The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment.

• Author: Posner, Richard A.

By William N. Eskridge, Jr. New York: The Free Press. 1996. Pp. 296. $25.

Professor Eskridge(1) has established a well-deserved reputation as our leading legal academic specialist on statutory interpretation. Lately, his interests have expanded to take in the legal rights of homosexuals. In The Case for Same-Sex Marriage, he argues that marriage should be permitted between persons of the same sex -- and indeed that the Constitution should be interpreted to entitle persons of the same sex to marry. As the title indicates, this is a work of advocacy, but it is not just a book-length brief. It is a work of deep and scrupulous (though not flawless) scholarship -- unstrident, unpolemical, and written with extreme lucidity and simplicity So that it is fully accessible to the nonlawyer. Except for the treacly vignette of lesbian love with which the book opens.(2) it is a model of advocacy scholarship.

The book argues two cases, not sharply distinguished. The first is the case for legislative reform: state marriage statutes (or their interpretation) should be changed to permit people of the same sex to marry. The argument that Eskridge mounts in favor of such reform is (after a rocky beginning) a powerful one, and it would not trouble me if a state were persuaded by it and adopted such a law. The second case that Eskridge argues is that the courts in the name of the Constitution should force acceptance of same-sex marriage on all the states at once. That case I find unconvincing.

Let us see how Eskridge argues these cases (as I say, he does not distinguish sharply between them). He begins, after trying to put us in a receptive mood with the story of Ninia and Genora, with a history of same-sex marriage. The point of the historical account is to show that same-sex marriage is not quite the novelty that most Americans think it is. To show this requires Eskridge to ransack the historical and anthropological record. He doesn't come up with much to advance his case. The fact that Nero "married" a young man, the unfortunate Sporus, after having him castrated (one of Eskridge's examples of the historicity of same-sex marriage) (p. 22), is unlikely to strike many Americans as a happy augury of same-sex marriage; nor is the fact that ritual pederasty in Melanesia is viewed as an initiation into heterosexual marriage (p. 33); nor that "woman marriage," in which a woman assumes the role of husband of another woman (or women), is common in tribal Africa (pp. 33-35); nor that in our own country women "passing" as men have sometimes obtained a marriage license and married a man (pp. 37-39). Eskridge in this part of the book, chapter 2, is treating practice as normative for us even if it is the practice of a society, such as that of ancient Rome, or Aztec Mexico, many of whose practices are deeply repellent to us (pp. 21-30). If whatever has been a common social practice is therefore a moral practice, then infanticide, human sacrifice, cannibalism, and slavery are moral. And homosexual marriage has nowhere been a common practice, even in societies in which homosexuality was common.

Eskridge is a careful scholar. But one must always beware a legal advocate doing history or anthropology. Eskridge does not maintain a clear line between homosexual relationships and homosexual marriages, nor between homosexual relationships and nonerotic male bonding, as when he calls Patroclus Achilles' lover, which may have been what Shakespeare thought (see Troilus and Cressida), but is not what Homer says or implies.(3) Eskridge also speculates that because the ancient Mesopotamian legal codes did not prohibit homosexuality yet regulated marriage heavily, maybe same-sex marriage was permitted implicitly. But Illinois decriminalized sodomy more than thirty years ago, yet still does not recognize same-sex marriage. Eskridge's single most questionable historical claim is that we can infer that "same-sex intimacy was common in [ancient] Egypt" from the denunciation of the Egyptian practice of same-sex marriage in Leviticus (p. 19). Nothing is more common than to ascribe sexual abominations to your enemies. Whether there is any accurate history in the early books of the Bible is open to serious doubt,(4) and if there is any, it is unlikely to concern the sexual practices of Egyptians.

Eskridge's canvass of historical materials is impressively thorough and has value independent of its advocacy function. But in addition to the mistakes of detail that I have mentioned, the causal inferences that he draws from the historical record are questionable, including his explanation for why, beginning in the thirteenth century under the leadership of the Roman Catholic Church, Western nations became and remain dead set against recognizing homosexual marriage. Eskridge speculates that growing urbanization and the rise of the nation-state rendered homosexuals prominent and threatening (p. 36). But why? Cities traditionally are more tolerant of sexual and other deviance than rural areas; Stadtluft macht fret, as the Germans say. And why should a nation feel threatened by homosexuals? I have set forth elsewhere what I believe to be a more persuasive explanation for the historical rise of intolerance of homosexuality in the West.(5) The rise coincided, though only very roughly, with the rise of companionate marriage, marriage in which the spouses are expected to be close companions -- ideally, each other's best friends -- rather than the woman's being merely the breeder of the man's children. The institution of companionate marriage tends to extrude homosexuals -- who can blend invisibly into a system of noncompanionate marriage, where nothing more than occasional sexual relations are expected, but who may be uncomfortable in a companionate relationship with a person of the opposite sex. For...