Phil Tiemeyer, Ph.D., assistant professor of history, discusses expansion of gay civil rights in today’s groundbreaking Supreme Court ruling on same-sex marriage. Tiemeyer is the author of Plane Queer: Labor, Sexuality, and AIDS in the History of Male Flight Attendants, published in March.
Since closely following the U.S. Supreme Court’s oral arguments around same-sex marriage back in March, I have been anxiously awaiting this day. Today – like millions of others across this country, and indeed, around the world – I found myself scouring the historic legal decisions that came down from the Court.
As a citizen, historian and a gay man engaged to be married to his partner of three years, I am, of course, extremely gratified to see the Court side with the progressive, forward movement of civil rights for all Americans. Today’s decision in U.S. v Windsor—declaring unconstitutional the Defense of Marriage Act (DOMA)—was as much about interpreting America’s history as it was about interpreting the law.
In reading the dissenting opinions, however, it is still disheartening to see some justices siding with archaic interpretations and a willingness to disregard DOMA for what it was: something crafted with malice specifically to harm gays and lesbians in a way inconsistent with American ideals of equal protection, due process and liberty.
Back in March, one particular quote from Justice Samuel Alito struck me as particularly alarming, especially given my expertise as a historian of the LGBT movement. Read generously, Alito simply questioned how a relatively new legal issue—same-sex marriage—could find protection in the 200-plus-year-old Constitution.
His comment started off neutrally enough: “Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn’t a lot of data about its effect. And it may turn out to be a — a good thing; it may turn out not to be a good thing…”
But his words grew more pernicious as he continued: “But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet?” This is when the historian in me winced. Indeed, I find myself wincing again today, as Alito effectively rehashed the wording of his question—minus the allusions to cell phones and Internet—in his dissent to the majority’s ruling that struck down DOMA.
I know that U.S. law is established to be a conservative discipline, based on the nation’s legal traditions and prizing legal precedents above all else. But Alito’s question back in March confused legal success—the actual bestowal of same-sex marriage in certain countries and then certain U.S. states—with the entirety of a legal movement. He overlooked efforts of men to marry men and women to marry women that have been a part of our Republic since its founding. And he especially seemed to trivialize the efforts of LGBT civil rights activists since World War II to confront homophobia in myriad ways—ways that have kept us vulnerable in the workplace, subject to imprisonment and medicalization, and at risk of being separated from our loved ones even at our most vulnerable moments of life. These struggles are far older than the cell phone, and Justice Alito knows it.
We’ve seen this fanciful deployment of history to perpetuate homophobia in the past. Back in 1986, in the case Bowers v. Hardwick that reaffirmed the legality of anti-sodomy laws in America, Chief Justice Warren Burger cited the “ancient roots” of prohibitions against sodomy (without paying attention to the ways these prohibitions shifted quite radically over time) and then concluded, “To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.” Burger’s opinion was a sad effort to justify his own conservatism and animus towards homosexuality not in legal precedent, but rather in bogus history.
Thankfully, in the case of sodomy, the Court was eventually embarrassed by its own ahistoricism. In 2003, exactly ten years to the day of today’s historic decisions, the decision of Burger and the conservative majority was overturned in Lawrence v. Texas, and anti-sodomy laws can no longer be enforced across the country.
Today, I am gratified that the majority decision disavowed Justice Alito’s overly limited reading of history and same-sex marriage. His view did find voice in his own dissent and others issued by Chief Justice Roberts and, more scathingly, Justice Scalia. For Justice Alito and his fellow conservatives, the majority decision granting equal federal treatment to same-sex married couples is the worst kind of overreach: an attempt by the Court of “arrogating to ourselves the power to decide a question that philosophers, historians, social scientists, and theologians are better qualified to explore.”
Yet, as a historian, I find myself rejoicing today, not only for the expansion of my own rights, but for the triumph of history. By finding that acts like DOMA were implemented to codify long-standing anti-gay malice in the U.S., the majority on the Court remembered America’s history accurately. They thereby validated the struggles of LGBT Americans for civil rights that predate the cell phone and Internet by decades and made America a country more loyal to its Constitution than it was yesterday.