Defending Traditional Marriage

Who knew? As a gay man I did not. A lot of really smart and influential people also seem to be unaware of the facts.

Given what’s about to happen we would all do well to know the real facts before we jump to conclusions. Thanks to William Eskridge, professor of law at Yale, we no longer need to be uninformed. [link]

Authorities no less than Chief Justice John G. Roberts Jr. noted in Supreme Court arguments in April that every dictionary he checked that was published “prior to about a dozen years ago” defined marriage as between one man and one woman.

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?”

The main criticism from those who object to marriage equality for gay and lesbian couples is that it “redefines” marriage contrary to the male-female definition “accepted for millennia.” Everyone, including most gay people, simply assume that premise is correct. It is not!

We are simply misinformed to say that the Western tradition had never entertained marriages between people of the same sex until the 20th century.

First and second century historians Suetonius and Tacitus document official same-sex marriages in imperial Rome.

Modern historians have found plausible evidence of such marriages among Egyptians, Canaanites and Hittites and on islands in ancient Greece.

The evidence is also overwhelming for non-Western cultures. In 1951 anthropologists surveyed 191 world cultures and found many examples of same-sex intimacy occurring “within the framework of courtship and marriage.”

Researchers have demonstrated that a majority of Native American tribes as well as many 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. Such marriages have been recognized in more than 30 African cultures.

There are other examples, but these show that there has been no universal definition of marriage that excludes same-sex couples. Professor Eskridge asks the obvious question: What is the point of this history? He then draws some conclusions.

One obvious conclusion must be that “marriage” is an evolving, socially adaptive institution. In 1950, those who study human cultures defined “marriage” as a potentially procreative union of one man and one woman. But in the next 20 years, undisputed evidence of same-sex 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.

Was this a “redefinition” of marriage? In a way it was — it was the correction of a prevalent misconception of the facts. They brought to our attention that “marriage” has been much more inclusive and pluralistic than previously thought. Far from imposing their own definition, they help all of us come to a necessary “redefinition” that better reflects human history and practice across cultures.

Traditional marriage law in this country was one man, one woman because of an essential concern for the welfare of children. Thus, most states previously criminalized sex outside marriage, denied rights to illegitimate children, made wives legally subservient to their husbands and made it difficult to divorce.

Today we place no legal barrier to consensual sex outside marriage. Wives are not inferior. Children born outside of marriage are guaranteed “equal protection of the law.” Although divorce is never easy, “no fault” divorce certainly reflects a significant legal reform in the way we think about this foundational social institution.

We have seen in our own lifetime a fundamental shift in the way we define “marriage” to accommodate adults who love one another.  In this definition we are increasingly recognizing the many gay and lesbian couples not only make life-commitments, they are often conscientious parents of children as well.

To my knowledge the only traditional understanding we are unwilling to redefine is the legal right to marriage for the many couples — in our own families, sometimes our parents or our own children — who have no intention or capacity to procreate.

About the only group legally excluded from this human institution Americans call “marriage” is gay people. That’s been changing in the United States and around the world. And if we know our facts, well it should!

___________________

I have quoted liberally from Professor Eskridge’s June 19 article in the Washington Post cited above. In addition to crediting him as my source, I want to express my sincere gratitude to the professor for “teaching” us what too many of us had not known.

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