Posted by Emily
We’re “on the right side of history,” I hear. When I hear that I picture history as this enormous barrier, an obstacle to be climbed, overcome, and ultimately left behind.
Yet as someone who frequently tries to teach ancient and medieval history to undergraduates, I’d like to think that history matters. Sometimes, surprisingly, it matters a lot. There’s been a lot of talk about how historic the recent SCOTUS decision is, but history itself tends to get a lot of lip service. This is a damn shame, because history has actually got a lot to do with the way SCOTUS approached the question of marriage equality.
History – the history of homosexuality, or marriage, of institutions and social systems – played a starring role in the oral arguments on April 28. The first part of the arguments circled around the critical question – does same-sex marriage redefine the institution of marriage? When lawyer Mary Bonauto opened by describing how there is “a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families,” Chief Justice John Roberts pointed out,
“Well, you say join in the institution. The argument on the other side is that they’re seeking to redefine the institution.”
Over the course of the oral arguments, there were two main ways Team Gay could respond to this: either that same-sex marriage doesn’t represent a significant change at all, since marriage isn’t really about biological procreation, or that it is a change, but it’s okay because society changes all the time, just look at the changes regarding women, race and marriage itself in the past century!
The first response didn’t come up until the second part of the oral arguments, which addressed whether states have to recognize same-sex marriages performed in other states. The first part of the oral arguments went down the second path – same-sex marriage is some kind of change. In this case, the justices really wanted to stress that we’re talking about millennia here. Justice Anthony Kennedy’s first words of the day were, “One of the problems is when you think about these cases you think about words or cases, and the word that keeps coming back to me in this case is millennia, plus time.” We’re talking about millennia, folks. Millennia.
Kennedy did go on to acknowledge that there have been about ten years since Lawrence v. Texas – which is also, he notes, about the same length of time as between Brown and Loving – and that this decade has allowed time for scholars, commentators, the bar, and the public to engage in debate. “But still,” he concludes, “ten years is – I don’t even know how to count the decimals when we talk about millennia. And it’s very difficult for the Court to say, oh, well, we know better.” Possibly math is not his thing.