Non sequitur

Like the American Historical Association, I support marriage equality. But that opinion isn’t “history.”

The American Historical Association, along with a group of historians of the family, has submitted an amicus brief to the Supreme Court on the marriage-equality cases. Naturally, they’re for it. So am I. And – since I’m not an historian – I learned a good deal from the material presented in the brief, which is admirably well-written.

So why does it make me uncomfortable?

For one thing, the inclusion of the AHA on the brief strikes me as odd. Not all historians agree with the arguments it makes: I note for example, that Mary Ann Glendon, one of whose works is cited to good effect, is not a signatory. If there remains substantial professional controversy on some disputed point, it seems to me that a learned society should not, as an institution, weigh in, even on the side of the dispute that commands a solid majority within the discipline. Historians are entitled to views on the role of the family in American history, but the discipline of history does not have any such view. There will of course be cases where something that is disputed politically is no longer in dispute within a discipline, and in that case it may be appropriate for a disciplinary organization to speak with the voice of the entire discipline. But I take that not to be the current case.

The first half of the brief is devoted to challenging the argument, accepted by the Sixth Circuit, that procreation is the fundamental purpose of the family, and that it is therefore rational for a state to deny family status to non-procreative pairings. Against that claim, the historians present a rich array of other purposes served by the family and by family law. In doing so, it seems to me that they are acting as “friends of the court” in the proper sense: bringing to the attention of the court facts and analysis relevant to the case it has under consideration. And – this is something I don’t know – perhaps the limited assertion that family and family law have always served multiple purposes is in fact uncontroversial within the discipline of history, and therefore appropriate for the AHA to opine about officially. But surely the question of the primary social “meaning” of an institution is hermaneutical rather than empirical. Even if all historians somehow agreed on it, it’s not obvious to me why their combined view ought to be binding on the rest of us. When the brief says:

Based on their historical perspective, amici support Petitioners’ position that the important and varied interests that states have in marriage warrant inclusion of same-sex couples within that institution.

that seems to me an assertion well beyond the scope of the historian’s academic authority. (Try a simple thought-experiment: If that proposition, in the form of a question, were included in a Ph.D. qualifying examination, would it have a “wrong” answer that ought to disqualify the student from advancement to candidacy?) Whether something is “warranted” is not an historical question, but a political or legal one. I think it would have been better tactics for the historians to stick to their historical knitting, and not draw legal or policy conclusions. What I’m sure of is that the AHA should not have implied that history, as a discipline, has the capacity to draw those conclusions.

The second half of the brief reviews the history of laws against mixed-race pairings, in order to show that ideas about what constitutes legal “marriage” have not been either fixed or immune from judicial intervention. Again, that material seems to me completely convincing, and no doubt it damages, by analogy, the “traditionalist” case. And again, I’m happy to believe that there isn’t another side to that story that would count as competently written history.

But then the brief continues:

Throughout American history, the rights to marry and to choose one’s spouse have been profound exercises of the individual liberty central to the American polity and way of life. The past century has witnessed societal and constitutional emphasis on freedom in choice of marital partner and freedom from racial and gender-based restrictions in marriage. Recognizing the right of individuals of the same sex to marry is the next step in this historical trend.

If all that means is that the historians predict, based on observed patterns of regularity, that the Court and the rest of the political process will recognize marriage equality, there are two logical responses:

1. Sez who?
2. So what?

Historians, not being prophets, have no professional license to predict the future. Moreover, even if the prediction were correct, it’s hard to see what weight the Court should give it. The Court isn’t looking for a prediction about its decision, it’s looking for advice relevant to that decision.

If, instead, that passage means that recognition of same-sex marriage is the next logical step in the progression, then the historians are again acting ultra vires. No doubt there are substantial numbers of competent historians who regard SSM as a bad idea. That being the case, the AHA has no business pretending otherwise.

Finally, the document concludes (in a section headed, conveniently, “Conclusion”)

The judgment of the court of appeals should be reversed.

To which – offered as the position of the American Historical Society – I can only say: NOOOOOOOOOOOOOOOO! Maybe it should. I think it should. I hope it is. But those are political and legal opinions, not historical ones.

For scholars to exert the sort of authority they ought to exert in public deliberation, they need to distinguish rigorously between matters on which their scholarly knowledge gives them legitimate authority and matters on which their opinion is no better than that of any other voter. That – far more than issuing pseudo-official views on policy questions – is among the legitimate roles of scholarly organizations such as the AHA. I’m sorry that organization didn’t do a very good job this time. I only wish I thought that there were in fact an “arc of history” bent in some particular direction that would justify making a prediction based on my hope that AHA will do better next time. But there isn’t.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

7 thoughts on “Non sequitur”

  1. I agree with the substance of this post, and find it to be exceptionally fair-minded and well argued.

    I would add two points:

    1) On the first of the two arguments presented by the AHA: It seems to me especially odd for the pro-SSM side of the argument to making appeals to historical practice for normative guidance on the issue, since, um, SSM is a VERY recent phenomenon. The anti-SSM side can make such appeals without any particular logical problem, since at least part of their argument stems from the fact that SSM is a recent social innovation with no precedent in the historical record. Either we respect that (in the spirit of small-c conservatism) or we don't. But it's hard to imagine the a logical observer would be persuaded as to the normative purpose of marriage by references to historical beliefs and practices about the institution but would then discard the fact that historically marriage was reserved for male/female couples. There are lots of lines of evidence that one might bring to bear to support the pro-SSM position. But the witness of history ain't one of them.

