A lack of tradition

This past week the Supreme Court of the United States considered whether the right to same-sex marriage was protected under the Constitution. During the oral arguments for Obergefell v. Hodges the Court turned again and again to the idea of tradition in order to orient themselves towards arguments concerning the moral meaning of marriage. Justice Kennedy questioned the prudence of the Court should it overturn a definition of marriage which “has been with us for millennia,” and Justice Scalia challenged Ms. Bonauto, the plaintiff’s lawyer, to produce an example of “any society, prior to the Netherlands in 2001, that permitted same-sex marriage.” She could not, and in a line of questioning which supposed, similar to Justice Scalia, the primordial and continuous existence of marriage as an institution between man and woman, Justice Roberts suggested to Ms. Bonauto that “you’re not seeking to join the institution … you’re seeking to change what the institution is.” But, although tradition went unchallenged by the Court, it is not so monolithic as the Justices appear to take it. Ours is not the only definition of marriage to have existed in history. Homosexual men and women have lived since time immemorial, and their status in society has more often reflected the vagaries of particular cultures than any universal conception of morality. Throughout time and across space, homosexual partners have lived within society with varying degrees of openness, even to the extent of enjoying legally recognized partnerships which approximate every aspect of marriage as we would understand it.

In fact, in North America acceptance of homosexuality predates its condemnation. The Puritans were not the first humans on these shores, and if we are to make arguments about tradition, credence must be given to those who came before. Among many Native American tribes the Supreme Being was not thought of as specifically male or female, but rather as a combination of both. Males who took on traditionally female characteristics, including sexuality, were viewed as being of both sexes – a favor from the Great Spirit.[1] Alongside two-spirited males, females could also adopt similarly gender-bending roles. A pertinent example would be the Cocopa tribe of California where girls who adopted male fashions and hunted and fought with the men could as easily have a sexual relationship with another woman or even marry her.[2] There is also the particular case of a Gros Ventre woman who was raised among Crows during the nineteenth century and was known for her exploits in combat. She was reportedly a very successful hunter, and was counted among the highest chiefs. Eventually she would marry four wives despite dressing and identifying as a female.[3] Frankly the examples abound, the evidence is clear that our modern conception of marriage as existing only and entirely between a man and a wife cannot be applied across all times and cultures.

Nor is this unwieldy definition of marriage particularly relevant when confined only to the lineage of our Western-European cultural heritage. The homosexual behavior of the ancient Greeks is fairly well known. Spartans in particular were known for the tutelary relationships between grown men and boys wherein “the older man was known as erastēs (wooer) during the courtship and philētōr (lover) after the relationship had been publicly recognized.”[4] While this relationship was officially platonic since sexual play was forbidden, the ritual of initiation and integration into the male community carried a strong correlation to the ceremony of marriage.[5] Pederasty was so engrained with the culture that several revolts against and assassinations of tyrants are reported to have formed as a consequence of competing love affairs with well-born youths. Plutarch, in explaining this phenomenon, remarked that men would have “at first no quarrel with their tyrants … but when tyrants tried to seduce their beloved they spared not even their own lives in defending their loves, holy as it were, and inviolable shrines.”[6] The emphasis of this relationship was the love and fidelity of partnership which, while not necessarily sexual, could exist readily between male and female couples alike.

What’s more, the centrality of fidelitous companionship was not unique to the Greeks, and it continued into the period of the Roman Empire where the emphasis of “most popular literature … was on love and companionship of partners, whether it be heterosexual or homosexual, not on aimless sexual gratification.”[7] As an example, the Satyricon by Petronius Arbiter tells the story of a young Roman commoner whose misadventures thrust him into sexual encounters with lustful men and women who nonetheless disinterest him since his primary affection remains with his boyfriend Giton. In fact, their relationship is “depicted as tanamount to a common law marriage, and in fact is referred to by Petronius as a contubernium, a form of marriage involving non-citizens.”[8] In all, the literature of Imperial Rome suggests to us that formal marriages between same-sex couples were not uncommon. Examples even exist outside of literature. The notorious Nero’s marriage to two male lovers is well documented, as is the marriage of the Emperor Elagabulus to a male athlete from Smyrna.[9]

Besides, the idea of marriage for the purpose of procreation as the highest good was foreign not only to pagan Romans, but to early Christians as well. Vern. L Bullough argues that Christianity was born into a setting of ascetic thinking heavily influenced by Platonic ideals. He notes that “though the Christians never quite adopted absolute celibacy, since there was such strong biblical justification for marriage, they solved their conflict by recognizing marriage as a good but claiming celibacy as a higher good.”[10] Marriage was therefore a remittance from the “beginning of wrongs and violation of the law” which was born out of Adam and Eve’s exchange of “a life of immortality and bliss for one of mortality and wretchedness,” but it remained a diversion from the highest purpose of man as asexual, in imitation of God.[11] While homosexuality was seen as a particular wrong, it was but a part of the greater wrong of sex in general.

In sum, homosexuality does not exist outside of history. It does not suddenly intrude upon pure cultures from a foreign place. It does not spring up suddenly, and then depart mysteriously. Homosexuality has been present in human societies from the beginning, and ideas about its proper place have been as diverse as the people who have expressed them. The idea that no society has previously tolerated same-sex marriage is purely ahistorical. Such tolerance was present in these United States long before they should ever have been known as such. It existed among the small states of the Peloponnesian Peninsula, and in the streets of Rome which the Pope now treads. The strongest Empire Europe had ever seen was led at times by homosexual men, some of whom married other men. Tradition, is not all it’s cracked up to be.

[1] Walter L. Williams, The Spirit and the Flesh: Sexual Diversity in American Indian Culture (Boston: Beacon Press, 1992), 18-21.

[2] David F. Greenberd, The Construction of Homosexuality (Chicago: University of Chicago Press, 1988), 42.

[3] Ibid.

[4] Vern L. Bullough, Sexual Variance in Society and History (New York: John Wiley and Sons, 1976), 107.

[5] Ibid.

[6] Ibid., 108.

[7] James Neill, The Origins and Role of Same-Sex Relations in Human Societies (London: McFarland and Company, 2009), 206.

[8] Ibid.

[9] Ibid., 208.

[10] Bullough, 172.

[11] Ibid., 168.

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