Example 10.2

Takeaway point 10.2: The best way to counter an argument based on history is with an argument based on history.

Lawyers fight history with history. Here, a number of groups that supported gay rights counter Texas’s historical argument in a battle over Texas’s anti-sodomy statute.

Source: Amicus brief arguing that anti-sodomy laws are unconstitutional, from Lawrence v. Texas, 539 U.S. 558 (2003) (numerous footnotes and citations omitted).

Historical arguments are usually written in a more scholarly tone than other types of arguments. Don’t overdo this approach — you are an advocate, not a historian — but realize that historical arguments tend to sound slightly less aggressive than neighboring parts of a brief.

The brief rebuts the “vote counting” presented by Texas. It makes Texas look like an outlier rather than, as Texas claimed, a guardian of a tradition.

The brief emphasizes that anti-sodomy laws traditionally focused on banning an activity (sodomy), not on preventing a single group (gay men) from engaging in that activity. The brief shows that history can be read, framed, and interpreted just like a case. Here, the brief rejects Texas’s “reading” of the historical record.

This subsection’s heading repeats the adjective “modern,” preparing readers for the brief’s argument that Texas’s sodomy law is a new — a modern — innovation.

The brief shifts from the history of anti-sodomy laws to the history of gay men and lesbians in America, focusing on the history of people rather than of laws.

This argument is subtle and brilliant. The level of scrutiny that would apply to Texas’s law depended in part on whether the law discriminated based on an immutable trait. The brief uses history to note that homosexuality has been perceived as an inherent trait since the word “homosexual” developed, increasing the likelihood that the Court would apply heightened scrutiny.

This paragraph, too, taps into the legal test: the level of scrutiny that courts apply depends partly on whether there is a history of discrimination against the group challenging a law. The brief places Texas and its anti-sodomy law within an ugly “tradition” that includes Nazism and McCarthyism.