A (Partial) History of Same-Sex Marriage

Marriage. Nothing new.

Same-sex couples may now marry in all fifty states, and people are beginning work on histories of the marriage-equality movement.[1] I hope that these histories go back far enough. There is a stark difference between this history of same-sex marriage and the history of same-sex marriage in the United States.

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.

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Marriage Equality — At Last!

Let freedom ring!

I’ve been waiting a long time for this! I’ve been arguing in favor of same-sex marriage for more than twenty years. When California authorized domestic partnerships, I saw them as half a loaf (or maybe even less, given the limited rights initially granted, though even this was better than the almost completely symbolic domestic partnerships that the city of Laguna Beach offered in the early 90s).

Opposition to marriage equality came from not only those who sought to roll back gay rights, but also from those who, though in favor of gay rights, were either opposed to marriage itself, or felt that the gay community should be pursuing other goals. If you had asked me in 1995 if employment protections or marriage equality were more achievable, I would have said, “no doubt about it, employment.” I’ve seen arguments that we should have gone for ENDA. Employment protections are important, but during the same time that Obergefell moved through the courts, the Republicans have been in control of Congress. The Employment Non-Discrimination Act has no chance of budging in a Republican-controlled Congress. In other words, if all our efforts for marriage equality in the last five years had been applied to employment non-discrimination for LGBT people, we’d be in the same place on employment, and still not have marriage equality.

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“Speak Now” — Well Spoken

Read now!

I’d like to start with belated congratulations to Professor Kenji Yoshino for his marriage (truly belated; he married in 2009). The day Speak Now arrived at my door, my husband and I were watching Professor Yoshino on the The Rachel Maddow Show, where he was discussing the (then) upcoming Supreme Court hearing on same-sex marriage with Steve Kornacki (who was subbing). I made a comment about two gay men watching two gay men talk about same-sex marriage.

“Is Yoshino gay?” I noted that he was. “Is he married?” That I didn’t know, although I opened my copy of Speak Now and read as far as the dedication to Ron Stoneham. Perhaps? I didn’t need to read further than page 1 to find out the answer. Yoshino and Stoneham married in 2009. They have two children. In of themselves, they embody the sort of people that lawyers for marriage equality might want to have as plaintiffs, a point that he brings up in his book.

Speak Now has the longer title of Speak Now; Marriage Equality on Trial; The Story of Hollingsworth v. Perry (shades of the eighteenth-century long title, because that is a long title), but in addition to being the story of Hollingsworth v. Perry, it contains a lot of biographical information about Kenji Yoshino, bringing to mind the old adage, “the personal is political.” That Yoshino made Speak Now personal, even though he was not personally involved in the Perry trial in any way is something that gives the book much of its power.

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Spencer’s Sleeping Knight — Faerie Queene, Book 2, Canto 8

Knighty knight.

It’s been a while (again) since I did a post on The Faerie Queene. The book has (seemingly permanent) residence on my desk, and so it hurry it back to its location on my shelves, I really need to get this blog post out. It’s not that I haven’t read Book 2, Canto 8, I have. I read it, started writing, and put it aside.

When I was an undergrad, one of my professors commented that “‘it bored me to tears’ is always a perfectly reasonable critical response.” It bored me to tears. This suggestion comes too late for Edmund Spenser, but perhaps it will save someone else: don’t put your protagonist into a deep slumber. Sure, it worked for Sleeping Beauty, but face it, that story is really about the prince (who has a thing for comatose women).

Like the sleeping princess, stuff happens around Sir Guyon while he’s asleep, but he’s really not involved in any of it. I’m not looking to Elizabethan poetry for white-knuckled excitement, but at least if we had shifted our focus to another character, we wouldn’t have Spenser reminding us, “that guy is sleeping through all of this.” I blame Edmund Spenser for the tardiness of this post.

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Dare Defend the Right to Marry in Alabama

As in 1865,
surrender is the honorable option

If, even a few months ago, I had tried to come up with a list of states that would have marriage equality before a Supreme Court ruling granting it to all,[1] Alabama wouldn’t have made it onto that list. But here we are.

On February 9, 2015, Alabama became the thirty-eighth state to permit same-sex marriage, though like two other states, Kansas and Missouri, that right is not being respected uniformly through the state.[2] That gives us thirty-five states (and the District of Columbia) were same-sex couples can marry, three states where they can get married in some parts, and twelve states where same-sex couples cannot marry.

