We’re “on the right side of history,” I hear. When I hear that I picture history as this enormous barrier, an obstacle to be climbed, overcome, and ultimately left behind.
Yet as someone who frequently tries to teach ancient and medieval history to undergraduates, I’d like to think that history matters. Sometimes, surprisingly, it matters a lot. There’s been a lot of talk about how historic the recent SCOTUS decision is, but history itself tends to get a lot of lip service. This is a damn shame, because history has actually got a lot to do with the way SCOTUS approached the question of marriage equality.
History – the history of homosexuality, or marriage, of institutions and social systems – played a starring role in the oral arguments on April 28. The first part of the arguments circled around the critical question – does same-sex marriage redefine the institution of marriage? When lawyer Mary Bonauto opened by describing how there is “a whole class of people who are denied the equal right to be able to join in this very extensive government institution that provides protection for families,” Chief Justice John Roberts pointed out,
“Well, you say join in the institution. The argument on the other side is that they’re seeking to redefine the institution.”
Over the course of the oral arguments, there were two main ways Team Gay could respond to this: either that same-sex marriage doesn’t represent a significant change at all, since marriage isn’t really about biological procreation, or that it is a change, but it’s okay because society changes all the time, just look at the changes regarding women, race and marriage itself in the past century!
The first response didn’t come up until the second part of the oral arguments, which addressed whether states have to recognize same-sex marriages performed in other states. The first part of the oral arguments went down the second path – same-sex marriage is some kind of change. In this case, the justices really wanted to stress that we’re talking about millennia here. Justice Anthony Kennedy’s first words of the day were, “One of the problems is when you think about these cases you think about words or cases, and the word that keeps coming back to me in this case is millennia, plus time.” We’re talking about millennia, folks. Millennia.
Kennedy did go on to acknowledge that there have been about ten years since Lawrence v. Texas – which is also, he notes, about the same length of time as between Brown and Loving – and that this decade has allowed time for scholars, commentators, the bar, and the public to engage in debate. “But still,” he concludes, “ten years is – I don’t even know how to count the decimals when we talk about millennia. And it’s very difficult for the Court to say, oh, well, we know better.” Possibly math is not his thing.
Unsurprisingly, the women on the court seemed pretty comfortable with change. The Notorious RBG, Justice Ruth Bader Ginsburg, put it perfectly:
“You wouldn’t be asking for this relief if the law of marriage was what it was a millennium ago. I mean, it wasn’t possible. Same-sex unions would not have opted into the pattern of marriage, which was a relationship, a dominant and a subordinate relationship. Yes, it was marriage between a man and a woman, but the man decided where the couple would be domiciled; it was her obligation to follow him. There was a change in the institution of marriage to make it egalitarian when it wasn’t egalitarian. And same-sex unions wouldn’t fit into what marriage was once.”
And similarly, later on:
“We have changed our idea about marriage is the point that I made earlier. Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female.”
Bonauto was totally on board with this, adding that now that the “gender differences in the rights and responsibilities of the married pair have been eliminated” and a woman’s legal identity is no longer absorbed into that of her husband, marriage has evolved into “a system in which committed, same-sex couples fit quite well.” Justice Elena Kagan made the comparison to interracial marriage, which also lacked historical precedent in the US:
Kagan: Well, they were dealing then with men and women coming together, but the question was, well, there might be a black woman and a black man or a white woman or a black woman and a white man – and there was no inquiry into whether that was a traditional form of marriage. If there had been such an inquiry in this country, they would have come up pretty short.
John J. Bursch (the opposition): Right. And historically, that wasn’t part of the tradition, and more importantly, invidious discrimination –
Kagan: Historically, it was not a part of the tradition, that’s right. And the Court said –
Bursch: Can I finish the answer?
Kagan: – irrelevant that that’s not a part of the tradition because –
Kagan: – because there’s no good reason for it not to be part of the next tradition.
But obviously some people do care about those millennia of tradition, and that’s where it gets interesting for historians like me. The conservative justices wanted to know if there’s a good reason why same-sex marriage isn’t part of the tradition. Justice Samuel Alito’s first comment in the oral arguments asked,
“How do you account for the fact that, as far as I’m aware, until the end of the twentieth century, there never was a nation or a culture that recognized marriage between two people of the same sex? Now, can we infer from that that those nations and those cultures all thought that there was some rational, practical purpose for defining marriage in that way or is it your argument that they were all operating independently based solely on irrational stereotypes and prejudice?”
