History really matters in Obergefell v. Hodges [et al.], the US Supreme Court case that has brought equal marriage rights to same-sex couples in every state. Justice Anthony Kennedy, writing for the majority, needs the history of marriage to lay the groundwork for his reasoning. “Before addressing the principles and precedents that govern these cases,” the opinion begins, “it is appropriate to note the history of the subject now before the Court.” The opinion proceeds to make the crucial claims that marriage “has not stood in isolation from developments in law and society”; it has “evolved over time.” Why should such points be necessary? Because the dissent written by Justice John Roberts (and signed by the other three dissenters) embraces a very different view. Justice Roberts calls marriage an “unvarying social institution enduring over all of recorded history.” It is “a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.” More than one version of the history of marriage is operating here, in other words.Read on here. (Hat tip: AHA Members' Forum)
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