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Judicial Wisdom on the Law of God

I'm sorry, judge, but Mithras disagrees with you.

This one’s a little out of turn. I tend to like to post things in connection with the date they appeared in the paper, and this appeared on April 6, but it seemed so current that I figured why wait until April (when it might not be quite as pertinent).

It’s a little bit of judicial wisdom on the intersection of the civil law and people’s religious beliefs, the sort of thing we’re seeing right now. We’ve got the Latter Day Saints proposing a ban on discrimination against gay people with a loophole so large that anyone could get through it. If people can’t discriminate on the basis of sexual orientation in public accommodation, hiring, or housing, except when their religion tells them they should, gay people are protected from discrimination from anyone who actually wouldn’t discriminate against gay people. Protection from those who would discriminate? Not so much.

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What Does a Ketubah Mean to a Catholic?

Not a ketubah, alas.

The New York Times has an article about a lesbian couple in Boston who are surprised that they were turned down by a rabbi when they sought to marry. The couple, Julia Spiegelman and Erina Donnelly seem to be the last people to find out that many rabbis won’t perform interfaith ceremonies.

For those of you who are late to this party, the Reconstructionist movement was the first to call for equal treatment and the full integration of gay people into synagogue life. That mean, even if without a marriage license, celebrating same-sex unions. They were followed in this by the Reform movement and finally the Conservative movement. So, about 90 percent of American Jews belong to movements that permit same-sex weddings.

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Can You Name these Legitimate Arguments Against Same-Sex Marriage?

Legitimate matching rings.

Over at The Dish, Andrew Sullivan has a post titled “There Are Legitimate Arguments Against Same-Sex Marriage,” although the (very short) post is just reference to a Damon Linker piece on the homophobic views of the late political philosopher Leo Strauss. And so I ask: Where are these legitimate arguments?

[A digression (you could skip this part): I’d get a lot more blogging done if I did it in the manner of Andrew Sullivan. Write a couple sentences, quote a couple meaty paragraphs from someone else’s blog. There you go. Quick content. However, when I started this blog, I made a promise to myself that my words would always outnumber anyone else’s.[1] Happily, since I’m only quoting eight words from Sullivan, this is an easy standard today.]

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Mad Money — Faerie Queene, Book 2, Canto 7

I could take it that way, but
couldn't you just write me a check?

It’s been a while since I last dipped into The Faerie Queene. Initially, I figured I’d treat it like a class assignment and rip through it, but it didn’t work that way. I am still intent to get to the end of this work. Equally, though, I am insisting that this should be a pleasure, not a burden. After a month’s delay (not a single post on this subject in November), I return to the poem.

I’ve been doing some other stuff with some tight deadlines, and let me be blunt (as I frequently am about this): these pages don’t get a lot of traffic. In the last ten days, five Faerie Queene posts have been read, one each, from a four locations. You people might want to get together. Since I was in the midst of something with fixed deadlines, I cut back on the posting, and let my copy of The Faerie Queene gather (metaphoric) dust.

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Think of Poor Oklahoma

34 States today. One more coming tomorrow

With today’s decision starting marriage equality in Montana (and bringing the total to 34 states), there’s now a nice solid block of the western states, a good chunk running from New England down to the upper South, and a group of Midwestern states. But this leaves Oklahoma there in the midst of states that don’t marriage equality, joined to a state that does, only by the Panhandle. Had the Republic of Texas not ceded the area, poor Oklahoma wouldn’t be adjoining any marriage equality state, saved only by a narrow connection to New Mexico.

There are parts of the country that continue to surprise me. The Sixth Circuit decision certainly caught me by surprise, though it might be the case that sends marriage equality to the Supreme Court. I would have thought the Fifth Circuit would be more likely, though we are still waiting for the appeals on that one.

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Marriage Equality in Twenty-Nine States!

If not outdated, it will be soon

Now I’m playing games with the data; I’m just giddy. With twenty-nine states with marriage equality, we’ve got three groups of states. In the Northeast, we have Massachusetts, Maine, Vermont, New Hampshire, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia, West Virginia, and North Carolina (Massachusetts goes first and gets bolded because it was first. And bold). In the Midwest, we have Indiana, Wisconsin, Illinois, Minnesota, and Iowa. And in the West, we have Washington, Oregon, California, Nevada, Utah (never thought that would happen this early), Colorado, New Mexico, and Oklahoma.

