AMY GOODMAN: For more, we go to Washington, D.C., where we’re joined by Stuart Gaffney and John Lewis, a married couple from California deeply involved in the struggle to legalize same-sex marriage. They’ve been together for 26 years. They married in 2008 before Prop 8 passed. Both work at Marriage Equality USA. Stuart is the media director, and John, the legal director.

Stuart and John, we welcome you both to Democracy Now! First, as you sat in the Supreme Court yesterday, watching the arguments, can you talk about how you felt, as a married couple, also as two people deeply involved in the effort to overturn this proposition that the Supreme Court justices were considering yesterday? John, let’s begin with you.

JOHN LEWIS: Yes, well, these cases are extremely emotional and extremely personal to us, because in the courtroom you hear abstract, somewhat appearing abstract legal theories being discussed, but these cases are truly about the lives of loving, committed same-sex couples and their children and their families. And so, it was a very, very emotional day, because so much is at stake for our lives.

AMY GOODMAN: Stuart, your response to what you sat through yesterday? Did you think you would be sitting there when you met 26 years ago?

STUART GAFFNEY: You know, the sense of the historic moment hanging over these cases is incredible, and the atmosphere is really electric. We were plaintiffs in the California state case for equal marriage rights decided in 2008 by the California Supreme Court, so we were proud to be at the Supreme Court standing with the plaintiffs in these historic cases and with the legal teams, but really with the community, because, like our case in California, these are really the community’s lawsuits. As my husband said, it really feels like our very lives are before the court. But there’s no mistaking this historic moment. The momentum leading up to these hearings is incredible. Every day, when we turn to the headlines, there’s some new poll showing increasing majority support nationwide for equal marriage rights.

We’ve come to Washington at several other historic junctures to protest the Bowers v. Hardwick decision in 1986 upholding sodomy laws, to celebrate the Lawrence v. Texas decision in 2003, which overturned sodomy laws. And we came back in 2004 after we exchanged vows in San Francisco City Hall. We came here on a bus tour across the country with other same-sex couples married in city hall and our friends and loved ones and allies and supporters to rally in Washington. And at that point, we really thought this is going to happen in our lifetimes. But now we’re here, and we know it’s happening in our lifetimes. In fact, it’s happening as we speak. And these justices really need to decide what side of history they want to be on.

AMY GOODMAN: Attorney Charles Cooper represented ProtectMarriage.com and defended Prop 8 before the Supreme Court. He and Justice Anthony Kennedy sparred over the welfare of children of same-sex couples.

JUSTICE ANTHONY KENNEDY: I think that there’s substantial—that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history, or more. On the other hand, there is an immediate legal injury, or legal—what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the red brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?

CHARLES COOPER: Your Honor, I certainly would not dispute the importance of that consideration. That consideration, especially in the political process, where this issue is being debated and will continue to be debated, certainly in California, is being debated elsewhere. But—but on that specific question, Your Honor, there simply is no data. In fact, their expert agreed there is no data, no study even, that would examine whether or not there is any incremental beneficial effect from marriage over and above the domestic partnership laws that were enacted by the state of California to recognize, support and honor same-sex relationships and their families. There’s simply no data at all that would—that would permit one to draw—draw that conclusion.

AMY GOODMAN: That was attorney Charles Cooper. And before that, you heard Supreme Court Justice Anthony Kennedy, who was raising the issue of the 40,000 children of same-sex couples in California. Stuart Gaffney—or rather, John Lewis, as the legal director of Marriage Equality, can you talk about the legal argument here and what is suggested by what Justice Kennedy says about where he might vote, the key swing voter here?

JOHN LEWIS: Well, I was very impressed and encouraged by the way he talked about the real lives of those 40,000 children of same-sex couples. I think that the evidence is actually quite clear that lesbian and gay people are doing wonderful jobs raising kids. There’s actually a tremendous amount of study having been devoted to the issue. There’s decades of experience. Last week, the American Academy of Pediatricians came out in favor of marriage equality, and that’s a very, very strong endorsement of how having the freedom to marry for a family is actually very beneficial to those children.

I think, in looking at the broadest context of the case, when we heard questions from the justices over all sorts of issues, from the procedural standing issues to questions about the particular circumstances in California and Proposition 8, to some of the broader questions about the freedom to marry as a right of every American, it’s very difficult to predict where any of the justices are actually going to come out in the end. I’m very hopeful that when it’s all said and done, that through one route or another Proposition 8 will no longer be enforceable after this case is decided.

AMY GOODMAN: Justice Scalia asked the plaintiffs’ attorney, Theodore Olson, when it became unconstitutional to exclude homosexual couples from marriage.

