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.

Hershkoff and Littlestone-Luria on History, Tradition, Standing, and Louisiana Law

Helen Hershkoff and Adam Littlestone-Luria, New York University School of Law, have posted The Louisiana Constitution and the Courts of Westminster: Standing and the Civil Law Heritage, which is forthcoming in the Louisiana Law Review:

A substantial majority of the Roberts Court now purports to rest constitutional jurisprudence on a legal “history and tradition” divined from the nation’s common law heritage. Leaving aside the question whether this approach should carry dispositive weight in interpreting the federal Constitution, this Article raises a different but unacknowledged concern:  The Court’s brand of originalism relies on a cramped notion of the nation’s “usable past.” Its myopic focus on our common law heritage erases other critical threads in the relevant legal legacy. In particular, the Article focuses on the civil law heritage of the Louisiana Constitution. As a first step, we interrogate whether the Louisiana court should automatically interpret its state standing requirement in lock step with the federal. We argue that the Supreme Court’s recent move to limit the kinds of legal harms that count as a basis for Article III standing in terms of common law analogues may cause serious distortion if it is mimicked by Louisiana’s courts. Since the civil tradition and civil codes play such an integral role as the source and definition of private rights and interests, a singular focus on common law analogs may warp the proper “history and tradition” that is relevant to Louisiana law. In conclusion, the article steps beyond the Louisiana context, arguing that the analysis carries wider implications.  Assuming that history and tradition must, or at least may, play a role in legal analysis, lawmakers and judges in each state should recognize the potential inherent in their own distinctive legal legacies. As a final step, we argue that the Supreme Court’s brand of originalism obscures the deep pluralism that marks the nation’s history and tradition—a multiplicity which standing doctrine should respect and even celebrate.

--Dan Ernst

Fede's "A Degraded Caste of Society"

Andrew T. Fede, of counsel to the law firm Archer & Greiner and the author of several other histories of race and American law, has published A Degraded Caste of Society: Unequal Protection of the Law as a Badge of Slavery in the Southern Legal Studies series at the University of Georgia Press:

A Degraded Caste of Society traces the origins of twenty-first-century cases of interracial violence to the separate and unequal protection principles of the criminal law of enslavement in the southern United States. Andrew T. Fede explains how antebellum appellate court opinions and statutes, when read in a context that includes newspaper articles and trial court and census records, extended this doctrine to the South’s free Black people, consigning them to what South Carolina justice John Belton O’Neall called “a degraded caste of society,” in which they were “in no respect, on a perfect equality with the white man.”

This written law either criminalized Black insolence or privileged private white interracial violence, which became a badge of slavery that continued to influence the law in action, contrary to the Constitution’s mandate of equal protection of the criminal law. The U.S. Supreme Court enabled this denial of equal justice, as did Congress, which did not make all private white racially motivated violence a crime until 2009, when it adopted the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.

Fede’s analysis supports that law’s constitutionality under the Thirteenth Amendment, while suggesting why—during the Jim Crow era and beyond—equal protection of the criminal law was not always realized, and why the curse of interracial violence has been a lingering badge of slavery.

Here are some endorsements:

A Degraded Caste of Society does a remarkable job of taking a seemingly narrow dimension of the law and race relations to reveal a much broader argument about the antebellum South.
—Mark Tushnet, author of The Constitution of the United States of America: A Contextual Analysis

Andrew T. Fede offers a wealth of valuable research regarding how slavery shaped American law in practice.
—Jeannine Marie DeLombard, author of In the Shadow of the Gallows: Race, Crime, and American Civic Identity

This compelling account traces the modern-day legitimization of racial violence to its foundation in antebellum law; Andrew Fede brilliantly demonstrates that the arc of slavery is indeed long.

—Jenny Bourne Wahl, author of The Bondsman’s Burden: An Economic Analysis of the Common Law of Southern Slavery

--Dan Ernst

Welcome to Guest Blogger Marie-Amélie George!