If we want to link them all together, we could go with Montana, North Dakota, and Ohio. Starting with Montana, we could substitute in South Dakota and Kentucky. Or we could go for Wyoming, South Dakota, and (as before) either Ohio or Kentucky. I’d like to believe that Ohio was more likely, but the map at Wikipedia says otherwise.

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Why the Louisiana Marriage Ruling Doesn’t Bother Me (Much)

Our love is bigger than Louisiana

The winning streak is over. I’ve lost count of how many district court wins there have been for marriage equality since the Windsor decision last June. Let’s just call it a bunch. That bunch of cases includes each of the appeals districts, and in many of those districts, there have been further rulings (including one today) that have called for overturning bans on same-sex marriage.

Judge Martin Feldman is aware that he is running contrary to the stream of opinions, and he certainly is entitled to believe that he is right and all those other judges are wrong. On the other hand, I’ve read the opinion, and this is not one for the ages. Paige Lavender (is that her real name?) writing at Huffington Post offers what she calls The 6 Most F*&%ed Up Parts Of The Louisiana Gay Marriage Ruling.

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Posner on Same-Sex Marriage Is Music to My Ears

Matching bands! An an assault
on tradition!

Yesterday, the New York Times (and lots of other places) reported on the August 26 hearing at the United States Court of Appeals for the Seventh Circuit. This was a combined hearing in which the states of Indiana and Wisconsin (both in the Seventh) attempted to defend their bans on same-sex marriage before an appeals court of three judges.

Of the three judges, Ann Clair Williams, David Hamilton, and Richard Posner, most of the media attention has been on Judge Posner, never a shrinking violet. Posner, until fairly recently, maintained a blog, originally titled “The “Posner Blog,” until he started collaborating on the blog with Gary S. Becker. A quick check of the blog shows that with Becker’s death, Judge Posner decided to terminate the blog.

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An 1888 Same-Sex Marriage

The first marriage of a
same-sex couple?

Many opponents of, or even those skeptical of same-sex marriage act as if same-sex couples are some sort of modern novelty, and Supreme Court Justice Samuel Alito made the claim that same-sex marriage was “newer than cell phones.” Even if same-sex marriage were newer than cell phones, it’s not clear that would necessarily put it outside of constitutional protection.

An article in the Springfield Daily Republic of Springfield, Ohio on July 13, 1888, suggests that same-sex marriage might be significantly older than the cell phone. The article describes it as perhaps “the first case on record where one man was duly married to and living with another.” For that, of course, they had to get around the usual procedures.

How they did that, it’s not clear. Perhaps George Burton had been living long enough as a hermaphrodite that they were able to convoke the clergyman, J. Y. Campbell, that Burton counted as a woman. But then why did they name the bride Georgeann Holly?

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Protection of Marriage —1920 Edition

Till death, or Congress,
do you part

One of the claims made by the opponents of marriage for same-sex couples is that by allowing same-couples to marry, marriage will be further devalued. Some go on to say that the real enemy is divorce (since in any given year, it’s likely that there will be more divorces of opposite-sex couples than marriages of same-sex couples), but that if they give up on same-sex marriage, they will never be able to fight divorce.

That doesn't seem to make a whole lot of sense to me (then again, the objections to same-sex marriage don't make any sense to me). What if they tried it? Then they could find out what the public reaction was, if they had any hope of making divorce difficult or impossible to obtain.

It would seem that in 1920, someone tried just that: fighting divorce, and the New York Evening World was having none of it, printing this editorial on July 10, 1920.

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The Real History of Same-Sex Marriage

Michel de Montaigne
A possible heterosexual who saw
where men married men

In Florida today, Matt Staver of the Liberty Counsel, an anti-gay law firm (they describe themselves as defending “Christian religious liberty, the sanctity of human life, and the traditional family”) testified at hearing in Miami today concerning whether the Florida ban on same-sex marriage is unconstitutional.

Staver appeared as an amicus, and if the courtroom had been struck by lighting each time he uttered an untruth, the building would be a smoking ruin. For example, he brought up the study done by Mark Regnerus, the University of Texas sociology professor, and made sweeping claims based on it. I actually think Staver’s description of Regnerus’s conclusions went far beyond anything that Regnerus actually claimed.

