On April 28, Supreme Court watchers got an impromptu lesson in Greek history from none other than Samuel Alito. While hearing arguments on the constitutionality of same-sex marriage bans in Obergefell v. Hodges, Justice Alito decided what we really needed to be talking about was Plato:

JUSTICE ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was — ­it was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?
MS. BONAUTO: Yeah. They don’t — I don’t believe they had anything comparable to what we have, Your Honor. You know, and we’re talking about —
JUSTICE ALITO: Well, they had marriage, didn’t they?
MS. BONAUTO: Yeah, they had — yes. They had some sort of marriage.
JUSTICE ALITO: And they had — and they had same­-sex relations, did they not?
MS. BONAUTO: Yes. And they also were able to — ­­
JUSTICE ALITO: People like Plato wrote in favor of that, did he not?
MS. BONAUTO: In favor of?
JUSTICE ALITO: Same-sex — ­­wrote approvingly of same-sex relationships, did he not?
MS. BONAUTO: I believe so, Your Honor.
JUSTICE ALITO: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?
MS. BONAUTO: I can’t speak to what was happening with the ancient philosophers.

It may seem strange, but Alito’s ritual invocation of history against LGBT people has its own ancient roots; nearly every major gay-rights case since 1972 has included some discussion of antiquity. These cases, with their enormous practical implications for people alive today — the Defense of Marriage Act would have cost Edie Windsor half a million dollars if it hadn’t been struck down — can sound like a particularly wince-inducing discussion section in an undergraduate history course. Judges tell us what the ancients were like, often without the bother of footnotes, and use that history to decide the most fundamental questions in American political life.

But why is this happening? Why is the history of antiquity so useful for understanding gay rights litigation, and why is it being used so badly? For Us Enlightened Classicists, the entire idea of drawing straight lines from ancient to modern marriage is a bit ridiculous. But this argument goes well beyond the court, and responding to it requires more than rolling our eyes. Alito’s questioning comes out of a sort of lazy historicism — an idea that what worked for Greece and Rome can work for us today — that those who care about antiquity ought to push back against. The history of Greece, Rome, and appeals to “tradition” in these cases is a long one, and it shows a darker side of Classicists’ old rallying cry. Sometimes, classical antiquity is a little too relevant to the modern world.

These cases started in 1972 with Baker v. Nelson, the first decision to find no right to same-sex marriage under the U.S. constitution. The Minnesota Supreme Court challenged Baker’s claim that Minnesota was denying him his fundamental right to marry with an offhand assertion that marriage between a man and a woman was “as old as the book of Genesis.”

In order to understand how to get from point A (I have a right to marry) to point B (gays didn’t get married in Genesis, so no you don’t), it is important to take a second to understand just what a “fundamental rights” claim actually entails. Claims like Baker’s rest on the Due Process Clause of the Fourteenth Amendment, which prevents states from depriving people of life, liberty, or property without due process of law. Courts interpret this clause as saying that certain rights are so “fundamental to the concept of ordered liberty” that no process can justify taking them away without an extremely good reason. Marriage is one of those rights, so the question in Baker was simple: what counts as marriage, and when does the government get to decide?

For the Baker court, Genesis solved both of these problems very neatly. Invoking “historical” marriage let the court exclude the men before it from the tradition that the Fourteenth Amendment protects, and also claim that this tradition, running straight from the Levant to Minnesota, would be uniquely harmed by allowing same-sex marriage. Elegant, if incoherent.

Without belaboring the point or rehashing old debates, it’s not hard to see how this appeal to history makes no sense — leaving aside the pesky matter of Biblical polygamy, it is a generally accepted principle in constitutional law that you can’t forbid behavior because it isn’t found in Genesis. Obviously, a law forbidding the worship of graven images could not be justified on the basis of tradition; the Constitution requires that laws serve some purpose beyond mandating compliance with a particular religious doctrine. In an arena such as gay rights where opposition to the practice is largely rooted in religious thought, that exact purpose can become unclear.

The Baker court simply referred to Genesis without explicitly appealing to God, but the next major court case addressing gay rights wrapped itself in a toga rather than a Bible. In 1986, the U.S. Supreme Court upheld a Georgia law forbidding consensual sodomy in Bowers v. Hardwick. Like in Baker, the Bowers plaintiffs claimed that laws forbidding gay sex violated their fundamental rights; like in Baker, the Court disagreed and used ancient history to make its point. While the majority decision simply referred to the “ancient roots” of bans on consensual sodomy, Justice Burger’s concurrence spelled those roots out by baldly stating that “homosexual sodomy was a capital crime under Roman Law,” and thus that “hold[ing] that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”

Burger conveniently ignored the first eight centuries of Roman history; the only Roman laws he cited were two imperial proclamations from the mid-fourth century. The first, from the Code of Theodosius (9.7.6), calls for those convicted of sodomy to be burned at the stake; the second, from Constantius II and Constans (9.9.31), is more lenient and merely calls for public torture and execution (this sudden kindness may be a result of Constans’ reputation for “unnatural vice,” but I digress).

For Burger to cite “moral teachings” that call for burning men at the stake shows at best shoddy research, and at worst barbarism, but his use of Roman law does solve some of the problems with Genesis that I just mentioned. Burger didn’t completely hide the religious roots of his argument (he cites these laws within a “Judeo-Christian tradition”), but we still see him using Roman history to situate his extreme distaste for gay sex in some imagined continuity of sexual morals. The innovation is that this continuity could pretend to be secular: the Theodosian Code was put forward by a very religious man, but it is not necessarily a religious text. It is also, however, not a representative text; ancient Rome’s attitude towards gay sex was nothing like what Burger described, and gay rights advocates were eventually able to correct the record.

