Articles

Amicus Curiae Brief against Kentucky

In Spotlight on March 10, 2015 by Randolph Hollingsworth Tagged: , ,

Have you seen the recent Amicus Curiae brief to the Supreme Court submitted by some of the greatest historians of the day? The American Historical Association signed on in support of the brief also. It is well worth discussing with your students since it is an excellent example of the importance and vitality of the discipline of history today. It is in support of the petitioners and an argument against the Kentucky governor’s case against same-sex marriage: Obergefell, et. al. v. Beshear, Gov. of Kentucky.

The questions the brief addresses are:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Here is the outline of the response to those questions by a long list of historians (led by AHA member Nancy Cott of Harvard University).


I. Marriage has served multiple purposes beyond procreation throughout American history
     A. Marriage historically has served important political and economic purposes.
  1. Marriage developed in relation to governance.
  2. Marriage has created public order and economic benefits.

B. Marriage has always been about more than childbearing.

  1. Neither eligibility for marriage nor sexual intimacy within marriage has turned on the ability to procreate.

  2. Non-biological children have long been integral to the American family.
II. Marriage had changed to reject discriminatory rules and restrictions
     A. Marriage laws have changed to reflect changing understandings of spouses’ respective roles and rights.
     B. Race-based restrictions on marriage eligibility have been eliminated.
     C. Courts have played an instrumental role in changes to marriage laws.

In summary: “Throughout American history, marriage has served multiple state interests and has evolved to reflect social and legal changes. The historical record contradicts attempts to cast marriage as serving any single, overriding purpose. And it contradicts attempts to present marriage as a static institution so rooted in ‘tradition’ as to insulate it from constitutional challenge (23-24).”

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