US v. Windsor: Historians Discuss the Defense of Marriage Act
Allen Mikaelian, July 2013
Just over one year ago, the Supreme Court handed down its ruling on the Affordable Care Act, and Perspectives on History organized its first AHA Roundtable, guided by the idea that history and historical thinking has something to offer just about any contemporary discussion on any contemporary topic. We continued the experiment with a series of roundtables on the presidential and vice presidential debates of 2012, an engaging and provocative forum on online civility, one on the Supreme Court’s Fisher v. UT Austin decision, and now another on the court’s ruling regarding the Defense of Marriage Act (DOMA).
Back in February 2013, the Council of the American Historical Association signed onto an amicus curiae brief in the DOMA case, US v. Windsor, arguing that there is broad consensus among historians on several key historical issues before the court. Much of the same spirit of public engagement, and a recognition of the need to know the history of an issue before deciding on it, animates this roundtable. We encourage readers to review the brief and the short AHA Today post summarizing the brief by President Kenneth Pomeranz and Executive Director James Grossman.
Readers will then want to turn to the roundtable piece by Nancy F. Cott, which explains where the court’s opinion lines up with the amicus brief. While “it’s impossible to know,” Cott points out, how influential this brief (or any brief) may have been, it appears that Justice Kennedy’s opinion relied heavily on history and historical thinking.
Laura F. Edwards’s contribution to the roundtable argues that, when you bring the history of marriage into the picture, the Windsor decision is about much more than gay marriage: “Now, in the 21st century,” she writes, “it is possible to talk about marriage as an affirmation of rights. More than that, marriage is now about the dignity, freedom, and equality of women as well as men, be they gay or straight.”
Finally, Leon Friedman looks back at a long history of Supreme Court cases involving discrimination to demonstrate that there is much that the Windsor decision did not do. He reads the ruling as something actually quite narrow: the court’s legal approach “limits the reach of the opinion to cover only the particular law before the court,” Friedman argues, “and would have no immediate implications for the future,” even though it will certainly be used in other cases “to press for further enlargement of the right to marry in the other 37 states.”
The conversation about this historic decision is only beginning, and we hope readers will help further discussion by posting a comment below or sending an e-mail to Perspectives on History.
—Allen Mikaelian is the editor of Perspectives on History.