Some Sound Sense on Same-Sex Marriage
by Dan Clore
Some sound factual knowledge and common sense need to be injected into the debates over same-sex marriage.
Opponents of same-sex marriage often make the ignorant claim that since time immemorial, marriage has been defined as solely between man and woman, and that no society or civilization has recognized same-sex marriages. The facts say otherwise. Many societies have accepted same-sex marriages; in a majority (but by no means all), one member takes on the role of the opposite gender, or of a "third" sex.
In the Classical period, both Greeks and Romans accepted marriages between gay men. The Greeks believed that such couples made especially good soldiers, as they would wish to vaunt their bravery in battle before their partner. Most Romans, on the other hand, recognized gay marriages but sneered at homosexuals; still, several Roman Emperors married men. Nero did so twice, taking both the male and female role.
A majority of Indian societies in North America included a traditional form of marriage between members of the same sex. The men and women who have done so are known to anthropologists as berdaches. Examples include the Navajo,Mohave, Arapaho, Omaha, Sioux, Oglala, Cheyenne, Creek, and Lakota. They often held an especially honored place in their tribes. In the nineteenth-century, women berdaches who were renowned warriors became chiefs in the Crow and Snake tribes. We'Wha, a popular Zuni berdache, dined with President Grover Cleveland in the White House in 1886. Speaking of ignorance, we learned about berdaches in elementary-school.
One could multiply such examples indefinitely. Chukchee shamans frequently marry other men. Several societies have recognized temporary marriages between an older and a younger man, such as the African Azande and, in past centuries, in the Fujian province of China. Some orders of Buddhist nuns in Singapore marry upon their novitiate.
Furthermore, same-sex marriages are currently recognized in some Western countries as well. Belgium and Holland give full legal recognition. Even in the United States, same-sex marriages are recognized in certain special circumstances, -- when one member has undergone a sex-change operation, for example.
Opposition to gay marriage relies on illogic as well as ignorance. Opponents claim that homosexuals choose their sexual orientation. A moment of introspection suffices to refute this claim. Feelings and emotions happen to individuals; they are not under their conscious control. While an individual can choose how to act on an emotion, they do not choose who they feel attracted to or who they fall in love with.
To put it another way: Given that I can't even choose which women I find myself attracted to, how in the world would I go about becoming attracted to men instead?
©2008 Dan Clore, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Wednesday, July 9, 2008
Last modified: Thursday, July 10, 2008
The views expressed in this article are those of Dan Clore only and do not represent the views of Nolan Chart, LLC or its affiliates. Dan Clore is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.
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Reader Comments:
Posted By: MickeyC
Date: 2008-07-09 06:12:14
Excellent points! I think that when logic and reason are applied to same sex marriage. most normal thinking people will see it as this article states. It's high time we put away our personal likes and dislikes in support of the rights of others to live their lives as they see fit. Bravo Dan Clore.
Posted By: Charlotte
Date: 2008-07-09 17:45:11
There will always be people against equality. Marriage is a basic civil right that should be attainable by all Americans if they choose. For those who are uncomfortable with gay marriage check out our short produced to educate & defuse the controversy. It has a way of opening closed minds & provides some sanity on the issue:) www.OUTTAKEonline.com
Posted By: Floyd W. Whitley
Date: 2008-07-10 12:15:48
"Nero did so twice, taking both the male and female role."
Nero also dipped Christians in pine pitch, tied them to stakes, and used them as candles for his outdoor feasts. Even his pagan peers disdained his cruelty...and his sodomous affairs.
It is true that this sort of behavior became rampant in the Imperial household. But among the common people, no such claim has foundation. In fact, it was disdained and opposed by the ever dwindling Roman Republicans who looked at these excesses as destuctive and extravagent debauchery.
The Imperial debauchery lived on a pace. Unfortunately, the Republic died. If statisical correlations are to be built, begin there.
Lastly, I reject your character assassination.
"Opponents of same-sex marriage often make the ignorant claim that since time immemorial, marriage has been defined as solely between man and woman."
I am not ignorant. Neither is the common law.
