If, as Robin Lane Fox contends, “the transition from pagan to Christian is the point at which the ancient world still touches ours directly” (1987: 11), current legal disputes over gay rights are the sphere in which confrontations with pre-Christian sexual protocols are most likely to occur. In 1993, as we saw in the Introduction, condemnations of same-sex intercourse by the main speaker in Plato’s Laws were cited in Evans v. Romer to prove that disapproval of such activity is not specific to the Judeo-Christian religious tradition but instead justified under natural law as defined through reason. While the first edition of this book was being written, the United States Supreme Court heard yet another case involving the civil rights of homosexuals: in its landmark ruling in Lawrence v. Texas (02–102, 41 S. W. 3d 349, reversed and remanded), it overruled a Texas law criminalizing sodomy when practiced by two persons of the same sex. By a 6 to 3 decision, handed down on June 26, 2003, the Court affirmed that the rights of liberty and privacy guaranteed under the Due Process clause of the Fourteenth Amendment to the Constitution include the right of two consenting adults to engage in such acts within the home. The majority opinion, written by Justice Anthony Kennedy, states that sodomy laws “seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.”
There were further ramifications to this ruling. In extending the protection of the Due Process clause to the private consensual behavior of same-sex adults, the Supreme Court also reversed its 1986 decision in Bowers v. Hardwick, which had upheld the constitutionality of a Georgia statute defining sodomy as a criminal offense. Although the Georgia law was itself gender-neutral, the person charged in the case was a gay man, and the legal question in Bowers was framed in terms of whether the Constitution provides for “a fundamental right to engage in homosexual sodomy.” Writing for the majority, Justice Byron White refused to consider such a possibility: “Proscriptions against that conduct,” he noted, “have ancient roots” (478 US 186 [1986], at 192). Chief Justice Warren Burger emphatically concurred:
Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judaeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31 …. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. (478 US, at 196–7)
Like the defenders of Colorado’s Amendment 2, Chief Justice Burger reaches all the way back to antiquity for an authoritative precedent. When he claims that criminalization of homosexual behavior is inherent in the Western legal tradition, he appeals to the late antique codifications of Roman law under Theodosius and Justinian, which by metonymy implicitly stand for the whole Greco-Roman past. Human sexuality is thus always and everywhere the same, and homosexuality always and everywhere wrong. The Supreme Court decision in Bowers rests upon this essentialist assumption.
When it reversed that decision in Lawrence, the Court rejected both the central finding in Bowers and the premise on which the finding was based. It determined that the Bowers Court had buttressed its argument with inferences drawn from a historical model of sexuality called into doubt by subsequent research. Justice Kennedy notes that there are “fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers.” To demonstrate that point, he embarks upon a survey of the intent behind early modern laws against sodomy. In Renaissance England and colonial America, he observes, such laws applied to relations between men and women as well as between men and men. Wrongdoing was inherent in the act, not determined by the sex of persons committing the act, because no separate category of such persons yet existed: “The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century.” What was criminalized under such laws was not homoerotic sex, the jurist reasons, but all forms of nonprocreative sex. Later, during the nineteenth century, sodomy laws were chiefly used to punish assault and offenses against minors; rules of evidence then in force would have made it very difficult to prosecute consenting adults for acts committed in private. Far from possessing “ancient roots,” therefore, criminalization of the activities of same-sex couples under existing sodomy laws did not begin to occur until the 1970s, and a significant number of such prosecutions involved conduct in a public place. “In summary,” Kennedy concludes, “the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.”
To historians of sexuality, the implications of Justice Kennedy’s logic were astonishing: the Supreme Court had found for social constructionism. Classicists immediately began to trace possible interconnections between the sexual frameworks of antiquity and the legal principles set forth in the Lawrence majority opinion. Jeffrey Carnes pinpoints one crucial area of overlap. While the studies cited by Kennedy in order to validate his reading of the historical record are not themselves works of classical scholarship, the approach taken by those secondary sources applies premises drawn from Foucault’s analysis of Greco-Roman sexuality. The radical theory of the formation of the modern subject used to undercut the essentialist position assumed in Bowers is thus grounded in ancient cultural history. Meanwhile, the class of homosexuals, which, according to Lawrence, did not exist at the time sodomy laws were being formulated (and so was not envisioned as falling within the purview of sodomy laws) is now recognized as “an identity that marks out a class of citizens deserving of equal protection under the laws” (Carnes 2003: n.p.). The categories of homosexuality and heterosexuality as they are presently socially constructed have been reified by the Supreme Court, and the cultural specificity of those constructions is confirmed not only by their prior absence from historical discourses, but also by the discrete manner in which same-sex relations, between men and between women, were conceptualized in antiquity. Hence, further consideration of constitutional issues affecting homosexuals may well have to take ancient sexual constructs into account.
