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Marriage Equality: How I Changed My Mind

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From 2003 to 2009, I wrote a series of historically grounded papers that reached the common conclusion that marriage equality was a radical departure from the western tradition and so, for that reason, should be rejected as a matter of public policy.

I have now changed my mind. While there is no question that marriage equality dramatically departs from what has gone before, I now find support within the same western tradition for expanding the definition of marriage to include loving, committed same-sex unions.

Professionally, I am both a lawyer and an historian. These two sides of my brain co-exist in what is, for the most part, a creative tension. The lawyer-brain looks at public policy in the urgency of the moment, while the historian-brain pulls me to look at the deep picture and to warn me to be cautious about abrupt social change.

This innate conservatism long governed my instincts on marriage equality. I knew from my research that in the few instances when marriage equality was debated in the historical record, it was rejected. And I knew that the western tradition long understood marriage to serve procreative purposes.

The Emperor Nero in the first century engaged in a same-sex marriage ceremony -- and was roundly criticized by the ancient sources. Twelve centuries later, the Catholic canon lawyer Hostiensis, a figure well-known to specialists but otherwise forgotten, asked the question, "May a man marry a man?" He used his answer to read into marriage law the theology of unnatural acts that still colors some parts of the Catholic Church's magisterium.

If this line of thought represented one element of my perspective, the procreative dimension represented the other. Secular and religious sources seemingly converged on this point. The Roman Emperor Augustus decreed that marriage had to serve procreative ends. And the theologian St. Augustine, four centuries later, went even farther. Where two parties affirmatively frustrated the natural fruitfulness of marriage, he asserted, their union was a sham and not a marriage at all.

Early American lawyers and judges stood firmly in this tradition. St. Augustine's teaching on marriage -- that it served procreative purposes, that it was permanent and exclusive -- became bedrock features of early American law, from the dawn of the nineteenth century to the end of World War II.

But in the 1950s and 1960s, American marriage law shifted fundamentally. Adultery and fornication, which were once punished as crimes, were now seen to be moral wrongs. No-fault divorce meanwhile eroded the law's formal commitment to permanence by expanding the opportunities to depart from marriage. Finally, the Supreme Court's right of privacy cases, beginning with Griswold v. Connecticut (1965), severed the connection between marriage and procreation.

This is a story I repeated in several iterations of my writing between 2003 and 2009. It seemed compelling that the conservative side of the debate had the mandate of history, if not of heaven.

But I now realize that the story I told was incomplete. I had merely narrated an account of how we got where we are and contented myself with the conclusion that that story, standing alone, provided sufficient guidance for future policy.

I appreciate now something I did not appreciate seven or eight years ago. I needed a more expansive historical vision in order to talk about the future. The story I had recited was a static account. I needed to identify the dynamic element within the history of marriage.

And that dynamic element is love -- an enduring commitment to the welfare of another human being. Love has been a central feature of the marital ideal for nearly as long as people have written about marriage. Babylonian poetry recited the story of Dumuzi and Inanna, two teen-aged deities who flirtatiously courted and wed. Teasingly, joyously, they eased themselves into a loving marriage.

In the Hebrew Scripture, we find the Song of Songs. I have always questioned the imputation of this book to King Solomon. It is an erotic celebration of love, told from the woman's perspective. The Christian effort to spiritualize this book, to turn it into allegory, has never been convincing. This is a book about passionate marital love, and it is found in the Bible. And then there is St. Paul's Letter to the Ephesians, where he counsels Christians spouses to love one another sacrificially, as Christ so loved the Church.

St. Augustine is part of this tradition too. When he wrote his treatise, "On the Good of Marriage," he commenced with the words: "Every individual belongs to the human race, and by virtue of his humanity is made a social being. In addition, the person possesses a strong aptitude for friendship." Yes, procreation mattered to St. Augustine, but in the end marriage became the appropriate avenue for procreation because we are social beings, ordained and destined for love. Love comes first in St. Augustine.

Great secular writers have also explored the centrality of love to marriage. Mary Wollstonecraft, who famously defended "The Rights of Woman," knew how to mourn the misery that comes when marriage is severed from the longings of the heart while also rejoicing in warm-hearted love in whatever strange corner of the human condition it might be found. Elizabeth Cady Stanton argued for consensual divorce not to provide an easy escape from marriage but as a way of ensuring that love and marriage might always remain perfectly matched.

This view of marriage has prevailed in modern American law. Where once American marriage law rested securely on Augustinian premises, the rise of artificial birth control and the right of privacy cases have shifted the foundations. As a matter of public understanding, marriage today can only be grounded on love and commitment, not on procreation. As a Catholic, I still understand marriage in my faith tradition to unite the procreative and affective ideals. But as an American citizen, I also know that I belong to a diverse and creative world where a new set of public norms is even now being created.

And these norms are love-based. I long feared the confusion that might arise from marriage grounded solely on affection. How do we know what to honor as "marriage" and how do we distinguish that from "friendship"? How do we demarcate one from the other?

I can now see that the boundary line must be the strength of commitment shared by two loving hearts. I have personally witnessed successful same-sex unions. The response of the gay community to the AIDS crisis, particularly in the 1980s, stands as heroic testimony to the force and power of sacrificial, self-giving love. Susan Sontag brilliantly captured the moment in her short story, "The Way We Live Now." We find there the many faces of love, as a concentric circle of friends gathers, hovers, retreats and congregates once again, all of them trying to comfort their dying friend.

Marriage equality is a new departure in history, but that does not mean that we lack all guidance from the past. History, in the form of the story of love itself and the vast treasure-house of human experience relating to it, can serve as our steady and certain teacher.