Although Bonauto tried to steer away from this discussion of tradition – “I don’t know what other societies assumed, but I do believe that times can blind and it takes time to see stereotypes and to see the common humanities of people who had once been ignored or excluded” – the conservatives really, really wanted to talk about the lack of historical precedent. If you make one break with the past, what’s to stop you from making other breaks, like allowing poly marriages, et cetera, et cetera.
At one point Justice Sonia Sotomayor jumped in to point out the kinds of discrimination against gay people in most countries over the last millennium, which would explain why there’s no tradition of gay marriage. But Alito countered with the example of ancient Greece, where (he said) homosexuality was accepted and yet there was no same-sex marriage:
Alito: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?
Bonauto: Yeah. I don’t believe they had anything comparable to what we have, Your Honor. You know, and we’re talking about –
Alito: Well, they had marriage, didn’t they?
Bonauto: Yes, they had some sort of marriage.
Alito: And they had same-sex relations, did they not?
Bonauto: Yes. And they also were able to –
Alito: People like Plato wrote in favor of that, did he not?
Bonauto: In favor of?
Alito: Same-sex – wrote approvingly of same-sex relationships, did he not?
Bonauto: I believe so, Your Honor.
Alito: So their limiting marriage to couples of the opposite sex was not based on prejudice against gay people, was it?
Bonauto: I can’t speak to what was happening with the ancient philosophers. What I feel like –
Kennedy: But it’s – you – you said that, well, marriage is different because it’s controlled by the government. But from a historical – from anthropological standpoint, Justice Scalia was very careful to talk about societies. Justice Alito talked about cultures. If you read about the Kalahari people or ancient peoples, they didn’t have a government like this. They made it themselves and it was man and a woman.
This is a really interesting direction for the argument to take, because it’s not the first time that homosexuality in ancient Greece and Plato in particular has come up in landmark gay rights cases.
Back in 1986, the Supreme Court decision on Bowers v. Hardwick decided that at that time the court was not willing to confer what it called a “fundamental right to engage in homosexual sodomy.” With a 5–4 ruling, the court upheld the constitutionality of a Georgia sodomy law criminalizing oral and anal sex in private between consenting adults when applied to homosexuals. Ancient history played a role in this decision, too, for Justice Warren Burger appended a statement to the majority opinion elaborating on the “ancient roots” of the prohibition against sodomy and, more specifically, homosexual sodomy. His statement framed any attempt to overturn the Georgia law against sodomy as the rejection of “millennia of moral teaching,” citing Roman law in addition to Judeo-Christian standards. Meanwhile, the dissenting opinion, written by Justice Harry Blackmun, completely rejected the argument from ancient precedent.
A few years later, in Romer v. Evans, suddenly both sides employed appeals to antiquity. This case began as a challenge to a ballot initiative that had been narrowly passed by the voters of Colorado in 1992. This initiative, knows as Amendment 2, prohibited the state from taking any action to prevent discrimination on the grounds of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” One of the arguments advanced against the constitutionality of the amendment was that its condemnation was based in religious sentiments, it had its basis in religious sentiments (specifically Christianity) and so violated the First Amendment’s clause on the establishment of religion.
In response, the defendants invited the Oxford moral philosopher John Finnis to show that the intolerance of homosexuality could be traced back to classical Greek theories of natural law, and so predated Christianity. To support this idea, Finnis pointed to a particular line in Plato’s Laws about homosexual activity, which he translated as “those first guilty of such enormities (tolmēma) were impelled by their slavery to pleasure.” Combined with a reference to homosexual sex as “contrary to nature” (para physin), Finnis argued that Plato thought homosexuality was a shameful abomination.
