Using Oral Histories

 In my last post, I covered how I went about collecting oral histories. In this one, I’ll discuss how I went about using them in Family Matters. What I learned was that oral history interviews provided so many more benefits than I expected when I started collecting them!

I initially began taking oral history interviews to fill in gaps in the historical record. Even though I was writing about the 1980s and 1990s, and therefore had a large number of written sources from which to draw, I often had questions about what happened, when, and why. Oral histories allowed me to get the answers I needed. For example, the Village Voice began offering domestic partner benefits to its employees in 1982. Its announcement generated a great deal of attention, spreading the concept and encouraging other companies to follow suit. But what led the Village Voice to make this change? To find out, I interviewed Jeff Weinstein, who was integral to making the program possible. He told me that he first began thinking about domestic partnership benefits in the early 1970s, but dismissed the notion as an impossible dream. Then, in 1979, he learned that the Village Voice provided health insurance to his straight colleagues’ unmarried partners. He reasoned that, if the Village Voice was willing to extend benefits to heterosexual domestic partners, then it might consider doing the same for their queer employees. He raised the issue with his union, which put it on the agenda during the next set of contract negotiations.

I quickly came to appreciate that the interviewees did not just fill in the missing pieces—they also provided details that enriched the story. When Weinstein told me about the union negotiations, he gave colorful commentary that brought the events to life. He described his appearance at the time—women’s clothing, long hair, and a beard—which he termed gender fuck drag.” Other interviewees volunteered details that I had not known to ask about, but which deepened the narrative. For example, I interviewed several researchers whose studies became crucial to lesbian mother custody lawsuits. One of them, Ellen Lewin, explained that she began her research after hearing about a lesbian mother’s custody battle. She did not just cite the case as a motivating factor—she told me that she undertook the work “with the fantasy that [she] would be called upon to be an expert witness in some of these cases.” That language conveyed just how personally invested she was in the legal issues her research implicated.

 As this indicates, what made the oral histories so useful was not just what the interviewees said—it was how they said it. Their word choices, tone of voice, and inflection all communicated valuable information. When I spoke to Tom Brougham, who became active in the gay liberation movement in the 1970s, his voice broke as he reflected on the changes he had seen in his lifetime. He had never expected to see large swaths of American society come to accept same-sex sexuality. I also interviewed Judy Shepard, who became a prominent advocate for hate crimes laws after her son was brutally murdered for being gay. In the wake of the news reports on the attack, parents of gays and lesbians reached out to her to ask how she had been able to accept her son’s sexual orientation. I could hear the irritation and anger in her voice as she wondered aloud how any parent could imagine rejecting their child. The emotion and tones that interviewees used all added to the substance of what they told me, conveying separate—and equally important—information.

Oral history interviews had several other benefits. One of them was that they corrected historical misstatements. Simply because documents consistently tell one story does not mean that it is true! To give just one example, the fourth chapter of Family Matters discusses states’ efforts to ban same-sex couples from adopting or fostering children. In 1985, New Hampshire became embroiled in a debate on this issue after the state’s Division of Children, Youth, and Families (DCYF) licensed an openly gay foster parent. Newspaper accounts indicated that DCYF tried to quell public outcry by adopting a policy preventing gays and lesbians from serving as foster parents, but that the legislature considered this insufficient and therefore enacted a statutory ban. When I spoke to the director of DCYF at the time, David Bundy, he told me that this account was far from accurate. The policy his agency adopted did not in fact ban queer foster parents, because child welfare experts believed sexual orientation was irrelevant to parenting ability. DCYF’s leadership was so adamant on this point that, after the legislature stepped in, the agency did its best to circumvent the law! The statute prohibited placements in homes with homosexual adults, so social workers simply did not ask prospective foster parents about their sexual orientation. Bundy summarized the situation with by explaining: “We came up with ‘don’t ask, don’t tell’ way before Clinton.”

 In addition to correcting the historical record, some of the interviews corrected my personal errors. Family Matters focuses on developments at the state and local levels, which meant I often had to figure out the relationships between legislators, committees, and agencies. I did my best, but sometimes I just got it wrong! Speaking to the people involved allowed me to fix my mistakes before I submitted the manuscript for publication.

Collecting oral histories is time consuming, but incredibly valuable. Indeed, I am far from the only twentieth century historian to comment on the utility of these sources. (Margot Canaday has a particularly good discussion of oral history sources in her recent work, Queer Career: Sexuality and Work in Modern America.)  I realize not every historian has the option of taking and incorporating oral histories. However, if it’s a possibility, I strongly recommend you take advantage of the opportunity!

 I’ve now had a chance to share with you both the arguments and methods of Family Matters. In my next post, I’ll move from drafting the manuscript to getting it through the publication process. 

Griffin, "History vs. Originalism: The Bill Comes Due"

Stephen M. Griffin (Tulane University Law School) has posted "History vs. Originalism: The Bill Comes Due," which is forthcoming in Constitutional Commentary. The abstract:

This is a review essay of three highly significant recently published books concerning constitutional history, the controversy over originalism, and constitutional interpretation.  The books are: Jack Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation; Jonathan Gienapp, Against Constitutional Originalism: A Historical Critique; and Mark Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War.

The views of historians on how to best use historical evidence to interpret the Constitution have long taken a back seat in the debates of legal scholars.  I argue that this will no longer be the case once the legal academy has absorbed the lessons of these books.  Historians have finally weighed in and constitutional scholarship will be better for it.

While academic originalism comes in for substantial criticism in all three books, their more subversive theme is that giving history its proper due poses difficulties for the ordinary practice of constitutional lawyering as well.  Whether originalist or not, all lawyers and judges have much to learn from these books.

Read on here.

