A New Right Grounded in the Long History of MarriageRoundup
tags: Supreme Court, LGBT, marriage, gay marriage
On Friday, when the United States Supreme Court recognized a constitutional right to marriage, it turned to history to explain its decision. “The history of marriage as a union between two persons of the opposite sex marks the beginning of these cases,” wrote Justice Anthony Kennedy, on behalf of the 5-4 majority. “To the respondents, it would demean a timeless institution if marriage were extended to same-sex couples.” But, he added, this view of marriage as timeless and unchanging was contradicted by an abundance of scholarly work. “The history of marriage is one of both continuity and change.”
When the Supreme Court met last April for oral arguments in Obergefell v. Hodges, the justices spent a lot of time talking about past. The question seemed to be—on whose side is history? Can a historical case be made for legalizing same-sex marriage, or would this be some kind of radical break with thousands of years of legal and cultural history of matrimony?
The history lesson began from nearly the first moment of oral arguments. Plaintiff’s attorney Mary Bonauto introduced her position, fielded a quick question from Justice Ginsburg, then argued that her client and a “whole class of people” were being denied the right to “join” in an “extensive government institution.” Chief Justice Roberts jumped in, “Well, you say join in the institution. The argument on the other side is that they're seeking to redefine the institution. Every definition that I looked up, prior to about a dozen years ago, defined marriage as unity between a man and a woman as husband and wife. Obviously, if you succeed, that core definition will no longer be operable."
Roberts was just the beginning. Justice Stephen Breyer, assumed to be sympathetic to the plaintiffs, also referenced thousands of years of marriage tradition that didn’t include same-sex couples. Anthony Kennedy and Antonin Scalia cited anthropological evidence for marriage customs, both ancient and contemporary. Justice Samuel Alito talked about ancient Greece and Plato. Bonauto was forced to concede, “I can’t speak to what was happening with the ancient philosophers.”
Fortunately, there are people who can speak to the ideas of ancient philosophers. I consulted Anise Strong, an assistant professor of history at Western Michigan University. Strong, the author of the forthcoming book Prostitutes and Matrons in the Roman World, studies gender and sexuality in the ancient world and the use of ancient history in the modern era. She notes that despite the approval by Plato and his social circle of “short-term, possibly unconsummated (‘platonic’) relationships between older man and teenage boys whose beards had not yet grown,” it’s true that ancient Greeks did not have gay marriage. Instead, they favored:
Closely endogamous marriages between uncles and nieces (and sometimes half-siblings), marriages in which women retained almost no property rights or independence and were regularly both physically segregated and violently abused, and a system in which marriage was designed explicitly to increase and safeguard the property of closely related men while encouraging the production of definitely legitimate male heirs to those men through tightly restricting access to their wives.
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