Ignorance is failing to observe the thumb upon the scales when an honest measure is purportedly being made.
Point in case, proponents of homosexual "marriage" will conveniently ignore stare decisis and the precedential and authoritive common law. (By the way, Anglo-Saxon common law IS the foundational legal code here, a fact which makes your arguments moot.)
But, if stare decisis can be used in any manner, however remote, and however tangential, to bolster their agenda, then the common law is of course to be embraced and trumpeted.
The term capricious comes to mind. Regardless, Blackstone addressed this some 350 years ago:
"For it is an established rule to abide by former precedents where the same points precedents come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge's opinion; ... he being sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one."
Nero pronounced new "law". But then again, it occurs to me that a horse was named as a Roman Senator by his Uncle, Calligula. You certainly aren't proposing we do the same just because the Roman Emperor established a new "law"...or are you?
Posted By: Dan Clore
Date: 2008-07-10 14:32:06
No, Nero did not make a new law to allow same-sex marriage. There was no need to, as it was already legal.
So far as England's archaic common law goes, it's fine to keep it when it is right, but we should not hold on to it as if it were something sacred when it is wrong. (See here http://tinyurl.com/5wesap for just how silly this sort of thing can get.)
Posted By: Floyd W. Whitley
Date: 2008-07-10 15:00:20
And the Roman Legal code, which you here claim made same-sex "marriage" legal 2,000 years ago in that pagan civilization, was what specific code exactly?
Your response can be either a direct citation from the Latin or not, however you prefer.
You pick and choose here. It was also legal under Nero to soak those Christians in pitch and ignite them for candles, or sport them whole before lions as entertainment.
Regardless, we do not live under, nor is our law derived from, Roman Code.
We live under the common law of England, which is and which remains the default jurisprudence in America.
For all your "modern" versus "archaic" learning, knowledge of the truth is not anywhere in evidence.
Again, for your edification, Willim Blackstone, through whom most of our existing judicial system is established, said:
"This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature".
Euphemisitically, that means that these sorts of illegitimate behaviors were proscribed. You may twist it however you will. And here, above all else, the Libertarians most egregiously abuse our heritage of jurisprudence.
But you still do not legitimize something that is illegitimate.
Posted By: Floyd W. Whitley
Date: 2008-07-10 19:20:04
As no reply is evidently forthcoming regarding the above dubious claim that: "Nero did not make a new law to allow same-sex marriage. There was no need to, as it was already legal", I am compelled to draw you attentions to the Lex Scantinia.
This Roman legal code was actually passed in the early Roman Republic [c. 509 BC]. against homosexual activity. Whether it was an effective proscription or not is debatable.
Later, in the Imperial age, the Lex Julia de adulteris (c. 17 BC) was expanded to include first offenses against boys; and then again to include all male homosexual practices. Certainly, the Late Roman pagan judiciary had long applied the Lex Julia to these acts.
Even though the "gay lore" may claim that prohibition against homosexual acts began with the advent of Christian Roman Emperors, this simply is not true.
What is true is that the Theodosian Code, issued by Valentinian (6 August 390 AD), made more clear the former prohibition, and the penalty:
"All persons who have the shameful custom of condemning a man's body, acting the part of a woman's to the sufferance of alien sex (for they appear not to be different from women), shall expiate a crime of this kind in avenging flames in the sight of the people." [Cod.Theod. IX. Vii. 6]
This Theodosian Code was based, evidently, on a legal decision issued by Constantius and Constans (16 December 342) which stated in part:
"When a man marries in the manner of a woman...We order the statutes to arise, the laws to be armed with an avenging sword, that those infamous persons who are now, or who hereafter may be, guilty may be subjected to exquisite punishment." [Cod.Theod. IX. Viii. 3 and Cod. Justin. IX.ix.31].
Lastly, that the pagan legal restrictions existed prior to Christian Emperors is evidenced in the Corpus Juris Civilis (30 December 533) by yet another extension of the Lex Julia de adulteris code from 17 BC.
