The American Historical Association has joined a group of individual distinguished historians in signing an amicus brief in US v. Windsor, a case before the Supreme Court contesting the validity of the Defense of Marriage Act (DOMA). As is so often the case in legal contexts, the details can get lost in the swirl of broader issues and we want to clarify some important aspects of the AHA’s decision.
The brief that the AHA has joined addresses strictly historical issues: in this case, how marriage has historically been regulated in the United States, and the purposes for which marriage has been thought to exist. In both matters, it replies, in part, to a brief by the Bipartisan Legal Advisory Group of the House of Representatives (“BLAG”).
On the first point, BLAG argued that it has long been the case that the federal government regulated marriage, overriding state laws when necessary. Our brief establishes, to the contrary, that, prior to DOMA, Congress did not regulate marriage except in cases where state authority was absent (in the South at the end of the Civil War and in federal territories that were not states). States exercised such regulation, and this autonomy often resulted in very significant variation across the country. That was not generally felt to be a problem. Federal courts have intervened when judges considered specific state legislation to contradict constitutional principles (as they do with legislation in all areas), but this did not constitute a precedent for the legislative branch to enact laws demanding uniformity in marriage criteria across states.
On the second point, the BLAG brief asserts that “the institution of marriage was a direct response to the unique tendency of opposite-sex relationships to produce unplanned and unintended offspring.” As the AHA brief points out, this reductive reading ignores abundant evidence that Americans at different times have invoked a variety of purposes for marriage, such as to regulate the use and inheritance of property, and to assure care for the aged and infirm, as well as for both biological and adopted children. Moreover, access to marriage has not been legally restricted to couples who were capable of producing biological children. Here, too, we felt that the right position for the AHA was to join a brief that corrected clearly erroneous claims about the past.
– James Grossman and Kenneth Pomeranz