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| Marriage. Nothing new. |
When I was listening the Obergefell hearing, I was not particularly surprised that several justices brought up the question of whether there were historical examples of same-sex marriage. I actually think this line of questioning was profoundly irrelevant. We can find plenty of historical examples, and even contemporary ones, for things that are prohibited by the constitution. I don’t need to go deep into history to find examples of the suppression of freedom of speech. Just as a lack of freedom of speech in other places and times says nothing of our rights, a lack (or even existence) of same-sex marriage in history would say nothing about whether or not it was part of basic human liberty.
Mary Bunoto was probably surprised by this line of questioning, since she couldn’t come up with any historical examples. In his dissent, Justice Roberts brought up this lack of historical example in arguing that marriage should not be protected for same-sex couples (while agreeing with the majority that aspects have changed over time, he still describes it as “unvarying,” a description that is at odd with what he had conceded).[2]
If the legitimacy of same-sex marriage rests on historical example, then same-sex marriage wins. We have examples.
Within American history, there are plenty of examples of same-sex couples who managed to con the authorities into issuing them marriage licenses. In the 1950s, a member of one Texas couple got up in drag, and thanks to a gender-neutral name, managed to slip through (though that marriage was later invalidated). I stumbled on an account of a nineteenth-century same-sex marriage (and an interracial one at that), in which one of the two said (erroneously) that he was a hermaphrodite. There are others, but examples of subterfuge don’t satisfy the Justice’s question of societies permitting same-sex marriage. For that, we go into history.
William Eskridge might have been able to help Mary Banuto, as in 1993 he wrote a paper on “A History of Same-Sex Marriage,”[3] starting with the example of We’wha, a Zuni leader of the late-nineteenth century. We’wha was a berdache, married to a man. Given that We’wha even traveled to Washington, D.C. (as an emissary of the Zuni), here we have an example that walked about in the very city where the Supreme Court sits. Moreover, it even meets the standard of a society that permitted same-sex marriage.
Michel de Montaigne, the sixteenth-century writer, wrote of a group of Portuguese men who were married in a church in Rome.
On my return from St. Peter’s, I met a man who mentioned two curious things: that the Portuguese paid their homage in Passion-week; and that on this particular day the Pope’s visitation was to the church of St. John Porta Latina, in which church a party of Portuguese, some years ago, entered into a very extraordinary society. They married one another, man to man, before the altar, with the same ceremonies that we observe at our marriages; received the sacrament together; read the same marriage service, and then went to bed and lived together. The Romans remarked hereupon that, as, in the other conjunction of man and woman, it is marriage alone that makes the connection lawful, so these worthies had taken into they heads that the other connection might be legitimatized in like manner, by preluding it with the ceremonies of the church. Eight or nine Portuguese, belonging to this respectable community, were afterwards burnt.Despite that church authorities burned these men (presumably for sodomy, heresy, or both), Montaigne does indicate some level of community support for their acts. It’s not gay sex that is sinful, just unmarried sex. I’m assuming that the possible ninth person killed for this might have been the priest who officiated for four couples. (The passage is not from his Essays, but from his journal of his travels in Italy.)
But we can go further back in time. Again Eskridge points out that early Jewish texts attributes tolerance for same-sex couples as an Egyptian practice (and Eskridge points to evidence that in antiquity the Egyptians had recognized same-sex relationships), and it strikes me that the opposition to same-sex couples in the Torah may have its roots in this rejection of Egyptian customs by people who were trying to distance themselves from their former status as an Egyptian client state.
When the Roman Empire when Christian, the new law codes made same-sex marriage illegal, and nullified all existing marriages between men. Eskridge notes that there are scant examples of same-sex couples in the Roman Empire. Even the claim made by Suetonius that Nero was in two successive marriages to men, should be taken in light of that he was the favored historian of the third dynasty of Emperors, and wrote a book trashing the reputations of members of the first two.
One of the problems with history (and even anthropology) is that the evidence is prone to interpretation. Given that Justice Alito cited Plato, he was certainly aware that Ancient Greek society had same-sex relationships as part of their cultural norms. An increasing number of scholars are now finding evidence that some of these relationships were treated as marriages (and there is clear evidence that many were of men of the same age, not ones of different ages).[4]
Again, in my view the entire line of questioning was irrelevant. It doesn’t matter that emperors of the Han Dynasty in China were expected to have male concubines (please note that a concubinage is a kind of marriage without rights inheritance for any offspring) when we’re discussing rights for gay people in the United States. I do not aspire to be a Chinese emperor. But to claim, as Chief Justice Roberts did, that marriage for same-sex couples lacks some measure of legitimacy because of a lack of historical examples isn’t simply philosophically wrong (which is is), but it’s also wrong on the facts.
- I know I’ve seen in at least two bio lines of prominent pundits words to the effect of “is now writing a book on the history of same-sex marriage.” ↩
- Got that? Marriage is unvarying, except for those parts that have changed. If you’re going to make a historical argument, try to be a little consistent. If you want to claim that marriage is unvarying, then it needs to be the same in every respect in 2015 as it was in 1915, 1815, 1715, and onward past 15 A.D. This is clearly an absurd suggestion. ↩
- Eskridge, William N. Jr., “A History of Same Sex Marriage” (1993). Faculty Scholarship Series. Paper 1504. [http://digitalcommons.law.yale.edu/fss_papers/1504]
(http://digitalcommons.law.yale.edu/fss_papers/1504). The paper was published in the Virginia Law Review. ↩ - In The Greeks and Greek Love, James Davidson points out that the “man-boy” relationships of the Greeks were between young men in their late teens to men in their early 20s. Not a huge age difference. He makes it clear that prepubescent males were sexually off limits. ↩
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