In the Juris Civilis it ordered that:
"…which punishes with death (gladio), not only those who violate the marriages of others, but also those who dare to commit acts of vile lust with [other] men (qui cim masculis nefandum libidinem exercere audent)." [Institutes IV. xviii .4]
So, the question is how far back into antquity do you want to look in your attempt to legitimize in illegitimate?
Not even Roman Code grants your arguments sanctuary.
Posted By: Floyd W. Whitley
Date: 2008-07-10 19:58:59
And more on the same subject:
Was homosexuality still a problem in Ancient Rome despite the codes against it? Indeed it was. In fact, it led to the sacking of Rome!
Procopius wrote in the early 6th century that to sack Rome the Vandals selected 300 well born boys, "whose beards had not yet grown, but who had just come of age." They sent these boys to the patrician households in Rome as house slaves where, in servitude, they were most certainly sexually exploited.
Yet on a predetermined day, these sexually exploited Vandal slave boys rose up and slew their Roman patrician masters and their households.
Legal same sex marriages? In no manner. More like cruel enslavement and illegal debased exploitation to satisfy licentiousness, the whole of which came at a great cost to the overall society. Rome was destroyed by it. Not for nothing were the codes created.
[See: Greenberg, David F. 1988. The construction of homosexuality. University of Chicago Press]
Greenberg's text doubtless has now become a tool in the homosexual advocates' argument that this banned behavior is only deviant becasue society says it is.
It not only is deviant but pederasty is destructive, as demonstrated. Following Blackstone's Commentaries on the common law, when such vile acts are made public, society has an obligation to restrict them, Libertarian sentiments notwithstanding...unless your political organization intends to overturn the entire legal code itself.
Posted By: Dan Clore
Date: 2008-07-10 20:36:58
Checking your claims, I find that that the relevant part of the Lex Scantinia only applied to homosexual rape. I'll assume the rest of your material is equally accurate.
Further, even if this one example were proven incorrect, that would still leave many societies that have recognized same-sex marriages.
Finally, there is really no reason to care whether or not Blackstone shared the common homophobia of his era. The point is that we should not.
Posted By: Shak El
Date: 2008-07-10 21:03:38
I find it interesting tha the Roman elite were Christian for two centuries but still practiced homosexuality openly.
Also, the pagan Anglo-saxons did not oppress their gay members. You don't take the Common Law back enough!
Posted By: Floyd W. Whitley
Date: 2008-07-10 22:32:53
No, Dan. I will not allow you to get away with that attempted slanderous dismissive underhanded insult.
Readers should be aware, despite your false claim that the Lex Scantinia "only" applied to homosexual rape, that you cannot for a fact make that claim.
The Lex Scantinia did indeed prohibit homosexual activity, and in the case of rape, called for enforcement through the death penalty.
Omission does not prove lack of existence. That is what you attempt to "prove" here.
The facts are these concerning the Lex Scantinia, the exact text of this code has been lost to antiquity. The claim you make, that this code "only" prohibited homosexual rape, is itself derived from the fact that two later Roman legal scholars (in the 2nd and 3rd century) referred to this code's capital sentence against homosexual rape of young Roman citizens.
Your claim that it "only" referred to that, however, is without any merit whatsoever. But I have no doubt that you "checked" adequately the source.
Yet because you cannot provide the Roman Codes which YOU claim made "same-sex marriage" legal, your course of action here is to attempt to defame my arguments by false pretense, and then to resort to standard name calling cliches...e.g. "homophobia", etc. Basic activist's routine.
Fairness, however, would dictate that YOUR claims to homosexual "marriages" as being "legal" under Roman Code be scrutinized.
Regardless (or better, to use your own argumentative slight of hand..."even if this one example were proven incorrect"), by the time these two Roman scholars made their references to the Lex Scantinia, a code written 300 years earlier, absolutely without doubt the Lex Julia (passed 17 years Before Christ) was in existence. I quoted the "relevant part", as you style it.
Reference by deduction has been made, by the way, to the existence of even earlier Roman laws predating the Lex Scantinia, earlier laws which also prohibit homosexuality. But these codes, not having been referenced in surviving later Roman legal works (as the specific reference to the Lex Scantinia was), can only be surmised.
