From 2003 to early 2009, I wrote a series of historically-grounded papers that reached the common conclusion that marriage equality represented a radical departure from the western tradition of marriage and so, for that reason, should be rejected as a matter of public policy. I have now changed my mind regarding this conclusion. While there is no question that marriage equality represents a dramatic departure from what has gone before, I can now find support within our western tradition for expanding the definition of marriage to embrace loving, committed same-sex unions.
Let me begin with my professional background: I am a lawyer and an historian. These two sides of my brain co-exist in what I like to think is, for the most part anyways, a creative tension. The lawyer side of my brain considers public policy issues in the urgency of the present. The historian's training, however, summons me always to look at the deep picture, to appreciate what has come before, and it was this innate conservativism that long governed my instincts on marriage equality. In my historical writings on the subject, I made essentially three arguments: (1) In the few instances in which same-sex marriage was debated on the historical record, it was rejected; (2) a principal reason for this rejection, furthermore, was because marriage was about procreation, and only procreative relationships should therefore be recognized as marriage; and (3) public policy should remain within these tightly-drawn boundaries, because any departure would be likely to result in arbitrary line-drawing.
The historical record on same-sex marriage is a surprisingly deep one. So far as I can tell, it was discussed for the first time in the first and second centuries of the common era when the Emperor Nero engaged in a same-sex marriage with a galley slave during a lavish festival stage-managed by his praetorian prefect, Tigellinus. The ancient authors were unremittingly harsh on Nero for this action. Tacitus turned his ferocious irony on Nero, blaming him for the Great Fire at Rome, while Juvenal simply mocked him and those who later tried to emulate him.
Twelve centuries later, the canon lawyer Hostiensis raised the subject of same-sex marriage once again. Hostiensis is one of those figures, well known to specialists but who has simply vanished from the popular historical understanding. A scholar with a virtuoso's talent at raising and answering challenging questions, Hostiensis asked whether it was ever possible for a man to marry a man. He answered in the negative and did so in order to read into his legal definition of marriage the developing theology of unnatural acts found in the scholastic writers.
His analysis would be repeated and expanded by other writers, also well-known to specialists but forgotten by nearly everyone else. Antoninus of Florence mooted this question in the fifteenth century and Johannes Brunellus in the sixteenth. Echoes of this mode of thought can still be found in the magisterial documents of the Catholic Church.
And if this line of thought represented one element of my own perspective, the procreative dimension of marriage represented the other. Secular and religious sources, it seemed, converged on this point of agreement. The Emperor Augustus decreed that marriage had to have a procreative dimension and where procreative intent was excluded from marriage, the Roman state itself might impose penalties.
The theologian St. Augustine, four centuries later, had much more to say on this point. Marriage, he insisted, had to be procreative. Where two parties took steps affirmatively to frustrate the natural fruitfulness of marriage their union could not be called marriage. It was invalid and amounted to a sham.
Early American lawyers and judges were inheritors of this tradition. Indeed, nineteenth-century marriage law had a profound Augustinian structure to it. St. Augustine, after all, had argued that not only did marriage exist essentially for procreative purposes, but also that it was necessarily exclusive and permanent. That is, those who strayed from their marital obligations should be punished for adultery or for fornication, while simultaneously divorce should be granted, if at all, only for a few narrowly defined causes.
These three essential marital properties had been bedrock teaching from the time of St. Augustine, through the medieval canonists, up to the eccesiastical courts of early modern England. Early American jurists borrowed many of their matrimonial categories directly from the English ecclesiastics and almost without conscious reflection made this framework the superstructure around which they constructed their own marital theories.
American marriage law was dominated by this vision of marriage until the 1950s and 1960s, when the law began to shift fundamentally. Adultery and fornication, while still seen as moral wrongs, ceased to be prosecuted as crimes. No-fault divorce meanwhile eroded the law's commitment to marital permanency by greatly expanding opportunities to depart from marital commitment. Finally, the Supreme Court's right of privacy cases, beginning with Griswold v. Connecticut, severed the connection between marriage and procreation.
