Faulty Appeals to Ancient History in John Roberts's Dissenting Gay Marriage Opinion
Bad history abounds. It’s a truism that history is written by the victors, but it’s truer to say that history’s polemical purpose is to justify the present. In his dissenting opinion in Obergefell vs. Hodges, the case that legalized same-sex marriage across the United States, Chief Justice John Roberts wrote that marriage is “a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs.”
It is not my purpose to debate the merits of the arguments for and against same-sex marriage (I have always wondered why the government should be involved in organizing individuals’ lives at all), but it was a strange choice of anthropological comparison, not least since the Carthaginians were infamous for their (presumed) cult of infant sacrifice to secure prosperity—the true purpose of marriage!—but also because the Aztecs, also famed for human sacrifice, were polygamists, as anthropologist Rosemary Joyce pointed out yesterday in Psychology Today. Similarly, Islam, following Qur’an 4:3, has traditionally embraced polygamy (up to four wives) as part of the definition of marriage. Indeed, the Biblical—Hebrew Bible—definition of marriage might justifiably be one man, one woman, 299 other women, and 300 concubines (1 Kings 11:3), or at least some concubines and a couple of wives (Deuteronomy 21:15). (Christianity limited the definition considerably, as in Ephesians 5:31-32.) In a global survey in the Ethnographic Atlas, of the 1,231 distinct cultures examined, only 186 (just 15%) practiced monogamous heterosexual marriage. In other words, appeals to history falter on the fact that, anthropologically speaking, virtually every form of family structure can find some support in history, so to choose among them and justify it through appeal to history is essentially picking which religion you think is the One True Faith, or which culture’s mode of expression to endorse.
Similarly, as noted above, ancient myths and religions offer no clear guidance on the issue either. But if we are to argue that the practices of ancient people provide justification for modern institutions, then I suppose Strabo can help us out, for he describes single-gender societies that raise children in (presumably) same-sex households, deigning to visit the opposite sex only out of biological necessity, unable to stomach even looking at them, and wholly without heterosexual marriage:
The Gargarians also, in accordance with an ancient custom, go up thither to offer sacrifice with the Amazons and also to have intercourse with them for the sake of begetting children, doing this in secrecy and darkness, any Gargarian at random with any Amazon; and after making them pregnant they send them away; and the females are born are retained by the Amazons themselves, but the males are taken to the Gargarians to be brought up; and each Gargarian to whom a child is brought adopts the child as his own, regarding the child as his son because of his uncertainty. (11.5.1, trans. H. L. Jones)
It will be a cold day in hell when a Supreme Court justice cites that in a decision about the best way to organize society—which is sort of the point; people try very hard to universalize their own practices and assume the way we do things today is universally correct. The long and short of it is that you can’t ask the state to support religious freedom while choosing to honor only one religion’s restrictions and prejudices. Of course, the logical conclusion to this argument, conservatives argue, is the legalization of such religiously sanctioned unions as polygamy. That’s a question for another day, but that such questions are even possible speaks to the fact that the appeal to history and tradition is a faulty way to make contemporary law.
On a completely different topic, I would be remiss if I didn’t note my disappointment that the Syfy channel Greek mythology series Olympus chose the least imaginative route to resolve its fantasy about the activities of the gods in Mycenaean Greece. In this week’s episode, the Greek gods and the Titans were revealed to be space aliens (or possibly interdimensional beings), proving that the program’s unimaginative writers watched too much Ancient Aliens, whose wacky claims they appear to have borrowed wholesale. There’s nothing wrong with the idea per se (except that Star Trek did it five decades ago), but it clashes with the Immortals-style fantasy tone the show strived for in its low-budget retelling of the myth of Theseus.
6/27/2015 07:03:49 am
How many gay gods were there?
6/27/2015 08:17:08 am
Tricky- metrosexuality was the style on Olympus.
Suzanne L Salt
6/27/2015 08:55:09 am
Several Greek gods had male lovers,but they would be considered as bisexual today. A short list includes Zeus, Apollo, Dionysus, Hermes and Heracles/Hercules. These gods have myths that describe their sexual encounters with male lovers,and some are considered patron gods of modern pagan gays, especially Dionysus. It is inferred that Artemis/Diana had lesbian relationships because her primary companions were women, and she never "married". Modern pagan lesbians also see her as their matron goddess.
6/27/2015 07:31:05 am
There's a simple, logical solution to the "problem" Republicans have with gay marriage: stop recognizing marriage in any form and giving tax breaks for it. If there are tax breaks, they have to follow the rest of our laws in deciding who can get married.
Not the Comte de Saint Germain
6/27/2015 09:46:05 am
And how would inheritance, child custody, and hospital visitation work if we stopped giving any kind of government recognition to marriage? Granted, people can draw up advance agreements to address most of those questions, but most people don't bother because it's a complicated process that often requires a lawyer.
6/27/2015 10:45:28 am
A marriage license isn't required to resolve those issues now. But, emotions aside, a marriage license is just a document resulting from a complicated process, just like an advance agreement is.
