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.