-- Karen Tani

Barrett on the “Nuremberg Trials”

John Q. Barrett, St. John's University School of Law, has posted The Nuremberg Trials: A Summary Introduction:

This lecture was delivered on May 4, 2016, at Jagiellonian University in Krakow, Poland, at “The Nuremberg Symposium: The Nuremberg Laws & the Nuremberg Trials,” sponsored by the International March of the Living, the Raoul Wallenberg Centre for Human Rights, and Jagiellonian University.  The lecture explains that following World War II, there were thirteen “Nuremberg trials” of Nazi war criminals and introduces those proceedings by discussing:   

(1)   The predicate human behavior: making war;
(2)   International law's progress in addressing that behavior before World War II;
(3)   Nazism as human and national regression;
(4)   World War II;
(5)   Legal analysis and war condemnation during World War II;
(6)   The Allied nations' military defeat of Nazi Germany;
(7)   The Allies' international Nuremberg trial of 1945-1946;
(8)   The twelve subsequent American trials in Nuremberg;
(9)   The legal legacy of the Nuremberg trials; and
(10) The human rights legacy, including the Holocaust knowledge legacy, of the Nuremberg  trials.

This lecture appears in a symposium issue that also includes lectures and remarks by Wojciech Nowak, Richard Heideman, Shmuel Rosenman, Irwin Cotler, Alan Dershowitz, Samantha Power, Justin Trudeau, Robert Badinter, Luis Moreno-Ocampo, Ayelet Shaked, Zdzislaw Mach, Michael Berenbaum, Edward Mosberg, John Dyson, Dorit Beinish, Sam Rugege, Rosalie Silberman Abella, Marie Thérèse Mukamulisa, Malcolm Hoenlein, Ron Prosor, Elizabeth Buettner, Brooke Goldstein, Stuart Eizenstat, Phyllis Greenberg Heideman, David Machlis, Gregory Peterson, and Aleksandra Gliszczynska-Grabias.

--Dan Ernst

Maynooth History Research Seminar

[We have the following announcement.  DRE.]

Maynooth University announces a History Research Seminar on Thursday, October 17, 2024, from 17:00 to 19:15, in AHI Seminar Room 1.33, First Floor, IONTAS.  All are welcome.

Session one: 5.00pm-6.00pm

Dr Ashok Malhotra (School of History, Anthropology, Politics & Philosophy, Queen’s University Belfast)
Establishing Imperial Nutritional and Agricultural Scientific Research Institutes in British India, 1918-29

Ashok Malhotra is a historian of British India and of twentieth-century global organic farming movement. He holds a PhD from Edinburgh University and had been a British Academy Postdoctoral Fellow at the University of Warwick. His publications include Making British Indian fictions, 1772-1823 (2012). His current research project explores how colonial and agricultural research, undertaken in British India in the twentieth century, shaped the organic and environmental movements that emerged during the 1940s and 60s in Britain and the United States.

Session two: 6.00pm-7.15pm

Donal Coffey (Department of Law, Maynooth University)
An Imperial legal service in inter-War London

Dr Donal Coffey specialises in contemporary constitutional law and comparative constitutional history and is specifically interested in the constitutional history of the British Empire.  He holds a PhD from University College Dublin, his publications include Drafting Irish Constitution, 1935-1937 (2018) and Constitutionalism in Ireland, 1932-1938 (2018), and he is an Affiliate Researcher of the Max Planck Institute for Legal History and Legal Theory, Frankfurt am Main.

Cromwell Article of the Year Prize to Allread and Zhang and Morley

[We have the following announcement.  DRE]

October 15, 2024
New York, New York

The William Nelson Cromwell Foundation announced today that its Legal History Article of the Year Prize for 2023 is awarded to W. Tanner Allread for “The Specter of Indian Removal,” and to Taisu Zhang and John D. Morley for “The Modern State and the Rise of the Business Corporation.”  

In “The Specter of Indian Removal: The Persistence of State Supremacy Arguments in Federal Indian Law,” 123 Columbia Law Review 1533 (2023), Allread takes Oklahoma v. Castro-Huerta, decided by the U.S. Supreme Court in 2022, as a point of departure for exhuming the 1820s and 1830s origins of contemporary defenses of state (as opposed to federal) power over Native nations. Allread shows that the era of Removal and genocide was accompanied by systematic efforts to assert state jurisdiction over Native sovereignty. He describes the legal bases asserted for those efforts.  And he traces the persistence of these early nineteenth century developments into the modern era. For Allread, state power’s Removal roots are an ugly reminder of the past.

In “The Modern State and the Rise of the Business Corporation,” Morley and Zhang tackle a longstanding debate about the historical origins of the corporate form. Taking up a wide array of historical examples, ranging from late imperial China to the early United States, they show that pooling of strangers into a single enterprise requires the coercive powers of a state with the capacity to coerce the participants. Contrary to theorists who posit the corporation as a creature of private market actors’ self-interest, Morley and Zhang show the irreducible necessity of state regulation in its basic foundations.

The William Nelson Cromwell Foundation, established by William Nelson Cromwell in 1930, supports work in American legal history.  The Foundation has long awarded Early Scholar prizes and fellowships to early career scholars in the field of American legal history. The Foundation’s new prize for the legal history article of the year, which includes a $10,000 award, is intended to recognize the growing role of legal history and teaching and research in law schools. The new annual prize is awarded for the best article in the field of legal history, written by a legal scholar, or published in a journal of legal scholarship. This is the first prize the Foundation has offered that is open to scholars of any level of seniority. The prize committee, chaired by Foundation trustee John Fabian Witt (Yale Law School), consisted of Foundation trustees Sarah Barringer Gordon (Penn Carey Law) and John Langbein (Yale Law School), along with Dan Ernst (Georgetown Law), Amalia Kessler (Stanford Law School), and Alison LaCroix (University of Chicago Law School).  

The Foundation makes grants to support important work in all facets of American legal history including archival preservation, scholarly study of original documents, original research in all areas of the law, and research and writing of biographies of major legal figures. Information on how to apply for a prize, fellowship or grant may be found on the Foundation’s website.

Lodz Anglo-American Legal Workshop

[We have the following announcement.  DRE.]

Lodz Anglo-American Legal Workshop

Organized by the Centre for Anglo-American Legal Tradition, University of Lodz, Academic Year 2024/2025

23 October 2024 – Jan Kunicki (University of Warsaw), The Significance of Roman-Dutch Law
in Scope of the Law of Marriages in Contemporary Zimbabwe.

19 November 2024 – Prof. Cynthia Nicoletti (University of Virginia), The Grant of “Possessory
Title” and the Special Field Orders No. 15.

