Hendrik Hartog is the Class of 1921 Bicentennial Professor in the History of American Law and Liberty at Princeton University. Until July 2015, he was the Director of Princeton’s Program in American Studies. He is the author of Public Property and Private Power: the Corporation of the City of New York in American Law, 1730-1870 (1983), Man and Wife in America: A History (2000), and Someday All This Will Be Yours: A History of Inheritance and Old Age (2012).
How might “we”—historians of the present as well as future historians of the discipline—think about the part that the amicus “Brief of Historians of Marriage” [hereinafter, the “brief”] apparently played in Justice Kennedy’s opinion and in the decision in Obergefell v. Hodges?
Here are four suggestions about why the brief mattered and, more importantly, how it succeeded. They are directed both to us in the present as well as to future historians. They move from organizational skill to substance to politics to pedagogy.
First, insofar as the amicus brief played a part in the decision in Obergefell, much of the credit rests with Nancy Cott’s strategic and tactical brilliance, as well as her rhetorical and analytic insights. Without her, we would not be where we are today. For the past five years and more, she has, with a changing cast of lawyers and a growing crew of other gender historians, shepherded and tested an evolving brief—state by state, jurisdiction by jurisdiction—through changing contexts and a shifting legal culture. The arguments in that evolving brief responded to local and particular contexts. Each state had its own doctrinal and jurisprudential history that a particular incarnation of the brief had to speak to, and much of the earlier federal jurisdictional history was shaped by the presence of DOMA, the happily forgotten Defense of Marriage Act. But there was also a recognizable continuity from litigation context to litigation context. After all, what Cott and all of us sought to offer was an articulation and a summation of the state of the art of gendered legal history. And that did not change significantly during the years that we worked under Nancy Cott’s organizational lead.
It should be added that behind the brief (as it evolved and developed) lay more than a quarter century of historical brief writing—amicus briefs by historians of gender—that began with the second generation of abortion decisions (particularly in Casey and in Webster). Future historians will no doubt find that there were important lines of connection—about historical contingency and the ultimate indeterminacy of apparently unchanging legal categories, about the significance of legal and political struggles over gender norms, about changing notions of rights and criminality—between the controversial arguments made in amicus briefs in the abortion cases and the historical arguments made about same sex marriage in Obergefell.
Second, the underlying arguments made in the brief—that marriage was a changing institution, shaped by politics and by evolving constitutional norms, that marriage has only lately become an institution defined by egalitarian conceptions but that the politics of marriage have been wracked for two centuries by struggles over the demand for equality, that there has been an ongoing struggle to undo discriminations in marriage (defined by race and status and gender as well as sexual orientation), that there has been a three century movement to claim marriage as an expression of the desire for individual human happiness and dignity—those arguments “won” because they are right, or certainly more right than the historical understandings that were regnant only a few years ago. Remember, Justice White’s opinion for the Court in Bowers v. Hardwick (1982) asserted unproblematically that western civilization was marked by a single unchanging understanding of the criminality of homosexual conduct.
We should, of course, acknowledge that there is much that historians of gender and sexuality know about the history of marriage that was left out of the brief. Some of those are implications that were buried or hidden. That is part of what smart lawyers do. They bury uncomfortable implications. Obviously, marriage today includes contractualization, ease of divorce, the separation of marriage from childrearing, and the growing irrelevance of marriage for many people. None of those help the claim that marriage is a fundamental human right, enmeshed with human dignity. Successful modern marriage is becoming an accoutrement of economic wealth. The empirical relationship between marriage and individual human happiness is an ongoing study.
Unsurprisingly the brief did not acknowledge the power of feminist and queer critiques of the gay marriage movement. All that was left out. But still, compared to the historical understanding of the opposition—of those who think that marriage is in its nature an unchanging monument to heterosexuality, perhaps defined by archaic gender norms and an entirely antiquated understanding of children as the properties of a marriage (or of a husband)—we were right, and they were wrong. Those undeveloped or unstated implications do not undercut the fundamental insight that not allowing those to marry who wish to marry, not allowing them to express their love through marriage, constituted unjustifiable discrimination. Kennedy heard our arguments because he understood that, and he found our perspective convincing and constitutive of his position.
Third: But still, we should wonder at our success. The work of professional historians has usually had no significant purchase with the courts in contexts like this. Why look to the work of gender historians, rather than economists or public choice theorists or big data social scientists or normative political theorists, the usual suspects when the courts want academic legitimation for what they mean to do? Why look to this politically “left”—apparently heterodox—disciplinary enclave? I honestly don’t have an answer, but I think we should wonder, even as we celebrate.
Finally, the political anxiety in query three leads me to a larger speculation. One possible answer to the question of why we succeeded is that judges have clerks, and clerks—almost all of whom are recent law school graduates—reproduce the epistemological and methodological categories they have learned in opinions they help draft. For the past two decades, the legal and constitutional history of gender norms as well as historically oriented feminist legal thought have been growth industries in the legal academy. Important figures in the academy—important teachers of future law clerks—include trained and gifted socio-legal historians, as well as less formally trained but historically engaged lawyers. The kind of history that was abstracted from in the Brief of Historians of Marriage has been mainstreamed in good law schools. This is, in terms of my own work life, an absolutely amazing transformation. Who could have imagined it, looking forward from the late 1970s, when I began as a young law teacher?
But there is more to say that goes beyond autobiography. The consequences of that transformation—for constitutional law, for the history of the legal profession, as well as for the practice of history—await study.