History from the Witness Stand: An Interview with George Chauncey

Interview by Rachel Hope Cleves

George ChaunceyGeorge Chauncey is Samuel Knight Professor of History and American Studies at Yale University, and author of the groundbreaking work, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (Basic, 1994). He has testified as an expert witness in more than thirty cases dealing with gay rights, five of which have come before the Supreme Court of the United States. Chauncey testified or was deposed in all three marriage equality cases decided by the Court in 2013 and 2015. For the one-year anniversary of the Obergefell vs. Hodges decision, we interviewed Chauncey about his experiences with the courts.

Rachel Hope Cleves: What do lawyers look for from historical testimony? What role does historical evidence play in gay rights cases?

George Chauncey: The courts have found historical evidence useful in a variety of ways. Nancy Cott, for instance, played an important role in marriage equality litigation by explaining how marriage has changed many times before, in ways that once seemed as threatening as allowing same-sex couples to marry, in response to changing social and political conditions. In most of the cases I’ve participated in, beginning with my testimony in Romer v. Evans in 1993, I’ve focused on the history of antigay discrimination. Establishing that history is important because it affects the level of scrutiny a court applies to a law singling out a group for distinctive treatment when it’s trying to decide if the law violates the equal protection clause of the 14th Amendment. The state distinguishes among citizens all the time, and normally it only has to show that there’s a rational basis for the distinction between, say, the licensing requirements for the operator of a passenger car and an eighteen-wheeler. But when a group has experienced a history of discrimination and has not had the political power to defend itself, the courts may feel obliged to subject a law to heightened scrutiny when it singles out that group, for instance by excluding its members from marriage.

Even when a court isn’t prepared to subject antigay legislation to heightened scrutiny – some federal and state courts have, most have not, and various levels of “intermediate scrutiny” are emerging – it’s been useful for the courts to learn about this history because it places present-day discrimination in a larger historical context and makes the rationales for it seem less persuasive. And you can definitely see how this historical context has influenced the decisions reached by some courts.

I’ve also testified about the history of antigay demonization. This was especially important in the 2010 Perry trial, where I explained in my courtroom testimony how the messaging strategies of the Prop 8 advocates relied on a much longer history of antigay demonization, from the solidification of the image of homosexuals as child molesters in the 1950s, to Anita Bryant’s 1977 “Save Our Children” campaign, to the antigay videos and literature circulated during the anti-gay-rights referendum campaigns of the 1980s and 1990s, including the 1992 Amendment Two campaign in Colorado, which was at issue in Romer. It was deeply heartening to read the judge’s opinion in Perry and see him accept and explicate the argument I’d made about how the Prop 8 campaign could be more subtle in its “Protect Our Children” messaging strategy precisely because one legacy of earlier antigay campaigns was that they did not have to be as explicit about what children had to be protected from.

In Lawrence v. Texas [2003], the point of our amicus brief was somewhat different. It was to show the Court that the historical rationale the Court had used to help sustain the constitutionality of sodomy laws in Bowers v. Hardwick [1986] was incorrect. We provided the court an alternative interpretation of the history of sexual categories and sexual regulation, and showed how the Texas homosexual conduct law under review in Lawrence was a product of a new regime of antigay discrimination in the twentieth century, rather than the product of “millennia” of antihomosexual teaching, as the Chief Justice had averred in his Bowers concurring opinion. The Court devoted a large portion of its Lawrence decision to questions of history, and it was incredibly rewarding to see how much significance a historical argument could have.

George Chauncey pic With Mary Bonauto at the Court, Windsor, March 26, 2013

George Chauncey at the Supreme Court with Mary Bonauto, the attorney who argued the first successful state marriage case, Goodridge (Massachusetts, 2003), and the last Supreme Court case, Obergefell (2015). (Photo courtesy George Chauncey)

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J. Edgar Hoover, the FBI, and the “Sex Deviates” Program

Interview by Christopher Michael Elias

For nearly four decades, the Federal Bureau of Investigation used the so-called Sex Deviates Program to investigate and badger gay men and women in the United States. That harassment was justified by the belief that homosexuals

posed a security risk in two ways: their behavior was thought to be an indication of immorality and it supposedly made them susceptible to blackmail. Douglas Charles’s Hoover’s War on Gays (University Press of Kansas, 2015) is the first monograph to trace the history of that program. In it, Charles demonstrates that the Bureau was driven by “an overarching and intense fear and loathing of gays.”

Part of what makes Charles’s study noteworthy is the level and type of research it involved. The Bureau’s Sex Deviates File once included nearly 350,000 pages of information, but most of it was intentionally destroyed in the late 1970s. Writing on the topic necessitated an imaginative approach to the remaining source material, and as a result, Hoover’s War on Gays contains not only a compelling narrative, but also a record of innovative scholarship.

