Photo Credits – “lake-worth-gay-marriage-protest-10” by Daniel Tobias CC BY SA 2.0 via flickr
On June 26, 2015 same-sex marriage was made legal nationwide in the U.S, marking the victory of a centuries-long fight for marriage equality on the part of queer activists across the nation. This was won through a 5-4 vote in the Supreme Court, regarding the Obergefell v. Hodges case. This case involved a gay couple, Jim Obergefell and John Arthur, whose marriage failed to be recognized by the state of Ohio. This case consolidated with other similar cases throughout the state and became Obergefell v. Hodges as we know it today. This case was built upon the work done in an earlier landmark decision United States v. Windsor in which Edie Windsor, a widow of the late Thea Spyer, sued the government for failing to recognize their legal marriage in New York after Thea had passed, denying Windsor an estate tax marital deduction. This case found that DOMA (the Defense of Marriage Act) in its entirety was unconstitutional, openly targeting same sex couples. The victory in 2015 came 11 years after the first state to legalize, Massachusetts. Compared with other countries, The U.S falls squarely in the middle of the timeline of marriage equality, with Denmark being the first country to legalize same sex unions on a federal level in 2000, with Belgium, Canada, Spain, South Africa, Norway and Sweden passing similar legislature in the 2000’s. The United States is joined by Portugal, France, England and 19 other countries who legalized in the 2010’s, with Costa Rica being the most recent country in 2020. With only 29 countries in the modern world recognizing marriage equality at the federal level, all within the span of two decades, it can paint a picture of same sex unions as a recent invention, however history shows us that same sex unions are not so much anovel practice as a basic part of human culture only recently being reestablished into modern society.
In Ancient Mesopotamia, the first recorded complex civilization, same sex unions were not only legalized, but normalized. This is indicated by the presence of marriage prayers for same sex unions present alongside prayers for heterosexual marriage unions in the “Almanac of Incantations”, a collection of prayers and incantations used for various purposes in Ancient world. In The Fujian Province of Ancient China, same sex unions were not only performed, but considered sacred by a cult who worshipped Tù’er Shén, a rabbit deity who was thought to watch over and protect both parties in a homosexual relationship. The history of Ancient Rome includes not only legally recognized same sex unions, but multiple Roman emperors, most famously Nero who was married to three men over his reign, were married to men: the equivalent of a “First Lady” today. It appears that in the pre-Judeo Christian world, both through formal and informal unions, it was more unlikely to find a culture who banned same sex marriage than permitted it.
Even after the spread of Christianity throughout Europe and other parts of the world through colonialization, queer people found ways around the law to be formally recognized as partners. One of the most interesting examples is the use of matelotage, a ceremony performed between two pirates or seamen during the 17th and 18th century in which they would agree that the other would inherit most of their possessions in the case of their death. The practice was established as a largely economic partnership between two people of the same-sex, but was often used by romantic partners to recognize their relationship quasi-legally among the larger community of pirates. Even within the realm of Christian spaces, individuals intent on being recognized as partners found ways around the homophobic legislation of their time. The practice of adelphopoiesis, or “brother making” in the medieval Catholic church, in which two membersof the same sex agreed to live together as partners and share in each other’s wealth. While the intent of this practice was meant to bring two members of the religious faith together to strengthen their bond to God together, it was also sometimes used by same sex partnerships to have legally recognized benefits in their union.
Throughout the majority of the common era, this was the destiny of a same sex couple, to find ways to contort existing laws or customs to try to have some sort of recognition for their partnership, with federally recognized marriage seeming to be an unreachable ideal until the rights revolution of the 20th century. Each country follows their own unique timeline, but the American fight for the right to marriage equality starts around the same time as the gay liberation movement, the late 1960’s. Following the events of the Stonewall Riots of 1969, many organizers and activists around the country felt energized and inspired to demand their equal rights under the law. The first formal case seen by the Supreme court came in 1970, when law student Richard Baker and librarian James McConnell applied for a marriage license in Minnesota, and sued the clerk who refused them, Gerald Nelson. The case Baker v. Nelson made it to the Supreme Court, but upheld Nelson’s decision. In 1972, the couple attempted to appeal again, but was denied a hearing by the court “for a want of a substantial federal question,” blocking federal courts from ruling on the question of same-sex marriage for decades. Subsequently, a slew of homophobic marriage bans were introduced in various states, with Maryland being the first in 1973 and several others following suit. In reaction to domestic partnership laws passed in cities like San Francisco and the District of Columbia, the Defense of Marriage Act was introduced in the 1990s to grant certain benefits to same-sex couples.
Griffin Deubler is an alumnus of West Chester University.