What Will History Say About LGBT Rights?

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On Jan. 9, longtime LGBT activist Cleve Jones kicked off a protest of the American Historical Association’s annual meeting in San Diego with the slogan, "What will history say about the American Historical Association?" Jones organized the protest in objection to the AHA’s decision to hold parts of its yearly conference in the Manchester Hyatt hotel, despite the fact that its owner, Doug Manchester, was one of the largest donors to California’s Proposition 8 campaign. The San Diego LGBT community has boycotted the hotel since the passage of the ballot initiative that overturned a state supreme court ruling to allow same-sex marriage in California, and the protesters seemed keen to vilify the historians’ choice of venue, not accepting the excuse that they had booked the hotel years before Proposition 8 became an issue and that it would have cost hundreds of thousands of dollars to cancel the reservation.

The irony of Jones’ protest was that even as he was asking a crowd of a few hundred local activists how professional historians would go down in history, they themselves were grappling with that very question. The AHA had planned a "miniconference" on the topic of "Historical Perspectives on Same-Sex Marriage," bringing together a wide range of historians of queer politics and culture (in addition to historians of marriage and the family) to place the events of Proposition 8 and the new national LGBT rights movement—the events which provoked Jones’ protest—in historical context.

Two of the participants in the miniconference, who were on a panel called "Historians and Lawyers in Same-Sex Marriage Cases," would four days later answer Jones’ rhetorical question in their own way: by testifying against the constitutionality of Proposition 8 in federal court. These historians, Harvard professor Nancy F. Cott and Yale professor George Chauncey, joined the phalanx of academics called as witnesses for the plaintiffs in Perry v. Schwarzenegger, for which oral arguments concluded last week. By responding to Proposition 8 not with a boycott, but with expert testimony, Cott and Chauncey, who are no strangers to involvement in LGBT-related cases, illuminate what is shaping up to be a key difference of opinion in the strategies of LGBT rights activists, pitting populism against intellectualism.

Marriage equality has become one of the most energizing causes among young progressives—perhaps because it’s a desire so easy to frame in accessible terms. Everyone knows people who are married, and thus the desire to be just like everyone else—to be able to get married too—is a readily sympathetic one. But some have placed the blame for Proposition 8 with the language and approach of the No on 8 advertising campaign, which tended not to show same-sex couples or to make a convincing case for LGBT people being just like everyone else.

In the words of a media consultant named Eugene Hedlund, whom Margaret Talbot quoted in a recent New Yorker article about the Perry case, the original anti-Prop. 8 advertising "was too intellectual." In the year since Proposition 8 passed, as marriage-equality activists figure out the way forward, anti-intellectualism has become the watchword—applied most recently by Cleve Jones to those most intellectual of all commentators on marriage equality, academic historians.

A significant outlier from this otherwise intellectual trend, however, has been the Perry v. Schwarzenegger case, a lawsuit brought against the State of California, challenging Proposition 8, by former Bush v. Gore rivals David Boies and Ted Olsen, arguably two of the most skilled constitutional lawyers in the country. Perry, like any federal court case, relies on a complicated legal argument. In the course of the three-week trial, which concluded in district court last week, the Olsen-Boies team called ten different expert witnesses to make its case.

The experts, including Cott and Chauncey, who variously hold Ph.D.s in economics, history, psychology, and political science, testified about the institution of marriage and about the discrimination and prejudice that LGBT people face, in some cases because they are denied access to marriage.

Their testimony was knowledgeable and powerful, ranging widely across the experience of being LGBT in America, from Cott’s quite brilliant discussion of the mutable (and at times prejudicial, as in the case of anti-miscegenation laws) concept of marriage in the American state and culture, to psychologist Gregory Herek’s strong critique of so-called "conversion therapy." Personally, I was a particular fan of Chauncey’s testimony about his work on early urban gay life, long before marriage came into the picture. He discussed instances of overt discrimination, such as bars which posted signs saying "gays go away," and explained how such discrimination helps to perpetuate homophobia found in the Proposition 8 campaign.

To be sure, the Perry trial did not just feature expert testimony. The plaintiffs, a male couple and a female couple who want to get married in California, took the stand. The court also heard eloquent and highly personal testimony in support of LGBT equality—including Republican San Diego Mayor Jerry Sanders, who defied his party’s platform and came out in support of marriage equality because his daughter is lesbian; and a man named Ryan Kendall, who spoke movingly about being subjected to anti-gay conversion therapy.

Expert testimonies in the Perry trial represented a very different strategy from the emotional and in some ways anti-intellectual approach of activists who have in the past year run LGBT equality campaigns on the basis of introducing the nation to queer people. While some of the expert witnesses are themselves LGBT, they weren’t in court to describe their own lived experience. They were there to bring factual information to the case. Though Judge Vaughn Walker will not release his decision until at least next week, there appears to be little question about who ended oral arguments on top: the anti-Proposition 8 team had the leading experts in LGBT and marriage studies, in full command of the facts, on their side. In this case, unlike in political campaigns, it actually mattered when the opponents of marriage equality were just plain wrong about the facts. (The case, regardless of its outcome, is expected to be challenged all the way to the Supreme Court.)

In a non-courtroom setting, however, there is no requirement for expert knowledge or credentials. It is more important to be able to produce more convincing ads, with more appealing wording, and to keep your base motivated and marching in the streets—and donating money. The populist approach has certainly energized the progressive base, getting young LGBT and allied activists out in the streets in numbers not seen in several years. And yet it’s entirely possible that expert testimony in court will become just as important as emotional tug-of-wars between pro- and anti-marriage equality advocates and that cases like Perry will form an integral part of the story of the fight for marriage equality—when historians, like those whom Cleve Jones was protesting, write it.

Emily Rutherford is a sophomore at Princeton University and a staff writer for Campus Progress.