This is a story I repeated in several iterations in my writing between 2003 and 2009. The record seemed compelling. It seemed self-evident that the conservative side of this debate had the mandate of history if not of heaven.
But I now recognize that I had merely told the story of how we got where we are and contented myself with the conclusion that that story, standing alone, provided sufficient guidance for future decision-making. But I appreciate now something that I did not appreciate seven and eight years ago, when I commenced my writing on this topic. I needed a more expansive historical vision in order to speak normatively. The story I told was a static account. I needed to identify the dynamic element within the history of marriage.
And that dynamic element is love -- enduring commitment to the personhood and welfare of another human being. Love has been a central feature of the marital ideal for nearly as long as people have written about marriage. Babylonian poetry recites the story of Dumuzi and Inanna, two adolescents, highly anthromorphized deities, who flirtatiously courted and wed. Teasingly, joyously, with all the warmth and playfulness of youth, they ease themselves into a loving marriage.
In the Hebrew Scripture, we find the Song of Songs. I have always doubted the imputation of this book to King Solomon. It is an erotic celebration of love, told from the woman's perspective. Christians have always felt the need to spiritualize this book, to make its explicit sexuality an allegory, but this I think is a mistake. It is a book about love, passionate marital love, and it is found in the Bible. And then there is St. Paul who in his letter to the Ephesians advises Christian spouses to love each other sacrificially, as Christ so loved the Church.
St. Augustine belongs to this tradition also. When he wrote his treatise On the Good Of Marriage, he commenced with the words: "Every individual belongs to the human race, and by virtue of his humanity, is made a social being. In addition, the person possesses a strong aptitude for friendship." Yes, procreation was a defining element of marriage for St. Augustine, but so also was companionship. In the end, it is because we are social beings who know how to love that marriage becomes an appropriate means of procreation. Love comes first, for St. Augustine, then procreation.
Great modern secular writers, too, have explored the importance of love and marriage. One of the earliest, and among the most profound, was Mary Wollstonecraft, in her many works of fiction. She could mourn the misery that comes when marriage is severed from the longings of the heart. But she celebrated warm-hearted love, too, in whatever strange corner of human experience it might be found. The women writers of the nineteenth century knew this too. Elizabeth Cady Stanton argued for consensual divorce not to provide an easy escape valve from marriage but as a way of ensuring that love and marriage might always and everywhere remain perfectly matched.
And it is safe to say that since 1960s, American society has witnessed a sea change in the area of marital theory. Where once marital theory rested securely on Augustinian premises, the rise of artificial birth control and the right of privacy cases have shifted the foundations. Marriage today, as a matter of public understanding, can only be grounded on love and commitment, not procreation. As a Catholic, I still understand marriage, in my faith tradition, to unite the procreative and affective ideals. As an American citizen, however, I also know that I belong to a diverse and creative world where a new set of public norms is even now coming into being.
And these new norms are love-based. I feared for a long time the confusion that might result from marriage grounded solely on affection. How do we determine what to honor with the term "marriage" and what human relationships should be characterized merely as "friendship?" The former, esteemed by the State, carries with it legal rights and duties. The latter, privately respected, confers no public recognition. But how do we demarcate one from the other?
I can see now that that boundary line must be in the strength of commitment shared by two loving hearts. I have personally witnessed successful same-sex relationships. The response of the gay community to the AIDs crisis, particularly in the 1980s, stands as further vivid testimony to the strength and power of sacrificial, self-giving love. For AIDs brought forth truly heroic demonstrations of love and new conceptions of family. Susan Sontag captures these related phenomena brilliantly in her short story, The Way We Live Now. We find there the many faces of love, as a concentric circle of friends gathers, hovers, retreats, and congregates once again, all of them trying to comfort their dying friend.
Marriage equality is a new departure in history, but that does not mean we lack all guidance from the past. History, in the form of the story of love itself and the vast treasure-house of human experience that relates to it, can serve as our steady guide.