One such issue may already have occurred to you – at least, it occurred to Supreme Court Justice Antonin Scalia, who spoke about it at length in his dissent. He believed the Lawrence ruling was tantamount to throwing the door wide open to gay marriage:
Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct … and if, as the Court coos (casting aside all pretense of neutrality), “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,” … what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “[t]he liberty protected by the Constitution” …? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
The momentum this question speedily gathered attests to the correctness of Scalia’s perception. In the decade since Lawrence was decided, the right of gay couples to marry has gradually been recognized at the state level, initially through court rulings and legislative action and most recently by voter approval in statewide referendums. At the time of writing (May 2013) twelve states and the District of Columbia issue marriage licenses to same-sex couples. President Barack Obama has given the movement his personal endorsement and has affirmed the equality owed to “our gay brothers and sisters” in his Second Inaugural Address. The constitutionality of the 1996 Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing same-sex unions, is now before the Supreme Court. At the same time, the Court is also scheduled to rule on California’s Proposition 8, a ballot initiative banning same-sex marriage. Decisions on both cases are expected in June 2013, though whether the anticipated rulings will fully decide the main legal issues is uncertain. In the United Kingdom, meanwhile, same-sex couples may enter into civil partnerships granting most of the legal rights of marriage, and the first steps have been taken toward legalizing gay marriage itself. Canada, for its part, had already enacted same-sex marriage into nationwide law in 2005. Whatever the outcomes of pending legislative and judicial processes in the United Kingdom and the United States, though, the passionate convictions of both supporters and opponents will ensure that the topic of gay unions continues to be disputed for many years to come.
Whenever debate arises, ancient notions of marriage may well come into play, for they have shaped the Christian view of marriage as a union of one man and one woman that gay marriage, as many argue, threatens to subvert. Bringing in the reports of Nero’s weddings, or Martial’s and Juvenal’s accounts of male brides, would prove nothing either way, since that tactic naively confuses conventional motifs of polemic and satire with reportage. However, the threefold purpose of Christian marriage as encapsulated in the Anglican Prayer Book can be traced back to classical sources (Treggiari 1991: 11–13). Marriage, it is there stated, was ordained for the procreation of children, as a remedy against sin, and as a means of mutual support. Greeks and Romans alike defined reproduction as the notional purpose of marriage; here their influence is patent. Again, the idea of marriage as a partnership and source of mutual assistance is already inherent in the homophrosynê prized by Odysseus, but it receives its strongest affirmation from Musonius Rufus, who maintains that it is even more central to the purpose of marriage than producing children. Lastly, Paul’s defense of marriage as a safeguard against fornication in 1 Corinthians 7, though itself arguably derived from the Septuagint, later formed the basis of Clement of Alexandria’s conflation of scriptural and Greek philosophical tenets into an austere sexual ethic of procreation in the Lord (Gaca 2003: 247–72). As in Paul, so subsequently in Clement, the marriage of Christ and his church is integrated with Christian marriage. This means that a sexually active wedded Christian performs his or her faith in marriage – a principle still basic to Christian fundamentalism and the rationale for its commitment to preserving what is regarded as the sanctity of the institution. Awareness of how marriage was conceptualized in the classical world would appear to be a first step toward formulating the arguments for and against same-sex marriage.
Nevertheless it should be evident that, appealed to as a basis of judgment, ancient sources themselves leave room for dispute. If marriage is fundamentally for procreative ends, gay marriage is automatically ruled out; sterile marriages might be allowed to continue, on the grounds that they were entered into with the hope of having children, but marriage of those in their post-reproductive years would theoretically need to be specially justified. (The Lex Iulia de maritandis ordinibus, which imposed penalties upon the celibate, did not apply to women over 50 and men over 60.) On the other hand, nothing in that conception of marriage precludes either polygamy or concubinage in conjunction with marriage. Alternatively, if Musonius is right, and it is the stable social bond that is most central to marriage and presumably of most interest to the state, the right of forming a legally recognized union would have to be extended to gay couples – and it would be in the best interests of the state to permit them to do so. (Musonius thought same-sex intercourse unnatural, so he would be horrified by that remark, but it is the logical consequence of his postulate.) Whatever the outcome of this present controversy, we must acknowledge that sexual intercourse did not begin, after all, in 1963 – nor has it always been the same as it is now. Yet the forces that persist in shaping it well up from ancient springs.
Carnes, J. S. 2003. “Certain Intimate Conduct: Classics, Constructionism, and the Courts.” Unpublished paper.
Gaca, K. L. 2003. The Making of Fornication: Eros, Ethics, and Political Reform in Greek Philosophy and Early Christianity. Berkeley, CA: University of California Press.
Lane Fox, R. 1987. Pagans and Christians. New York: Alfred A. Knopf.
Treggiari, S. 1991. Roman Marriage: “Iusti Coniuges” from the Time of Cicero to the Time of Ulpian. Oxford: Clarendon Press.