6/27/2015 03:40:35 pm
It is hard to think of a solution that would be less simple, less logical or more unfair than returning to contract marriage.
6/27/2015 07:58:34 am
The likes of Pat Robertson actually being a secret network of Baal worshipers? That makes plenty of sense. All of those anti Roman Catholic screeds like Chick tracts might just be a secret conspiracy of angry Carthaginians.
6/27/2015 08:20:11 am
"the Greek gods and the Titans were revealed to be space aliens"
6/27/2015 08:26:00 am
Think of this for a minute. A supreme court justice, twelve years of high school, four years of college, then law school and yet, he doesn't have the beginning of a clue about any other societies and cultures except the good old U.S. of A. Makes me warm and fuzzy all over to know that he's making decisions for all of us ignorant taxpayers.
6/27/2015 08:31:06 am
"the logical conclusion to this argument, conservatives argue, is the legalization of such religiously sanctioned unions as polygamy."
6/27/2015 11:45:33 am
The hyper conservative far right has taken over these issues and made anyone middle of the road seem left wing. People should be allowed to do what they do within the law. Using strange arguments like 'oh the polygamists will demand it too' is a false corollary. These same detractors to the LGBT marriage issue also come up with BS like they would soon allow bestiality and other perversions, like that would come hither later.
6/27/2015 01:56:58 pm
Icon ending adults should be able to form whatever marriage they like. Nothing wrong with polygamy if all convent. I tend to think polygamy doesn't work and leads to less stability and happiness but let's allow the market to work.often our social institutions are the way they are due to trial and error by societies. We don't even know why we developed them and create myths around them. Perhaps prior ages found polygamy doesn't work or matbe things have changed and it does today.
6/27/2015 11:57:27 am
" ... to choose among them and justify it through appeal to history is essentially picking which religion you think is the One True Faith ... "
6/27/2015 01:03:13 pm
I support Polygamy being legal too, so that augment doesn't affect me.
6/27/2015 01:50:21 pm
Fredrick Hayek would have been better as a source for the SC. Marriage like so many human institutions arises spontaneously by individuals acting on very local needs. Marriage solved a number of problems in a culture or society. Having a male inpregnate many females and not then providing for said created a lot of problems for a village. And having children while sleeping with multiple partners sure is a way to a lot of fighting. Simple put having a male and female stay together created more stable societies and people like stability. Females had more to gain in marriage than men and even do to this day. The religious hocus locus that grew up around marriage is tyrpical of humans trying to justify an institution the create by action and not thought. Other issues marriage dwelt with was asset ownership, estate transfer at death and so on. Govt jumped in with goodies as married people tend to votes in high percentages. As for gay marriage I'm not knowledgable enough, but the concern around procreation which was very important to a small village for example where child mortality was high and the young would have to take care of the old would create a bias against gay couples. Society then needed a reason to ban gay marriage and wrapped it up in religion. In the end everything is about economics. We just use religion to justify our social laws.
terry the censor
6/27/2015 03:17:17 pm
I plan on reading the decision just for the weirdness of the dissents.
6/27/2015 03:52:25 pm
What's really funny is the sheer number of people threatening to move to Canada over this because they don't realize that Canada is 10 years ahead of U.S.
terry the censor
6/27/2015 05:00:46 pm
6/27/2015 09:30:05 pm
Polygamy should be Legalized also.
terry the censor
6/27/2015 10:22:19 pm
> So shame on Canada.
6/28/2015 08:20:59 pm
I'm not Canadian
6/27/2015 07:51:07 pm
I tried to sell a script to Hercules: The Legendary Journeys that had, without mentioning their future names, the aliens from Plato's Stepchildren. They were stuck on Earth due to mechanical problems. They hid in caves during the day, went out at night in hot air dirigibles (that glowed due to the fires that kept them afloat) abducting humans to build a Babbage device because their computers were down. And they were miserable, hating every second of their existence on the rock without flush toilets, in stark contrast to their (implied) later nostalgia for their time on Earth we see on Star Trek. It aws aliens in Greece but it wasn't lazy.
7/2/2015 01:55:39 pm
It didn't get much publicity at the time, but the ancient Carthaginians were absolved of mass child sacrifice by an anthropological research crew from the University of Pittsburgh several years ago. My brother-in-law was part of the team. He was also part of the Meadowcroft Rockshelter dig in the 70s that discovered the earliest human remains in North America at the time. It's just a stone's throw from where I live in Western PA.
Your comment will be posted after it is approved.
Leave a Reply.
I am an author and researcher focusing on pop culture, science, and history. Bylines: New Republic, Esquire, Slate, etc. There's more about me in the About Jason tab.
Enter your email below to subscribe to my newsletter for updates on my latest projects, blog posts, and activities, and subscribe to Culture & Curiosities, my Substack newsletter.
Terms & Conditions
Please read all applicable terms and conditions before posting a comment on this blog. Posting a comment constitutes your agreement to abide by the terms and conditions linked herein.