On several occasions, I have been asked to speak at historical meetings about contem­porary legal cases related to my scholarship on sexuality. At the American Historical Association meeting in 1989, I participated on a panel on reproductive rights entitled “Women’s History in the Policy Arena”; in 2004, while the Massachusetts state legis­lature 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

the opposing legal team. In the 1980s, for example, women’s historians testi­fied in the sex discrimination suit brought by the Equal Economic Opportu­nity Commission against the retailer Sears Roebuck. As that case illustrated, historical experts can serve on both sides.3 Some historians submit affidavits, declarations, or an “offer of proof” that summarizes research relevant to a case without necessarily testifying in person. Another form of historical in­terpretation applied to the legal process is the friend of the court, or amicus curiae, brief filed at the appellate level. Professional and advocacy groups, such as the American Bar Association, the National Association for the Advance­ment of Colored People, and the American Civil Liberties Union, have sub­mitted these briefs since the early twentieth century. Multiple amicus briefs have become common in Supreme Court cases in the past decades, including those written by academics in association with lawyers.4 In contrast to the interrogatory format of expert testimony given by an individual witness, his­torians’ amicus curiae briefs resemble scholarly papers, but they also depart from typical patterns of historical writing. Produced collaboratively in a short period of time, the briefs apply historical research to support particular legal claims, necessarily leaving out much of the context and complexity so valued in our craft.

As a participant in drafting several amicus briefs related to the history of sexuality, I have noticed a recurrent tension between turning to the past as precedent and interpreting the dynamics of social change. This tension reflects a broader debate among legal scholars over the merits of stressing “originalism” — the intent of the framers of the Constitution — as opposed to reinterpreting the law over time.5 Recent legal cases concerning the right to abortion, the decriminalization of sodomy, and the legality of gay marriage illustrate these distinctions. These subjects raise questions about whether certain reproductive or sexual acts, such as abortion or homosexuality, were tolerated at the time the Constitution was written; when and why each act was criminalized; and what the implications of this history offer us as we shape current social policies. At the outset, I want to be clear that I per­sonally support both reproductive and gay rights; the effectiveness of argu­ments for those rights, however, depends on maintaining a delicate balance between the use of historical precedents and the recognition of historical change.

I initially attributed the tension I noticed between arguments based pri­marily on precedent and those emphasizing change over time to an inherent conflict between the goals of legal advocacy and the practice of historical in­terpretation. I feared that historical complexity would be lost in the process of fitting evidence to legal arguments. After further collaborations on am­icus briefs, I came to recognize that both lawyers and historians struggle to balance past precedents and changing historical contexts. I now believe that historians can engage in legal advocacy without oversimplifying the past, but we need to be careful about the ways we apply our interpretive tools. As I hope this essay will illustrate, our profession has a great deal to offer in elucidating the different meanings of “history and traditions,” a phrase that too often treats these distinct terms as if they were identical. When historical interpretation meets legal advocacy, static interpretations of “tradition” can be enriched by exploring historical silences, contingencies, and exceptions to apply the dynamics of social change to legal arguments.