However, as anyone who’s ever encountered a foreign language knows well, often a word can be translated in a variety of ways with a range of meaning. The plaintiffs brought in the classicist and philosopher Martha Nussbaum to the stand to counter Finnis’s argument. Emphasizing Finnis’s lack of credentials in classics, Nussbaum attacked the translation that Finnis had given of Plato, focusing on the word tolmēma. This word, she said, does not necessarily carry negative connotations, and she suggested using the more neutral “those who first ventured to do this,” i.e., engage in sex with members of their own sex – backing her position up with reference to the entry for tolmēma in the standard ancient Greek dictionary, Liddell and Scott. This launched a scholarly scuffle of its own, because Nussbaum used, not the most recent editions of this dictionary (1940 or 1968), but the old 1897 edition. The opposition seized on this as perjury, and they succeeded in turning the case into a discussion of academic integrity. What Plato actually thought about homosexuality, and whether that mattered in the first place, was lost in the fray.
Most recently, in the 2003 decision on Lawrence v. Texas, the Supreme Court took an abrupt turn in its treatment of homosexuality. In a 6–3 ruling the Court struck down the sodomy law in Texas, by extension invalidating sodomy laws in thirteen other states and making same-sex sexual activity legal in every US state and territory. Not only did this decision overturn the Court’s earlier ruling in Bowers v. Hardwick, but the reasoning used to reach this decision took an abrupt departure from earlier approaches. Rather than looking to the place of homosexuality in the past, the majority opinion (authored by Kennedy) took the view, inspired by Michel Foucault, that homosexuality had only recently emerged as a category of identity. The very category of sexuality, Foucault had argued back in the 1970s, is a product of modernity, one that shapes our experience in historically contingent ways. Before the emergence of this concept of “sexuality,” there simply weren’t any homosexuals or heterosexuals, for the simple reason that in the premodern period identity wasn’t determined by whether you had sex with men or women. The Supreme Court took up this idea to conclude that since “homosexuals” wasn’t a concept that we had until recently, therefore earlier American laws on sodomy weren’t attempting to target homosexuals in particular, but rather non-procreative sex in general. Before the modern construction of homosexuality as a category of identity, “there simply weren’t any homosexuals who could be targeted by the earlier laws.”
This brings us to an important realization – not only does our understanding about what happened in the past have an impact on our laws today, but even our ideas about how to study the past (which we might call “theory” or “methodology”) have an effect. This means that antiquity gets a double whammy, because not only do ancient Greece and Rome hold a privileged place in Western culture (for a whole host of reasons), but also a lot of really important theory about sex and gender was written and conceived through thinking about the ancient world. Antiquity, especially the literature of ancient Greece, has been a kind of sandbox in which people like Michel Foucault, Judith Butler, and Luce Irigaray have done a lot of their important thinking.
There are those who think that the past is too different from the present to be relevant, and that it’s dangerously anachronistic to try to look for gay people in antiquity. It’s true that awareness of the difference between ancient and contemporary ideas of masculinity, femininity, male and female and sexuality can help us to acknowledge the historical specificity of our unspoken assumptions about sexual difference, sexuality, gender norms and the gendering of power.
But it’s impossible to escape the role that antiquity plays in the grand narrative about the origins, structure and values of Western civilization. The stakes are high, and if we dismiss categories of sex and sexual identity as historical constructs, we end up throwing away the very tools we need to do the history of women or the history of homosexuality, the tools that allow us to unmask the continuities between practices of oppression in Greece and Rome and the oppression of women and homosexuals today. The risk is that we leave undocumented the history of present systems of domination. Writing history is political. As the classicist Brooke Holmes has put it, “by telling the story of the past differently, the ancient historian sets out to disrupt these systems in order to allow power to circulate more freely, to open up new identities to contemporary gay men and women, for example, or to expose structures of domination over women.”
Writing the histories of queer women is much harder than writing about elite gay men. You may have noticed that all of the references by the Supreme Court to ancient homosexuality are centered on gay men; even Foucault, who shows up implicitly in the Lawrence v. Texas opinion, only wrote about male homosexuality.
Women’s voices in history are less likely to be heard, since they wrote less, and their writings were less likely to survive or come to the attention of civic or religious authorities. Sappho, who was known in antiquity as a literary genius, was an exception – and even most of her works were lost, and today survive only in chance fragments. It’s hard work to recover these voices, and it requires looking at a lot of less traditional sources.
But the recourse to history in the Supreme Court decisions on our rights shows us just what is at stake. Queer histories matter not only for our own sense of identity and pride, but because they impact our legal realities, too. This is not an academic exercise – this is real life.