In Juneby a vote of 5 to 4, the Supreme Court of the United States resolved decades of debate by declaring marriage a fundamental right regardless of sexual orientation. Hodges decision changed the landscape of American marriage law, but what was this landscape in the first place?
Two historians of marriage and sexuality in the United States have spent decades taking on that very question. Nancy Cott and George Chauncey have both participated in recent history as expert witnesses, amicus curiae friend of the court brief writers, and eminent scholars analyzing marriage and homosexuality.
They show us how incorrect we often are when we think of these histories in the United States. These historians have made history a friend to the court as much as any lobbyist or interest group.
Far from the moral absolute marked by religious teachings that many might assume marriage was, it is a complicated and shifting concept in the history of the Western world. Society became concerned with civic character and then tried to improve these norms by engineering a certain type of family.
The common practice of unofficial divorce and separation led to a formal legal process for divorces just as much as the legal definition led to formal divorces. We are accustomed to thinking of these everyday things as defined from above, yet our community practices often find their way into law as often as the other way around.
The history of marriage in the United States certainly does not have the kind of unchanging moral character that many opponents to marriage equality claim. Two centuries ago, the most important people in deciding a match may well have been the community in which the couple lived.
Small rural towns had a deep interest and broad powers in marital arrangements.
This meant that slaves were barred from this institution while also condemned as immoral for engaging in extramarital intercourse; a key aspect of reconstruction was the construction of ex-slave marriage. Marriage may be a concept in flux, but what about homosexuality? Today we identify people with their sexual orientation, but was that the case in the past?
But George Chauncey, along with a wide field of historians, have helped us to reconsider.
Rather than being a gay or a lesbian, often individuals engaged in various kinds of sexual behaviors. The homosexual subculture of turn-of-the-century New York was visible and defined by specific kinds of sexual activities, not necessarily nature-born identities.