win."

Newsom disagrees.

"I think they're gonna uphold the 9th Circuit Appeal Court, and I think that decision will allow gay marriages as early as June in California," says Newsom. "And hopefully will expand beyond that."

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