04 December 2024 – Dr Ashley Hannay (University of Manchester), "Damna Usuum":
Rethinking the Passage of the Statute of Uses (1536).

29 January 2025 – Rosalind Ackland (University of Cambridge), Edward Coke’s Classical
Common Law.

05 February 2025 – Michał Zapała (University of Lodz), Life and Codification Activity of David
Dudley Field.

19 March 2025 – Prof. Jan Halberda (Jagiellonian University), The Introduction of Good Faith
and Fair Dealing into American Contract Law. Between Common Law and Civil Law.

All workshops will take place in hybrid format. In-person par9cipants are invited to join us at the Centre for Anglo-American Legal Tradi9on (Faculty of Law and Administration building, room 0.09, ground floor). Online viewers must register to aIend each workshop. The registration form will be distributed online via social media approximately one week before the workshop. All workshops start at 5PM (Poland and most European countries) / 4PM (UK and Ireland) / 11AM (US Eastern Coast). In case of any question please don’t hesitate to contact us by emailing Anglo-AmericanLT@wpia.uni.lodz.pl.

Collecting Oral Histories

 In my last post, I discussed the challenges of writing a history that ends so close to the present day. However, there was also a clear benefit to writing a recent history: I had a rich set of sources for my research. Most of Family Matters is centered in the 1990s, when individuals and companies were increasingly using email – and still printing out the messages! As a result, I had the great fortune of being able to review hard copies of typewritten documents. (I’ll admit, I squealed every time I saw the AOL logo at the top of an email.) Moreover, I was able to fill in gaps with oral history interviews. In this post, I’ll cover how I went about collecting oral histories.

The first step in collecting oral histories is always identifying people to interview. (That was usually the simplest task in the process, thanks to the spreadsheets I discussed in my second post.) The second step is tracking the individuals down. I did name searches in google, which often produce email address or phone numbers on their institutional websites or their social media pages. If that didn’t work, I could often find groups with which they were or had been associated. I contacted those organizations, by phone, email, or snail mail, asking if they would be willing to pass a message to the individual, along with my contact information.

 Most of the people who I contacted responded with enthusiasm. They were glad to hear someone was writing a book on the subject and were eager to share their experiences. Many of these interviews opened the door to additional interviews. That was in part because, during each session, I asked each person if they could think of anyone else who I should speak with about the subject, which helped me identify additional interviewees.

I also asked them if they could put me in contact with those people. That could be extremely helpful, for two reasons. First, some people felt more comfortable speaking with me after they had heard from people they trusted. One of the major players in the debates over gay and lesbian rights in the 1980s and 1990s was psychologist Paul Cameron, who produced a series of studies claiming homosexuals were more likely to molest children then heterosexuals. His anti-homosexual bias was so virulent and obvious that the American Psychological Association ultimately expelled him for ethics violations. I wanted to speak with him about what led him to his research and how he designed his studies, but he did not respond to my initial messages. However, after I interviewed another conservative researcher, who sent Cameron an email vouching for my professionalism, he agreed to speak with me.

The other way that my interviewees opened doors was by contacting individuals I could not track down myself. I’ll never forget the day my phone rang from an unknown New Hampshire number. I had been researching New Hampshire’s 1987 law banning gay and lesbian foster parents. One of my interviewees, who had advocated against the statute, recommended I speak with Donna Sytek, who was then a leading New Hampshire Republican legislator. The person had said they would try to track her down, but after weeks went by, I lost faith that would happen. My efforts to find her email, phone number, or address had failed. I had accepted it wasn’t meant to be when the phone call came through. I picked up, the person on the other line said something along the lines of: “This is Donna Sytek. I heard you wanted to speak to me?” I was flustered, thrilled, and confused. I asked her how she had found out I was searching for her. She told me that someone I had interviewed had talked to another person, who spoke to someone else, who ran into Sytek at the grocery store. Everyone had told me New Hampshire was a small state. No kidding!

 Of course, some people who I wanted to interview never responded to my messages, while others simply declined. The reasons they gave indicated just how controversial the events continued to be, despite the time that has passed. There is perhaps no better example of that than the message I received from Eloise Anderson, the former director of the California Department of Social Services (CDSS).

 I contacted Anderson as part of my research on same-sex couples’ efforts to adopt children in the 1980s and 1990s. In 1987, CDSS announced it would only recommend joint adoptions by married couples. The agency developed this policy to avoid endorsing same-sex parents, while also sidestepping claims that it was discriminating based on sexual orientation. In 1994, the agency rescinded the policy – much to the Governor’s dismay. He blasted Anderson, whom he had appointed, for her “huge overstep” and instructed her to reinstate the policy. Here's where things got interesting. The agency acted as if it were complying – it held hearings and created a proposed rule that complied with the administrative process. But then Anderson did something unexpected: she refused to file the paperwork. She let the proposed rule languish until the deadline for its implementation had passed. As a result, the police never became law. The governor, legislators, and activists assumed that the policy was in place—and the truth only came to light in 1998.

 A newspaper account of the events provided two different explanations. One was that the measure garnered so much opposition that it was impossible for CDSS to respond to all of the comments within the administrative procedure deadline. Another came from a former official, who told the reporter: “Eloise didn’t believe in what the governor was asking . . . so she just didn’t do it.” As you can imagine, I really wanted to speak to Anderson to find out more about what had actually happened. I therefore emailed her—and was initially excited to receive a quick reply. Her response, however, was not at all what I expected. She declined my request…because she claimed to have absolutely no memory of any of the events about which I wanted to speak with her!

Given the turmoil that surrounded the policy—and the fact that the state governor publicly reprimanded her for her actions—I had trouble believing her statement. At the same time, I completely understood her reluctance to talk about the events, especially since she was serving as the Secretary of Children and Families in Wisconsin at the time I contacted her.

Anderson was just one of the dozens of people who declined or did not respond to my requests for an interview. But just as many people—if not more—said yes. In my next post, I’ll address how I went about using the oral histories I collected. All of them helped make Family Matters a more complete and richer account of the struggle for queer rights.

