On June 26, 2015, the Supreme Court’s Obergefell v. Hodges decision established the constitutional right of  same-sex couples to marry in all 50 states. Discussions of the United States national past abounded in the majority opinion and in the dissents. The words “history” / “historical” / “historic” appear in the decision 63 times and the word “tradition” appears 47 times. The Justices used the word “precedent” 26 times and the word “past” 10 times.

The 5-4 decision, delivered by Justice Anthony Kennedy, relies heavily on the work of historians of sexuality, gender and race. Two amicus briefs shaped the historical framework for the majority opinion: Brief of Historians of Marriage and the American Historical Association as Amici Curiae in Support of Petitioners and Brief of the Organization of American Historians as Amicus Curiae in Support of Petitioners. Obergefell, in other words, is a clear example of how the work of historians matters. This collective body of work shapes how policymakers interpret the past and regulate the present.

Below is a bibliography of historical scholarship used in these amicus briefs. These books and articles form an extensive syllabus with which to teach students about the decision in particular and about the racialized and classed histories of women, gender and sexuality more broadly.

Notches also wants to know how our readers would teach the Obergefell decision in the classroom. We invite you to use the comments section to share sources and ideas for teaching this decision to high school, undergraduate and graduate students. What sources would you add to the bibliography below?

Happy Pride from the Notches Editorial Board.

Historians of Marriage and the American Historical Association
Table of Authorities

Bardaglio, Peter W., Reconstructing the Household: Families, Sex, and the Law in the Nineteenth-Century South (1995)

Basch, Norma, Framing American Divorce (1999)

Basch, Norma, In the Eyes of the Law: Women, Marriage, and Property in 19th Century New York (1982)

Burnham, Margaret, “An Impossible Marriage: Slave Law and Family Law,” Law & Ineq. (1987-1988)

Chused, Richard H., “Married Women’s Property Law: 1800-1850,” Geo. L.J. (1982-1983)

Coontz, Stephanie, Marriage, A History (2006)

Coontz, Stephanie, The Social Origins of Private Life: A History of American Families, 1600-1900 (1988)

Cott, Nancy F., Public Vows: A History of Marriage and the Nation (2000)

D’Emilio, John and Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (1988)

Davis, Rebecca L., More Perfect Unions: The American Search For Marital Bliss (2010)

Deyle, Steven, Carry Me Back: The Domestic Slave Trade in American Life (2005)

Ditz, Toby L., Property and Kinship: Inheritance in Early Connecticut (1986)

Edwards, Laura F., Gendered Strife and Confusion: The Political Culture of Reconstruction (1997)

Edwards, Laura, “The Marriage Covenant is the Foundation of All Our Rights,” 14 Law & Hist. Rev. 81 (1996)

Fowler, David H., Northern Attitudes Towards Interracial Marriage: Legislation and Public Opinion in the Middle Atlantic and the States of the Old Northwest, 1780-1930 (1987)

Glendon, Mary Ann, The Transformation of Family Law: State, Law, and Family in the United States and Western Europe (1989)

Glover, Lorri, Founders As Fathers: the Private Lives and Politics of the American Revolutionaries (2014)

Gordon, Sarah Barringer, The Mormon Question: Polygamy and Constitutional Conflict in Nineteenth-Century America (2002)

Gordon, Sarah Barringer, The Spirit of the Law: Religious Voices and the Constitution in Modern America (2010)

Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (1985)

Gutman, Herbert G., The Black Family in Slavery and Freedom 1750-1925 (1976)

Hanley, Sarah Hanley, Engendering the State: Family Formation and State Building in Early Modern France, French Historical Studies (1989)

Hartog, Hendrik, Man & Wife in America, A History (2000)

Hartog, Hendrik, Someday All This Will Be Yours: A History of Inheritance and Old Age (2012)

Hasday, Jill Elaine, “Contest and Consent: A Legal History of Marital Rape,” Calif. L. Rev. 1375 (Oct. 2000)

Hasday, Jill Elaine, Family Law Reimagined (2014)

Herman, Ellen, Kinship By Design: A History of Adoption in the Modern United States (2008)

Hodes, Martha, White Women, Black Men: Illicit Sex in the 19th Century South (1997)

Howard, George Elliott, A History of Matrimonial Institutions Chiefly in England and the United States (1904)

Johnson, Walter, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (2013)

Johnson, Walter, Soul By Soul: Life Inside the Antebellum Slave Market (1999)

Kerber, Linda K., No Constitutional Right To Be Ladies: Women and the Obligations of Citizenship (1998)

Kessler-Harris, Alice, In Pursuit of Equity: Women, Men, and the Quest For Economic Citizenship in 20th-Century America (2001)

Lewis, Jan Ellen, The Pursuit of Happiness: Family and Values in Jefferson’s Virginia (1983)

Lewis, Jan, “The Republican Wife: Virtue and Seduction in the Early Republic,” Wm. & Mary Q. 3d Ser. 689 (1987)

May, Elaine Tyler, Barren in the Promised Land (1995)

May, Elaine Tyler, Homeward Bound: American Families in the Cold War Era (1988)

Mintz, Steven, Domestic Revolutions: A Social History of American Family Life (1988)

Norton, Mary Beth, Founding Mothers and Fathers (1996)

Pascoe, Peggy, What Comes Naturally: Miscegenation Law and the Making of Race in America (2009)

Pleck, Elizabeth H., Celebrating the Family: Ethnicity, Consumer Culture, and Family Rituals (2000)

Pleck, Elizabeth H., Not Just Roommates: Cohabitation After the Sexual Revolution (2012)

Shammas, Carole, A History of Household Government in America (2002)

Shanley, Mary L., Just Marriage (2004)

