Gay Marriage: Precedents, Alternatives, and Politics
In his dissent from the Lawrence decision, Associate Justice Antonin Scalia predicted that overturning Bowers left “shaky grounds” for state opposition to same-sex marriage. At the time, I doubted that Scalia’s fears about gay marriage would soon materialize. Thus, the speed with which same-sex marriage gathered momentum in the United States surprised me. Marriage in Canada or Denmark or civil unions in France all seemed far more predictable. In November 2003, however, when the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health ruled in favor of same-sex couples seeking to marry, its decision unleashed long-pent-up demands for state recognition of same-sex unions, and not merely in the guise of the civil unions instituted in Vermont in 2002. Although the Massachusetts court gave the state legislature six months to respond to the decision, lesbians, gay men, and their straight allies on both coasts acted in advance of the law. Even in my progressive hometown of San Francisco, I had never expected to witness thousands of couples seeking marriage licenses, accompanied by dozens of city officials, all willing to engage in civil disobedience to facilitate the gay and lesbian weddings that took place in early 2004.
Political battle lines over gay marriage soon formed, and as with abortion and sodomy law, historical research contributed to the ensuing legal cases. Dozens of historians testified, consulted with lawyers, and signed amicus briefs in cases in New York, New Jersey, Oregon, Washington, and California. Historians of marriage such as Nancy Cott have been deeply involved in drafting some of the arguments, and I have signed several of these briefs.21 While I both support and seek the extension of full legal rights to lesbians and gay men, I want to acknowledge that my personal response to the exuberance about same-sex marriage parallels my ambivalence about the legitimation of homosexuals in the military—that is, I oppose legal exclusion of gays and lesbians from these institutions, but I would also resist compulsory enlistment in either of them, whether through informal social pressures to marry or a formal military draft. For the historian, though, the gay-marriage cases provide another window on how to balance tradition and social change when legal advocates turn to the past.
Both precedent and change in American history can inform the legal debates about gay marriage. From the standpoint of precedent, even though religion, law, and public opinion have long defined marriage as a heterosexual institution, we can find social-historical examples to support an alternative tradition of same-sex unions. However, seeking one kind of precedent can obscure other traditions, including opposition to marriage itself. A second and stronger use of historical research asks what social changes have enabled gay marriage to become a possibility at this time in our history.
The arguments from past precedents, while exceptional, attest to historical variations in family forms. Long before the current wave of civil unions and weddings, Americans formed same-sex, extralegal partnerships that included common domicile, financial interdependence, sexual relations, and sometimes parenting. In one manifestation, men and women who crossed genders might live with same-sex partners. For example, some Native American men who felt or dreamed that their true identity was female could wear women’s clothes, work at women’s tasks, and become the wives of men. Among the Mohave, women who crossed genders could acquire wives themselves, establish households, and raise children (either adopted or from a wife’s previous union).22 Although not culturally institutionalized, gender crossing sometimes occurred among Anglo settlers in the nineteenth-century West, such as “Mrs. Nash,” a man who married several soldiers. In the nineteenth century, as well, newspapers frequently published reports of women who passed as men, often to earn wages, and some of whom married women. In upstate New York, Lucy Ann Lobdell became Reverend Joseph Lobdell and lived for a decade with his wife, Maria Perry. In the twentieth century, some women continued to adopt male identity and to create families with other women. Thus, midwestern jazz musician Billy Tipton, born a woman, married several times and raised children who did not know until his death that their father was a womanT3
Men and women who retained their gender identity also established marriagelike relationships in the era before homosexual identity. They exchanged rings or set up common domicile, such as the “Boston marriages” named for the city in which many educated women paired off at the turn of the twentieth century. These women often owned property jointly, planned their travels together, shared family celebrations, and usually slept in the same bed.24 Cultural assumptions of asexuality tended to protect respectable female couples from scandal. In the early twentieth century, however, male lifelong companions, such as Harvard professor F. O. Matthiessen and his lover Russell Cheney, could not escape the increasing stigma associated with homosexuality; Matthiessen eventually committed suicide. As gay and lesbian subcultures formed in large cities in the twentieth century, opportunities for same-sex unions expanded along with explicit sexual identities.
Among lesbians, working-class “butch-femme” couples often paired off and at least some “married.” In Harlem during the 1920s, African American lesbians staged large weddings, complete with bridesmaids and even marriage licenses (after a gay man applied at City Hall as the surrogate for a lesbian “groom”).25 By the 1950s, a growing gay bar culture in American cities provided public space for butch-femme couples to meet, and many of them subsequently lived together.
