George Chauncy, the historian as expert witness

George Chauncey is Samuel Knight Professor of History and American Studies at Yale University, and author of the groundbreaking work, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (Basic, 1994). He has testified as an expert witness in more than thirty cases dealing with gay rights, five of which have come before the Supreme Court of the United States. Chauncey testified or was deposed in all three marriage equality cases decided by the Court in 2013 and 2015. For the one-year anniversary of the Obergefell vs. Hodges decision, we interviewed Chauncey about his experiences with the courts.

Rachel Hope Cleves: What do lawyers look for from historical testimony? What role does historical evidence play in gay rights cases?

George Chauncey: The courts have found historical evidence useful in a variety of ways. Nancy Cott, for instance, played an important role in marriage equality litigation by explaining how marriage has changed many times before, in ways that once seemed as threatening as allowing same-sex couples to marry, in response to changing social and political conditions. In most of the cases I’ve participated in, beginning with my testimony in Romer v. Evans in 1993, I’ve focused on the history of antigay discrimination. Establishing that history is important because it affects the level of scrutiny a court applies to a law singling out a group for distinctive treatment when it’s trying to decide if the law violates the equal protection clause of the 14th Amendment. The state distinguishes among citizens all the time, and normally it only has to show that there’s a rational basis for the distinction between, say, the licensing requirements for the operator of a passenger car and an eighteen-wheeler. But when a group has experienced a history of discrimination and has not had the political power to defend itself, the courts may feel obliged to subject a law to heightened scrutiny when it singles out that group, for instance by excluding its members from marriage.

Even when a court isn’t prepared to subject antigay legislation to heightened scrutiny – some federal and state courts have, most have not, and various levels of “intermediate scrutiny” are emerging – it’s been useful for the courts to learn about this history because it places present-day discrimination in a larger historical context and makes the rationales for it seem less persuasive. And you can definitely see how this historical context has influenced the decisions reached by some courts.

I’ve also testified about the history of antigay demonization. This was especially important in the 2010 Perry trial, where I explained in my courtroom testimony how the messaging strategies of the Prop 8advocates relied on a much longer history of antigay demonization, from the solidification of the image of homosexuals as child molesters in the 1950s, to Anita Bryant’s 1977 “Save Our Children” campaign, to the antigay videos and literature circulated during the anti-gay-rights referendum campaigns of the 1980s and 1990s, including the 1992 Amendment Two campaign in Colorado, which was at issue in Romer. It was deeply heartening to read the judge’s opinion in Perry and see him accept and explicate the argument I’d made about how the Prop 8 campaign could be more subtle in its “Protect Our Children” messaging strategy precisely because one legacy of earlier antigay campaigns was that they did not have to be as explicit about what children had to be protected from.

In Lawrence v. Texas [2003], the point of our amicus brief was somewhat different. It was to show the Court that the historical rationale the Court had used to help sustain the constitutionality of sodomy laws in Bowers v. Hardwick [1986] was incorrect. We provided the court an alternative interpretation of the history of sexual categories and sexual regulation, and showed how the Texas homosexual conduct law under review in Lawrence was a product of a new regime of antigay discrimination in the twentieth century, rather than the product of “millennia” of antihomosexual teaching, as the Chief Justice had averred in his Bowers concurring opinion. The Court devoted a large portion of its Lawrence decision to questions of history, and it was incredibly rewarding to see how much significance a historical argument could have. ...