Most people know that laws forbidding consensual sodomy are no longer constitutional, and most lawyers know about the decades of activism and litigation that led to the court striking down those laws in 2003’s Lawrence v. Texas. But Lawrence reflected a historical revolution as much as a political one. Justice Anthony Kennedy, who wrote the majority opinion in Lawrence, explicitly questioned the tradition on which Bowers rested, noting that “scholarship had cast some doubt” on Burger’s imagined history. Prior to the Lawrence decision, ten professors of history filed a brief with the court explicitly considering ancient attitudes towards same-sex sex, and showing how “recent historical scholarship demonstrates the flaws in the historical accounts endorsed by the Court and Chief Justice Burger.” These historians succeeded; by correcting the record, they were able to correct the law.

What makes this episode in legal history so fascinating for antiquity is the ripple effect these arguments have had on the study of the ancient world. Bowers v. Hardwick showed very clearly how opponents of gay rights could frame bigotry as simply upholding an ancient sexual order. Consciously or unconsciously, historians started taking that order down. While John Boswell was publishing on the subject by 1980, scholarship on ancient sexuality became exponentially more visible and sophisticated in the 1990s. Scholars including Craig Williams, David Halperin, and Amy Richlin described Greeks and Romans (particularly Greek and Roman men) whose sexual lives and self-conceptions looked nothing at all like the tradition Justice Burger invoked.

By the time Lawrence came before the Court, it was impossible to argue that gay sex was a stranger to the Western tradition. From Plato’s discussion of same-sex affection in the Phaedrus, to the male-on-male rape jokes that animate comedy and satyr-drama, to Catullus courting Juventus in the last days of the Roman Republic, sex between men was part of the fabric of ancient Greek and Roman life. This might make it tempting for gay-rights advocates to co-opt the unthinking historicity of Bowers — what was accepted then should be accepted now, and what was accepted then was sodomy. Kennedy built off of this tradition, showing that strict prohibitions on gay sex were quite recent in Western history, and cast the decision as — at least in part — bringing American law into line with our past.

For gay historians like me, or progressive historians like my mentors and colleagues, this argument is seductive. We care about history — we’ve devoted our professional lives to figuring out what people did and thought two thousand years ago, and it’s tempting to claim that American politics should be influenced by what we find. But Obergefell should show us the limits, and the dangers, of arguing from the past. When Justice Alito claimed at oral argument that same-sex marriage was illegal in classical antiquity, he stood on firm historical ground; while some scholars have read the satires of Juvenal and two Imperial biographies to claim that same-sex marriage was a common practice, there is almost no evidence for same-sex marriage being anything other than a dirty joke in the Roman imagination (as Michael Fontaine recently argued on Eidolon). The argument that gay unions deserve the same rights and privileges as straight ones is a deeply moral one, centered in ideas of civic equality and inalienable rights that go back centuries. But it’s not historical; we want to modernize marriage, not restore it.

If you’re reading this, you care about the classics, and if you’ve read this far then you care about the law; what does antiquity actually have to offer on the question of same-sex marriage? For me, the answer lies in one more case, Romer v. Evans (1996). The final decision (in which the Supreme Court held that Colorado could not forbid antidiscrimination policies protecting gays and lesbians) doesn’t talk about ancient history at all — and it’s not a coincidence.

At trial, proponents of the law tried to show that it wasn’t religious in character, and brought in an expert witness to testify that Plato strongly disapproved of gay sex. Martha Nussbaum disagreed, claiming that the first witness was mistranslating Plato’s use of tolmema, but herself relied on an outdated dictionary in doing so and was then accused of perjury.

The judge ended up washing his hands of the whole affair and decided the case on far more contemporary grounds. This strikes me as the right, wise answer. Lost in what Daniel Mendelsohn called “Translation Wars” was a critical question: why should gays and lesbians in Colorado care what Plato thinks of them? Ancient attitudes towards certain behaviors are not obviously correct or entitled to obedience by lawmakers 2,400 years later. Arguments about the modern world are just that, and if we who study antiquity want to participate, we ought to say something about the modern world in doing so, rather than arguing about historical tradition and hoping that’s enough.

And ancient history, rightly done, can say a great deal about how we should live today. Looking back over the Romer debacle, Martha Nussbaum explained that one way ancient sources can be used to help arguments for same-sex marriage is by showing us that what we see as “natural” was not always viewed as such. For the Greeks and Romans, marriage was an institution very different from our own, with practices we would find shocking today. Ancient historians can say with great confidence that marriage has changed enormously over the course of Western history, in ways that make same-sex marriage look like a drop in the bucket — our retort to those who say that letting same-sex couples marry will destroy Western civilization is not that they’ve been doing it for millennia, but that the unbroken tradition some judges like to cite is simply a mirage.

William F. Buckley famously said that “a conservative is a man who stands athwart history, yelling ‘Stop!’” Whatever her politics, a good historian’s job is to remind us that one who stands on history is resting on shaky ground indeed.

Zachary Herz is a graduate of Yale Law School and a Ph.D. Candidate at Columbia University, specializing in Severan legal history. He has also written on modern antidiscrimination law, including a forthcoming article on same-sex marriage litigation in the Tennessee Law Review. Follow him on Twitter.

The views expressed in this article are those of the author and do not reflect the views of the Paideia Institute.