In gay marriage decision, Supreme Court turns to historians for insight

Historians in the News
tags: gay history, gay marriage



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●  Justice Kennedy's decision.

●  Historian's brief.

●  Book by Princeton’s Hendrik Hartog cited in Kennedy opinion 

Ellen Herman, a University of Oregon historian, has her fingerprints on the U.S. Supreme Court's landmark gay marriage decision.

Herman and 19 fellow historians filed a brief with the court that was cited in the ruling that gay and lesbian couples have the right to marry.  The historians have also filed briefs in other cases that led up to Friday's sweeping decision.

"This is just remarkable, since we were only one of about a million efforts to inform and sway the court in this case," Herman said in an email. "It's very clear that arguments from history mattered enormously."

Justice Anthony Kennedy's opinion leaned heavily on the argument that, while marriage has traditionally been between one man and one woman, it has greatly evolved along with society and the law.

Kennedy cited the Historians' brief in describing how, at the nation's founding, married couples were understood to be one legal entity under the domination of the male.  As "society began to understand that women have their own equal dignity," this doctrine was gradually abandoned, the justice wrote.

The historians noted in their brief to the court that abandoning the idea of male domination in marriage was controversial and seen by many as blasphemous.  For example, it was not until the 1980s that the states fully repealed a husband's exemption from being prosecuted for rape of his wife, the brief said.

Herman said that a second group of historians also filed a friend-of-the-court brief with the court that was cited, as were several other scholars.




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