Photo by 2H Media on Unsplash

Peterson on the 14th Amendment and the Vénus Noire

Farah Peterson, University of Chicago Law School, has posted The Fourteenth Amendment and the Vénus Noire, which appears in the William & Mary Law Review:

This Essay reflects on art to make two points. It first argues that originalism is not a promising path for progressive causes. It then argues that as the Constitution is amended, the meaning of the entire document is altered, and earlier text should be interpreted in light of what has changed.

--Dan Ernst

History, Tradition, and Legal History in the Law-School Curriculum

Yesterday, Bloomberg Law published the reporters Lydia Wheeler and Kimberly Strawbridge Robinson’s story, Justices’ History Focus Tests Lawyers, Judges, and Law Schools.  Among other things, they report that the history and tradition approach of the U.S. Supreme Court is putting a premium on law students who can do legal history–beyond the skills taught in originalism “boot camps.”  They quote a lawyer with a Supreme Court practice: “History and tradition I do think is tough because you’re expanding the playing field to include everything that happened, potentially at both the state and federal level at a given point in time, which could have been hundreds of years ago.”  They observe, “Historical research isn’t a skill that law students traditionally learn” and quote Saul Cornell for the proposition that law schools aren’t teaching students how to do historical research.  “Right when this is most important, law schools don’t have the infrastructure,” Professor Cornell said.

--Dan Ernst

Weekend Roundup

• 

  Thomas M. Cooley (NYPL)
  

  The last known descendant of Thomas Cooley has given the document appointing him the first chairman of the Interstate Commerce Commission to--Thomas Cooley! (Fox 17).  
  

• Brenda Wineapple discusses her book on the 1925 Scopes "Monkey" Trial,  Keeping the Faith: God, Democracy, and the Trial That Riveted A Nation, with Claire Potter on her Political Junkie podcast.
  

• In the September 2024 issue of the Journal of American History,  Myisha S. Eatmon “examines Black Americans’ use of tort law and damage suits to pursue and gain recourse for white-on-Black violence on trains during the early days of Jim Crow.”
  

• John Witte, Jr., reviews (some of) Rafael Domingo's Law and Religion in A Secular Age (Exaudi).
  

• A recording of that discussion on originalism at the National Constitution Center between Jonathan Gienapp and Stephen Sachs is now on YouTube.
  

• ICYMI: Mississippi’s oldest law firm will be memorialized with an historical marker (Vicksburg News). Andrew Lanham says The Supreme Court’s Originalists Are Fundamentally Wrong About History (TNR).  Rachel Shelden says that A Transformed Supreme Court Requires Different Solutions (Brennan Center).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.  

Masur's "Freedom Was in Sight"

Kate Masur, Northwestern University, with the graphic artist Liz Clarke, has published Freedom Was in Sight: A Graphic History of Reconstruction in the Washington, D.C., Region (University of North Carolina Press):

The Reconstruction era was born from the tumult and violence of the Civil War and delivered the most powerful changes the United States had seen since its founding. Black Americans in Washington, D.C., and its surrounding region were at the heart of these transformations, bravely working to reunite their families, build their communities, and claim rights long denied them. Meanwhile, in the capital, government leaders struggled to reunite and remake the nation. Famous individuals such as Frederick Douglass and Ida B. Wells played central roles, as did lesser-known figures like Emma Brown, the first African American teacher in Washington's public schools, and lawyer-journalist William Calvin Chase, longtime editor of the Washington Bee.

Freedom Was in Sight! draws on the words and experiences of people who lived during Reconstruction, powerfully narrating how the impacts of emancipation and civil war rippled outward for decades. Vividly drawn by award-winning graphic artist Liz Clarke and written by Pulitzer Prize–finalist Kate Masur, a leading historian of Reconstruction, this rich graphic history reveals the hopes and betrayals of a critical period in American history.

An endorsement:

"Reconstruction began with emancipation as lived experience and national transformation; it has never really ended. Here, in vivid visuals, a tight narrative, and rich context, Masur and Clarke give readers an experience they will not forget. So much of this story happened in and around the Washington, D.C., region, and the author and artist reveal its most significant constitutional and moral meanings for the eye and the mind. I can only wish I'd had this kind of powerful history of Reconstruction in my youth. This tale of America's second founding in the capital city as thousands of freedmen found new homes and lives is withering, visually stunning, and good history all at once."—David W. Blight, author of Frederick Douglass: Prophet of Freedom.

The Organization of American Historians is hosting a book event on October 16 at 4:30 EST; register for it here.

--Dan Ernst

Writing a History of Progress During a Period of Retrenchment

Mark Twain is frequently credited with the aphorism: “History doesn’t repeat itself, but it often rhymes.” All of you reading this blog post know how right he was. The present does not follow the same sequence of events as the past—changes in politics, society, and culture make that impossible. Yet even though the specifics differ, there are invariably clear parallels between the past and the present.

I see echoes of Family Matters every day, especially in my home state of North Carolina. As I discussed in my last post, LGBTQ+ rights debates have primarily taken shape at the state and local level. That continues to be true. In recent years, jurisdictions across the United States have enacted laws that limit what students can learn in schools about sexual orientation and gender identity, prohibited trans students from participating on sports teams that align with their gender identity, and restricted minors’ access to gender affirming care. These legislative battles have been waged over claims of child protection and calls for parents’ rights—much like the attacks on gay and lesbian rights that I detail in Family Matters. (If you’re interested in a short summary of how Christian conservatives have wielded child protection claims to oppose queer civil liberties, check out this piece I recently published in Time.)

Photo by Nikolas Gannon on Unsplash

Photo by Nikolas Gannon on Unsplash

 That there is such a direct link between the historical issues in Family Matters and present politics is to be expected – after all, the story I tell goes to 2015! But it was a challenge to write a story of recent progress during a period of political and legal retrenchment. Family Matters tells the story of a successful campaign to promote the rights of queer families. However, it is not a triumphalist narrative of gay and lesbian legal victories. The right to marry was simply one step in the fight for full legal equality, which gays, lesbians, and other members of the LGBTQ+ community are still working to attain. Queer rights continue to be contested, with advocates experiencing defeats as well as victories.