Shanley, Mary L., Making Babies, Making Families (2001)

Shanley, Mary, “Marriage Contract and Social Contract in 17th-Century English Political Thought,” The Family in Political Thought (J.B. Elshtain Ed., 1982)

Simmons, Christina, Making Marriage Modern (2009)

Stanley, Amy Dru, From Bondage To Contract: Wage Labor, Marriage and the Market in the Age of Slave Emancipation (1998)

Organization of American Historians
Table of Authorities

John-Manuel Andriote, Victory Deferred: How Aids Changed Gay Life in America (1999)

Allan Berube, Coming Out Under Fire: The History of Gay Men and Women in World War Two (1990)

Gregory D. Black, The Catholic Crusade Against the Movies, 1940-1975 (1997)

Nan Alamilla Boyd, Wide-Open Town: A History of Queer San Francisco to 1965 (2003)

Paul Boyer, Urban Masses and Moral Order in America, 1820-1920 (1978)

Stacy Braukman, Communists and Perverts Under the Palms: The Johns Committee in Florida, 1956-1965 (2012)

Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (2009)

George Chauncey, “From Sexual Inversion To Homosexuality: Medicine and the Changing Conceptualization of Female Deviance,” Salmagundi (1982-1983)

George Chauncey, Gay New York: Gender, Urban Culture, and the Making of the Gay Male World, 1890-1940 (1994)

George Chauncey, “The Postwar Sex Crime Panic,” in True Stories From the American Past (William Graebner Ed., 1993)

George Chauncey, Why Marriage? The History Shaping Today’s Debate Over Gay Equality (2004)

Dudley Clendinen & Adam Nagourney, Out For Good: The Struggle To Build A Gay Rights Movement in America (1999)

John D’Emilio, “The Homosexual Menace: The Politics of Sexuality in Cold War America,” in Passion and Power: Sexuality in History (Kathy Peiss Et Al., Eds. 1989)

John D’Emilio, Sexual Politics, Sexual Communities: The Making of A Homosexual Minority, 1940-1970 (1981)

John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America (2d Ed. 1997)

Steven Epstein, Impure Science: Aids, Activism, and the Politics of Knowledge (1996)

William Eskridge, Jr., “Law and the Construction of the Closet: American Regulation of Same-Sex Intimacy, 1880-1946,” 82 Iowa L. Rev. 1007 (1997)

Estelle Freedman, “Uncontrolled Desires”: The Response To the Sexual Psychopath, 1920-1960, 74 J. Am. Hist. 83 (1987)

Andrea Friedman, Prurient Interests: Gender, Democracy, and Obscenity in New York City, 1909-1945 (2000)

John Gallagher & Chris Bull, Perfect Enemies: The Religious Right, the Gay Movement, and the Politics of the 1990s (1996)

Richard Godbeer, “The Cry of Sodom”: Discourse, Intercourse, and Desire in Colonial New England, 52 William & Mary Quarterly. 259 (1995)

Karen L. Graves, And They Were Wonderful Teachers: Florida’s Purge of Gay and Lesbian Teachers (2009)

David K. Johnson, The Lavender Scare: The Cold War Persecution of Gays and Lesbians in the Federal Government (2004)

Jonathan Ned Katz, Gay American History: Lesbians and Gay Men in the U.S.A. (1976)

Jonathan Ned Katz, The Invention of Heterosexuality (1995)

Leisa D. Meyer, Creating GI Jane: Sexuality and Power in the Women’s Army Corps During World War II (1996)

Daniel Winunwe Rivers, Radical Relations: Lesbian Mothers, Gay Fathers, and Their Children in the United States Since World War II (2013)

Vito Russo, The Celluloid Closet: Homosexuality in the Movies (1991)

Kenneth M. Stampp, The Peculiar Institution: Slavery in the Ante-Bellum South (1956)

Marc Stein, City of Sisterly and Brotherly Loves: Lesbian and Gay Philadelphia, 1945-1972 (2000)


Get our latest posts on the history of sexuality delivered directly to your inbox. Join our monthly newsletter and we’ll keep you informed about our recent articles, author interviews, conference dispatches, and CFPs. Sign up here.



Creative Commons License

NOTCHES: (re)marks on the history of sexuality is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License.
Based on a work at www.notchesblog.com.

For permission to publish any NOTCHES post in whole or in part please contact the editors at NotchesBlog@gmail.com

4 Comments

  1. Laura Briggs

    To me, the history of same-sex marriage and family rights runs through the battles to keep people from preventing us from raising our children–see esp. Daniel Rivers, Radical Relations: Lesbian Mothers, Gay Fathers, and their Children Since World War II, and to maintain relations with our sick and disabled partners, See Karen Thompson, Why Can’t Sharon Kowalski Come Home?

  2. Michael Lombardi-Nash

    Karl Ulrichs, The Riddle of Man-Manly Love, has much about “Gay” rights and the constitutional state.

  3. I would want to add scholarship that emphasizes how marriage has been queer for a long time. Key readings include two articles by Notches editor Lauren Gutterman: “’The House on the Borderland’: Lesbian Desire, Marriage, and the Household, 1950-1979” Journal of Social History, (Fall 2012), 1-22.; “Another Enemy Within: Lesbian Wives, or the Hidden Threat to the Nuclear Family in Postwar America” Gender & History, (August 2012), 475-501.

    And of course, what syllabus on this subject could be complete without Rachel Hope Cleves’ _Charity and Sylvia: A Same-Sex Marriage in Early America_

  4. Reblogged this on Knitting Clio and commented:
    Some summer reading for those interested in historical scholarship that influenced Obergefell v Hodges

Leave a Comment

Your email address will not be published. Required fields are marked *