In February 2013, the Organization of American Historians joined with the American Studies Association in filing amici curiae briefs in the two gay marriage cases heard by the Supreme court this spring. (See Actions of the OAH Executive Board, Spring 2013.) Perry v. Hollingsworth, a case filed in response to California’s 2008 Proposition 8, asks whether it is constitutionally permissible for California (and perhaps other states, depending on the court’s reasoning) to deny lesbian and gay couples the freedom to marry. US v. Windsor, filed in response to Section 3 of the 1996 Defense of Marriage Act (DOMA), 1 U.S.C. § 7, asks whether it is constitutionally permissible for the federal government to refuse to recognize and allocate tax, social security, immigration, and other marriage-related benefits to same-sex couples who have been lawfully married in one of the states that already permit such couples to marry. The court is expected to issue its decisions in both cases in late June.
The OAH’s brief does not take a stand on the constitutional issues at stake in the two cases. Instead, it seeks to provide the court with an accurate account of the history of discrimination faced by lesbians and gay men in the United States. An accurate description of this history is important to the court because it may decide to subject laws that disadvantage a group (by, for instance, denying them the social security and other benefits that normally follow from their marriages) to a heightened or more rigorous level of scrutiny if it finds that the group has been singled out for discriminatory treatment in the past. Even if the court refrains from applying “heightened scrutiny” in the marriage cases or to other laws singling out gay people, a documented history of discrimination is still relevant. On “rational basis” review, the courts tolerate nearly all legislative line drawing as long as there is some legitimate public purpose that is conceivably advanced by the government’s action. A documented history of discrimination, however, cues the court that a law’s justifications may simply be pretexts for discrimination against a disfavored group, and this can lead to somewhat closer review than ordinarily applies.