Writing this book thus required striking a balance between emphasizing progress and recognizing the movement’s limitations. I struggled to do this most with this in my chapters on advocates’ educational initiatives. During the 1980s, the queer community was under constant attack. Gays and lesbians had long been the targets of violence, but the AIDS crisis unleashed a new torrent of animosity against the queer community. As hatred rose, so too did physical assaults. Most of the perpetrators were teenagers, who knew little about the queer world other than the prejudice they had learned from the adults in their lives. Of course, straight youth did not just torment queer adults—they also directed their anger and hatred at their peers. Gay and lesbian teens, as well as youth suspected of being queer, endured rampant rejection, harassment, and violence from their classmates, which reinforced the hateful messages they received from teachers, parents, and community members. As a result, a substantial percentage of queer youth dropped out of school, abused alcohol and drugs, and considered ending their despair with their own hands. Indeed, by the end of the 1980s, suicide had become the leading cause of death among queer adolescents.

 

To stem the rising tide of violence, gay and lesbian rights advocates lobbied for changes to educational policies. They pressed schools to support queer students with in-school counseling programs, which would emphasize that same-sex sexual attraction was not shameful. They additionally demanded that schools combat bias against same-sex sexuality by teaching all students that gays and lesbians deserved the same dignity and respect as other members of society. In New York City, these advocates succeeded in securing three references to same-sex parents in a 1991 first-grade teacher’s guide. This limited mention of same-sex sexuality was enough for the city to erupt in anger and acrimony. Shoving broke out in school board meetings, thousands of parents took to the streets in protest, and the Schools Chancellor received two death threats.

 

Given how controversial the education reform efforts were, it is no surprise that queer rights advocates made little headway. And yet I firmly believe that these efforts were consequential. The educational reform initiatives may not have changed the curricular content of most schools, but they allowed gay and lesbian rights advocates to continue refuting the religious right’s child protection arguments. Doing so was essential, given how often Christian conservatives wielded child protection rhetoric to impede queer rights advocacy. Through curricular reform battles, gay and lesbian rights organizations communicated that the key problem was not protecting children from gays and lesbians. Homosexuality, after all, was common, unremarkable, immutable trait. Instead, schools had to focus on the needs of children with gay and lesbian parents, as well as the welfare of gay and lesbian youth, by combatting antiqueer bias. In other words, what children needed to be protected from was not the queer community, but rather homophobia.

 

The LGBTQ+ community and its allies are continuing to fight similar battles, waged over parallel claims about the origins of queer identity. Some days, I look at the news and it seems that the history is not just rhyming, but actually repeating itself. For supporters of LGBTQ+ rights, that fact is dispiriting. Queer rights advocates have spent so many decades combatting variations on the child protection theme that the trope seems like a never-ending game of whack-a-mole. At the same time, the fact that advocates have succeeded in the past should inspire confidence in their ability to do so again.

 

One of the benefits of writing a history that comes so close to the present day is that it not only helps readers contextualize the past—it also offers hope for the future. The current legal landscape might seem grim, but the law can change for the better. After all, as Family Matters demonstrates, it already has.

 

In my next post, I’ll take up a more pragmatic set of opportunities and challenges that came from writing a history of the present: the ability to conduct oral history research.

 

Photo by Nikolas Gannon on Unsplash.

Heniford and Still on a Ballroom Weapons Ban and Bruen

Kellen Heniford, Everytown for Gun Safety, and Kari Still, Johns Hopkins Center for Gun Violence Solutions have posted Panic! At the Ballroom: The 1804 New Orleans Ballroom Weapons Ban in a Post-Bruen Context, which is forthcoming in the Buffalo Law Review:

In the aftermath of the Supreme Court’s decisions in New York State Rifle & Pistol Ass’n, Inc. v. Bruen in 2022 and United States v. Rahimi in 2024, history has taken a central role in the adjudication of Second Amendment cases. Researchers, courts, and litigators across the country have taken on the arduous task of sifting through archives of our nation’s history in order to compile a record of early American arms regulations. Litigation moves quickly, and too often, historical context is missing or selectively marshaled in these cases. This article builds upon efforts to provide that crucial context, specifically in relation to the history of the United States’ earliest enactments that banned weapons in ballrooms. Within, we (1) identify an as-of-yet uncited ballroom weapons ban in 1804 New Orleans, which is the earliest known regulation of its kind; (2) explicate the historical context surrounding that regulation, as well as the even stricter 1808 and 1817 bans that followed it; and (3) suggest general principles that may be distilled from these restrictions when they are considered within a larger historical tradition. We explain that these early nineteenth-century regulations can be understood as part of a historical tradition of weapons bans under either of two different types of sensitive places: places where there is a high probability of conflict and places where the presence of weapons is incompatible with the actual functioning of the place itself.

--Dan Ernst

Milligan on a Counterfactual, Truly Democratic Administrative State

Joy Milligan, University of Virginia School of Law, has posted Beyond Equity: The Counterfactual Administrative State, which is forthcoming in the Georgetown Journal of Law and Public Policy:

What kind of administrative state would we have, if the United States had been a true democracy earlier?  In this short essay, I begin to address that question.  I argue that in light of the foregone democratic possibilities, the goal of equity asks too little of the administrative state.  A broader vision directs us beyond equity, toward institutional reimagination and transformation.  I suggest that the administrative state likely would have been more powerful, more centralized, and more generous in its redistributive aims, had the United States been an actual democracy earlier.  People of color were both politically excluded and among those most likely to benefit from such administrative structures and programs.  I illustrate this point with the case of federal aid to education, a recurring legislative campaign for more egalitarian school investments that failed from Reconstruction till the 1960s. In the case of education, rather than simply aiming to make existing institutions more equitable, we should ask what a century, or even several more decades, of egalitarian school investment might have meant for poor Black and white children, for the administrative state, and for our politics. What can we gain from asking such questions? Among other benefits, considering these counterfactuals can deepen our collective sense of democratic loss, and by the same implication, our sense of democratic potential.  We have so recently and imperfectly experienced democracy, that we cannot gauge its true potential yet.

--Dan Ernst

Bradley's "Historical Gloss and Foreign Affairs"

It is publication day for Curtis A. Bradley’s Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press):

In the more than 230 years since the Constitution took effect, the constitutional law governing the conduct of foreign affairs has evolved significantly. But that evolution did not come through formal amendments or Supreme Court rulings. Rather, the law has been defined by the practices of Congress and the executive branch, also known as “historical gloss.”

