5,000 Years of Marriage?

by Cliopatria

One thing I keep seeing from conservative advocates of the Federal Marriage Amendment is the statement that every society on Earth over the past 5,000 years has legally defined and defended marriage as being between one man and one woman, and therefore we must continue in that tradition.

Leaving aside both the argument that what we have always done we must always continue to do and any of the merits or demerits of gay marriage, the basic factual claim being offered is hugely false in a number of ways. If we really were bound by the commonality of historical precedent in human history, our marriage statutes would look quite radically different than they do today, and quite different from what the Federal Marriage Amendment proposes.

For one, to make contemporary marriage continguous with the generality of historical precedent, we'd absolutely need to have a provision for polygamy. Over the broad span of human experience, it's a much more common form of marriage arrangement, and often has been legally or quasi-legally sanctioned and defined.

We'd probably need some statutes recognizing legal or contractual arrangements like concubinage, which have also been somewhat common.

We'd need some provisions for eunuchs and their relationship to married households--reasonably though not universally common.

We'd probably need some statutes regulating bridewealth and dowry options: very common in the past 5,000 years.

I don't think there would be a huge amount of precedent for dealing with exclusively homosexual marriages or contracts in that 5,000 years of history, but certainly many societies, including classical Greece, somewhat formally or quasi-legally recognized male-male relations as legitimate and even approved. Lesbians, as far as formal precedent in past human societies go, are kind of out of luck: there's far fewer structural or institutional forms relating to female-female bonds or contracts. (Though lesbian acts and relations have probably been as common or more common than male homosexual acts or relations over the past 5,000 years.)

If the supporters of the FMA want to be clear that they are defending the modern, Western innovation of the exclusively heterosexual companionate marriage, then I have no factual quibbles. If they want to assert that the general norm of human sexuality over the longue duree is heterosexual, I might be able to agree, as long as they'll agree to the proviso that homosexual acts have been a part of every society I know of and have often not been stigmatized or suppressed. But they can't possibly claim that the long-term history of marriage in every human society is one man to one woman, till death do they part. Marriage and its associated practices (divorce, inheritance, household structure) is one of the more variable social forms in human experience. The FMA has little to do with 5,000 years of human history: this is a distinctively modern debate, being fought about the terms of modern life.

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Richard Henry Morgan - 2/26/2004

I would add that I don't think the Colorado amendment was a "gender issue", only that the rational relations test applied (sexual orientation had not been held by the USSC as deserving of strict scrutiny protection). My point was that the USSC might assimilate the orientation question to the gender question, and now give both intermediate scrutiny protection -- whatever the hell that means.

Richard Henry Morgan - 2/26/2004

Just to return to the Nussbaum question, and the legal questions for a moment.

I think Bradley's point is this. The suit was brought in state court alleging that the state amendment violated the federal constitution -- yes, as weird as it may seem, state judges do sometimes decide issues of state law based on the federal constitution.

The USSC had not, until that point (and here I'm thinking that this preceeded the VMI case), made gender a category deserving strict scrutiny, only the rational relations test -- if they had some reasonable basis, then that would be sufficient to sustain the amendment. Thus, a disagreement between scholars would not invalidate the amendment. In the VMI case, as is her wont (O'Connor spent time in the Arizona legislature), O'Connor played Mother Courage and split the baby -- gender differences in the law deserve "intermediate scrutiny". One might think the distinctions between strict scrutiny and rational relations were not always so clear as to invite an intermediate category to further muddy the waters, but ... Justice Black would certainly have had a fit, as he couldn't understand the theory of partial incorporation of the 14th -- either it incorporates all the Bill of Rights, or none.

I think Bradley's point is this. He has Nussbaum saying that the ancient Greeks were quite positive in their assessment of homosexual relations -- a blanket approval. He also has her saying that any view that it was "unnatural" derives from later Christian views of natural law. But Bradley contends that the positive view of homosexual relations was an upper-class phenomenon, and didn't extend to pleasure by the passive recipient -- there was no blanket approval. He also quotes Plato on the "unnatural" issue, contra Nussbaum.

Now I'm not expert in these areas. For me it is interesting from the point of view of the advocacy v. scholarship question. But that, in any case, is how I read (imperfectly, no doubt) the Bradley piece.

Ralph E. Luker - 2/26/2004

Tim's point about expert witness is especially germane. I've tried to get someone to investigate the testimony of historians in the tobacco litigation. It appears to be one place where at least one very prominent historian has compromised his credibility. Unfortunately, it was a credibility that was already pretty seriously otherwise compromised.

Timothy James Burke - 2/26/2004

Well, I do think I would advise any historian to be pretty careful about signing a legal brief because it strikes me that most historical scholarship is going to contain claims which may be orthagonal to legal reasoning, e.g., that you're going to have to stipulate to something that isn't quite true but isn't quite false, either. In fact, I'd say that a lot of expert witness in legal proceedings has that character. It's an interestingly specific test case of public involvement where we might be able to formulate some rules or guidelines that asserted a kind of "quality control" over the way one functions as an advocate.

Richard Henry Morgan - 2/26/2004

I don't understand all the issues, nor then can I endorse Bradley's view. I think the other issue (advocacy versus scholarship, and its relationship to assessment in the academy) has been underexamined, and underaddressed. Assuming ex hypothesi that Bradley is correct (on Mohr or Nussbaum) brings that issue into clear focus. And academia, as far as I can tell, hasn't worked out how to address that problem -- or even if it is a problem. I can't imagine signing a brief I didn't believe in, and I can't understand signing one that involves one's field of expertise and then claiming that it carried only my "citizen" imprimatur. I can't understand that any more than I can understand yahoos claiming that the institution of marriage is 5,000 years old. They're all of a piece, to my mind -- one is just a vice of the educated, the other the uneducated.

