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Justice Kennedy's misperception of marriage

During oral arguments before the Supreme Court in Obergefell v. Hodges — the case that will determine the legal status of same-sex marriage throughout the United States — Justice Anthony Kennedy mused that the definition of marriage as between one man and one woman "has been with us for millennia. And it — it's very difficult for the court to say, oh, well, we know better." I'll admit, I laughed out loud at Justice Kennedy's rendering of the past. As any student in my family history class knows, the definition of a socially acceptable marriage has been contested, unstable and changing for centuries.

And the fact that a Supreme Court justice could argue without challenge for the historical continuity of one particular definition of marriage demonstrates why we need to make sure that Americans have a better grounding in history and critical thinking — two of the cornerstones of a liberal arts education. The historical facts are what they are. And even a Supreme Court justice who may eventually rule in favor of same-sex marriage needs to get them right.

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For instance, in the medieval Christian West, the Roman Catholic Church and powerful families fought bitterly over church efforts to end polygyny (a system which allows men to have multiple wives) and to advocate for the principle of consent and free will in marriage. In much of the world, however, polygyny remained the norm, and still does today. Even western Christian society has generally accommodated the idea of polygamy through serial monogamy, allowing divorce, or functional divorce through annulment. The Christian church may have promoted the ideals of procreation, affection and emotional sustenance through marriage, but among the elite, these values took a back seat to property, alliances and politics. Among the common folk, economic survival undergirded marital choice.

While marriage strategies among medieval and early modern Europeans may seem of little concern to modern Americans, these struggles over marriage shaped the attitudes of the emigrants who came to settle in the New World and eventually founded our country. My course on the history of the family puts into context the history of same-sex marriage in the United States. In it, we read the amicus brief submitted by historians in Goodridge v. the Department of Public Health (2004) — the legal case that ended the ban on same-sex marriage in the state of Massachusetts. The historians who authored the brief argued cogently that marriage has evolved significantly since the founding of Massachusetts in the 17th century, and noted "That marriage remains a vital and relevant institution is a tribute to the law's ability to accommodate changing values, not the rigid adherence to rules and practices of another time."

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For example, while in the past, blacks and whites were not allowed to marry each other and women lost their legal identity on the day they married, current laws and social mores do not allow for such prescriptions. The authors of the brief make the point that, over the course of the 19th century, Massachusetts courts and legislatures shaped and reshaped the institution of marriage to advance broader societal goals grounded in freedom and equality. Most notably, the brief argues that "The historical refusal to grant marriage licenses to gay and lesbian couples was rooted in a system that outlawed sex between same-sex couples and rigidly enforced traditional gender roles in marriage" — an outdated system that courts throughout the country have rightly abolished.

This shift in ideas about gender roles is perhaps one of the most powerful points in undercutting any historical basis to uphold a concept of marriage that has supposedly "been with us for millennia." Throughout much of history, rules about marriage were predicated on what, at the time, were assumed to be fixed ideas about gender roles and performance. These rules have ceased to exist in any meaningful way and are certainly not enforced in any court of law in our country. Marriage has evolved in a way that favors freedom of choice and intimacy as key to marriage, a definition that today encompasses same-sex couples. If the members of the Supreme Court take a serious look at the history of marriage in the United States and the Western world that any scholar of family history can lay out for them, they can only reach the conclusion that history favors the rights of the plaintiffs — and get on the right side of history.

Christine Adams is professor of history at St. Mary's College of Maryland. She can be reached at cmadams@smcm.edu.

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