Historians and Gay Marriage

The American Historical Association, along with a group of historians of the family, has submitted an amicus brief to the Supreme Court on the marriage-equality cases. Naturally, they’re for it. So am I. And – since I’m not an historian – I learned a good deal from the material presented in the brief, which is admirably well-written.

So why does it make me uncomfortable?

For one thing, the inclusion of the AHA on the brief strikes me as odd. Not all historians agree with the arguments it makes: I note for example, that Mary Ann Glendon, one of whose works is cited to good effect, is not a signatory. If there remains substantial professional controversy on some disputed point, it seems to me that a learned society should not, as an institution, weigh in, even on the side of the dispute that commands a solid majority within the discipline. Historians are entitled to views on the role of the family in American history, but the discipline of history does not have any such view. There will of course be cases where something that is disputed politically is no longer in dispute within a discipline, and in that case it may be appropriate for a disciplinary organization to speak with the voice of the entire discipline. But I take that not to be the current case.

The first half of the brief is devoted to challenging the argument, accepted by the Sixth Circuit, that procreation is the fundamental purpose of the family, and that it is therefore rational for a state to deny family status to non-procreative pairings. Against that claim, the historians present a rich array of other purposes served by the family and by family law. In doing so, it seems to me that they are acting as “friends of the court” in the proper sense: bringing to the attention of the court facts and analysis relevant to the case it has under consideration. And – this is something I don’t know – perhaps the limited assertion that family and family law have always served multiple purposes is in fact uncontroversial within the discipline of history, and therefore appropriate for the AHA to opine about officially. But surely the question of the primary social “meaning” of an institution is hermaneutical rather than empirical. Even if all historians somehow agreed on it, it’s not obvious to me why their combined view ought to be binding on the rest of us. When the brief says:

Based on their historical perspective, amici support Petitioners’ position that the important and varied interests that states have in marriage warrant inclusion of same-sex couples within that institution.

that seems to me an assertion well beyond the scope of the historian’s academic authority. (Try a simple thought-experiment: If that proposition, in the form of a question, were included in a Ph.D. qualifying examination, would it have a “wrong” answer that ought to disqualify the student from advancement to candidacy?) Whether something is “warranted” is not an historical question, but a political or legal one. I think it would have been better tactics for the historians to stick to their historical knitting, and not draw legal or policy conclusions. What I’m sure of is that the AHA should not have implied that history, as a discipline, has the capacity to draw those conclusions.

The second half of the brief reviews the history of laws against mixed-race pairings, in order to show that ideas about what constitutes legal “marriage” have not been either fixed or immune from judicial intervention. Again, that material seems to me completely convincing, and no doubt it damages, by analogy, the “traditionalist” case. And again, I’m happy to believe that there isn’t another side to that story that would count as competently written history.

But then the brief continues:

Throughout American history, the rights to marry and to choose one’s spouse have been profound exercises of the individual liberty central to the American polity and way of life. The past century has witnessed societal and constitutional emphasis on freedom in choice of marital partner and freedom from racial and gender-based restrictions in marriage. Recognizing the right of individuals of the same sex to marry is the next step in this historical trend.

If all that means is that the historians predict, based on observed patterns of regularity, that the Court and the rest of the political process will recognize marriage equality, there are two logical responses:

1. Sez who?
2. So what?

Historians, not being prophets, have no professional license to predict the future. Moreover, even if the prediction were correct, it’s hard to see what weight the Court should give it. The Court isn’t looking for a prediction about its decision, it’s looking for advice relevant to that decision.

If, instead, that passage means that recognition of same-sex marriage is the next logical step in the progression, then the historians are again acting ultra vires. No doubt there are substantial numbers of competent historians who regard SSM as a bad idea. That being the case, the AHA has no business pretending otherwise.

Finally, the document concludes (in a section headed, conveniently, “Conclusion”)

The judgment of the court of appeals should be reversed.

To which – offered as the position of the American Historical Society – I can only say: NOOOOOOOOOOOOOOOO! Maybe it should. I think it should. I hope it is. But those are political and legal opinions, not historical ones.

For scholars to exert the sort of authority they ought to exert in public deliberation, they need to distinguish rigorously between matters on which their scholarly knowledge gives them legitimate authority and matters on which their opinion is no better than that of any other voter. That – far more than issuing pseudo-official views on policy questions – is among the legitimate roles of scholarly organizations such as the AHA. I’m sorry that organization didn’t do a very good job this time. I only wish I thought that there were in fact an “arc of history” bent in some particular direction that would justify making a prediction based on my hope that AHA will do better next time. But there isn’t.

[Cross-posted at The Reality-Based Community]

Mark Kleiman

Mark Kleiman is a professor of public policy at the New York University Marron Institute.