Hoover's War on Gays

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More Than Loving: Race, Sexuality and Public Memory in the Movement for Marriage Equality

Jennifer Dominique Jones

That Julian Bond, former chairman of the National Association for the Advancement of Colored People (NAACP) and a civil rights activist, was one of the first individuals to enter the Supreme Court to hear oral arguments in the 2015 Obergefell v. Hodges case may be surprising to those unfamiliar with his luminous career. A longtime advocate for the equal treatment of lesbian, gay, bisexual and transgender (LGBT) Americans, Bond expressed his support for marriage equality over a decade earlier in 2004. In a statement at that time, he refuted characterizations that treated activism to desegregate public spaces and to legalize same-sex marriage as identical movements. However, he acknowledged the overlapping nature of opposition to both struggles stating, “the people who would forbid gays from marrying in this country are those who would have made Rosa Parks sit in the back of the bus.” Bond’s well-publicized presence at the Obergefell proceeding reflects the rhetorical and material connections between the Modern Civil Rights Movement and the movement for marriage equality. Much of the public conversation over the Obergefell decision compared activism for marriage equality with black political efforts to secure equal rights, especially the 1967 Loving v. Virginia case that struck down bans against interracial marriages.

Mildred Jeter and Richard Loving in 1967 (Wikipedia)

However, the connections between the history of race and legal recognition of same-sex marriage go beyond jurisprudence and overlapping tactics. Historians of sexuality should place the struggle for marriage equality not simply within a larger framework of the changing nature of marriage and the sexual parameters of citizenship but within efforts to dismantle the most visible aspects of white supremacy. Placing the struggle for marriage equality within the twentieth century movement for (and against) black racial equality changes our understanding of these critical social movements. I believe this approach highlights (at least) two important developments. First, it emphasizes the intertwined history of racial and sexual categories as a crucial context for same-sex marriage activism. Second, it illuminates the centrality of public memories of the Modern Civil Rights Movement to mobilize support and opposition for marriage equality. Continue reading

The Curious Connections between Marriage Equality and HIV/AIDS

Michael Bronski

The HIV/AIDS epidemic and the success of the battle for marriage equality have been, over the past thirty-five years, the two events that have most affected LGBT lives.

These two phenomena – first the spread of a deadly virus that has killed thirty-four million people worldwide and close to 660,000 in the United States, and second a prolonged, well-funded, culturally bitter fight to grant a basic right of legal contact to same-sex couples – are rarely  linked in the political or public imagination. Yet, numerous cultural and social interconnections, resonances, and ramifications link these events.

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Faycal Dow and Hunter Dow, with their daughter Myla Dow. Faycal and Hunter were legally married in France last year and had their first child Myla this year. (Getty)

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Queer Terminology: LGBTQ Histories and the Semantics of Sexuality

Claire Hayward

In Room 53 of the British Museum in London sits a small silver goblet that dates from about 15 BC – AD 15. The Warren Cup depicts ‘two male couples making love’. The descriptive panel underneath the cup tells us that one side shows an erastes and an eromenos, an older, active lover and a younger, passive lover. It also tells us that ‘Concepts of age in sexual relationships were very different from our own’. Indeed, concepts of sexual relationships in general (and other kinds of relationships) were very different to our own; gender identities and same-sex love have been described in many ways across different historical periods, locations, and contexts. What we might now term as ‘LGBTQ histories’ are not easily defined, nor are the historical identities and behaviours they might refer to. Should we describe the Warren Cup, which depicts men engaging in sexual acts together, as ‘gay’, or label it as an ‘LGBTQ object’?

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Detail of the Warren Cup, showing two men engaged in anal sex (Wikimedia Commons)

How do we find, describe and contextualise histories of same-sex love and gender identity more generally in academic and public histories? This is no easy debate. Last year I wrote a piece for the New Statesman that sparked a lively and enthusiastic Twitter discussion about LGBTQ terminology in history (see the Storify here). The discussion showed that historians, public and academic alike, put great consideration and emotional investment into their choices of terminology. Differences aside, it showed that terminology has the ability to empower historians and consumers of history; whether to claim (or reclaim) a past on one’s own terms, or to accurately represent an often marginalised history, our choices of terminology are personal and political.

In order to raise – and potentially answer – questions about how historic terminologies work across different spaces, places, and times, I spoke to four individuals who work on various aspects of histories of same-sex love and gender identity. Each of their responses highlight the complexities of finding and writing about the past. They also reveal potential tensions in translating different historical, social, and cultural contexts into something that can be understood by others today.

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