Historians and the Prop 8 Decision

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John Willingham is a former election official in Texas. He now writes about history, religion, and politics. He holds an M.A. in American history from the University of Texas at Austin, where his major field was American intellectual history. Mr. Willingham can be reached at http://www.johnwillingham.net/.

More than seven years ago, on July 3, 2003, HNN published “The Historians’ Case Against Gay Discrimination,” a fascinating brief prepared by prominent historians to support same-sex plaintiffs in the famous case Lawrence v. Texas (June 26, 2003), in which the United States Supreme Court struck down prohibitions against all private, adult consensual sex.

Many of the same arguments in that brief, presented by some of the same historians, were a powerful force in Judge Vaughn Walker’s decision on August 4 of this year that California’s Proposition 8 banning same-sex marriage is unconstitutional.  

In the 2003 brief, the historians—George Chauncey, Nancy F. Cott, John D'Emilio, Estelle B. Freedman, Thomas C. Holt, John Howard, Lynn Hunt, Mark D. Jordan, Elizabeth Lapovsky Kennedy, and Linda P. Kerber—asked the Court, as “friends” of the plaintiffs,

…to consider the findings of recent historical scholarship on the history of sexual regulation, sodomy prohibitions, and anti-gay discrimination as it considers this case.  In our judgment as historians, the lessons of this history are clear.  The history of antigay discrimination is short, not millennial….  It was only in the twentieth century that the government began to classify and discriminate against certain of its citizens on the basis of their homosexual status…  [But] In recent years, a decisive majority of Americans have recognized such measures for what they are—discrimination that offends the principles of our Nation—yet a number of them remain in place….  They hold no legitimate place in our Nation’s traditions.

Both Nancy Cott, a Harvard history professor, and George Chauncey, a professor of history and American studies at Yale, testified in the California Prop 8 case, just after the annual meeting of the American Historical Association in San Diego last January.  Cott testified that marriage was essentially “a couple’s choice to live with each other, to remain committed to one another, and to form a household based on their own feelings about one another, and their agreement to join in an economic partnership and support one another in terms of the material needs of life.”

The main witness for Prop 8 proponents was David Blankenhorn, founder and president of the Institute for American Values.  Blankenhorn contended that marriage was “a socially-approved sexual relationship between a man and a woman” with its principal purpose being to “regulate filiation” in favor of heterosexual couples, although obviously it could sometimes be a private relationship between two consenting adults only, when no children resulted from the marriage.  He also testified that same-sex marriage would work to further “deinstitutionalize” marriage.

Cott maintained, however, that same-sex marriage would instead be an additional source of stability and social order.  In addition, Judge Walker wrote, “Cott identified historical changes in the institution of marriage, including the removal of race restrictions through court decisions and the elimination of coverture and other gender-based distinctions.”

The judge found that Cott’s definition of marriage “subsumes” that of Blankenhorn, even though Cott’s does not “emphasize the biological relationship linking dependents to both spouses.”

The importance of historical analysis was also instrumental in the judge’s determination that there is no adequate separate but equal alternative to marriage for same-sex couples.  Cott persuaded the judge that, in his words, “domestic partnerships cannot substitute for marriage because domestic partnerships do not have the same social and historical meaning as marriage and that much of the value of marriage comes from its social meaning.”

Judge Walker found the testimony of Yale’s Professor Chauncey credible and instructive on the issues of whether homosexual stereotypes were a major factor in the Prop 8 amendment.  Chauncey, the judge wrote, “noted that stereotypes of gays and lesbians as predators or child molesters were reinforced in the mid-twentieth century, and remain a part of public discourse” today.  These stereotypes played a prominent role in the Prop 8 campaign literature, the evidence showed.

“The Historians’ Case Against Gay Discrimination” described the historical origins of the stereotypes Chauncey spoke to in his testimony:

Widespread discrimination against a class of people on the basis of their homosexual status developed only in the twentieth century…and peaked from the 1930s to the 1960s.  Gay men and women were labeled “deviants,” “degenerates,” and “sex criminals” by the medical profession, government officials, and the mass media.  The federal government banned the employment of homosexuals and insisted that its private contractors ferret out and dismiss their gay employees, many state governments prohibited gay people from being served in bars and restaurants, Hollywood prohibited the discussion of gay issues or the appearance of gay or lesbian characters in its films, and many municipalities launched police campaigns to suppress gay life.  The authorities worked together to create or reinforce the belief that gay people were an inferior class to be shunned by other Americans.  Sodomy laws that exclusively targeted same-sex couples, such as the statute enacted in 1973 in Texas…were a development of the last third of the twentieth century and reflect this historically unprecedented concern to classify and penalize homosexuals as a subordinate class of citizens.

“Chauncey,” the judge wrote, “testified that because homosexual conduct was criminalized, gays and lesbians were seen as criminals; the stereotype of gay people as criminals therefore became pervasive.”  This stereotype, the judge found, was not credible, citing other evidence at trial showing “that gays and lesbians are no more likely than heterosexuals to pose a threat to children.”

