Halsall, P. (1996, Jun. 1) Lesbian and Gay Marriage through History and Culture. Ver.2.1.

Introduction

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.

Definitions

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:

• relationships between one man and many women. [polygyny - in many societies, for example Islam, ancient Israel]
• relationships between one man with a chief wife and subordinate wives and/or concubines. [China]
• relationships between one woman and many men. [polyandry - in Tibet] age dissonant relationships between one man and one woman where the man was usually an adult of about 30 and the woman a fifteen year old [e.g. Classical Athens, Renaissance Italy]
• relationships in which one man and one woman marry at roughly the same age, but without ever having met before.[Among some Orthodox Jews, in many Indian and Chinese societies.]
• relationships in which one man and one woman marry because they love each other. [so-called "companionate marriage" - the modern norm, and often traced back to the Protestant Reformers views on marriage.

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:

• Domestic cohabitation
• Communal recognition
• Customary rules of conduct
• Some sort of ceremonial inception
• Some extension in time

Not included as essential are:

• Legal recognition - marriage exists in societies without legal functions, or non-legal marriage is recognized even in "legally-minded" societies [e.g. in modern Scotland it is still possible to be married by "habit and repute".
• Love relationships.
• Child-rearing - children are often desired, but are not required.
• Monogamy.
• Permanence - divorce or permanent separation is allowed is most societies.

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:

• Emotional commitment
• Legal recognition
• Monogamy

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:

• Domestic cohabitation
• Public, or semi public, ceremonies of union
• Communal recognition
• Extension in time

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 rod@nether.net 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.

• 1970 The Los Angeles County Clerk requests the California legislature to tighten its laws on marriage after receiving many inquiries from gay couples wanting marriage licenses
• 1971 Baker v. Nelson in Minnesota, the first same-sex marriage case brought in the United States, is ruled against plaintiffs Richard John Baker and James Michael McConnell. The case was made by direct constitutional argumentation, citing the 9th and 14th amendment and recent rulings banning anti-miscegenation laws. The court rejected the case by stating that "The institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.", by arguing that "... abstract symmetry' is not demanded by the Fourteenth Amendment," and by rejecting the parallel with marital restrictions based upon race.
• 1973 -- Jones v. Hallahan, a Kentucky case, is also ruled against plaintiffs, both female. Court of Appeals Kentucky 501 S.W.2d 588 (1973) The arguments this time was based, inter alia, on the "right to marry" which had been ruled by the U.S. Supreme Court, the right to free exercise of religion, and an odd argument that refusal of a marriage license subjected petitioners them to cruel and unusual punishment . Again the court rejected the case based on dictionary definitions of "marriage".
• 1974 -- Singer v. Hara. Plaintiffs John F. Singer and Barwick argued that Washington marriage statutes did not prohibit same-sex marriages; therefore a license must be issued. Although the usual US constitutional grounds were cited, the case here is interesting as the plaintiffs cited the states Equal Rights Amendment (ERA) which forbade discrimination on the basis of sex. Since this strategy has apparently proven useful in Hawaii, it is noteworthy that it was used 20 years earlier.
• 1974 -- Two black lesbian mothers from Dayton, Ohio sued for the right to marry. They lacked both legal representation and support from the local gay community. They lost.
• 1975 -- Two men from Phoenix are granted a marriage license by a county clerk. This license is later revoked.
• 1975 -- The County Clerk of Boulder CO, Cela Rorex issues Dave Zamora and Ave McCord a marriage license, on advice of the states' DA, This causes a month-long rush on the clerk's office by same-sex couples seeking marriage licenses, until the state Attorney General voided the D.A.'s recommendation. All licenses were later revoked.
• 1975 -- In April, the Arizona Supreme Court deemed recent gay marriage attempts unconstitutional, paving the way for the state legislature to pass an emergency bill defining marriage as possible only between a man and a woman.
• 1975 also saw a number of other efforts around same sex marriage in Maryland, Washington, D.C., and Chicago [see the same-sex partnership page timeline for details]

1976-1985

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.

• 1986 -- The ACLU's Executive Director and Board of Directors say their organization will seek to eliminate legal barriers preventing gays from marrying. "ACLU Seeks to Lift Gay Marriage Bans" (AP), in The Chicago Tribune, October 29, 1986
• 1989 -- The Bar Association of San Francisco calls for gay marriages, and in Chicago, two journalists for gay publications, Rex Wockner and Paul Varnell, file complaints with the Illinois Department of Human Rights charging the state with sex discrimination because it refuses to allow gay marriages. "A Nontraditional Way to Say 'I Do'" by Clarence Page, in The Chicago Tribune, October 8, 1989.
• 1989 A Time magazine poll reports 69% of respondents disapprove of gay marriages; 23% approve, 8% are unsure. "Should Gays Have Marriage Rights?" by Walter Isaacson, in Time, November 20, 1989, p 101-102
• 1990 -- Several gay couples apply for and are denied marriage licenses at the Cook County clerk's office in Chicago, and a bill is filed in the California legislature allowing for gay marriage. It is endorsed by the California Bar Association and the Bar Association of San Francisco.
• 1991 -- The Massachusetts Coalition for Lesbian and Gay Civil Rights launches a campaign to pass a gay marriage bill. The group found a handful of Democratic co-sponsors. "Coalition Readies Bill to Recognize Same-Sex Marriage" by Kay Longcope, in The Boston Globe, June 12, 1991
• 1991 -- Dean v. D.C.[15], a District of Columbia same-sex marriage case, is ruled against plaintiffs Craig Dean and Patrick Gill. No constitutional issues are raised. District of Columbia Superior Court, No. 90-13892 (1991). Plaintiffs argued that the D.C. Marriage and Divorce Act authorized gay marriage, and that the D.C. Human Rights Act forbade discrimination in issuance of marriage licenses. The court cites previous cases as well as the bible, and alleges a legislative intent to disallow gay marriages. The D.C. Human Rights Commission sided with the couple, contending that the marriage bureau violated city law by discriminating on the basis of sexual orientation. The author of the city's Human Rights Act testified that the Council did not intend to forbid gay marriage. The court noted that two years prior to adoption of the act, the District did reject a proposal that would have explicitly recognized gay marriage. Tom Stoddard of the Lambda Legal Defense and Education Fund responded to the ruling: "If we do file another [gay marriage] case, it should be in a state with a political climate that is relatively favorable to gays and lesbians, and it should be filed in a state court and deal with a state constitution."
• 1992 -- In a Newsweek survey, 58% of respondents disapprove of gay \ marriage; 35% approve, and 7% are unsure. - quite a change in attitude from the poll conducted three years earlier (see above).
• 1993 -- Baehr v. Lewin [21], a landmark same-sex marriage case in Hawaii, rules that the state's refusal to issue marriage licenses to three same-sex couples, Joseph Melillo and Pat Lagon, Genora Dancel and Nina Baehr, and Tammy Rodrigues and Antoinette Pregil. Dan Foley is their lawyer, presumptively violates Hawaii's Equal Rights Amendment (ERA) barring discrimination on the basis of sex (a "suspect class" due to the ERA). There are other legal cases going on - for instance in LA - but this is the central case for the time being.

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.

Conclusion

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.