Same-sex mar­riage is older than ‘mil­len­nia’

The Washington Post Sunday - - SUNDAY OPINION - BY WIL­LIAM N. ESKRIDGE JR. The writer is pro­fes­sor at the Yale Law School. He coau­thored an ami­cus brief in the case Oberge­fell v. Hodges.

The Supreme Court is ex­pected to de­cide the fate of mar­riage equal­ity for same-sex cou­ples by the end of the month. If the court re­quires the recog­ni­tion of mar­riages be­tween same-sex cou­ples, the main crit­i­cism from those who ob­ject to the rul­ing will un­doubt­edly be that the un­elected jus­tices have “rede­fined” mar­riage con­trary to the male-fe­male def­i­ni­tion ac­cepted for “mil­len­nia.”

In­deed, the re­def­i­ni­tion con­cern jump-started the April 28 oral ar­gu­ments in Oberge­fell v.

Hodges. Chief Jus­tice John G. Roberts Jr. noted that ev­ery dic­tionary he checked that was pub­lished “prior to about a dozen years ago” de­fined mar­riage as be­tween one man and one woman. Thus, if the court ac­cepted the con­sti­tu­tional chal­lenge, would it not be re­defin­ing and per­haps un­der­min­ing mar­riage?

Jus­tice An­thony Kennedy said: “This def­i­ni­tion has been with us for mil­len­nia. It’s very dif­fi­cult for the court to say, oh well, we know bet­ter.” Jus­tice Sa­muel Al­ito asked: “How do you ac­count for the fact that, as far as I’m aware, un­til the end of the 20th cen­tury, there never was a na­tion or a cul­ture that rec­og­nized mar­riage be­tween two peo­ple of the same sex?”

All of the jus­tices and coun­sel ad­dress­ing this point ac­cepted the premise that no cul­ture had ever rec­og­nized same-sex mar­riage. That premise is in­cor­rect.

First- and sec­ond-cen­tury his­to­ri­ans Sue­to­nius and Tac­i­tus (dis­ap­prov­ingly) doc­u­mented of­fi­cial same-sex mar­riages in im­pe­rial Rome. Some mod­ern his­to­ri­ans have found plau­si­ble ev­i­dence of such mar­riages among Egyp­tians, Canaan­ites and Hit­tites and on is­lands in an­cient Greece. So it is not right to say that the Western tra­di­tion had never en­ter­tained mar­riages be­tween peo­ple of the same sex un­til the 20th cen­tury.

The ev­i­dence is over­whelm­ing for non-Western cul­tures. In their 1951 book “Pat­terns of Sex­ual Be­hav­ior,” an­thro­pol­o­gists Clel­lan Ford and Frank Beach sur­veyed 191 world cul­tures and found many ex­am­ples of same-sex in­ti­macy oc­cur­ring “within the frame­work of courtship and mar­riage.” They were mainly re­fer­ring to “ber­dache” mar­riages, in which a man would marry another man who per­formed do­mes­tic du­ties or a woman would marry a woman who worked out­side the home. Re­searchers have demon­strated that a ma­jor­ity of Na­tive Amer­i­can tribes (as well as­many tribal peo­ple else­where in the world) have rec­og­nized such mar­riages at points in their his­to­ries.

An­thro­pol­o­gists have also doc­u­mented the phe­nom­ena of “woman mar­riage” in African so­ci­eties, in which a wealthy woman mar­ries another woman and then se­cures her im­preg­na­tion, thereby gen­er­at­ing heirs. An­thro­pol­o­gist Denise O’Brien re­ports that such mar­riages have been rec­og­nized in more than 30 African cul­tures.

There are other ex­am­ples (some more equiv­o­cal), but these show that there has been no uni­ver­sal def­i­ni­tion of mar­riage that ex­cludes same-sex cou­ples. What is the point of this history?

One les­son is that “mar­riage” is an evolv­ing, so­cially adap­tive in­sti­tu­tion. In 1950, an­thro­pol­o­gists de­fined “mar­riage” as a po­ten­tially pro­cre­ative union of one man and one woman. But in the next 20 years, undis­puted ev­i­dence of woman mar­riages, ber­dache mar­riages and other same­sex unions across dozens of cul­tures up­ended that def­i­ni­tion. By the 1970s, an­thro­pol­o­gists had set­tled on an un­der­stand­ing of mar­riage as a so­cial in­sti­tu­tion serv­ing a va­ri­ety of pur­poses — not just pro­cre­ation and in­her­i­tance, but also per­sonal re­la­tion­ships and al­liances.

In a sense, an­thro­pol­o­gists “rede­fined” mar­riage, but a sec­ond les­son is this: They were pro­fes­sion­ally com­pelled to re­de­fine the term once they learned that such in­sti­tu­tions were in fact more plu­ral­is­tic than pre­vi­ously thought. Far from im­pos­ing their own def­i­ni­tion, they were rec­og­niz­ing a “re­def­i­ni­tion” that bet­ter re­flected the world.

We can re­turn to the chief jus­tice’s ques­tion and con­sider a third les­son. Tra­di­tional mar­riage law in this coun­try was one man, one woman be­cause its fo­cus was state chan­nel­ing of pro­cre­ative in­ter­course. Thus, states such as Ohio (Jim Oberge­fell’s state) pre­vi­ously crim­i­nal­ized sex out­side mar­riage, de­nied rights to il­le­git­i­mate chil­dren, made wives legally sub­servient to their hus­bands and made it hard to di­vorce. These rules made it more likely that chil­dren would be born and raised in a mar­i­tal en­vi­ron­ment.

To­day, Ohio places no bar­rier to con­sen­sual sex out­side mar­riage, treats non­mar­i­tal chil­dren and wives as equal cit­i­zens and al­lows easy di­vorce. Ohio has rede­fined the fun­da­men­tal na­ture of mar­riage to ac­com­mo­date al­most all adults who love one another, in­clud­ing cou­ples who have no in­ten­tion or ca­pac­ity to pro­cre­ate.

About the only group left out of this rede­fined in­sti­tu­tion is gay peo­ple. Un­less the court wants to re­de­fine the con­sti­tu­tional re­quire­ment that states pro­vide ev­ery­one the “equal pro­tec­tion of the laws,” that ex­clu­sion is a vi­o­la­tion of the 14th Amend­ment.

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