Timothy James Burke - 2/26/2004

I actually have some trouble following the legal reasoning in that article, but on the question of historical fact that seemed to be (oddly to me) at the core of the case, I sort of feel like everyone got it wrong, but also that the author of that article is misreading--deliberately or accidentally--the gap between what Nussbaum said in court and what Nussbaum, Dover and others say in their monographs. I don't see Nussbaum as misrepresenting her scholarly views--the problem is that the key issue in contention was being lost in the legal framing of the problem.

The point in contention, it seems to me, is the status of homosexual intercourse in 4th Century Athens. What Nussbaum is pointing out in her scholarship, and most translations of Athenian texts reocrd, is that homosexual intercourse per se was stigmatized among Athenian citizens. This is true. I think Gerald Bradley, the author of the piece in the link, is missing that this does not mean that homosexual relations were disapproved of or regarded as abnormal. Quite the contrary.

Male Athenian elites had a low opinion of being the passive recipient in sex acts in general: it was a role assigned to boys, slaves and women. Some also felt that anal sex was degrading even to the man who was the active partner. The usual sex act between an adult man and the teenager he was mentoring involved placing the penis between the legs of the younger man and rubbing until orgasm. The passive partner was not supposed to receive any sexual pleasure per se in this act. There was no reciprocity: Greek homosexuality was clearly very much an expression of the power of male citizens over the rest of society.

So Nussbaum is right in that trial to insist that homosexual relations were highly regarded by male Greek citizens, but equally right in her published work to observe that they had a low opinion of homosexual intercourse. "Unnatural" is a language that simply wouldn't have occurred to classical Greeks; certainly in The Symposium, there isn't a single figure who asserts that homosexual relations per se are a deviation from "natural law".

The only quote from Nussbaum's testimony that is a bit debatable in my mind is the notion that such relations were never considered shameful: Greek male citizens who were passive recipients of same-sex intercourse, for example, would definitely have been seen as shameful. Nor would I quite call these relations "romantic", in general, at least not as we tend to mean the word.

Bradley's overstating his case, but certainly there's an interesting tension between the scholarship and the advocacy here. It highlights a general problem in public-sphere arguments: some "translation" or simplification of scholarship is necessary for mere brevity, let alone comprehension. I'm not sure when it goes too far--it's a judgement call in each case.

The real problem in the case Bradley describes, as far as I'm concerned, is that neither Finnis NOR Nussbaum should be trying to derive a justification for homosexuality in the present from the classical Greeks: they were just plain different, and their views of sexuality don't map at all well onto our own, no matter what your views of homosexuality might be.

Richard Henry Morgan - 2/25/2004

The question is claimed to apply in this case:

http://www.leaderu.com/ftissues/ft9406/opinion/opinion.html

Timothy James Burke - 2/25/2004

Well, we're talking about this somewhat in the context of Simon Schama's comments just a bit further down in Cliopatria and also at Crooked Timber and Invisible Adjunct. Beyond that, it's a general concern of mine.

I'd say, yeah, you should act outside the academy with many of the same standards that bind you inside of it. I think the fact of public work should count to your credit at hiring/promotion/tenure before we worry about assessing its quality--e.g., the commitment to be public should be a good thing. Work in the public sphere isn't subject to the same kinds of peer review, so it might be hard to assess it in the same way in terms of quality--and it might be dangerous, given the way many academics feel about popularizers, to even try to assess public work in that way. But there probably ought to be a way to argue that someone who has tried to expand their academic work into the public arena in a way that is actively unethical could be criticized for violating academic standards.

Richard Henry Morgan - 2/25/2004

Tim, you might get a kick out of this. Then again, you might not. In any case, it brings up a pet peeve of mine: whether professors who engage in public debate on the great matters of the day outside the university, and invoke their expertise in doing so, are bound by the academy's aspirational commitment to truth, honesty, fair argument, etc., and whether their public work in such a situation should be a part of any basis for hiring, promotion and tenure, or be protected from such by an appeal to academic freedom. Your thoughts?

Timothy James Burke - 2/24/2004

I was thinking of Dover (and scholarship that follows on him) as well, but I don't think homosexual mentoring had any kind of contractual basis, and so someone could fairly say that it wasn't related to marriage, whatever it was. Also, if we're going to be fair and say that the 5,000 years claim from FMA advocates is meant to be about common or general patterns in human history, you could note that perhaps classical Greece wasn't all that common in this respect.

I haven't seen a single person making the 5,000 year claim (or any of its rhetorical variants) provision even the least citation. Let's face it--even the BIBLE can't be cited authoritatively for that claim.

Richard Henry Morgan - 2/24/2004

I couldn't agree more, with just one caveat, and one question. As I understand it, male-male relations in ancient Greece (and here I think I'm relying on K. J. Dover) had a limited cultural approval/tolerance as a mentoring relationship. I think the Theban forces had a companion relationship as an organizational pillar in there forces. There was some brouhaha over this question, I believe, maybe a decade or so back, involving a Colorado case. I think the details are available at the National Association of Scholars site.

My question is, do the defenders of "traditional" marriage ever cite a source for their 5,000 year claim?