Staver also brought up Stanley Kurtz’s study of marriage rates in Scandinavia. I haven’t heard that one in a long, long time. Kurtz does have a Ph.D. in social anthropology, but he’s not an academic. His claim that same-sex marriage caused a drop-off in the rates of marriage in the Scandinavian countries was much loved by opponents of same-sex marriage. It was also debunked as soon as someone looked at the marriage rates the decade before same-sex marriage, when marriage was declining even more sharply.

But Staver’s biggest error was his claim that same-sex marriage didn’t exist in history before it was legalized in the Netherlands in 2001. Sorry, Mr. Staver, but your history is off.

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Kentucky Marriage Ban Unconstitutional, Ruling Stayed

Patience, good people of Kentucky, it will come.The Courier-Journal reports that the Kentucky bans on same-sex marriage have been struck down, however, the ruling has been stayed pending appeal.  US District Judge John G. Heyburn II has ruled that Kentucky's constitutional and statutory bans on some-sex marriage violate the US Constitution. The judge wrote that

In America, even sincere and long-hold religious beliefs do not trump the constitutional rights of those who happen to have been out-voted.

 The state had produced one of the flimsy justifications given for bans on same-sex marriage, but the judge said that

no rational relation between the exclusion of same-sex couples from marriage and the commonwealth's asserted interest in promoting naturally procreative marriages.

and that

These arguments are not those of serious people.

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Same-Sex Marriage at Ten

The New York TImes has been looking at same-sex marriage, as it turns ten in the United States. Ten years ago, on May 23, 2004, the Times published their first announcements of same-sex marriage ceremonies. In today’s paper, they looked at the five couples whose marriage announcements were in that 2004 edition of the newspaper. (I’m going to guess that they would have preferred to run this article back in May, but had trouble getting hold of someone.)

Ten years later, four of those couples are still together. The one that divorced was, ironically, the most famous of all. I have long suspected that Hillary and Julie Goodridge, the plaintiffs in Massachusetts, realized their relationship was over before the end of the court case, but also knew that if they broke up, it would render the case moot. They had gone on too far to say, “oh, we’ve decided we don’t care to get married after all, so just forget the whole thing.”

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Same-Sex Marriage: The (Bad) Argument from Tradition

The Anglican theologian Bishop N. T. Wright has made an argument against same-sex marriage in which he makes an appeal to tradition. Wright makes the claim that

the word “marriage,” for thousands of years and cross-culturally has meant man and woman. Sometimes it’s been one man and more than one woman. Occasionally it’s been one woman and more than one man. There is polyandry as well as polygamy in some societies in some parts of history, but it’s always been male plus female. Simply to say that you can have a woman-plus-woman marriage or a man-plus-man marriage is radically to change that because of the givenness of maleness and femaleness. I would say that without any particular Christian presuppositions at all, just cross-culturally, that’s so.

He suggests that given that history has never given us examples of same-sex marriage, there must be something radical about same-sex marriage. He’s wrong in many ways. Mordecai Kaplan, whose thoughts gave rise to Reconstructionist Judaism, said that tradition gets a vote, not a veto. But in his argument from tradition, Bishop Wright gives tradition the full veto. But arguing that same-sex marriage should not be allowed because it is not in the tradition, isn’t just an improper appeal to tradition, it’s also a misreading of history.

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Marriage Equality in the U.S. — The Current Summary

Yesterday, a friend asked me a question about marriage equality lawsuits, but I didn't have an answer at my fingertips. In order to clear things up, some numbers:

0 - This is the number of states that do not have marriage equality, a court decision overturning a ban on same-sex marriage, or an active court case that seeks to overturn a ban on marriage equality.

20 - This is the number of states with marriage equality. The latest addition is Wisconsin. It seems unlikely that Judge Crabb will be issuing a stay. The jurisdictions, in order, are:

Massachusetts, Connecticut, Iowa, Vermont, New Hampshire (yeah, New England), District of Columbia, New York, Washington, Maine, Maryland, Rhode Island, Delaware, Minnesota, California, New Jersey, Hawaii, Illinois, New Mexico, Oregon, Pennsylvania, Wisconsin. (I'm putting California in the post-Prop 8 position.)

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