Curtis A. Bradley documents this process in action. He shows that expansions in presidential power over foreign affairs have often been justified by reference to historical gloss, but that Congress has not merely stepped aside. Belying conventional accounts of the “imperial presidency” in foreign affairs, Congress has also benefited from gloss, claiming powers for itself in the international arena not clearly addressed in the constitutional text and disrupting claims of exclusive presidential authority.

Historical Gloss and Foreign Affairs proposes a constitutional theory that can make sense of these legal changes. In contrast, originalist theories of constitutional interpretation often ignore influential post-Founding developments, while nonoriginalist theories tend to focus on judicial decisions rather than the actions and reasoning of Congress and the executive branch. Moreover, the constitutional theories that do focus on practice have typically emphasized changes at particular moments in time. What we see in the constitutional law of foreign affairs, however, is the long-term accumulation of nonjudicial precedents that is characteristic of historical gloss. With gloss confirmed as a prime mover in the development of foreign affairs law, we can begin to recognize its broader status as an important and longstanding form of constitutional reasoning.

Here are some endorsements:

An instant classic. As the foremost scholar in the country on the Constitution and foreign affairs, Curt Bradley has written the single best book on the subject. Historical Gloss and Foreign Affairs is a must-read for anyone interested in understanding how constitutional law develops, and it could not be timelier.

        —Michael Gerhardt, University of North Carolina School of Law

Historical Gloss and Foreign Affairs is the definitive account of the unique ways that historical practice informs the allocation of constitutional power in foreign affairs, where constitutional text is very often a poor guide to legitimate practice. Its powerful explanation of how historical gloss informs constitutional meaning is also a vital contribution to constitutional theory more generally.

    —Jack Goldsmith, Harvard Law School

Professor Bradley drew upon the book when he delivered the Currie Lecture at the Duke Law School last month.  He will be guest blogging on the book over at The Volokh Conspiracy.

--Dan Ernst

Legal History from the Ground Up

 As I mentioned in my first post, Family Matters provides a history of law reform across the United States. But it doesn’t do so by examining federal constitutional arguments or Congressional enactments. Instead, it examines law from the ground up. It focuses on reforms at the state and municipal levels, weaving them together to explain the transformation of American law writ large. 

In this post, I’ll explain the book’s methodological innovation, which is essential to its account of legal change. I’ll also discuss the research challenges this approach created—as well as how I addressed them. 

Focus on the State and Local

In Family Matters, I show that the impetus for national law reform came from scattered parts of the country. By working at the local level, small groups of motivated citizens were able to secure legal changes that would have been unthinkable in other parts of the nation. Many of the debates over and gay and lesbian rights took place in liberal cities like Los Angeles, New York City, and San Francisco. However, municipalities across America responded to these developments, which queer rights advocates—and their opponents—brought to local officials’ attention. Sometimes they did so with sympathetic laws that mirrored the actions on the coasts. Just as frequently, however, elected officials enacted legislation or policies that demonstrated their hostility to gay and lesbian rights. Yet even in the face of this resistance, successes at the state and local levels undermined conservatives’ strident opposition. These developments allowed for small scale experiments that made unthreatening queer families more visible. The conspicuous existence of these households, in turn, generated legal, political, and constitutional change at the national level. In other words, it was not that decisions in progressive enclaves represented national trends, but rather that they provided the foundation for widespread change.

By examining seemingly disparate locales and areas of the law, Family Matters demonstrates how they are integrally related, each forming a piece of a larger puzzle. What I reveal is that the causes of change in constitutional law and national policy often came from outside of the capital. Moreover, the impetus for change also frequently originated outside of the courts, where state legislative enactments and municipal administrative decisions often had little to do with the Constitution’s protections. Focusing on state and local advocacy efforts, as well as the links between them, demonstrates how many small shifts in discourse can make national change possible. As a result, the book showcases a broader array of legal experiments and experiences than analyzing federal developments alone.

Conducting the Research

Crafting this narrative required piecing together archival fragments and combining them with a range of other sources. Much of the information in this book comes from the records of gay and lesbian rights organizations, whose newsletters, memos, press releases, and other materials memorialized their work. Movement leaders, advocates, and community members also preserved pamphlets, fliers, speeches, and other documents that contained crucial details and revealed connections between events in various parts of the country. I gathered this information together, traveling to archives around the country thanks to very generous grants, including two from the William Nelson Cromwell Foundation. (Junior scholars: definitely apply for these!)

Once I had the primary sources, I began putting together the puzzle pieces in several different ways. For each chapter, I created three types of documents. The first was a standard word file, in which I put notes on the primary sources. That document allowed me to quickly look up the details of events. The second was a spreadsheet, which contained some of the high-level information from the sources. For example, for my chapter on child custody cases, I created a document on the custody disputes, which contained entries for the parties’ names, date, state, geographic region, court level, outcome, attorneys, amicus brief authors, and main arguments. This spreadsheet helped me identify trends over time, as I could sort it by date, location, and outcome. (Pro tip: excel allows you to sort your data by highlight color, so I often found myself color-coding the data in different ways to make the trends easier to see.) The third was a timeline, so I could see how the various types of legal advocacy—cases, legislation, administrative regulations, business policies—intersected.

That was step one. From this information, I knew what gay and lesbian rights groups had preserved—but that was unlikely to be a comprehensive account. As a result, I had to keep hunting. Step two was a general database search for the topics, to uncover additional evidence. That often yielded another few cases, statutes, or policies. Step three was more time-consuming. In the word file summarizing the sources, I noted references to people and places. If I didn’t have sources on them, I tried to track down those individuals and events, which I did through newspaper and magazine searches, as well as oral history interviews. I followed the breadcrumbs until I could not find any new references. That does not mean that I necessarily discovered all of the events, but it did make me confident that I had uncovered most of them.