Invoking these precedents of same-sex unions, however, raises serious historical problems for legal advocates of gay marriage. For one thing, while these practices imitated marriage, most Americans who acknowledged same-sex erotic desires could not participate in them. Aside from being exceptional, these precedents tend to conflate a range of practices over time under the rubric of “marriage.” In contrast to the strategy in the Lawrence brief, which distinguished between earlier and contemporary constructions, the search for same-sex unions in the past blurs distinctions in order to emphasize continuities. Unlike the logic in the Lawrence brief, too, these precedents rely on an anachronistic, ahistorical definition of gay or homosexual, conflating distinctive identities for political purposes. Perhaps for these reasons, historians have not elaborated on precedents for same-sex unions in the amicus briefs concerning gay marriage.
Another problem with searching for precedents to support a tradition of gay unions is the risk of overlooking other precedents that complicate the meaning of marriage and challenge its historical hegemony. In the past, for example, some heterosexuals have ignored, resisted, or questioned marriage as an institution. Not all heterosexual couples formally married. During the nineteenth century, African American slaves who wished to wed could not do so legally. In the southern backcountry, informal marriage was common. For some urban working-class couples, common-law marriage sufficed.26 Utopians living in communities such as John Humphrey Noyes’s Oneida experimented with forms of group marriage. Free-love advocates, including Frances Wright, rejected state-sanctioned marriage on principle because it inhibited individuals. “Free love” referred not to sex with multiple partners but to the belief that love rather than marriage should be the precondition for sexual relations. In his 1852 tract, Love vs. Marriage, Marx Edgeworth Lazarus argued that just as the state thwarted the individual, the “legalized prostitution” of marriage oppressed women and suppressed love. Highly unpopular, free lovers risked arrest for expressing their beliefs. In 1887, for example, when Lillian Harmon “married” Edwin Walker without blessing of church or state, both were imprisoned in Kansas for violating the marriage act by living together as man and wife without having been legally married.27
Although they pioneered what would later become the practice of cohabitation, free lovers shared many values with their legally married contemporaries. They formed long-term committed relationships, and most of them condemned homosexual relations as unnatural. By the early twentieth century, anarchist and free lover Emma Goldman reversed the latter judgment by endorsing love in any form, but she still rejected church or state regulation. Even those bohemians and radicals who objected to monogamy often remained deeply rooted in the values of romantic unions, struggling with the jealousies that could erupt when they embraced open relationships. Despite this history of isolated efforts to circumvent marital laws, the institution of marriage has remained a widespread and privileged site for heterosexual unions.
The current historians’ amicus briefs in support of gay marriage largely ignore precedents of past gay unions and prior challenges to state-sanctioned marriage. Instead, they concentrate on the historical transformation of marriage in American culture that has been well documented in recent scholarship. At least three measures illustrate this history. First, reproduction is no longer a primary function throughout the life of a marriage. Average marital fertility rates have fallen from almost eight births in 1800 to around two births in 2000; parents now live longer after children are grown; and many more couples choose to remain childless, even with the availability of technologically assisted reproduction. Second, as marriage has become a route to personal happiness and women have gained greater economic leverage, both partners feel freer to exit. Longer lives, fewer children, and the goal of happiness have all fueled the divorce rates; almost as many marriages end as survive. Rather than forming lifelong unions, most heterosexual couples now practice a form of serial monogamy. Third, the state’s role in privileging marriage has expanded because federal benefits (social security, inheritance, immigration, taxes) flow through this institution^8
While opponents of gay marriage cite the tradition of heterosexual unions, the recent historians’ amicus briefs counter by emphasizing the malleability of marriage over time. In particular, they note the shedding of many of the patriarchal trappings of wifely obedience in favor of a modern, companionate model of marriage. For example, the brief of history scholars in a 2005 Washington State gay-marriage case challenged the “traditional definition of marriage” by pointing out that “far from being a rigid institution with a fixed definition, marriage is, and has always been, evolving in response to social and cultural change.”29 Similarly, the “Brief of Professors of History and Family Law” in Samuels et al. v. The New York State Department of Health, a 2005 case before the New York State Supreme Court, described the history of marriage as “a history of change.” To support the point that marriage law has never been static, both briefs recalled the decline of the principle of coverture in favor of a wife’s independent legal identity in the nineteenth century; the latter brief also cited, among other legal changes, the rejection of the marital rape exemption in the 1980s.30
In addition to the shift from patriarchal to companionate marriage, the civil rights movement provides historical context for gay-marriage cases. Recent efforts to legalize same-sex unions parallel earlier claims made by members of minority groups who sought full citizenship through the transformation of marriage law, particularly by challenging prohibitions on interracial marriage. Overturning state “antimiscegenation” statutes took decades, with key decisions in California in 1948 (Perez v. Sharp) and by the U. S. Supreme Court in 1967 (Loving v. Virginia). In Goodridge, the Massachusetts Supreme Court cited this history:
In this case, as in Perez and Loving, a statute deprives individuals of access to an institution of fundamental legal, personal, and social significance — the institution of marriage—because of a single trait: skin color in Perez and Loving, sexual orientation here. As it did in Perez and Loving, history must yield to a more fully developed understanding of the invidious quality of the discrimination31
Similarly, the Washington State amicus brief addressed the relationship between racial equality and marital equality, noting that while “expanding the freedom to choose one’s partner without regard to race was a fundamental change,” the institution of marriage survived the demise of antimiscegenation statutes.32
By concentrating on arguments about what might be called a tradition of legal change, the historians’ amicus briefs have not addressed several broader contexts that help explain the current demands for same-sex marriage. While heterosexual marriage has changed in law and practice, the campaign for gay marriage would not have gathered legal momentum without significant transformation in same-sex partnerships as well. Once relegated to a shadowy cultural margin, since the 1970s, gay communities have increasingly replaced the closet with public visibility. The sexualization of women in modern America, which removed the mask that once protected romantic friends, enabled the formation of openly lesbian partnerships. For
men who could once pursue only anonymous, furtive sex, an openly gay culture led not only to the open celebration of pleasure but also to the search for life partners. For both women and men, webs of fictive kin relations help sustain gay identity and community, including former partners who become family and coparents who raise their nonbiological children with friends and lovers. As more lesbian and gay couples began to live together openly in committed relationships, they sought legal protection unavailable to unmarried partners.
The explosion of lesbian and gay social worlds, however, is not sufficient to explain the recent quest for marriage. Throughout the 1970s and 1980s, most lesbian and gay activists were more likely to criticize the institution for its patriarchal heritage than for its exclusivity. I would argue that since the 1980s, both the aids crisis and the expansion of gay parenting made legal marriage a more pressing issue. In the wake of the epidemic, political lines diverged over the critique of anonymous sex, with some activists defending an alternative sexual subculture and others calling for more committed marriagelike relationships. More important, life partners who served as caretakers encountered unacceptable limits on hospital visitation and authority to determine medical procedures; some could not inherit property they had helped purchase.
In the same era, gay parenting expanded. Since the 1960s, individual lesbians and gay men have appeared in courts to retain custody of or visitation rights to children born in prior heterosexual marriages. Increasingly, however, parenting in same-sex relationships has become a matter of choice, given the opportunities afforded by artificial insemination, surrogacy, and adoption. The resultant “gay-by boom” that began in the 1980s and has gathered force in the past decade has added another level of similarity between contemporary same-sex and opposite-sex families. Like the personal response to aids, parenting has unleashed a demand for greater legal protections, including second-partner adoption. Judicial victories by lesbian and gay parents have in turn paved the way for the gay-marriage movement.33
In short, marriage and homosexuality, once viewed as diametrically opposed, have increasingly converged in recent American history. Marriage is no longer the sole venue for caring, sexual, and reproductive partnerships, nor is it a lifelong or primarily reproductive institution for most Americans. Many heterosexuals still form permanent unions and raise children, but so do lesbians and gay men; the latter, however, do so without protections granted their heterosexual counterparts. Thus, since the 1970s, same-sex couples have appeared in state courts to obtain marital rights. Religious commitment ceremonies, “gay weddings,” domestic partnerships, and, in recent years, civil unions and legally defiant marriage licenses are all responses to demands for public recognition and legal protection.34
So, too, the gay movement has had to respond. Although reluctant to support gay-marriage cases through the 1980s, groups such as Lambda Legal Defense have joined the quest for recognition. New organizations focus solely on the right to marry, buoyed by the decriminalization of sodomy in Lawrence v. Texas and the legalization of same-sex partnerships in parts of Europe and Canada. Even those who do not wish to marry have been forced to take a stand in solidarity with those who do, particularly in the face of legislation such as the Defense of Marriage Act (1996) and the proposed constitutional amendment to limit marriage to a man and a woman^5
In the rush to expand or contract access to marriage, however, we should not forget the radical critique launched by free lovers and anarchists and echoed by radical feminists, gay liberationists, and queer activists. Given conservative opposition to same-sex marriage, it has become politically awkward for liberals to question the importance of gay marriage. Yet some critics, such as historian Lisa Duggan, ask what alternatives we ignore by focusing solely on marriage. Why not establish social benefits for all forms of caring relations — or for all individuals — rather than privileging marital unions?36 Members of the far left and the far right find some common ground in the concept of civil unions, albeit for slightly different political reasons. Radical critics recommend civil unions for all, separating the religious institution of marriage from state regulation. Some conservatives who desire to preserve for heterosexuals the symbolic sanctity of the term “marriage,” along with at least some of its benefits, have begun to cede ground to once-radical civil unions, even as they seek to outlaw gay marriage federally.