Thus, in part as a result of the analysis and scholarship of historians, the judge found “no rational basis” for the same-sex marriage prohibitions enacted by Prop 8 in California law.  The rational basis level of review, sometimes applied to cases brought under the Equal Protection Clause of the Fourteenth Amendment, must find that the government has a “legitimate purpose” for a law that burdens the rights of a class, and that such laws must have a rational basis to support them.

Judge Walker wrote that “‘moral disapproval, without any other asserted [justifiable] state interest,’ has never been a rational basis for legislation,” quoting the majority opinion of Justice Anthony Kennedy in, yes, Lawrence v. Texas, a case not decided exclusively on a rational basis level.  “Here,” he continued, “the purported State interests fit so poorly with Proposition 8 that they are irrational.”

So here’s to the role of history as a prominent agent of reason, grounded in experience, and assessed with the eyes of professional historians.  The next time someone asks, “Why study history?”, try a new answer: “Why, to help make reasonable laws.”

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More Comments:

John Willingham - 9/1/2010

Yes, there is little doubt that the demographic changes will bring about at least a bare majority opinion in support of same-sex marriage. The question is, how long will that take, and what will the courts, especially the USSC, do in the meantime.

Lawrence v. Texas did not offer a clear next step but suggested many options, and that is at least one reason why Judge Walker in Perry v. Schwarzenegger had to write such a long opinion--to touch all the bases in Lawrence. The hope is that the many options for the USSC will allow five justices to find some way in the next two years to validate same-sex marriage.

Maarja Krusten - 9/1/2010

Interesting debate in the comments here.

This article suggests that there may not be the political effect that once might have been predicted. "Same Sex Marriage Gains GOP Support" at


For those who point to the will of the people standard, they may see changes during their lifetime as that will may be expressed differently over time than it has been. It'll be interesting to see how they handle the principle if that is the case. Obviously, one can't argue will of the people when that matches one's own view, then argue against it if prevailing opinion changes.

Polls show what is described as "accelerated" change on this issue.
Demographics are worth following here, with 6 in 10 of younger people supporting marriage equality.

Bill Heuisler - 8/30/2010

Mr. Willingham,
You mention certain changes that are needed to DOMA and to the legal interaction among states. As you have written in each prior case the law has accomodated the rights of every person under the law. Why redefine marriage?

There are solutions without changing the legal title of the oldest social contract in history. The Court made a mistake, legally and politically, and I believe the political reaction will hurt rather than help the plight of same-sex couples.

As to stigma, laws cannot change the way people think...or the way people believe in their religion. Archaic sodomy laws are not germane to our discussion and have nothing to do with Prop 8 or the opinions of fair minded people.

Thanks again for your article,
Bill Heuisler

John Willingham - 8/30/2010

Mr. Heuisler:

Thanks again for your crisply written comments. Without getting into the other issues you raise, I would like to respond the notion that civil unions and marriage are alike in all but name.

Civil unions are valid only in the state in which they occurred and are not valid if the couple moves to another state. Likewise, civil unions can only be dissolved in the state in which they occurred, while divorces can occur outside the state where the couple married.

The federal government does not recognize same-sex unions for purposes of allowing federal benefits and tax breaks to same-sex couples. The evidence in the recent case Gill v. Office of Personnel Management, which found the federal Defense of Marriage Act (DOMA) unconstitutional, also found that more than 1,100 federal benefits available to married couples are not available to same-sex couples, whether married or in a civil union.

DOMA will not stand as law, and marriages of same-sex couples in states that allow them will in the near future make those couples eligible for federal benefits.

Even if civil unions were eligible for the same benefits as married couples, the societal distinction between civil unions and marriages would still preserve some of the stigma that attached to same-sex relationships until Lawrence v. Texas ruled that such relationships were no longer subject to the severe stigma of arrest and criminal prosecution.

Bill Heuisler - 8/30/2010

Mr. Bav,
Your comments seem to commend the Courts for restraining the baser urges of the people. Making the argument that the common man is not schooled in the law and therefore cannot be trusted with his own destiny runs contrary to the fact that the common man makes the law to begin with.

Show me a law made by lawyers and legal scholars that has survived in our society. And please, please skip the hypocrisy that Prop 8 supporters wanted to deprive anyone of the right to adopt, marry or rescue. The issue is tradition or revision of the title of a cultural icon.

What is the difference between Civil Union and Marriage except the name?

Please read my examples in the post to Mr. Willingham of just the most egregious missteps of our courts in the name of societal good.

Lastly, Prop 8 did not seek to take away anything from anyone. The purpose of Prop 8 was to secure the legal definition of marriage in our society as it has been secured throughout history.
Bill Heuisler

Bill Heuisler - 8/30/2010

Mr. Willingham,
Thank you for your time. As you know, those of us who are uncomfortable with the so-called "judicial tyranny" have no particular disagreement with homosexuality or Civil Unions. My argument is that marriage, in a legal and practical sense, has always had the purpose of legitimizing and protecting children. This has been the cultural purpose of marriage throughout human history. I cannot find another case of this cultural institution being redefined in any other civilization.