The book’s chapter on domestic partnership programs in the 1980s is a good example of how that work paid off. These programs began as benefits for municipal employees in the early 1980s, before becoming a common option at Fortune 500 companies. The municipal offerings are often discounted as irrelevant, because the programs few and far between. However, I show that they were actually extremely consequential. Until these companies began offering domestic partnership benefits, no institution recognized same-sex couples’ relationships. Moreover, since these came from municipal governments, the programs opened the door to other claims for state relationship recognition. Finally, the municipal offerings inspired employees in the private sector to demand similar benefits. The end result was that large corporations began offering domestic partner programs. I could make that argument because I could trace the through lines that connected the people and events. Employees for large corporations cited the municipal programs and used them to urge their employers to offer similar benefits. They used data from the cities and counties to convince human resources personnel. The people involved in advocating for these programs spoke to one another, sharing information and insights.

I imagine you’re reading this and thinking: telling a national story from events at the local level sounds incredibly time-consuming. It is. The amount of time the research consumed was one of the biggest challenges in writing this book. In a later post, I’ll talk about how I wrote the book while on the tenure clock, which added another layer of difficulty to the project. But I think the payoff was worth the effort—and I hope that readers agree.

Before I open the can of worms that is tenure, I want to address a different challenge. Family Matters is a legal history, but it ends with a court case from 2015 and details legal debates that are still very much live. In my next post, I’ll take up the issue of the costs and benefits of writing a history of the present.

A Dialogue on Comparative Legal History

[We have the following announcement.  DRE]

Comparative Legal History: Dialogues on Alternative Conceptions of Comparative Legal History.  30 October 2024 - 17:00-18:00hs (CEST)

The journal Comparative Legal History is an official academic forum of the European Society for Comparative Legal History. It was first published in 2013 and aims to offer a space for the development of comparative legal history. Based in Europe, it welcomes contributions that explore law in different times and jurisdictions from across the globe. Submissions are currently welcome and are being assessed on a rolling basis.

The journal will host a one-hour public session to discuss on alternative conceptions of comparative legal history. Editors (past and present) will present exploratory points and all attendees will be invited to join in a general discussion.

Comparative legal history continues attracting new followers. Scholarship and changes in law school curricula are showing significant developments in this field, with advocates subscribing to this movement from across the globe. What explains this rise in interest in this field of study? And, above all, what is comparative legal history? What are the different conceptions of this tool for the study of law? How is this wave of scholarship and curriculum development related to other fields of study? These and other questions will be explored during this public session.

The event is free and open to the public, and it will take place via Zoom. Registration is required by sending an email to clhdialogues@gmail.com.

Weekend Roundup

• A recording of that Brennan Center event, The Fight Against Originalism Continues, with Jonathan Gienapp, Gautham Rao, and Rachel Shelden, is up on YouTube.
  

• The University of Florida Levin College of Law has announced its inaugural conference on originalism, Originalism: The What, Why, and How?  It will be held Thursday, October 24 and Friday, October 25. 
  

• On Tuesday, October 8 at 1 p.m. ET at the National Constitution Center, “Stanford University professor Jonathan Gienapp, . . . is joined by Stephen Sachs of Harvard Law School to discuss Gienapp’s challenge to originalists’ unspoken assumptions about the Constitution, the history of originalism as a constitutional methodology, and its role in constitutional interpretation today.”  Register to attend online here.
  

• On October 8, 2024, from 7:00 p.m. - 8:00 p.m., the Supreme Court Historical Society and the Washington Presidential Library will host, at Mount Vernon, “a conversation between American University professor Gautham Rao, Georgetown Law professor Steve Vladeck, and Lindsay Chervinsky, the new Executive Director of the George Washington Presidential Library” on “the history of the U.S. Supreme Court and politics.”  More.
  

• On October 9, the University of Kentucky Libraries will welcome Judge Robert L. Wilkins of the United States Court of Appeals for the District of Columbia Circuit, for a roundtable discussion, in which Judge Wilkins “will share how an entry in UK Libraries’ Notable Kentucky African Americans database led him to find his family’s stories in court records at the Kentucky Department of Libraries and Archives" (UK News).
  

• At the National Constitution Center at Noon ET on Wednesday, October 16, Kenneth Mack, Harvard University joins David Greenberg to discuss Greenberg’s new biography, John Lewis: A Life.  More.
  

• Rebecca Rector has posted Arphaxed Loomis: Anti-Slavery Democrat & Little Falls Law Reformer on New York Almanack.  
  

• Caroline Burnham Kilgore, Pennsylvania's first female lawyer, gets a historical marker (Daily Times).
  

• The Historical Society for the DC Circuit has published its October 2024 newsletter.  The contents include notice of a memorial celebration for the life and career of Magistrate Judge Alan Kay and the opening of an oral history I conducted with him in 1997. DRE.
  

• Historical Society of the New York Courts has named Julia Rose Kraut its new Director of Programs, Education, and Research.  More.

• Thank you, Helen Knowles-Gardner, for noting that the US Supreme Court has digitized and posted its Journal online!  As soon as she did, I used it and learned that in 1919 the Court granted Charles Evans Hughes's request that each side receive two hours to argue Commercial Cable Co. v. Burleson, before it decided that the case was moot and reversed Learned Hand's opinion below.  DRE 
  

• 
  "Lambda Legal, the oldest nonprofit legal organization dedicated to supporting LGBTQ+ people's rights and the rights of those living with HIV, will release its first-ever coffee table book titled Making the Case for Equality: 50 Years of Legal Milestones in LGBTQ+ History on October 29, 2024" (Advocate).
  

• The Right Honourable Richard Wagner, Chief Justice of Canada, previews the celebration next year of 150th anniversary of “ the only bilingual and bijural apex court in the world.”
  

• “Cambridge University PhD student Emily Rhodes delved into petitions submitted by women to the Lancashire quarter sessions courts between 1660 and 1720 ...  to get financial help for taking in parentless children” (BBC).
  

• On her summer vacation from Syracuse University, Abi Greenfield compiled a dataset of about 500 political cartoons about the Canadian Constitution from five periods in Canadian history (Syracuse University News).
  

• When University of Miami doctoral candidate Jordan Rogers is not working on his degree, he is the part-time curator of history at the City of Miami Black Police Precinct and Courthouse Museum.  In that capacity, he opened the exhibit, “Anything but a Slum: Miami-Overtown Before I-95/395.” On display until November 1, it “provides a detailed look into the history of segregated Black life in Miami in the decades before the implementation of the U.S. highway system in the 1950s and 1960s” (University of Miami).
  

