Monday, September 21, 2015

Annals of derp: Was same-sex marriage illegal in 1790?

Biblical marriage: Adriaen van der Wirft, Sarah Presenting Hagar to Abraham (1699). via Wikipedia.

More Alex; he objected to my saying that there has never been a law against same-sex marriage until 1998 1973:

Let's think about this intuitively. Do you believe a gay couple could have married in the United States in 1790? If not, what do you think would have been the justification for denial?
Well, I don't know about the US in 1790 but...
A same-sex marriage between the two men Pedro Díaz and Muño Vandilaz in the Galician municipality of Rairiz de Veiga in Spain occurred on 16 April 1061. They were married by a priest at a small chapel. The historic documents about the church wedding were found at Monastery of San Salvador de Celanova.
Seriously, "let's think about this intuitively" is like saying "let's just argue on the basis of our biases without considering any facts."

Presumably a marriage between two men could have been denied on the grounds that they must be intending to commit sodomy in violation of one of those rare laws that really does have a Christian source, like prohibitions on selling alcohol on Sundays or anti-blasphemy rules (although good old Wikipedia informs me that the Middle Assyrian Code of 1075 B.C.E. forbade intercourse between brothers-in-arms and punished it with castration, and we know they weren't part of the Judeo-Christian tradition). I don't think there would have been any justifiable grounds for forbidding two women to marry, since the sodomy laws didn't mention people without penises, though I suppose they might have refused to do it anyway if it had come up, the point being that it didn't.

And they would have been wrong in any case; my main point, that there was no law in the US forbidding same-sex marriage as such, stands. It had to wait until there was a substantial number of same-sex couples wanting to get married, and a legal situation that needed clarifying—upon which it was found in various states, as you'll recall, that same-sex marriage was legal, having never been forbidden, and conservative states started scrambling to stop it, until finally the Supreme Court stepped in with Obergefell and resolved the issue permanently.

Anti-sodomy laws themselves are profoundly inequitable, since male-female couples can violate them with impunity and have always done so (though it turns out, sadly, that getting married to a woman does not get one access to unlimited blow jobs). This is not why the French Revolutionary Penal Code decriminalized sodomy in 1791 (it was because it was a victimless crime, like those other Christian-based prohibitions on blasphemy, heresy, and witchcraft), but it is in entire harmony with the principles of liberty, equality, and fraternity (solidarity and mutual acceptance among the citizens in spite of their individual differences).

At the broader social level, it's important to understand that nobody in the 18th century had a right to marriage in the modern sense of a relationship that is supposed to provide the members with sexual happiness, children, and a best friend all at once. Huge pressures from society and family stood in the way of people's ability to choose their partners, especially for women, treated through most of Western history as a form of property, disposed of without being entirely consulted. The purpose of marriage was always as a means of social control, regularizing the production of children and the transmission of property rights from generation to generation. For sexual happiness, men, including those of sodomitical inclinations, looked outside marriage if they could afford to (and women too in the highest and lowest social realms); friendship was almost entirely gender-confined.

This doesn't mean people never had happy companionate marriages, but they had to be fiercely fought for (this is the subject of most fiction from Menander to Walter Scott and Jane Austen; it was later, in the Victorian era, that writers turned their attention on what happens after you get married) or acquired basically by chance, as happens wherever arranged marriage is the norm. It's only since the Romantic era, barely a couple of centuries, that people in the West, especially women, have gradually come to expect happiness in marriage, and that's where the concept of same-sex household formation and cohabitation begins to emerge in a big way for the first time (among the women of the so-called "Boston marriage" in the mid-to-late 19th century), as people began refusing to "settle" for a marriage that didn't meet those huge expectations. When I was a small-town kid, everybody knew of male or female couples who lived together, to all intents married but with no legal standing, recognized as harmless people and good citizens. But they didn't have children unless they adopted them, which could be difficult or impossible, not to say publicly humiliating for all concerned including the kids, so the marriages were not complete.

Another big development of recent years is that of in vitro fertilization, which allows people to become biological parents without having heterosexual intercourse, and which allows same-sex marriages for the first time in human history to be "real" marriages in that age-old sense (as real as Abraham, the slave Hagar, and Sarah holding Hagar down, and a good deal more so in the modern sense of marriage). Finally the AIDS crisis—in which so many gay men found themselves participating in "until death do us part" in a really harrowing and intimate way, beloved partners dying, shivering and demented, literally in their arms—showed that their relationships were just as real, just as "cleaving" in the Genesis sense, as any straight relationship.

It's at that point, really, that same-sex marriage became an issue for the first time in history, and there was really only one ethically acceptable way to resolve it. The conservative churches and synagogues and mosques that are refusing to go along with this are just condemning themselves to permanent irrelevancy. Especially the Christian ones that with this refusal to welcome an outsider are being so very un-Christlike.

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