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Which History in Obergefell v. Hodges?

Nancy F. Cott is Jonathan Trumbull Professor of American History at Harvard University. She is also President-Elect of the OAH. This post is extracted from an essay written for the Summer 2015 issue of the American Historical Association’s Perspectives on History. Thanks to the AHA for permission to repost a portion of it. 

History really matters in Obergefell v. Hodges [et al.], the US Supreme Court case that has brought equal marriage rights to same-sex couples in every state. Justice Anthony Kennedy, writing for the majority, needs the history of marriage to lay the groundwork for his reasoning. “Before addressing the principles and precedents that govern these cases,” the opinion begins, “it is appropriate to note the history of the subject now before the Court.” The opinion proceeds to make the crucial claims that marriage “has not stood in isolation from developments in law and society”; it has “evolved over time.” Why should such points be necessary? Because the dissent written by Justice John Roberts (and signed by the other three dissenters) embraces a very different view. Justice Roberts calls marriage an “unvarying social institution enduring over all of recorded history.” It is “a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” More than one version of the history of marriage is operating here, in other words.

The court majority focuses squarely on the history of marriage as a civil institution within the US constitutional order, after a brief bow to the institution’s “centrality” in “the human condition… for millennia and across civilizations.” The opinion sees that “the history of marriage is one of both continuity and change” in the United States. In this approach, the opinion follows—and explicitly cites—the historians’ amicus brief submitted by the American Historical Association. Historians in the AHA should be pleased that the intent in the amicus brief “to provide accurate historical perspective” has reached its mark. The court also explicitly cites a second historians’ brief, submitted by the Organization of American Historians, in reference to the history of condemnation and criminalization of same-sex intimacy until recent decades. These citations are especially notable, because the justices are not bound to read the amicus briefs. They are optional. (More likely their clerks do the reading initially, if at all.) In this case there were more than 100 amici to choose among. The court’s opinion cites only three others besides the two historians’ amicus briefs.

In drawing attention to ways that marriage in the United States has changed over time to admit new understandings of liberty and equality, the court takes note of previous changes in marriage, long before the question of same-sex marriage came up, and says these “were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential.” The opinion mentions the shift from arranged marriages to volitional contracts and the gradual demise of coverture, once “society began to understand that women have their own equal dignity,” as examples. The understanding that marriage in the United States has had a long history of prior changes underpins the majority’s approach to the legitimacy of marriage between couples of the same sex and buttresses its assertion that “changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations.”

The court’s constitutional reasoning interprets the due process clause and the equal protection clause of the Fourteenth Amendment together, to conclude that the right to marry is a right so fundamental that it cannot be denied to couples of the same sex. In every precedent cited to back this up, the court concedes, “a relationship involving opposite-sex partners” was at issue. But again sounding the theme of change over time, in constitutional interpretation as well as in marriage itself, the court points out “If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”

Read the rest of this piece at Perspectives on History