And remember, redefinition was the argument on both sides. Prop 8 did not seek to outlaw or deprive - only to preserve a legal definition.

Kennedy's rational purpose argument hinges on opinion - his opinion. The argument that the major (if not the only moral) purpose of marriage is the validation, vindication and protection of children cannot be gainsayed.

As to the Courts, have you forgotten how many Court decisions were denied by the "popular" device of Legal Amendment? The 11th Amendment overturned Chisholm v. Georgia (1793) and guaranteed states' immunity from lawsuits by citizens of other states or countries. The 14th Amendment nullified Dred Scott (1857) by guaranteeing civil rights and citizenship of African Americans.
(Contrary to some untutored opinion, slavery was NOT a majority popular position in the U.S. in 1860)
The 16th Amendment denied Pollock v. Farmers' Loan and Trust Co. (1895) by giving Congress the power to levy an income tax. The 26th Amendment negated Oregon v. Mitchell (1970) by permitting 18-year-olds to vote in state elections. And the 9 to nothing Mutual Film Corporation decision for film censorship in 1915 was greeted by outrage from everywhere.

This is a country ruled by the people and history has shown that the people will have their way. Your designation of Prop 8 arguments as stereotypical seems a bit gratuitous considering the arguments were the same as those made for the institution of marriage since the beginning of written history.

Bill Heuisler

Mike R Bav - 8/30/2010

What about Brown vs. Board of Education?

Conservative legislators elected by the people passed laws requiring school segregation. The Supreme Court overruled the will of these legislators, and - implicitly - of the people who elected them.

Was Brown a case of judicial activism?

Or perhaps we should abolish the Supreme Court and all courts altogether, and have the people vote on everything?

Our Founding Founders established courts b/c they realized that the majority is not always right. This is as true for elected officials as it is for the common man. Furthermore, the common man is not schooled in the law.

What if your right to marry were put up to a vote? Should every right be put up to a vote?

You wrote that "no 'privileges or immunities' were abridged by Prop. 8." Really? Marriage is not a privilege?

The Constitution specifically prevents us from imposing our religious (or other) beliefs on others, writing that Congress shall pass no national religion or show preference for one faith over the other.

Why, then, should the people (or the legislators they elect) have the right to impose their beliefs, their personal "definitions" and perceptions, on others?

You wrote that "most [people] do not agree on the Definition of Marriage." And b/c they do not agree, the majority of Californians should have the right to impose their beliefs (motivated in part by religion, since Judeo-Christian beliefs frown upon homosexuality) on the minority?

Forget that courts were established to protect the legal rights of the minority! Who are the real usurpers here?

Maybe instead of pandering to those who believe in "slay[ing] the infidels where ye find them," government should do more to secure the rights of those who adopt children, who rescue the young from abusive households and bring them into civilized society. Do that, instead of saying that gay people cannot have their own children and therefore do not deserve those "privileges and immunities" bestowed upon all Americans, regardless of fertility.

This is America, so let's not be ridiculous. Proposition 8 is.

John Willingham - 8/29/2010

Mr. Heuisler, thank you for your thoughtful comments. Much of the disagreement with the Prop 8 decision echoes your view that if the public has spoken, as it did in the Prop 8 amendment election, then what the public wants should prevail. In Romer v. Evans (1996) and later in Lawrence v. Texas (2003), Justice Kennedy made it clear (on this one point, if not on others) that if the government, in responding to the will of the people, enacts a law reflecting the moral views of the majority, those views must also serve a rational secular purpose. Rational, in this legal sense, means that the evidence to support the views is persuasive at trial.

The Prop 8 proponents made successful if stereotypical rhetorical appeals during their winning election campaign, but those same appeals did not amount to a rational argument at trial.

It is my personal view (as a layman) that the Court in Constitutional issues is respectful of public and legislative action--which often reflects a moral view--if that action has a sound factual basis.

Bill Heuisler - 8/29/2010

Mr. Willingham,
Your essay is excellent as far as it goes. IMHO it does not go far enough.

Prop, 8 was passed overwhelmingly. The controversy about sexuality seems to miss a larger point: Do people make the laws in a Democracy, or not?

Please don't use the Slavery argument because it involved a minority - more precisely it involved states rights - and it also involved laws actively abridging human rights to life, liberty and property.

Most agree that sexuality should not be a hinderance to legal rights. Most agree on the status of Civil Unions in Law, but most do not agree on the Definition of Marriage. Prop 8 was about this definition and did not propose the taking of Rights from any class of people. This is not a 14th Amendment question - or even a Constitutional Question - because no "privileges or immunities" were abridged by Prop 8.

Your excellent essay did not address the usurpation of Laws "of and by the people" by the fiat (no matter how well argued) of one judge.
Bill Heuisler