    2) On the second of the two arguments presented by the AHA: If we are to draw normative conclusions from the trajectory of history by inferring from the fall of laws against mixed-race marriage that laws against SSM should also fall, then the question is rightly begged: "this trajectory you point to – where does it lead next?" Because, to make the point very tangible, there is a small but growing "polyamory" community that insists to anyone who cares to listen that just as society has come around to the idea that two men or two women should be allowed to marry, so too should a man and two women or two men and a woman and so forth and so on be allowed to marry. And I have a sneaky suspicion that a very small percentage of the members of the AHA would agree. Now, one might object by saying that this is a ludicrous comparison. Maybe it is. But the polyamorists certainly don't think so, and just as you think it's ludicrous to suggest that because two men or two women ought to be allowed to marry that then therefore three or four persons ought to be allowed to marry, an overwhelming majority of the people of, say, 1975 would have thought that it was ludicrous to suggest that just because a white man and a black woman were now free to marry that then therefore two men or two women ought to be allowed to marry. Either the "trajectory" of history continues on forever or it doesn't. If it does then those who are pro-SSM but who would object to other expansions of the contours of marriage have no leg to stand on. If it doesn't then who is to say, definitively, that future generations will regard the breakpoint between SSM and plural marriage as the bridge too far rather than the breakpoint between inter-racial marriage and SSM. There was a time in the not so far distant past when the consensus opinion of educated, modern people was that divorce was not especially harmful and that divorces ought to be very easy to get. Now the cultural pendulum has swung back, and most educated, modern people think that divorce, while perhaps sometimes necessary, is usually a very sad and unfortunate outcome and that the law ought to at the very least gently apply the brakes when a married couple (particularly a married couple with minor children), in the heat or negative passion, wishes to call it quits.

    Or put another way, one goes badly wrong trying to derive "ought" from "is." Data (of the historical variety or otherwise) is useful to form judgment properly. But it doesn't substitute for judgment, and no amount of taunting one's political opponents for being "on the wrong side of history" can ever substitute for laying out a case that they are wrong on the merits, history be damned.

    1. Stephen1839 nails it with this: one goes badly wrong trying to derive "ought" from "is."

      Good for Mark for calling this out. Of course AHA members can support gay marriage, but when they claim to do it *as historians* they are doing violence to the integrity of their discipline.

  2. JFTR, Glendon is a law professor. I don't know what her qualifications in history are. They may be excellent, and she may be a member of AHA, but she does not earn her living as a historian.

  3. The Justices are used to amici briefs that argue for a ruling. The historians would have had more effect if they had surprised the Justices by letting them draw their own conclusions. Of course, it's fair game to go for amateur historical generalisations by lawyers on the other side.

  4. I agree with you. I felt the same when there was pressure on the AHA to boycott a hotel for the San Diego meeting because the owner was against gay marriage. I don’t pay membership for the AHA to take a partisan role in politics. They should represent historians of all political stripes.

  5. OK, I haven't posted here for a long time largely because I agree with many of the posts but I just have to say that you're all dancing on the head of a pin here (an academic overthinking things pin). This post confuses the point of being a historian with the point of having a historical association. It is the association's position – perhaps not well argued – that is being propagated here. If you disagree with it you have ample means by which to talk to association members, become a leader of the association and argue differently. You are essentially arguing that even if there is a single opinon that somehow presents a different view of history, then the association has no ability to form a valid viewpoint that can be rendered into a type of legal argument. This is nonsense. The association has an opinion, they captured as best the could for the purposes of the amicus and they have propagated it. They aren't writing history, they are writing an amicus. Totally different things. Unless you want the association to never weigh in on anything other than making sure professors have better wages and benefits than non-profit workers (not bitter) you should rethink this.

  6. Well written, maybe, but poorly argued. The historians are attacking a straw man. Instead of arguing against the traditionalist point of view, as set forth in the Sixth Circuit opinion, they set up a caricature.

    NOBODY is saying that forming families is the only social function of marriage, just that it’s the most important one, and the reason why marriage has been protected by the state. Of course there are other functions.

    And of course the failure to produce offspring does not make a marriage invalid. The purpose of marriage is not to procreate per se, but rather to increase the likelihood that any offspring produced will be taken care of by their biological mother and father, which is ordinary circumstances what is best for the child. Back in the old days, it was not scandalous for a married couple to be childless. Having children without being married was not good. And everybody understood that was because a child was best off being raised by his mother and father.

    The brief also mentions adoption as an exception. Adopted parents are indeed considered by the law to be treated exactly the same as biological parents. However, it has always been seen that adoption is not ideal, but a remedy for a tragic loss. Adopted kids have problems that their classmates do not. Separation trauma is seen in both the child and the birth mother. Many of them have a great yearning to find their natural parents.

    The institution of marriage has changed over time and varies from one culture to another. However, the essential elements have remained fairly constant. We join together a man and a woman, who have the rights and responsibilities of being the child’s father and mother, respectively. It has always been recognized that there is something special about biological kinship, about one’s own flesh and blood.

    Some courts are finding this traditional view — despite its universal acceptance across cultures and across time – to have no rational basis. In other words, it was only a few years ago that human beings acquired the ability to think rationally. To say that such a position is arrogant is a colossal understatement.

    One of the most basic of human rights is the right of a child, under normal circumstances, to be taken care of by its biological parents. This right is foundational to our family law, and is recognized internationally in the Universal Declaration of Rights of the Child and the Convention on Rights of the Child, and more obliquely in the Universal Declaration of Human Rights.

    In order to conclude that the traditional view of marriage has no rational basis, courts must affirm that this most basic of children’s rights is not important.

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