Now that the first court-mandated same-sex marriages have taken place in Massachusetts, popular opinion, which continues to oppose legalized same-sex unions, may either polarize or adapt, depending in large part on how politicians exploit the issue (as the 2004 elections illustrated well). Historians do best explaining the past, not predicting the future. But it is tempting to extrapolate from the admittedly uneven comparison with race. Like the Supreme Court in Brown, which mandated integrated schools, and in Loving, which legalized interracial marriage, the Massachusetts court ruled in Goodridge to redress an inequality at a time when most Americans opposed the practice that the decision legalized. Just as civil rights leaders once hesitated to press for interracial marriage, many lesbians and gay men have mixed feelings about both marriage as a political priority and the costs of conservative backlash.37 Nonetheless, these prior rulings did encourage gradual shifts in public opinion. And as in the civil rights movement, the sight of thousands of protesters — such as the same-sex couples lined up around San Francisco’s City Hall — can affect national sentiment. In the end, far more than any precedents from the past, it will be couples like these who will determine the next chapter in the history of marriage.
In the meantime, historians continue to weigh in on the question of gay marriage, both as expert witnesses and in amicus briefs. What characterizes their contributions thus far is the interpretation that marriage has evolved as an institution, both socially and legally. One of the New York briefs, in distinguishing between “history as description and history as justification for discrimination,” summarized well the limitations of legal tradition: “The history of the exclusion of same-sex couples from marriage describes but does not explain or justify the continuation of that rule.”3® At times, these arguments prevail, as when the San Francisco Superior Court ruled in 2005 that the California Family Code’s definition of a valid marriage as a “union between a man and a woman” violated the state constitution because that document allowed that “the legislative embodiment of history, culture and tradition is constitutionally permissible” only when an “underlying rational basis” justifies the law. Just as the 1948 California Supreme Court decision in Perez overturned the state’s ban on interracial marriage because of its irrational basis, and in light of the Lawrence ruling, the San Francisco court ruled that a tradition of past discrimination alone could not justify a ban on gay marriage.39 Other courts, however, have overruled decisions based on these grounds, and the verdict is far from clear, even in liberal states like California and New York.
I hope these reflections on the role of historical interpretation in cases concerning sexuality and reproduction have complicated the meaning of “history and traditions” in legal advocacy. At times, historians have supplied precedents of past practices, from abortifacients to same-sex unions; at other times, historians have insisted on distinguishing between past and present constructions of sexuality, including the shift from sodomy to homosexual identity. Historians have balanced tradition and history differently in each of the legal issues I have reviewed. The Webster brief, submitted during the Reagan administration, relied more heavily on original intent, seeking precedents of original tolerance in support of reproductive rights, a strategy grounded in the absence of anti-abortion statutes at the time the
Constitution was written. In Lawrence, historians applied both precedent and change. While educating the Court about the changing definition of sodomy and the recent appearance of homosexuality as an identity, their brief, as was the case in Webster, appealed to a past marked by relative tolerance toward behaviors not yet specifically criminalized. Not surprisingly, given the weight of legal precedent in favor of opposite-sex unions, the current historical arguments in support of gay marriage foreground the past malleability of legal definitions of marriage.
In working on cases in which the history of sexuality can inform contemporary policies, historians clearly have more to offer to legal advocacy than mere precedents. We bring layers of interpretation, revealing how economic, demographic, and social changes require new public policies. Only some of these analyses may be useful within the parameters of specific legal arguments. But as historians continue to collaborate with lawyers, I hope we can challenge any static view of “history and traditions.” Traditions may well guide us, whether in the form of legal precedents or social practices, but history is at heart a study of change. One of our most important jobs as historians may be to educate not only our students but also judges, juries, and policymakers about that dynamic process.
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