The Supreme Court, DOMA and us


Today, I am happy to report, we filed an amicus brief in U.S. v. Windsor, U.S. Supreme Court Docket No. 12-307, supporting the view that the Second Circuit correctly held the Defense of Marriage Act unconstitutional.  Here's a link to our brief.  Download 12-307 bsac Historians

We filed the brief on behalf of many history professors as well as the American Historical Association.  The signatories include Professor Nancy Cott, who is probably the leading light on the history of marriage in the U.S. and Professor George Chauncey, the leader in the history of LGBT treatment in the US.

I must say I learned a lot of working with the professors on this brief and reading their supporting treatises and authorities (there aren't a lot of briefs in which we need to go find 19th Century copies of The Liberator to cite check, for example.)

One point that I had never really thought about before was in response to the argument that marriage should only be between a man and a woman because its primary purpose is to ensure procreation within marriage.  I learned that this simply isn't true historically.  One purpose (of many), as explained in our brief, was to protect children, period, however they happen to show up.  Perhaps the most graphic example of this point – that the "traditional" nuclear biological family isn't so traditional from an historical standpoint – is our very first First Family.  George Washington couldn't have children.  So he adopted those of his wife.  While there was no chance of him biologically procreating, I'm pretty sure there aren't a lot of people who would say that George and Martha shouldn't have been allowed to marry because their marriage wouldn't fulfill the primary purpose of marriage.    

Another interesting point, I think, in our brief, is how controversial other changes in marriage laws were in the past.  The supporters of DOMA posit that there is something fundamentally different about same-sex marriage – that it strikes at the very heart of what marriage is from a "traditional" perspective.  Well, people thought the same thing historically about other changes in marriage laws, too.  For example, the elimination of couverture – when married women changed from just being  property – some people thought that the sky was falling down with that evolution.  When divorce became easier; when some states allowed inter-racial marriage, etc. etc – some people thought the world was going to heck in a hand basket.  In some states, first cousins could marry – in other states, they thought that was horrifying incest.  And so on and so on.

Big kudos to everyone at PA who worked on the brief – Katy Rand, Nolan Reichl, and our newbie Katharine Kayatta (again just the cite checking alone was something!).  I really hope that our brief contributes to the dialogue by bringing an accurate historical perspective to the questions facing the Court.    

A full list of parties filing briefs can be found here: and

For more information on this case, you can go to and