Sometimes I wonder if history matters. I know the past is full of fascinating characters and interesting stories. These lives and episodes can inspire and horrify; they can make us cry and laugh; they can give us pause and make us reflect. But doesn't a good novel, fashioned out of the imagination of a creative writer, accomplish the same thing? Why do I and many others spend our time painstakingly researching things that happened long ago? The past is dead, many would say. Get a life. Forget about history.
Of course, at this point I keep studying, researching, and writing history because I enjoy it and I'm good at it. But I also frequently get reminded from the outside, in the responses of my students, that history matters.
For instance, almost every year I teach at least one course in which I'm able to show the documentary film, The Times of Harvey Milk. For twenty-plus years now, the overwhelming majority of the students who see the film in class respond in the same way. They are moved to tears by the humanity and the heroism of this gay political leader in San Francisco in the 1970s. They are also enraged that they had never before heard of Harvey Milk. In that moment, history matters to them. If they're heterosexual, history becomes a way that they learn to empathize with those different from them. If they're queer, they feel validated. For all of them, the denial of historical knowledge comes to symbolize the injustice that exists in the world.
But history can also make a difference in other ways. It can be a tool that we use to change the society we live in. A case in point is what happened on Thursday, June 26, 2003, a memorable day in the annals of the GLBT movement for justice and equality.
I was spending that week at the Kinsey Institute in Bloomington, Indiana for a seminar on the history of sexuality that brought older and younger historians of sexuality together. We all knew that it was the last week of the spring session of the Supreme Court, and we knew that a decision was due in the case of Lawrence v. Texas, a challenge to the constitutionality of the state's sodomy statute. We were attuned to the news feeds coming over the web, and each morning we were on the look out for breaking news indicating that a decision had come down. By Thursday, the sense of anticipation was high. Anticipation mixed with dread, I might add.
For many of us attending the seminar, our interest in the case was more than what just any gay person might have. Seventeen years earlier, in 1986, history had figured very strongly in the Bowers v. Hardwick decision, when a 5-4 majority on the Court had upheld the constitutionality of criminal laws banning sodomy. In the majority opinion, Justice Byron White declared that "proscriptions against that conduct have ancient roots" and insultingly used the word "facetious" to dismiss the idea that matters of personal liberty might be involved. He reduced the question at hand to whether the Constitution "confers a fundamental right upon homosexuals to engage in sodomy." Nowhere did he recognize issues of love, intimacy, personal liberty, or the importance of sexual expression to a person's happiness.
Chief Justice Warren Burger composed his own concurring opinion and he, too, felt obliged to claim that history was on his side. "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization," he wrote. "Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards." He drove home his history lesson with a final rhetorical flourish: "To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching." Millennia. That's big!
Because the justices had relied on history to support their position, lawyers arguing the Lawrence case thought it would be wise to introduce evidence that disputed this view of history. In the years since Hardwick, a rich literature on lesbian and gay history and the history of sexuality had been published, so it was possible to imagine arguing for an alternative view of history. The lawyers went to George Chauncey, who at that point taught at the University of Chicago, and he spearheaded the drafting of a historians' brief.
It might seem odd to be using history to challenge the constitutionality of sodomy statutes, since these laws date from the earliest colonial criminal codes in the 17th century. They were part of the criminal law when the Constitution was drafted in the 1780s. But the essence of the brief that Chauncey and the rest of us put together was that history is, fundamentally, a complex story of change, and the history of sodomy laws and their application was anything but simple.
There were a number of elements to the argument. First of all, sodomy laws were originally part of a bevy of measures that criminalized virtually all sex outside of marriage and all sex that wasn't intended to make babies. Even the so-called sodomy statutes were not necessarily homosexual in focus; they could apply to heterosexual anal sex as well.
Second, for much of the 18th and 19th centuries, these laws were hardly ever enforced. When they were, it was because of other circumstances: the act involved a minor, or the use of force, or was committed in public. In other words, private consensual acts between adults were basically ignored. The police turned to the sodomy laws only when other criminal issues were involved.
Third, for most of their history, these laws applied to acts that any male might commit. Sodomy statutes weren't directed against "homosexuals" because no one thought such a separate category of human beings existed.
Finally, the brief pointed out that the persecution of homosexuals ( a class of people ) rather than the prohibition of particular acts—sodomy—was relatively recent, and did not have a long history. The sustained attacks on gay people were basically a product of the 20th century.
The implications of the brief were clear. We live in a society today where large numbers of individuals organize their intimate lives around relationships with members of the same sex. The prohibitions on other forms of non-procreative sex have fallen away. These sodomy statutes today are doing something vastly different from what they did in the 17th century. They are stigmatizing as criminal a whole class of people, and they are taking away from them the personal liberty to experience love, sex, and intimacy in their homes as they see fit.
That Thursday morning, while the rest of the seminar participants were doing their own research in the main reading room of the Kinsey Institute, I happened to be the one monitoring the computer for bulletins about the Supreme Court. Suddenly, I was reading that the Supreme Court had delivered its opinion and that by a 6-3 majority it had declared all sodomy statutes unconstitutional. As you can imagine, there was jubilation among the historians in that reading room.
A couple of hours later, the opinion written by Justice Anthony Kennedy became available on the web. Kennedy's opinion was as wonderful as one could hope for. Sodomy laws, he wrote, "serve only to oppress." He repudiated the earlier Hardwick decision. It was "not correct when it was decided, and it is not correct today." The petitioners, he argued, "are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime."
As I scrolled through the opinion slowly, I remember exclaiming to George and the others something like "Oh my God. The justices bought our argument. They are using history to make their case against these laws." Kennedy borrowed very heavily from the brief composed by gay and lesbian historians to explain that, if the Founders knew then what we know now—that some people organize their intimate lives around same-sex expression—they would have been sensitive to the restrictions on personal freedom that sodomy laws today entail.
But the biggest surprise of all came when I saw that Kennedy quoted directly from Intimate Matters, a book I had co-authored fifteen years earlier. Believe me, it's not every day that I get quoted in a Supreme Court decision. If I needed any reminding, that day confirmed for me that history can make a difference. A big difference.
Copyright 2009 John D'Emilio