We are delighted to welcome Professor Marie-Amélie George to the blog for the month of October. Cribbing here from her Wake Forest Law faculty bio -- 

Marie-Amélie George (WF Law)

Marie-Amélie George specializes in LGBTQ rights and teaches courses on civil procedure and family law. As a historian, she analyzes both how and why laws have changed, as well as the ways in which history can provide insight into current legal debates and contemporary normative questions. Professor George's work has been published or is forthcoming in the Northwestern Law Review, Florida Law Review, Wisconsin Law Review, Alabama Law Review, Yale Law & Policy Review, Harvard Civil-Rights Civil-Liberties Law Review, and Law & History Review, among others. She is a three-time recipient of the Dukeminier Award, which recognizes the country's most influential sexual orientation and gender identity scholarship. In 2021, she received the law school's Jurist Excellence in Teaching Award.

Prior to joining the Wake faculty, Professor George was the Berger-Howe Fellow in Legal History at Harvard Law School. She also served as an Associate in Law at Columbia Law School, where she taught the Sexuality and Gender Law Clinic and a course on legal research and writing. Before entering academia, Professor George worked as a prosecutor at the Miami State Attorney's Office and as a litigation associate at Paul, Weiss, Rifkind, Wharton & Garrison in New York.

Professor George received her Ph.D. in history with distinction from Yale University, and her J.D. from Columbia Law School, where she was Editor-in-Chief of the Columbia Journal of Gender and Law and a Kent Scholar. She also holds a M.St. in Women's Studies from the University of Oxford, where she was awarded a distinction on her thesis.

George is also the author of the just-published Family Matters: Queer Households and the Half-Century Struggle for Legal Recognition (Cambridge University Press). About the book:

In 1960, consensual sodomy was a crime in every state in America. Fifty-five years later, the Supreme Court ruled that same-sex couples had the fundamental right to marry. In the span of two generations, American law underwent a dramatic transformation. Though the fight for marriage equality has received a considerable amount of attention from scholars and the media, it 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. This book, however, is more than a history of queer rights. Marie-Amélie George reveals that national legal change resulted from shifts at the state and local levels, where the central figures were everyday people without legal training. Consequently, she offers a new way of understanding how minority groups were able to secure meaningful legal change.

Advance praise for Family Matters:

"The legalization of same-sex marriage can only be understood as something that happened ‘fast’ by ignoring the critical history this book traces. Family Matters probes the ‘unknown decades’ of legal (and extra-legal) advocacy for LGBT families in the years before same-sex marriage. Among its many fascinating insights is the role that straight as well as gay families played. This is an expansive and important work of scholarship, and one that should be widely read." -- Margot Canaday

"Fluidly narrated and marvelously detailed, this is a history of ordinary people transforming law and culture bit by bit as they struggled to gain queer family rights. The book’s focus on the local and state level illuminates the surprising centrality of parent-child relationships in the gradual attainment of gay rights, long before marriage equality became possible." -- Nancy F. Cott - author of Public Vows: A History of Marriage and the Nation

"Beginning with battles over the criminalization of queer life and ending with the recognition of same-sex marriage, this important and ambitious book tracks an extraordinary transformation in American law. Family Matters offers an incisive analysis of one of the most consequential shifts in the legal landscape of the last half-century." -- Regina Kunzel

Look out for a series of posts from Professor George over the next several weeks.

-- Karen Tani

Legal History at Queen Mary University of London

The Department of Law, Queen Mary University of London, has announced three upcoming events of interest to legal historians.  All are free and everyone is welcomed.

16 October
Law, Labour, and Economy in the 19th Century
With Jonathan Connolly, Bronwen Everill, Erik Mathisen, and Miles Ogborn

23 October
The Devil in Medieval Legal Culture
With Karl Shoemaker

20 November
Law, Logic, Literature: A Symposium on "The Logical Renaissance"
With Katrin Ettenhuber, Kevin Killeen, Lorna Hutson, Julie Stone Peters, and Maksymilian Del Mar

--Dan Ernst