Halsall, P. (1996, Jun. 1) Lesbian and Gay Marriage through History and Culture. Ver.2.1.
Currently in the United States there is much legal and cultural activity surrounding the possibility of the legalization of "gay marriage". As of December 1995, a law case underway in Hawaii may lay the ground for legal recognition of same-sex unions.
With or without the law, same-sex couples have been going ahead and celebrating public ceremonies of commitment for many years now, although the number of such ceremonies seems to be have been increasing recently.
Such legal moves, as well as the efforts by lesbian and gay couples to be recognized as such, face denunciation from some conservative voices who assert that by nature and divine will only relationships between men and women can be considered "natural". And, to be honest, there is also an unease expressed by some lesbian and gay activists who, recalling
the critique of patriarchy made by 1970's feminism, see "marriage" as an irretrievably heterosexual institution.
This paper seeks not to establish that same-sex marriages were universally common in the past or in other non-Western cultures -- such is plainly not true - but that same sex marriages did occur in sufficiently diverse historical and cultural contexts as to refute the assertion that "marriage" is irretrievably or "naturally" heterosexual. In other words, this paper shows that same-sex marital relationships, far from being recent effusions of American gay politics, have been and are conceivable to people in a wide range of periods and cultures. And the implication drawn is if that they are conceivable they are possible.
The issue of what is "marriage" is a core issue. The Roman Catholic Church, for instance, defines a Catholic marriage as a sacramental union entered into permanently between one baptized man and one baptized woman. There is a similar definition given in the Corpus Iurus Civilis - the basic text of Roman Law. With such a definition, the very idea of "same sex marriage" becomes meaningless. But the issue cannot be settled by a priori definitions: as even conservative Catholic sources will acknowledge, real "marriages" exist in many forms that cannot be fit into imple models; for instance it would be pointless to deny that polygamous marriages were or are "real marriages."
No one denies either that committed, and even long term, same-sex relationships have occurred in many diverse cultures. But such private relationships are not what we consider as "marriage", any more than we would consider all long-term romantic relationships between a man and woman as "marriages". When we do try to separate marriage from other union relationships, though, we face a problem - there are no simple lines of demarcation.
In past societies, and sticking with heterosexual examples, relationships called by the words we would translate as "marriage" have in fact comprised wildly divergent arrangements:
In all these cases the relationships have been called "marriages". What do they have in common? Or in other words, can we establish a general definition of "marriage"? A viable alternative, after all, might be to accept that there is no such transcultural institution as "marriage", and that each society manifests essentially different patterns.
What such "marriage relationships" seem to have in common are these factors:
Not included as essential are:
In modern American and Western European society, however, other factors than those offered in the first list are also almost always expected in what is defined as "marriage". These include:
In looking at marriages - same-sex and mixed-sex - in the past, I suggest that we can take the word "marriage" to have a meaning. When certain criteria are met, it is legitimate for us to consider specific relationships as assimilable to what we consider "marriage". It may be that such relationships were not described by the word usually translated as "marriage" in the culture under discussion, or might not fit modern notions of "marriage" . However, where the following aspects are found, I consider that there is evidence of "marriage" - same-sex or otherwise:
I wish to acknowledge the "presentist" bias here, but since this paper is concerned to look at past arrangements to help inform current discussion, I think this is legitimate.
To make this discussion concrete, let us take, for example, the Romans. Rome had a sophisticated legal culture in which "marriage" -- conubium -- could only be contracted between citizens: slaves could not marry, nor could citizens marry non-citizens. It is, in fact, quite possible that there were areas in which most people were legally incapable of "marriage". (One implication here is that very many early Christians - slaves and freed people - in domestic "marital" relationships were not "married" according to Roman Law.) But, where we come across a couple, living together and raising children, acknowledged by all as a couple, I think we can consider the relationship "marital". A classic case is that of St. Augustine of Hippo. He never legally married, yet he lived with a women for many years, raised a child with her, and, when he eventually separated from her, took care to make sure that she did not go to another man. This was not a Roman conubium and does not seem to have had a ceremonial inception, but would fulfill, I think, what any external observer, informed of the variety of
world marital customs, would see as a "marriage". Certainly Augustine would have been "married' in Scotland. Where we find similar indications for same-sex couples - domestic cohabitation, public recognition of he relationship, extension in time, customary regulation - then I propose we also have evidence of "marriage".
