A historical guide to the future of marriage for same-sex couples.

• Author: Goldberg, Suzanne B.
• Position: Sexuality and the Law

History and tradition have emerged, together, as contemporary flagship arguments for limiting marriage to different-sex couples. (1) According to advocates of "traditional marriage," same-sex couples can be excluded from marriage today because marriage always has been reserved to male-female couples. (2) Further, some contend, the restriction of marriage to different-sex couples has long been understood as necessary to provide channels to control naturally procreative (i.e., male-female) relationships. (3)

However popular these claims might be in op-ed pieces and on talk radio, when they are made in the litigation context, the question is not whether they have rhetorical appeal but rather whether they can explain the State's different marriage rules for gay and non-gay couples. For this purpose, broad-brush invocations of marriage's history will not suffice.

Yet, it is precisely these sorts of superficial references to tradition that have captivated courts deciding a variety of challenges to marriage restrictions. Pick a case that touches on marriage from federal or state court, from the nineteenth or twentieth century, and there is a reasonable chance that marriage will be described as a fixed, transhistorical institution that is foundational to civilization. Typical is the assertion of the Supreme Court in Skinner v. Oklahoma, the first case to identify marriage as a fundamental right: "Marriage and procreation are fundamental to the very existence and survival of the race." (4)

A cohort of more recent cases that specifically address marriage laws' exclusion of gay and lesbian couples follows this course. Courts in New York, New Jersey, and Arizona, among others, have rejected constitutional challenges brought by gay and lesbian couples on the grounds that the different-sex couple requirement has long been a part of the state's marriage law. (5)

This glib treatment of marriage as historically static and at risk of disintegration should same-sex couples be permitted to marry has caused considerable frustration among scholars of history and family law. There is, of course, the general point, which the Supreme Court has endorsed repeatedly, that history alone cannot justify retention of discriminatory rules. (6) More significant, however, is the reliance on an inaccurate history of marriage. This history, it mms out, contradicts directly the argument that marriage has a set of fixed, unchangeable criteria that represent its essence, including the different-sex restriction at issue in the contemporary marriage litigation.

In fact, marriage has undergone near-constant evolution to the point that marriage today bears little resemblance to marriage in the past. One hundred fifty years ago, a woman lost virtually all of her independent legal identity upon marriage. Even fifty years ago, in numerous jurisdictions, access to divorce was extremely limited, rape within marriage was not a crime, and bans on interracial marriage remained in force. The real history of marriage is thus an extended and consistent account of change to elements of marriage once considered essential. (7)

Because misconceptions of marriage's history have played such an important part in justifying the male-female marriage eligibility requirement, history and family law scholars have become part of the fabric of the litigation over the rights of same-sex couples to marry. In most of the major marriage cases across the country...