Does History Matter?

At a time when many question the relevance of history,  it is noteworthy that the U.S. Supreme Court case that prohibited  the federal government from undercutting a state’s decision to extend "the recognition, dignity and protection" of marriage to same-sex couples, hinged on arguments advanced by professional historians.

Rarely have historians played as important a role in shaping the outcome of a public controversy as in the same-sex marriage cases. Legal, family, women's, and lesbian and gay historians provided key evidence on which U.S. v. Windsor ultimately turned: that the Defense of Marriage Act (DOMA) represented an unprecedented and improper federal intrusion into a domain historically belonging to the states. As Justice Kennedy affirmed, "the federal government, through our history, has deferred to state law policy decisions with respect to domestic relations."

But historical scholarship did more than substantiate a single pivotal argument.  It framed the majority’s broader understanding of marriage as an evolving institution and helped convince five justices that opposition to same-sex marriage is best understood as part of a long history of efforts to deprive disfavored groups of equal rights and benefits. In the end, the majority opinion hinged on "the community’s ... evolving understanding" of marriage and of equality and the majority’s recognition that DOMA imposed "a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."

Briefs filed with the Supreme Court by the American Historical Association and the Organization of American Historians demonstrated that far from being a static institution, marriage has profoundly changed its definition, roles, and functions, and that today's dominant marital ideal, emphasizing emotional intimacy, has nothing to do with gender. Currently, marriage's foremost public function is to distribute benefits, such as those involving health insurance, Social Security, and inheritance, making it all the more valuable for same-sex couples.

Furthermore, these briefs proved that contrary to the widely held assumption that marriage has long been defined by its procreative function, this was not the case. Marriage was justified on multiple grounds. Especially important were the notions that marriage contributed to social stability and provided care for family members. No American state ever forbade marriage to those too old to bear children.

Without reducing the legal history of marriage to a Whiggish, Progressive. or linear narrative, the historians showed that two broad themes characterize the shifting law of marriage in the United States. The first is the decline of coverture, the notion that a married woman's identity is subsumed in her husband's. A second theme is the overturning of earlier restrictions about who can marry whom.

Slowly and unevenly, American society has abolished restrictions on marriage based on people's identity. As recently as the 1920s, 38 states barred marriages between whites and blacks, Chinese, Filipinos, Japanese, Indians, "Malays," and "Mongolians." It was not until 1967 in Loving v. Virginia, the Supreme Court decision that threw out a Virginia ban on black-white marriages, that racial and ethnic restrictions were outlawed.

At the same time, there has been an ongoing legal struggle to recognize women as full rights-bearers within marriage. Instead of seeing their identity subsumed in their husband's -- the notion that spouses cannot testify against one another was originally rooted in this principle -- women gradually attained the right to sue, control their own wages, and manage their separate property.

Perhaps the most powerful recent symbols of this shift are prosecutions for marital rape and elimination of the presumption that a husband is head of the household for legal purposes. Opposition to the liberalization of marriage, the historians demonstrated, has rested on historical misconceptions and upon animus, rooted in ethnocentrism and religious sectarianism.

Marriage today bears scant resemblance to marriage even half a century ago, when the male breadwinner family prevailed and dual-earner and single-parent households were far rarer than today. The contemporary notion of marriage as an equal, gender-neutral partnership differs markedly not only from the patriarchal and hierarchical ideals of the colonial era, but from the notion of complementary spousal roles that predominated during the age of companionate marriage that prevailed from the 1920s into the mid-1960s.

Change, not continuity, has been the hallmark of the history of marriage. Even before the 20th century, marriage underwent certain profound transformations. Landmarks in this history included:

• Enactment of the first Married Women's Property laws in the 1830s and 1840s, which established women's right to control property and earnings separate and apart from their husbands.
• Passage of the first adoption laws in the mid-19th century, allowing those unable to bear children to rear a child born to other parents as their own.
• Increased access to divorce, beginning with judicial divorce supplanting legislative divorce.
• The criminalization of spousal abuse starting in the 1870s.

Marriage's persistence reflects its adaptability. DOMA represented an unprecedented federal attempt to fix the definition of marriage and impose this definition upon the states and their inhabitants. Specifically, DOMA represented a federal effort to prohibit lesbian and gay Americans from securing the same civil rights and benefits available to other citizens. DOMA stigmatized a specific group of Americans and represented federal discrimination based on a particular religious point of view. In Justice Kennedy’s ringing words: "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity."

History, in the same-sex marriage controversy, was not simply "preface" -- an interesting but ultimately insignificant detail in cases involving equal treatment under law. History lay bare a series of dangerously misleading assumptions -- above all, the notion that same-sex marriage deviates from a timeless, unchanging marital norm.