Modern United States
There much discussion about gay marriage in the US as a new development. But even in the US, the idea was expressed as soon as it was legally and culturally possible. A full timeline by email@example.com is available at the same-sex marriage homepage, but the maintainers of that page advised me that the page was put together for commercial reasons and, contrary to the spirit of the Internet, could not be quoted in full here [as was done in an earlier version of this document]. The basic facts, largely derived from the aforementioned timeline but presented here in different language and format, are as follows. We can note that, contrary to some claims that same-sex marriage is of particular interest only to middle class and white gays and lesbians, couples from many different communities within the lesbian and gay community have been concerned over this issue.
In this period there seems to have been little action around same-sex marriage. One reason may have been that until then the lesbian and gay movement was on an upswing, The backlash associated with Anita Bryant and her successful attack on gay rights in 1977 lead to some need to focus energies on protection of gains already made. And then AIDS from the early 1980s dominated the entire lesbian and gay agenda. It may have been discussions around AIDS and its cultural effects, however, which lead to a re-emergence of the same-sex marriage issue. In the first place AIDS dulled the exaltation of multiple partners celebrated by both male gay culture and gay leaders in the 1970s, and one of the most frequent attacks made on the Catholic Church in this period [and I will leave aside the fairness of the attack] was that by denying any institutional form and support for gay relationships it had helped "murder" people who died from AIDS.
Another aspect of the AIDS epidemic was that, like all the apparent disasters in modern gay and lesbian history, it did by making closeted gays come out, further the creation of a self-confident and increasingly self-assured lesbian and gay community. With the visible moral bravery of so many gays and lesbians, it became much easier, perhaps, to throw off ingrained heterosexist prejudices - for instance that gays were unloving, unstable and inherently immoral.
The epidemic has buried such beliefs, at least for the public lesbian and gay community. Burial of such beliefs is, I suspect behind the demands of the large gay and lesbian population -- against the advice of a more cautious leadership - for the right to marry. This most recent phase begans in 1986.
1996 - The Furor.
The Baehr case has led to a massive nationwide burst of activity on this topic. As of Monday, April 29, 1996 and since the May, 1993 ruling in Hawaii possibly paving the way for same-sex marriage rights there, FIVE states have passed anti-marriage laws: Utah, South Dakota, Hawaii, Idaho, Georgia, and Kansas. (Hawaii's is unlikely to matter for the recognition of marriage there because of certain state constitutional aspects of Baehr.) [The following states have passed some form of anti-marriage law prior to Baehr. Many of these were passed in the 1970s in response to same-sex marriage cases brought at that time, while others have been part of the marriage statute for far longer.
These may be statutes expressly limiting marriage to one man and one woman, and/or statutes explicitly forbidding same-sex marriage: Arizona (CORRECTION from last week), Colorado, Indiana, Louisiana (explicit), Maryland, Minnesota, Texas (explicit), and Virginia, (explicit). Most of these laws were passed contemplating only same-sex marriages contracted WITHIN their respective states. Most post-Baehr legislation is directed primarily at marriages contracted OUTSIDE of the respective state. Therefore, there may be differences in the legal effects of pre- and post-Baehr laws. (Also notice that some states with already-existing anti-same-sex marriage laws are considering new ones.)
In the second week of May, 1996 the DEFENSE OF MARRIAGE ACT (HR 3396/S 1704) was ntroduced by Bob Barr (R-GA) in the House and Don Nickles (R-OK) in the Senate, and passed the House in late May 1996. President Clinton, desperately trying to avoid this as an election issue, has said he will sign the bill.
In his review of John Boswell's Same Sex Unions in Pre-Modern Europe, the classicist Brent Shaw sneered at Boswell for being "careless...with modern vocabulary" and for using the term " heterosexual matrimony" in respect to ancient Rome. From Shaw's legally orientated point of view, this might seem fair. It might also be fair comment if same-sex marriage [as defined in the introduction above] were a cultural anomaly, a product of "pathological societies."
I would argue that such a position is impossible to maintain. Although much evidence has probably been suppressed or overlooked, there is no need to make an ex silentio argument about same sex marriage. In a large variety cultures, and in many historical epochs human individuals and human cultures have shared the idea that publicly recognized same-sex domestic relationships could be conceived in terms we would now describe as "marital".
If I have demonstrated this, using scholarship that is not really difficult to locate, I think that one important part of the resistance of both cultural conservatives and some radical gays and lesbians is undermined. 'Marriage" has been at some times and in some places a purely heterosexual phenomenon, but a sufficiently large array of other times, and other places same-sex couples people have been considered "married" as we now understand the term.