JUSTICE ANTONIN SCALIA: You’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future. We decide what the law is. I’m curious: When did—when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometimes—sometime after Baker, where we said it didn’t even raise a substantial federal question? When—

THEODORE OLSON: When—

JUSTICE ANTONIN SCALIA: When did the law become this?

THEODORE OLSON: May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

JUSTICE ANTONIN SCALIA: Easy questions. Was it always unconstitutional?

THEODORE OLSON: It was constitutional when we, as a culture, determined that sexual orientation is a characteristic of individuals that they cannot control, and that that—

JUSTICE ANTONIN SCALIA: I see. When did that happen? When did that happen?

THEODORE OLSON: There’s no specific date in time. This is an [inaudible]—

JUSTICE ANTONIN SCALIA: Well, how am I supposed to know how to decide a case—

THEODORE OLSON: Because the case that’s before you—

JUSTICE ANTONIN SCALIA: —if you can’t give me a date when the Constitution changes?

THEODORE OLSON: The case that’s before you today, California decided at—the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California. And then the Californians decided in Proposition 8: “Wait a minute, we don’t want those people to be able to get married.”

AMY GOODMAN: You’ve been listening to Justice Antonin Scalia questioning Theodore Olson, who, you might remember, was the solicitor general under George [W.] Bush, lost his wife on the plane that flew into Washington, D.C., on September 11th. John Lewis, your response?

JOHN LEWIS: Well, Justice Scalia represents the minority view on the court. And in fact, Justice Kennedy wrote the majority view, which is the law of the land with respect to this issue, and quite eloquently, at the conclusion of Lawrence v. Texas. Justice Kennedy articulated how the basic guarantees of freedom and equality contained in our Constitution are stated as general propositions by the founders, by those who wrote the amendments to the Bill of Rights, because they recognized that as our nation evolves, that later generations that come after the 14th and the Fifth Amendment were drafted—that later generations will see that laws once thought necessary and appropriate only serve to oppress, and that later generations will invoke these basic, time-honored principles of the Constitution of liberty and equality for their generation in what is an ever-increasing notion of liberty and equality.

And I think that’s exactly what is at issue with the freedom to marry. Lesbian and gay people have been having loving, committed relationships for centuries. It’s just the truth. But we’ve had to have those relationships in hiding because of the real threat to our lives, our very safety. And it’s only in the last, you know, 50 years that brave men and women started coming out and we started living our lives openly and proudly. And now, through the marriage equality movement, we are coming out fully about the truth of our loving, committed relationships and our families. So, those basic guarantees of liberty and equality have always been there. And what we’re seeing now is those laws, that maybe were once thought appropriate, actually just serve to oppress people.

AMY GOODMAN: John, I want to ask your husband, Stuart Gaffney, a question about history, since we were just listening to this discussion of Justice Scalia asking Ted Olson—who, by the way, was the solicitor general under George W. Bush—when it became unconstitutional to exclude homosexual couples from marriage, about your own interesting family history, Stuart, when it comes to issues of marriage and the law.

STUART GAFFNEY: Yeah, I was moved by Theodore Olson’s response there in talking about the rights of interracial couples, because—thinking of another married couple. That’s my own mom and dad, who were an interracial couple facing barriers just like John and I face today. My mom is Chinese American; my dad is English and Irish American. They were only able to marry legally in California because our state Supreme Court led the way in overturning a law banning interracial marriage as unconstitutional. But after they married, they moved around the country, and our family had different legal status in every state they lived in. They moved to Missouri and were told that they had an illegal marriage. And that is something that I never wanted to have in common with them. But unfortunately, same-sex couples now face that same patchwork—legal in some states, illegal in others, and unrecognized federally. My parents were only legal in all 50 states when the U.S. Supreme Court ruled in 1967 in Loving v. Virginia that all remaining state bans for interracial couples were unconstitutional. And they fulfilled the promise that’s written on the front of the U.S. Supreme Court: equal justice under law. Our family is now waiting for that promise to be fulfilled for the next generation. And for my mom and dad, they want nothing more than for me and John to be able to be legally married in all 50 states, just as they were.

AMY GOODMAN: Well, I want to thank you both for being with us. We’re going to continue on this issue in the next break. Stuart Gaffney and John Lewis have been our first guests today, married for—well, together for 26 years, married in 2008 before Prop 8 passed. Both work at Marriage Equality USA, Stuart the media director, John is the legal director. When we come back, we’ll be joined by the widower of the late Congressmember Gerry Studds, openly gay congressmember. His widower is not able to get the normal pensions that other widows or widowers of congressmembers get. And we’ll talk to him about today’s Supreme Court arguments. Stay with us.