Historians and the Prop 8 Decision
Many of the same arguments in that brief, presented by some of the same historians, were a powerful force in Judge Vaughn Walker’s decision on August 4 of this year that California’s Proposition 8 banning same-sex marriage is unconstitutional.
In the 2003 brief, the historians—George Chauncey, Nancy F. Cott, John D'Emilio, Estelle B. Freedman, Thomas C. Holt, John Howard, Lynn Hunt, Mark D. Jordan, Elizabeth Lapovsky Kennedy, and Linda P. Kerber—asked the Court, as “friends” of the plaintiffs,
…to consider the findings of recent historical scholarship on the history of sexual regulation, sodomy prohibitions, and anti-gay discrimination as it considers this case. In our judgment as historians, the lessons of this history are clear. The history of antigay discrimination is short, not millennial…. It was only in the twentieth century that the government began to classify and discriminate against certain of its citizens on the basis of their homosexual status… [But] In recent years, a decisive majority of Americans have recognized such measures for what they are—discrimination that offends the principles of our Nation—yet a number of them remain in place…. They hold no legitimate place in our Nation’s traditions.
Both Nancy Cott, a Harvard history professor, and George Chauncey, a professor of history and American studies at Yale, testified in the California Prop 8 case, just after the annual meeting of the American Historical Association in San Diego last January. Cott testified that marriage was essentially “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.”
The main witness for Prop 8 proponents was David Blankenhorn, founder and president of the Institute for American Values. Blankenhorn contended that marriage was “a socially-approved sexual relationship between a man and a woman” with its principal purpose being to “regulate filiation” in favor of heterosexual couples, although obviously it could sometimes be a private relationship between two consenting adults only, when no children resulted from the marriage. He also testified that same-sex marriage would work to further “deinstitutionalize” marriage.
Cott maintained, however, that same-sex marriage would instead be an additional source of stability and social order. In addition, Judge Walker wrote, “Cott identified historical changes in the institution of marriage, including the removal of race restrictions through court decisions and the elimination of coverture and other gender-based distinctions.”
The judge found that Cott’s definition of marriage “subsumes” that of Blankenhorn, even though Cott’s does not “emphasize the biological relationship linking dependents to both spouses.”
The importance of historical analysis was also instrumental in the judge’s determination that there is no adequate separate but equal alternative to marriage for same-sex couples. Cott persuaded the judge that, in his words, “domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning.”
Judge Walker found the testimony of Yale’s Professor Chauncey credible and instructive on the issues of whether homosexual stereotypes were a major factor in the Prop 8 amendment. Chauncey, the judge wrote, “noted that stereotypes of gays and lesbians as predators or child molesters were reinforced in the mid-twentieth century, and remain a part of public discourse” today. These stereotypes played a prominent role in the Prop 8 campaign literature, the evidence showed.
“The Historians’ Case Against Gay Discrimination” described the historical origins of the stereotypes Chauncey spoke to in his testimony:
Widespread discrimination against a class of people on the basis of their homosexual status developed only in the twentieth century…and peaked from the 1930s to the 1960s. Gay men and women were labeled “deviants,” “degenerates,” and “sex criminals” by the medical profession, government officials, and the mass media. The federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees, many state governments prohibited gay people from being served in bars and restaurants, Hollywood prohibited the discussion of gay issues or the appearance of gay or lesbian characters in its films, and many municipalities launched police campaigns to suppress gay life. The authorities worked together to create or reinforce the belief that gay people were an inferior class to be shunned by other Americans. Sodomy laws that exclusively targeted same-sex couples, such as the statute enacted in 1973 in Texas…were a development of the last third of the twentieth century and reflect this historically unprecedented concern to classify and penalize homosexuals as a subordinate class of citizens.
“Chauncey,” the judge wrote, “testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals; the stereotype of gay people as criminals therefore became pervasive.” This stereotype, the judge found, was not credible, citing other evidence at trial showing “that gays and lesbians are no more likely than heterosexuals to pose a threat to children.”
Thus, in part as a result of the analysis and scholarship of historians, the judge found “no rational basis” for the same-sex marriage prohibitions enacted by Prop 8 in California law. The rational basis level of review, sometimes applied to cases brought under the Equal Protection Clause of the Fourteenth Amendment, must find that the government has a “legitimate purpose” for a law that burdens the rights of a class, and that such laws must have a rational basis to support them.
Judge Walker wrote that “‘moral disapproval, without any other asserted [justifiable] state interest,’ has never been a rational basis for legislation,” quoting the majority opinion of Justice Anthony Kennedy in, yes, Lawrence v. Texas, a case not decided exclusively on a rational basis level. “Here,” he continued, “the purported State interests fit so poorly with Proposition 8 that they are irrational.”
So here’s to the role of history as a prominent agent of reason, grounded in experience, and assessed with the eyes of professional historians. The next time someone asks, “Why study history?”, try a new answer: “Why, to help make reasonable laws.”