Hanging over the Supreme Court decision legalizing same-sex marriage is a simple question: Why didn’t anyone think of it before? Why did the question never come up? Why has no other culture institutionalized marriage between two members of the same sex?
In his dissent John Roberts wrote:
And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational.
He adds that there are reasons why marriage has always been between a man and a woman. He dismisses the notion that marriage was defined in order to exclude gays and lesbians.
In his words:
Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history— and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and a father committed to raising them in the stable conditions of a lifelong relationship.
Of course, the Court majority pointed out that we no longer have arranged marriages, but have marriages based on love. As I pointed out in my book The Last Psychoanalyst this represents a misunderstanding of history.
Marriage was revolutionized when women gained the freedom to choose a mate. Perhaps romantic love is more important to women than it is to men, but surely women do not choose husbands purely on the basis of romantic love. Saying as much is saying that women are hopeless sentimental and irrational. Most women do love their husbands but their choice is based on a myriad of other factors—good character, status in the world, capacity as a breadwinner, parental approval.
Women do not fall in love with just anyone. Men don’t either.
When arranged marriage was supplanted by what we call love marriage no one imagined that marriage expressed romantic love. It remained a social institution, albeit one where women gained more freedom and more responsibility for their choices.
Even when love enters the equation, it does not make marriage as an expression of romantic love. Throughout most of human history the province of romantic love has been adulterous relationships. And those, we know, have been open to both men and women.
Roberts makes the same point.
In his words:
They did not, however, work any transformation in the core structure of marriage as the union of a man and a woman.
But then, Roberts makes the following statement, statement that led Washington Post reporter Ishaan Tharoor to do some historical research.
Roberts wrote of the Court’s decision:
As a result, the Court invalidates the marriage laws of more than half the states and orders the transformation of a social institution that has formed the basis for human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
Of course, five justices are saying that their wisdom is greater than that of nearly the entirety of the human species. It may be true, but then again, what if it isn’t?
When he read Roberts’ statement, Tharoor responded that the four cultures mentioned did not have “traditional unions.” It would be a useful argument if Roberts had said that these cultures practiced traditional unions. More likely the chief justice was saying that even some of the most extreme human cultures, cultures that experimented with sexual behavior and rules, recognized marriage as the union of a man and a woman.
Tharoor summarizes the customs and behaviors of the four groups, beginning with the Kalahari Bushmen:
The Kalahari Bushmen don't have very strong wedding practices, and don't pay much attention to ceremonies around mating.
Early European accounts of tribes and kingdoms encountered in southern Africa included details of warrior women styling themselves as kings (not "queens"), polygamous households where lesbianism was common, and even ancient Bushmen rock paintings depicting explicit homosexual sex.
What about warrior women depicting themselves as kings? Doesn't that sound familiar?
As for the reference to paintings depicting explicit homosexual sex, if I recall correctly, Giotto’s Last Judgment at the Arena chapel in Padua shows homosexual sex. And surely, the Decameron does not depict a very virtuous group of pilgrims. So what?
As for the Kalahari Bushmen, are we really sure that we want to make them our role models? Do we really want to emulate them?
Tharoor mentions that gay marriage is not and has never been legal in China, not even among the Han Chinese. What exactly does he think that that proves? He adds:
During the Han dynasty, the ancient lineage of kings that gives the Han their name, homosexuality was rife. Almost all the emperors -- you know, the lawgivers of the land -- of the Western Han dynasty apparently had same-sex lovers.
Again, so what? Plato talks about homosexual love. Having gay lovers has not throughout the course of human history had any effect on the institution of marriage. If these relationships were openly acknowledged, then perhaps they were not always considered to be shameful. Gay sex, after all, does not hold the risk that other forms of adultery had: conception.
Tharoor mentions that Carthage was a paradise for homosexuals. It may or may not have been true, but recall how Carthage fared in the Punic Wars with Rome. They were not fought over the question of homosexuality: they were fought for dominance in the Mediterranean. In the end Carthage was completely destroyed.
Again, do we really want to emulate Carthage? And besides, however rife homosexual love was in ancient Carthage it did not change the nature of marriage.
Tharoor then quote a description of marital customs in Aztec civilization:
Marriage was conditional in that the parties could decide to separate or stay together after they had their first son. Marriages could also be unconditional and last for an indefinite period of time. Polygamy and concubines were permitted, though this was more common in noble households and marriage rites were only observed with the first, or principal, wife. Aztec families could live in single family homes, though many opted to live in joint family households for economic reasons.
But, what is a conditional marriage? Doesn’t it exist in a slightly different form in a culture where divorce is easy to obtain… like ours?
Tharoor mentions that the Aztecs also practiced human sacrifice, so perhaps we should not be too eager to emulate their way of doing things.
As for living arrangements, these have differed in different places and at different times throughout human history. So what. Obviously, these arrangements do not resemble the nuclear family, but that might merely demonstrate the flexibility of some human customs. It might tell us that the nuclear family is a better solution. It might also show that cultures that practice these alternative living arrangements do not survive for very long. Surely, the Kalahari Bushmen are not leading the world in technological innovation and industry.
And, by the way, where are the Aztecs now? How did all of that work out for them?