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The Pursuit of Happiness: Homosexuality’s Deep Roots in America

June 24, 2022 may have been many things, but it was no surprise. Between the unprecedented leak of Alito’s draft opinion and the overt, half-century plot to overturn Roe v. Wade, the Supreme Court’s decision that fateful Wednesday morning to strip women of their constitutional right to an abortion was a long time coming. Yet despite the fact Dobbs v. Jackson was quite literally decades in the making — and seven weeks subject to the public eye — Alito’s opinion is curiously light on the legalese. Instead, nearly a quarter of the decision focuses on the history of abortion, with four whole pages dedicated to abortion’s permissibility before the founding of America. Alito does not veil his vengeance when he writes that he seeks “to set the record straight” against the “egregiously wrong” Roe. But setting the cockiness of Alito’s rewriting of history aside, the fundamental importance of this line of argument is to set a new legal standard: that substantive due process rights must be “deeply rooted in this nation’s history and traditions.” Some other substantive due process cases include Obergefell v. Hodges (the right to same-sex marriage), Griswold v. Connecticut (the right to contraception), and Lawrence v. Texas (the right to private sexual acts).

Some have remained cautiously optimistic that other Court precedents aren’t in danger — hopes which are buoyed by a small disclaimer towards the end of the opinion: “To ensure that our decision is not misunderstood or mischaracterized,” Alito writes, “we emphasize that our decision concerns the constitutional right to abortion and no other right.” The core rationale here is that “same-sex relationships are inherently different from the right to abortion because the latter (as we have stressed) uniquely involves… ‘potential life.’” Any optimism here is severely misguided. Alito is not promising that the Court won’t overturn cases like Obergefell or Lawrence, but rather that their current ruling does not yet implicate those cases. Jurisprudence does not exist in a vacuum. As such, we should consider the ‘deeply rooted’ test as the guiding precedent for all future substantive due process cases. 

So, if Dobbs lays forth the roadmap for which due process dominoes might fall next, then is the right to same-sex marriage (and more broadly, homosexuality) deeply rooted in American history and traditions? On the one hand, the dominant narrative of homosexuality in America is one of both government- and society-led discrimination, from the 1624 execution of suspected homosexual Richard Cornish to the Pulse Nightclub shooting in 2016. Yet despite its widespread illegality for much of American history, two compelling ideas suggest that the permissibility of homosexuality is deeply rooted in this nation’s timeline. First, the Declaration of Independence’s reference to the ‘pursuit of happiness’ enshrines the fundamental right to love. Second, the rich history of 19th century “romantic friendships” exemplifies how some forms of same-sex intimacy now associated with matrimony were permissible before ‘same-sex marriage’ became a household term. The permissibility of homosexuality, and by extension same-sex marriage, is deeply rooted in America’s history and tightly embedded in our unalienable right to the pursuit of happiness. 

The idea that the Declaration of Independence’s famous promise of “life, liberty, and the pursuit of happiness” confers a constitutional right to love is hardly new. John Locke, a 17th century philosopher influential in Western thought, believed that the pursuit of happiness meant “the removal of ‘uneasiness.’” A 2013 law review article contends that Locke’s insistence that all people be able to pursue things that reduce their personal uneasiness would necessarily include same-sex marriage. The Obergefell decision cites Loving v. Virginia, the case enabling interracial marriage, where Chief Justice Earl Warren writes that marriage is “one of the vital personal rights essential to the orderly pursuit of happiness by free men.” Some scientific studies have even found that same-sex marriage broadly increases the societal pursuit of happiness. A 2008 survey of 350,000 people across dozens of countries found that when places legalize same-sex marriage, increased social tolerance increases happiness for “both the tolerant and intolerant alike.” Evidently, the core American idea that people should be able to pursue happiness is closely and historically linked to the pursuit of love and marriage.

Few would argue that much has prevented powerful white men throughout American history from pursuing their happiness — or at least trying. Some pursue happiness with other men more quietly. Alexander Hamilton wrote intimately to Lieutenant Colonel John Laurens amidst his marriage to his wife. James Buchanan, who some speculate to be America’s only gay president, regularly wrote borderline romantic letters to Sir Rufus King. Others have used power to pursue heterosexual happiness, though lewdly. President Harding had a secret sex closet where he would take women to “Mount Jerry.” President Jefferson, who penned the ‘pursuit of happiness’ line, spent years raping his slave, Sally Hemings. And prominent figures across the political spectrum from Senator Al Franken to Justice Brett Kavanaugh have faced numerous credible sexual misconduct allegations. I do not mention these examples to in any way endorse the aforementioned sexual acts, especially those which are unconsensual. Rather, I raise these stories to suggest a trend where our leaders have pursued socially intolerable yet constitutionally unrestricted happiness. 

The second facet of this argument is that homosexuality (and the tenets of gay marriage by extension) was itself broadly permissible in various circumstances in American history. Historian Stephanie Coontz, a leader in the literature on marriage and love, outlines as much in her aptly titled book, Marriage, A History: How Love Conquered Marriage. A central pillar of Coontz’s argument is that the notion of marrying for love was widely uncommon for heterosexuals and homosexuals alike during the first half of American history. According to Coontz, many 19th-century Americans wouldn’t have recognized the modern idea of same-sex marriage, purely because marriage for love was such a rarity. As such, the notion that same-sex marriage was unacceptable before the 20th century is undermined by the fact that most Americans wouldn’t have understood what that was.

Or perhaps they would have understood a same-sex marriage merely as something else — what some have dubbed a ‘romantic friendship.’ Professor E. Anthony Rotundo outlines how 19th-century friendships for many men were not “embedded in the culture of boyhood” but rather “intimate attachments that verged on romance.” Coontz also points to many unmarried men or women throughout the 19th century who held tight bonds that today we would label as homoerotic. Men with men and women with women carved “their initials into trees… dance together, kissed” and “held hands.” Evidently, these romantic friendships are not synonymous with modern day same-sex marriages. For one, there’s substantially less evidence of sexual relationships between the same genders than these intimate romantic relationships. But as so many Americans freely verged on the cusp of homosexuality, many enshrined some tenets of same-sex marriage — deep intimacy, unbridled compassion, physical contact — into their own relationships. Despite simultaneous sodomy laws and strong anti-gay attitudes, many Americans embraced the building blocks of same-sex marriage long before their understanding of it as the institution it is today. 

Some have argued that Dobbs is part of the Court’s master plan to “drag America back to the 1950s — or maybe the 1850s.” But as others have already noted regarding abortion, the move to overturn Obergefell, Lawrence, and Griswold would signal that “we’re going somewhere worse.” It is possible — perhaps even likely — that the Court will write an opinion in the coming years discarding my aforementioned arguments to the wastebasket of history. Though the Court has the authority to strip Americans of their freedoms, they lack the credibility to rewrite our history. Should the Court determine that same-sex marriage is not deeply rooted in American history, the decision would showcase the institution’s inability to understand the nuanced, long-term permissibility of homosexuality in this nation. Defending the Dobbs ruling, Alito writes that “it is essential that this Court maintain the power to restore authority to its proper possessors.” As such, the onus is on all Americans (gay and straight, politically involved or not) to set the record straight when government incorrectly rewrites our history—for the proper possessors of American history is the American people itself.