Three hours and roughly 3,000 miles separated the University of Oregon from the moment and place that Obergefell v. Hodges case was decided. But as Supreme Court Justice Anthony Kennedy delivered the majority opinion, he was also citing the research and information gathered a group of historians — one of them a UO professor, Ellen Herman.
The decision from the Obergefell case requires all states to issue marriage licenses to same-sex couples and to recognize same-sex marriages.
“I am thrilled to have played even a small role in this historic Supreme Court decision, which continues the long-term project of expanding our understanding of the U.S. Constitution and the meanings of equality and freedom,” Ellen Herman wrote in an email to the Emerald. She’s a United States history professor, and played a part in filing the amicus brief referenced in the conclusion of the case.
An amicus brief is essentially a document put together by individuals or groups that are intended to educate the court on a disputed matter. Herman and 20 other historians of law and marriage filed a brief titled the “Brief of Historians of Marriage and the American Historical Association as Amici Curiae in Support of Petitioners.”
The brief addressed whether the 14th Amendment requires a state to license and recognize a marriage between two people of the same sex.
Herman’s been at it for a while, too. She and her team began filing briefs in a number of same-sex marriage cases for use in federal courts after Proposition 8 prohibited same-sex marriages in 2008. The team’s leader and Harvard history professor Nancy Cott gave testimony in the 2010 case that dissolved the proposition.
Herman cited Cott’s leadership in creating and filing the brief, and her testimony as large factors in the final ruling.
“I am incredibly pleased and gratified that the Court really paid attention to what the historians had to say,” wrote Cott in an email to the Emerald.
Justice Kennedy cited the brief because it explored the roots of how marriage is defined in the U.S.. He claimed that, historically, married couples have been considered to be unified but defined by the notion of the male’s supremacy.
“It is unusual for the Supreme Court to take historical research so seriously. The fact that the justices did so in this case is deeply gratifying to historians,” Herman said. “It also suggests how heavily the opponents of marriage equality rested their case on a view of marriage—as unchanging and oriented toward procreation- that has been thoroughly discredited.”
Sophomore Lilly Loftin was excited to hear that a UO professor had an influence in the landmark ruling. But while she’s “ecstatic” about the decision for the case, she admits that the work is not over.
“We have a long way to go, but this is a great milestone that should be celebrated with lots of wedding cake,” Loftin said with a wide smile.
Herman noted the changing environment of the state of democracy and marriage equality in the United States, and has high hopes for the future.
“The majority opinion in the Obergefell case renews my hope for this country’s expanding democracy and shows that scholarship can make a huge difference,” wrote Herman.