A History of Same-Sex Marriage

Opponents of same-sex marriage argue that the concept is oxymoronic. Marriage, they say, must involve a man and a woman because (1) that is the definitional essence of marriage, (2) the Judeo- Christian tradition requires it, and/or (3) the modem Western nation-state has structured society around the assumption that only different-sex marital unions are allowed. Proponents of same-sex marriage dispute and often ridicule these assertions. Thus far, neither side has analyzed these arguments in the context of the history of marriage itself. That is the project of this Article. Part II, the heart of this Article, recounts the history of same-sex marriage, synthesizing scholarship in the fields of social anthropology, ethnography, mythology, comparative literature, sociology, and ecclesiastical history. Most of the scholarship is of recent vintage, reflecting the post-Stonewall interest in the topic. This contemporary literature tends to be sympathetic to gaylesbian concerns, and much of it is written by openly bisexual, lesbian, and gay scholars. The same can be said of this Article, for I also share the methodological perspective of this new scholarship-social constructionism-which I explain in Part I. A social constructionist history emphasizes the ways in which marriage is "constructed" by society over time, with "exclusions" from the institution being viewed as reflecting larger social power relations. Thus, the exclusion of same-sex couples from marriage in America is an expression of our society's persecution of sexual orientation minorities- lesbians, gay men, and bisexuals. Our insistence that marriage be an option available to us is part of an historical process by which the victims of society's dividing practice (sexual deviation) have come to resist and defy the power of that stigma. This Article situates that resistance in the larger history of Western culture's shifting attitudes toward same-sex intimacy, and in the even larger context of other cultures' more favorable attitudes toward same-sex intimacy. Part III explores the implications of this history, initially addressing debates within the gay, lesbian, and bisexual community about whether we even should be seeking the right to marry (I argue that we should), and then turning to the legal arguments developed in Part I. The history has both "defensive" and "offensive" argumentative power. It reveals the traditional arguments against same-sex marriage to be seriously defective: the definitional argument essentializing marriage around male-female intimacy is factually wrong; the argument from Judeo-Christian tradition is hypocritical, given early Christianity's tolerance of same-sex intimacy; and the pragmatic argument is revealed to rest upon a normatively questionable status quo.