On Friday, when the United States Supreme Court recognized a constitutional right to marriage, it turned to history to explain its decision. “The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases,” wrote Justice Anthony Kennedy, on behalf of the 5-4 majority. “To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples.” But, he added, this view of marriage as timeless and unchanging was contradicted by an abundance of scholarly work. “The history of marriage is one of both continuity and change.”
When the Supreme Court met last April for oral arguments in Obergefell v. Hodges, the justices spent a lot of time talking about past. The question seemed to be—on whose side is history? Can a historical case be made for legalizing same-sex marriage, or would this be some kind of radical break with thousands of years of legal and cultural history of matrimony?
The history lesson began from nearly the first moment of oral arguments. Plaintiff’s attorney Mary Bonauto introduced her position, fielded a quick question from Justice Ginsburg, then argued that her client and a “whole class of people” were being denied the right to “join” in an “extensive government institution.” Chief Justice Roberts jumped in, “Well, you say join in the institution. The argument on the other side is that they're seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable."