Feminism, Sexuality, and Politics: Essays

By Estelle B. Freedman | Go to book overview

10 | When Historical Interpretation Meets
Legal Advocacy | Abortion,Sodomy,and
Same-Sex Marriage

On several occasions, I have been asked to speak at historical meetings about contem-
porary legal cases related to my scholarship on sexuality. At the American Historical
Association meeting in 1989,1 participated on a panel on reproductive rights entitled
“Women's History in the Policy Arena”; in 2004, while the Massachusetts state legis-
lature was deliberating gay marriage, I was asked by the Organization of American
Historians to provide historical context for same-sex unions at a public session on
“The Peculiar Institution of Marriage.”1 At both panels, I questioned the search for
historical precedents to justify contemporary policies. In this essay, I have revised my
earlier talks, along with comments on a landmark sodomy case, to rethink the role of
historical interpretation in legal advocacy.

WHEN HISTORIANS craft interpretations of the past, our usual audience consists of other scholars, students, and a few interested lay readers. In the past few decades, historical expertise has attracted an expanding legal audience as well. To guide their decisions, American judges frequently invoke the phrase “history and traditions,” implying that the past is critical to constitutional interpretation. To influence judicial opinions, lawyers have turned to our profession to help strengthen the historical foundations for their arguments. At least since the 1954 school desegregation case Brown v. Board of Education, lawyers have incorporated historians' research, and judges have increasingly used the past to elucidate constitutional meanings. As a result, historians have weighed in on a range of cases concerning contested public policies, including Native American land claims, sex discrimination in the workplace, and welfare reform.2 In this essay, I reflect upon my own experience of collaborating with other scholars and lawyers in legal cases concerning reproductive and sexual rights.

Historians' contributions to legal advocacy take several forms. When scholars provide paid expert testimony at trials, they instruct the judge or jury on historical points relevant to the case and are subject to cross-examination by

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