The AHA's Amicus Brief

This morning's Obergefell v. Hodges ruling was officially endorsed by the American Historical Association, who signed an amicus brief in March that argued that "Recognizing the right of individuals of the same sex to marry is the next step" in a "historical trend." The brief explains that the rearing of children has never been the primary purpose of marriage, and it argues that “the important and varied interests that states have in marriage warrant inclusion of same-sex couples within the institution.”

Those who believe that same-sex marriages ought to be recognized (as this author does), are likely to reflexively find the AHA's endorsement of the outcome laudable. AHA members will likely be patting themselves on the back for decades to come for having been "on the right side of history." 

As an official statement by the leading professional organization of historians in the United States on the inaccuracy of some of the claims made about the “traditional” nature of marriage, the document is authoritative. Both sides in the debate make claims about the historical record, and the AHA served an important role in providing the Court with an official statement by experts on that record.

The document carries far less weight as a statement about what the Court should have ruled, however.

Why shouldn’t the AHA have endorsed a particular outcome? Opponents of same-sex marriage, who argue that it does not violate the 14^th Amendment to deny legal recognition to marriages of individuals of the same sex, claim that the primary purpose of marriage is to facilitate the rearing of children by same-sex couples. If this isn’t true, why is it not necessarily true that a denial of recognition is unconstitutional?

That logic would be flawed because there may be other questions relevant to the constitutionality of denying legal recognition to same-sex marriages.

The Court was debating whether or not denying recognition of marriages between people of the same sex violated the Fourteenth Amendment. The Court was grappling with more factors than simply whether marriage has been “traditionally defined” as between a man and a woman. And whether or not "Recognizing the right of individuals of the same sex to marry is the next step" in a "historical trend” is of highly dubious relevance to the questions being considered by the Court.

In endorsing a particular outcome, the AHA addressed questions beyond its expertise. Its statements on the historical record regarding the purposes of marriages are authoritative and carry great weight. They ought not to have been muddled with statements about the utility of expanding the definition of marriage or endorsements of “historical trends.”