(Editor’s Note: California’s Proposition 8 banning gay marriage has its day in court tomorrow when the United States Supreme Court takes up the case. CNN’s State of the Union with Candy Crowley, hosted a debate on the issue between California Attorney General Kamala Harris and vice president for Marriage Litigation at Alliance Defending Freedom, Austin Nimocks. A transcript of the debate follows.)

CROWLEY:  People are already lining up at the Supreme Court in an effort to get seats for Tuesday’s historic arguments on same sex marriage.

Joining me California attorney general Kamala Harris and Austin Nimocks of the Alliance Defending Freedom, a nonprofit Christian advocacy group.  Thank you both for being here to try to kind of make sense of the possibilities in front of the Supreme Court.  And we know that people are making arguments at many different levels both for and against proposition 8, which was California’s voter ban on same sex marriage.  But I want to kind of bring it down to what may be at least the most far reaching issues.

And the first is to you, this particular argument for those who want to overturn prop 8 is that this is like civil rights.  That this is the civil rights movement moved to the gay and lesbian community.  Why is that not the case?

AUSTIN R. NIMOCKS, VICE PRESIDENT, ALLIANCE DEFENDING FREEDOM:  Well, we understand historically that keeping the races apart is wrong.  What marriage is about is bringing together the two opposite halves of humanity for a deep social good.  And that’s why as President Obama himself said, there are people of good will on both sides of this issue.  What we need the Supreme Court to do is not try to short circuit this debate.  We need to keep the debate alive.

Americans on both sides of this issue are deeply invested in this debate on marriage.  We don’t need a 50-state solution presented by the Supreme Court when our democratic institutions are perfectly capable of handling this issue.  That is really what the court is going to decide whether it’s going to impose a redefinition of marriage among all Americans or whether we’re going to be allowed to continue to work on this together state by state.

CROWLEY:  So not a Roe v. Wade decision is essentially what’s being argued, don’t make a decision that then sets the stage arguing four years to come.

KAMALA HARRIS (D), CALIFORNIA ATTORNEY GENERAL:  Look, Candy, this case — the case before the United States Supreme Court both in terms of proposition 8 is really about fundamental right.

CROWLEY:  And the defensive marriage act which is the Federal law that defines marriage as between a man and woman.

HARRIS:  Correct.  And the United States Supreme Court since the 1880s has 14 times described marriage as a fundamental right.  So when we’re talking about this issue going before the court, we are talking about fundamental notions of freedom, of justice and liberty.

CROWLEY:  And fundamental right, that means you think within the constitution there is a fundamental right for anyone to marry regardless of gender.

HARRIS:  When we talk about fundamental rights as it relates to the constitution, we are talking about those rights that we as a nation designated as being some of the most sacred of all the rights we can have.  And 14 times the United States Supreme Court has described marriage as a fundamental right.

CROWLEY:  So what do you — what’s reasonable to expect when you look at the number of things that are being argued by very amicus briefs on sides when people say here’s another reason to uphold prop 8 or say that it’s unconstitutional, where is the realm of possibility do you think in what might ultimately be decided by this summer?

NIMOCKS:  Well, I think the court’s going to be hopefully concerned with its role in this process.  You know, we have a massive political debate in this country going on right now about same sex marriage.  And there are people on both sides of this issue.

The constitutional question presented to the court is dramatically different and that’s where the court needs to intervene and impose a 50-state solution upon everybody.  And fundamental rights are those that are deeply rooted in our nation’s history and tradition.  Same sex marriage is not deeply rooted in our nation’s history and traditions.  And so the Supreme Court…

CROWLEY:  I would assume that you would argue that equality is and this is a matter of equality.

HARRIS:  This is a matter of equal protection under the law.  And as it relates to a fundamental right, the court will hold that under the highest level of scrutiny.  And in this case what we are arguing and what I think most people believe and I know that the majority of Americans believe it, the majority of Californians believe it, the majority of Catholics in this country believe it which is that same sex couples should be afforded equal status under the law as those that are not.

CROWLEY:  Let me ask you, I want to show our audience some of those polls.  This happens to be a CNN/ORC poll, and from 2008 to 2011 the polling on this has completely turned around.  So now 53 percent of Americans say, yes, same sex marriages should be recognized as valid.  44 percent say no.  So with the country going that way, is that something that folks should take into consideration?  In particular the Supreme Court?

NIMOCKS:  I think it’s worthy of consideration as far as the political debate is concerned, but we all understand especially General Harris that the only polls that matter are the ones that happen on Election Day.

And so when we’re talking proposition 8, we’re talking about Californians going to the ballot box twice in a nine-year period and voting to uphold marriage between one man and one woman.  That’s our most fundamental right in this country is the right to vote and the right to participate in the political process.  And we don’t need the Supreme Court to take that right away from Americans of good faith on both sides of this issue and impose its judicial solution.  We need to leave this debate to the Democratic process, which is working.

CROWLEY:  I want to bring you in on this because in case folks are confused why the state attorney general in California, you don’t want to uphold proposition 8 which is Californians voting twice, as you mentioned, to ban same sex marriage.  And you would not defend that in court.  In fact, you’re against it.

HARRIS:  I am absolutely against a ban on same sex marriages because —

CROWLEY:  Even if your voters —

HARRIS:  Because they are simply unconstitutional.  And it is one thing to read the polls, which we have discussed which show again that a majority of Americans are in favor of same sex marriage.  But it is more important to read the constitution.  And the constitution of the United States dictates, I believe, under every court precedent that we have discussed in terms of describes marriage as a fundamental right that the same sex couples that are before the United States Supreme Court, Mrs. Windsor, Miss Perry, be allowed to have equal protection under the laws as any Americans when it comes to their ability to join themselves with their loving partners in marriage and raise their children.  And 61 percent of Californians are in favor of same sex marriage.

CROWLEY:  Yet the last time they voted they voted against it.  So it gets kind of complicated here.  Because you have, you know, voters saying we don’t want that because of the way California actually sets things up generally.

HARRIS:  Well, 61 percent of Californians are in favor of same sex marriage.  And I believe, again, because it gets back down to a very simple notion of fundamental rights.  Fundamental concepts of justice.  Fundamental concepts of liberty.

I will tell you, Candy, we have 50,000 children in California right now who are asking why can’t my parents be married too?

CROWLEY:  Let me let you get the last word in here about this.  Where do you see this debate going?

NIMOCKS:  I see the debate continuing well beyond this Supreme Court decision.  The Supreme Court is no more going to decide the question of marriage than it decided the question of abortion.  Americans are going to continue to debate this important issue.  That’s why we need to leave it to our Democratic institutions.

If 61 percent of Californians want same sex marriage, they have the right and should have the right to use their Democratic constitutions, their legislature and the ballot box to achieve that political result.  We don’t need the Supreme Court dictating that to all 50 states.  And that’s what’s at stake in this case.  And I think most fair minded Americans agree with that proposition.

CNN’s “State of the Union”

Video Here