Indiana Law Journal

Document Type


Publication Date

Summer 2017

Publication Citation

92 Indiana Law Journal 1007 (2017)


According to a quote attributed to numerous philosophers and political leaders, “History is written by victors.”1 In the legal battle over same-sex marriage, those opposed to marriage equality have attempted to disprove this age-old adage. In response to the majority opinion in Obergefell v. Hodges—which held that state laws banning same-sex marriage violate the Fourteenth Amendment—each of the four dissenting Justices issued his own dissenting opinion. Every one of these dissents misrepresented the circumstances and precedent leading up to the Obergefell decision. Collectively, the Obergefell dissenters have valiantly tried to rewrite America’s legal, constitutional, and social history, all in an attempt to justify denying civil rights to same-sex couples.

Methodically unpacking the content of the Obergefell dissents reveals a system-atic and consistent distortion of American history both early and recent. This Article seeks to blunt the coordinated efforts by the losers to rewrite the history of same-sex marriage in America. Part One of this Article discusses the dissenters’ claim that throughout history across all civilizations, marriage has had only one unchanging definition: a union between one man and one woman. In addition to disregarding polygamous cultures, the dissenters’ claimed single historical definition of marriage is also abbreviated. Marriage was not simply a union between a man and a woman; for more than a century, marriage in America was officially defined as a union be-tween a man and a woman of the same race in which the woman was legally subordinate to the man. The dissenters omitted or downplayed the racial restrictions and gender ramifications of marriage—which courts played a major role in eliminating —in order to make Obergefell’s elimination of gender restrictions on marriage seem unprecedented.

Finally, the Article concludes by speculating why the Obergefell dissenters mis-represented the histories of marriage, substantive due process, gay life in America, and the debate over same-sex marriage. It posits that the Obergefell dissenters sought to make constitutional protection of gay Americans seem unprecedented, to make gay Americans seem undeserving of equal rights, and to make opponents of gay rights seem noble. To create these illusions, the Obergefell dissenters had to distort the historical record. This Article seeks to set that record straight.