BY Marc Stein ON May 4, 2015
As I listened to the Supreme Court’s oral arguments in the same-sex marriage case a few days ago, I began to worry about the questions that you and the other justices asked and the answers you received about the history of marriage over the last millennium. Most of the questions and answers began with the assumption that marriage, always and everywhere over the past 1000 years, has only joined together men and women. In the discussions that ensued, there were many good points raised about the ways in which marriage has changed significantly over the course of history, touching especially on the legalization of interracial marriage, the prohibition of polygamous unions, and the transformation of gender hierarchies. It’s good that these issues were discussed and highlighted, but I’m concerned that there were other relevant questions about the history of marriage that were not asked and answered during the oral arguments. I worry especially about some of the false assertions that were made about the essential and definitional features of marriage across centuries and centuries of human history. So I’m offering you a few questions that could and should have been asked and hoping that experts on the history of marriage might help the Supreme Court find useful answers.
(1) Insofar as marriage has meaning as a legal institution, a religious practice, a community ritual, and a type of personal relationship, when, where, and why have same-sex couples married over the last millennium? When same-sex marriage has not been legally recognized, has it existed as a religious practice, a community ritual, or a type of personal relationship? To take several examples, what do we know about women who formed “Boston marriages” in the nineteenth century? Is there evidence that same-sex couples engaged in wedding rituals and marriage ceremonies in the early and middle decades of the twentieth century? Does any of this matter in your consideration of the definition of marriage?
(2) When, where, and why did marriage become a legally-recognized institution? After this occurred, how did the state address marriages that were not legally recognized? When and where did the state recognize common-law marriages? How did European countries and American colonies with established religions (typically Catholic or Protestant) address marriages that were performed outside of the established church? In colonial and other contexts, how did the state address marriages that formed in the absence of recognized legal or religious authorities? How did U.S. and state laws address Native American marriages and marriages that had occurred on land that the United States conquered and claimed? How did U.S. and state laws address slave marriages before the Civil War? After slavery was abolished (except as punishment for crime), how did the United States and the states address pre-Civil War slave marriages? Why do we refer to frontier, Native American, and slave marriages as “marriages” if they were not legally recognized under U.S. and state law? Do we do so because these marriages were meaningful to the marital partners and to the communities and cultures in which they took place?
(3) When, where, and why did U.S. or state officials engage in examinations and investigations to determine that two individuals who wished to marry were “male” and “female”? How were such examinations and investigations conducted? In marriage practices, did biological males ever present themselves as women and did biological females ever present themselves as men? What happened when this occurred? Do we know how frequently this occurred? Did the couples involved think of themselves as “man” and “woman”? Did intersex people ever marry? How did the state handle their marriages?
(4) When did states first pass laws that explicitly restricted marriage to one man and one woman? Why were these laws passed? Before these laws were passed, did the states decline to recognize same-sex marriages because of explicit legal restrictions on marriage, because of common-law definitions, or because of longstanding social and cultural assumptions about marriage?
(5) What religions have recognized same-sex unions, partnerships, and marriages? When, where, and why did they do so?
(6) What do we know about the history of same-sex marriage as a community ritual and a personal relationship? Have same-sex couples ever referred to themselves as married? Have they ever been referred to by others as married? Have U.S. subcultures ever recognized same-sex marriages? Which subcultures? Have same-sex marriages ever been recognized in meaningful ways by people inside and outside of the cultures and communities in which these marriages occurred? Why or why not?
(7) If we use the 14th Amendment’s equal protection clause to invalidate state restrictions on same-sex marriage, what do we do about equal protection claims by single people who suffer from discrimination based on marital status?
I hope you find good answers to these questions, Tony. By the way, please thank Antonin for inspiring what may be generations of political groups, sports teams, drag performers, and specialty cocktails that will be named Refreshing Abominations.
Marc Stein is the Jamie and Phyllis Pasker Professor of History at San Francisco State University and the author of several books on the history of sexuality, constitutional law, and social movements, including Sexual Injustice: Supreme Court Decisions from Griswold to Roe (2010) and Rethinking the Gay and Lesbian Movement (2012). In 2014, his essay “Sexual Rights and Wrongs: Teaching the U.S. Supreme Court’s Greatest Gay and Lesbian Hits” was published in Understanding and Teaching U.S. Gay, Lesbian, Bisexual, and Transgender History, edited by Leila Rupp and Susan Freeman.