How History Mattered: Sodomy Law and Marriage Reform in the United States
In the United States, competing claims about the history of sexuality and marriage have recently played a surprisingly large role in the ferocious public debates over gay rights and gay marriage and in legal decisions resulting in sodomy law repeal and marriage reform. The opponents of change have regularly cited history as their guide. In 1986, the Supreme Court ruled in Bowers v. Hardwick that state sodomy laws were constitutional because they had the sanction of “millennia of moral teaching,” and in recent years President Bush and his allies on the Christian Right have warned that the legal recognition of same-sex marriages would radically diverge from and threaten millennia of teaching and common sense about the meaning and purposes of marriage.
But other American courts and political actors have been influenced by alternative narratives of the history of sexual regulation and marriage that stress change and discontinuity over stasis in social arrangements and moral reasoning, and in doing so they have relied heavily on the authority of professionally credentialed historians. In June 2003, when the Supreme Court reversed itself by overturning the nation’s remaining sodomy laws in Lawrence v. Texas, it explained at length how recent historical scholarship had undermined the historical narrative sustaining its 1986 ruling. Five months later, when the state supreme court of Massachusetts overturned that state’s ban on same-sex marriage, it argued that this prohibition had no more justification than earlier and now discredited bans on interracial marriage, and it cited historical scholarship demonstrating that marriage was, in fact, an ever-changing institution. The courts and other key actors in these debates have also drawn on historical symbols to fortify their arguments and have portrayed themselves as agents in a sweeping historical drama. Competing narratives of historical progress and declension have played a strikingly large role in both legal decisions and public debates over these matters.
Here I draw on my own involvement in these debates to offer a few observations about how and why historical arguments have mattered so much in them. In the last fourteen years, I have participated as a professional historian in ten gay rights cases, two of which reached the Supreme Court. My involvement began in 1993, when I testified as an expert witness on the history of antigay discrimination in Denver federal court in the trial of Romer v. Evans, a case challenging the constitutionality of Amendment 2, a state constitutional amendment enacted by popular referendum that overturned several local gay rights ordinances by prohibiting “all legislative, executive or judicial action at any level of state or local government designed to protect . . . gays and lesbians.” (The Supreme Court’s 1996 decision that such amendments were unconstitutional because they excluded gay people from the political process played a decisive role in slowing the momentum of the anti – gay rights referenda then sweeping the country.) More recently, I have written amicus briefs or submitted affidavits on the history of sexual regulation and antigay discrimination (in Lawrence v. Texas and several other cases) and signed onto amicus briefs on the history of marriage (in several cases challenging state laws limiting marriage to heterosexual couples).
For someone like myself who was regularly warned that he was committing professional suicide by writing a dissertation in gay history, the discovery that my work could contribute to a body of scholarship that would influence public policy has been both satisfying and startling. At times it has also been troubling, and I have been asked more than once if my involvement in these cases hasn’t somehow risked corrupting my work as a scholar. In my own experience, those risks have generally seemed greater in prospect than in practice. There is no doubt that writing an amicus brief for the Supreme Court, which strictly limits briefs to thirty pages, requires a degree of compression and loss of nuance disconcerting to someone more accustomed to writing 450-page books, but compression has the virtue of encouraging breadth of synthesis and clarity in argument. It is also true that one has to make a forceful and consistent argument in such a brief or in courtroom testimony, but, then, scholarly journals also expect a historian to construct and defend an argument, even if they do allow for more qualification and reservation. Some of the superb lawyers with whom I have worked in these cases have wanted me to make historical arguments that I did not feel were credible given the evidence and historiography, but they have respected my judgment when I declined to do so. My main fear about my involvement in these cases, now that it has lasted fourteen years and produced a paper trail of opinion that lawyers on the opposing side have sometimes (so far without success) tried to use to contradict my more recent testimony, is that lawyers, unlike academics, tend to find evolution and change in a historian’s thinking to be suspicious rather than laudatory and are apt to seize on nuance or qualification in an argument to challenge its credibility. I have also sometimes worried that my growing familiarity with the arguments made by anti – gay rights lawyers might someday make me reluctant to bring certain research discoveries to light or develop certain arguments for fear that they might lend themselves to use by those lawyers. So far, as best I can tell, neither fear has been realized. On balance, in fact, I think my involvement in these cases has strengthened my work as a historian by forcing me to engage with a range of legal questions and to craft broader historical narratives than I might otherwise have attempted.
So why should the courts be interested in historical narratives, and how were such narratives mobilized by both sides in the sodomy and marriage cases? History matters to the courts because they rely on historical narratives as well as textual analysis to make their decisions. In their rulings, the Supreme Court and appellate courts, in particular, engage in textual interpretations of the Constitution and the law and of the precedents established in earlier cases. But they also rely on what they refer to as “tradition and history,” by which they mean a more wide-ranging, if also more imprecise, narrative of how constitutional principles have been interpreted, what laws have been passed and how actively they have been applied, and the social attitudes they represent.1
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My thanks to Bain Attwood, Dipesh Chakrabarty, and Claudio Lomnitz, both for organizing the rich conversations on the public life of history at Australian National University and Columbia University that resulted in this special issue and for their comments on the papers I presented at them, and to Ron Gregg and Paris Baldacci for their comments on a later draft. Three paragraphs of this essay previously appeared in my introduction to the Lawrence v. Texas Historians’ Amicus Brief when it was published in GLQ: Journal of Lesbian and Gay Studies 10 (2004): 509 – 38.
- I have learned much about the role of history and historians in legal cases from my informal conversations over the years with the attorneys involved in gay rights litigation, from the essays collected in Public Historian 12, no. 3 (Summer 1990), and from Estelle Freedman, “When Historical Interpretation Meets Legal Advocacy: Abortion, Sodomy, and Same-Sex Marriage,” in Feminism, Sexuality, and Politics (Chapel Hill: University of North Carolina Press, 2006), 175 – 95. Freedman was one of the signatories to the Lawrence Historians’ Brief.