The U.S. Supreme Court, any day now, will issue a decision about gay marriage as it considers the constitutionality of the federal Defense of Marriage Act and California’s Proposition 8, the two cases with a potentially huge impact for the more than 600,000 gay couples in the United States.
Many conservatives are concerned about this ruling, believing that a federal acceptance of gay unions would constitute a fundamental change in the nature of marriage. “A broad negative ruling could redefine marriage in the law throughout the entire country,” the United States Conference of Catholic Bishops said this spring. The bishops urged the court to uphold both laws and “thereby to recognize the essential, irreplaceable contribution that husbands and wives, mothers and fathers, make to society and especially to children.”
Even Justice Anthony Kennedy seems to be under the impression that something big could change here. As he put it back in March: “We have five years of information to weigh against 2,000 years of history or more.”
This is misleading. Worried about the government recognizing gay marriage? It only recently started recognizing straight marriage. People have been getting married for roughly 4,000 years, but specific state-recognized marriage between any two people of opposite genders is only about 400 years old.
AT FIRST GLANCE, THE prospect of gay marriage sure looks like a dramatic change in the definition of marriage. While the rules for marriage are different in different societies (and there is some evidence of same-sex unions in Ancient Greece and Rome, and in some regions of China), the idea of the wedding as being (basically) a union of people of opposite genders is pretty well established.
For millennia, marriage was about property and power rather than love. Parents arranged their children’s unions to expand the family labor force, gain well-connected in-laws and seal business deals. Sometimes, to consolidate inheritances, parents prevented their younger children from marrying at all. For many people, marriage was an unavoidable duty. For others, it was a privilege, not a right. Often, servants, slaves and paupers were forbidden to wed.
But a little more than two centuries ago, people began to believe that they had a right to choose their partners on the basis of love rather than having their marriages arranged to suit the interests of parents or the state.
The relatively recent trend of state-recognized marriage has nothing to do with the idea of marriage as “natural” union under God and human nature. As Columbia University history professor Steven Mintz puts it: “Whenever people talk about traditional marriage or traditional families, historians throw up their hands. We say, ‘When and where?’” There is no such thing as “traditional marriage.” Different societies in different times have had very different marriage traditions.
But historically, until the Protestant Reformation, most European states didn’t recognize the marriages of anyone without assets—about 85 percent of the population. God may have created Adam and Eve, but the state only cared about ownership of the Garden of Eden.
It’s true that we can go back and find records of our peasant ancestors’ marriages. But the churches kept those records. The European central governments usually only acknowledged marriages of people with land.
Even the church had a sort of evolving relationship to marriage. The early Christian church considered marriage a civil institution, but over time, as the state weakened, the church took over more and more of the responsibilities. It declared marriage a sacrament, a Christian rite believed to have been ordained by Christ and one of the central steps in the performance of the religion, in 1215. Even then there was no uniform religious ceremony used to perform a marriage—couples simply promised themselves to each other (the promise was known as the “verbum”) as they saw fit. Some 300 years later the church declared that marriages should be performed by a priest and take place in public, with witnesses.
It was only in the 16th century that we established the government recognition of “straight” marriages. As part of the Protestant Reformation, the role of recording marriages and setting the rules for marriage for the landless shifted to the state, at least in Protestant countries, because the Protestants didn’t consider marriage a sacrament. Martin Luther declared marriage to be “a worldly thing … that belongs to the realm of government.”
Over time the evolving role of women in society redefined marriage again, much as it has always changed to reflect people’s economic and social requirements. Coontz:
But huge as the repercussions of the love revolution were, they did not make same-sex marriage inevitable, because marriage continued to be based on differing roles and rights for husbands and wives: Wives were legally dependent on their husbands and performed specific wifely duties. This was part of what marriage cemented in society, and the reason marriage was between men and women. Only when distinct gender roles ceased to be the organizing principle of marriage – in just the past 40 years – did we start down the road to legalizing unions between two men or two women.
REDEFINITION OF MARRIAGE OCCURS all the time. Polygamy was common among the ancient Hebrews, and also practiced by people in historical China, Africa, and in Mormon communities in the United States in the 19th century. Until the middle of the 19th century a married American woman had no property of her own. Any money she earned was considered her husband’s. Until the 19th century, most Western marriages had very little to do with love and were essentially a property transmission agreement between two allied families. New York was the first American state to outlaw rape within marriage … in 1978. Society has, in fact, already redefined marriage to include gay couples; many states and foreign countries already recognize gay marriage. Many churches in the U.S., including those of the Conservative and Reform Judaism, the United Church of Christ, Quakers, Episcopalians, and some Lutherans, already perform them.
So much of the argument about gay marriage, by both supporters and opponents, has to do with the ambiguous thing about “God’s natural law” or “just letting people love one another,” or even the desire of the states to promote healthy reproduction. As McGill University law professor and ethicist (and gay marriage opponent) Margaret A. Somerville puts it:
Marriage is, and has been for millennia, the institution that forms and upholds for society, the cultural and social values and symbols related to procreation. That is, it establishes the values that govern the transmission of human life to the next generation and the nurturing of that life in the basic societal unit, the family. Through marriage our society marks out the relationship of two people who will together transmit human life to the next generation and nurture and protect that life. By institutionalizing the relationship that has the inherent capacity to transmit life — that between a man and a woman — marriage symbolizes and engenders respect for the transmission of human life.
That all makes a lot of sense, but historically marriage had nothing to do with any of these things. As far as the state is concerned, it was only a marriage if it had assets attached to it. (That’s pretty important to gay marriage, too; at least as far as some advocates are concerned, the fight to legalize it is about taxes, inheritance, health care benefits, and property rights.) For everyone else, you could say you were married, you got married by the church or something, but legally you might as well just be living together, as “companions.”