• "After five years of planning, a group of Shenandoah University faculty and students has unveiled a virtual reality experience called ‘the Great Experiment.’  [It] takes users to Philadelphia in 1787, where the founders of a new nation are creating the Constitution. Through the virtual reality experience, users get to visit the room where it happened" (WHSV). 
  

• C-SPAN Classroom's lesson plan for teaching The Federalist Papers.

• Lawbook Exchange's October catalogue of Scholarly Law & Legal History is here.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

 

Introducing Family Matters!

Thank you to the Legal History blog for bringing me on board this month to share posts about my new book! I have been reading the blog – and the contributions from recent book authors – since I was in graduate school. I’m honored to join the ranks of its guest bloggers.

 

Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition hit the bookshelves in September. Over the next few weeks, I’ll post about the challenges I faced in writing this book – both methodological and practical. But before I get into any of the details of how I wrote the book, I want to start by telling you what Family Matters is about.

Overview of Family Matters

 

Family Matters tells the story of a fundamental change in American law. In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples had the fundamental right to marry. Over the span of two generations, advocates transformed American law from a regime that criminalized gay and lesbian relationships to one that recognized and affirmed the dignity of queer families. The fight for marriage equality has received considerable attention from academics and the media – indeed, I have a stack of books on it in my office! However, that campaign was only a small part of the more than half-century struggle for queer family rights. Family Matters uncovers these decades of advocacy, which reshaped the place of same-sex sexuality in American law and society – and ultimately made marriage equality possible. 

 

In this book, I highlight the legal reforms that predated the movement’s focus on marriage, rather than focusing on the fight for marriage equality itself. These changes transformed society, such that advocates could conceive of and pursue marriage rights. More specifically, I argue that changes to criminal codes and family law doctrines allowed same-sex couples to become increasingly open about their sexual orientation. The country consequently came to see gays and lesbians as both partners and parents. Battles to protect the community from hate violence also encouraged the straight mothers and fathers of gays and lesbians to become advocates for queer rights. By making public their love and support for their gay sons and lesbian daughters, these parents highlighted that gays and lesbians were embedded within traditional households not just as parents, but also as children.

 

The visibility of both types of queer families—the families that gays and lesbians created, as well as their straight families of origin—had a significant effect on the law. These households were consequential because they provided evidence of same-sex sexuality’s ubiquity and projected a new vision of what it meant to be queer, one that was centered on “conventional” domestic life. What this book therefore demonstrates is that “family matters”—issues relating to the family—were essential to the evolution of American law and the rise of queer rights. At the same time, family rights were crucial to members of the gay and lesbian community, for whom family mattered.

 

Family Matters' Arguments

I attribute the transformation in queer rights to three equally important causes. The first was a dramatic change in law at the state and local levels, where revisions to criminal code provisions and family law doctrines helped to reshape Americans’ perceptions of gays and lesbians. Penal laws during much of the twentieth century defined queer life as a public menace. Police raids on bars, arrests at cruising spots, and prosecutions for same-sex assignations all reinforced the public’s perception of homosexuality as deviant. Criminal law reforms in the last three decades of the twentieth century allowed gay and lesbian couples to interact in public without fear of prosecution. Changes to family law were equally significant. Developments in custody and adoption laws made queer-headed households possible, such that gays and lesbians became visible as parents. Domestic partnership registries, which emerged in the 1980s, revealed that same-sex couples were devoted and committed partners, much like their straight counterparts. Together, these legal changes allowed gays and lesbians to create “conventional” families—nuclear households comprised of caring parents and beloved children.

 

That a change in national constitutional law stemmed from state and local law is unexpected. For those familiar with legal change, the second source is less surprising: advocates were able to secure radical legal change by appealing to tradition. They self-consciously put forward a limited vision of gay and lesbian life that centered around conventional domesticity and an immutable identity. The movement’s emphasis on conventional households was an accurate representation of the lives of many community members whose legal battles shaped the movement’s trajectory. It was also strategically necessary given the strident opposition that queer rights engendered. However, these arguments also minimized that many gays and lesbians did not fit this norm. Advocates’ focus on families also did not address the most pressing needs of less privileged members of the gay and lesbian community, as well as those who deviated from social convention. Yet their appeal to tradition ultimately proved to be quite subversive, changing how Americans understood both same-sex sexuality and the family.

 

The third cause for the law’s transformation is more remarkable than national change coming from advocacy at the state and local levels, or a legal revolution deriving from arguments about conformity. As Family Matters shows, the crucial actors behind the transformation of criminal codes and family law doctrine were not just lawyers, legislators, and judges. As often, the central figures were social scientists, business leaders, social workers, police officers, teachers, school board members, and media consultants. These individuals did not necessarily see themselves as agents of legal change. Their efforts nevertheless instigated essential shifts in social perceptions of gays and lesbians, as well as the legal doctrines that shaped their lives. By helping to inspire changes in Americans’ attitudes and law, these non-legal actors helped to make queer family rights possible.

 

Family Matters is primarily a history of the gay and lesbian rights movement. But it is also more than that. The LGBTQ+ community has made enormous legal strides in a remarkably quick period of time. That is startling, given that the legal system is known for moving at a glacial pace, rather than lightning speed. Judicial decisions all too often deliver hollow victories, rather than meaningful social change. The movement’s history therefore raises an important question: how were advocates able to defy those conventions? At stake in these debates is whether the struggle for queer rights serves a model for the many other groups clamoring for their rights. What I show is that the gay and lesbian rights movement is distinctive, because historical forces beyond advocates’ control often shaped the law’s evolution. At the same time, the movement’s past offers new ways of understanding how reform movements are able to attain consequential legal change. The book’s emphasis on the state and local, as well as the role of non-legal actors and emotional rhetoric, offer keys to understanding the processes of law reform. This book is consequently as important to understanding the systemic manner in which rights become embedded in law and society as it is to understanding the state of the law around same-sex sexuality.

 

* * *

That’s the broad overview of the book’s main arguments and contributions. Next time, I’ll take up the first challenge I had to address in writing the book: how to tell a national story from legal developments at the state and local levels.