Regardless, your postings prove duplicity, deceptiveness and dishonesty. And this, I had always be led to believe, was an anathema to "purist" Libertarians...except when it comes to promoting homosexuality, and pederasty it seems.
Yes, yes. I know, Everyone else is ignorant. You said so twice in your article above.
I leave it to the objective reader to determine who here has been more forthright...me or you. I stand by my above posts.
Until you provide the Roman Legal Code which you claimed made homosexual "marriages" legal, you have nothing to stand on other than an unfounded dogmatic agenda.
By the way, as an activist, you should be demanding the release of Gons G. Nachman, former diplomat, should you not? He pleaded guilty to possessing child pornography, after admitting that he had sex with 14- to 17-year-old girls while serving as a consular officer in Brazil and Congo. And he video taped it.
Using your line of reasoning, by extension, he should be freed by the Federal Court since, in the Congo and Brazil, sex with underaged girls is "condoned"... and of course, if it is "okay" in those societies, it must also be okay here too, right?
Posted By: Rev. Robert Mills
Date: 2008-07-12 07:09:37
Arguments against same sex marriage by the right wing and others who believe such unions are unnatural are first and foremost hypocitical - in that how often do I run into their own diatribes against those of us who oppose all war, and want to see economic equity established - in these diatribes, they will say that behavior cannot be legislated. Using law to oppose a moral decision is 'legislating' behavior, and even more it is a 'majority' dictating to a minority a a certain 'approved standard of behavior. This is as faulty as arguments which defended slaviery in the past.
dan presents a well rounded defense for same sex marriage and presents some well documented anthropological arguments. I beleive this can be explored further. Very well done.
Posted By: Floyd W. Whitley
Date: 2008-07-13 08:48:19
Ei nihil turpe, cui nihil satis. [To whom nothing is base, nothing is sufficient.]
So, Rev., you "want to see economic equity established"? Seems to me the Communists wanted that too.
"Oppose all war" Right, Rev., nothing is worth fighting for.
"Using law to oppose a moral decision is 'legislating' behavior", Rev.? The law does so, and has always done so, all the time. You therefore argue for there BEING no law.
"Diatribes", Rev.?
Posted By: Frank Lancelotti
Date: 2008-07-20 10:35:48
I would like Floyd W. Whitley to contact me at, wakywillie@aol.com, as I am in agreement with him.
Posted By: Scott
Date: 2008-07-26 23:59:31
Floyd, you are kinda... crazy. And yes, you are ignorant. Homosexuality was not the fall of any empire. Homosexuality then was not even the same then as it is now... they had no idea that there is an innate trait known as sexual orientation. Apparently it's something you havent quite grasped, either. Your red herrings are not aruments against equality, I can see through that. I'm sure many more can as well.
Posted By: Brian Miller
Date: 2008-09-29 20:20:49
Floyd isn't just wacky, he's funny. I wish more anti-gay head cases were as amusing, especially in their Fractured History Lessons.
Posted By: Ryan W.
Date: 2008-11-08 19:07:23
While I'm supportive of gay rights I'm also sick of people dismissing folks like Floyd W. Whitley as 'ignorant' and a whole pack of other logical fallacies which surrounds this issue. Clearly he's studied the matter a great deal more than the others on this board and makes a solid, as yet unrefuted case for the lack of historical precedent to gay marriage in American or Brittish common law as well as (possibly) Roman law. If a person is ignorant, it seems superfluous to say so. Just produce superior evidence and onlookers, at least, can make the obvious choice.
It seems like people here have resorted to insults like 'ignorance' specifically because they've had so much trouble using historical evidence to support their case. Yes, you can find examples from various tribes of same sex marriage. But a variety of cultures from Chinese communists to Muslim fundamentalists to Romans to Christians have opposed homosexuality for millenia. There must be some reason for this, which is simply not being addressed. And it's probably a little more complex than simply "past bad, change good!" Feminism, to use an analogous movement, rarely credits the importance of birth control, modern medicine (which reduced the need for huge families) and the increasing value of intellectual labor in allowing their movement to suddenly succeed.
Those who are anti-homosexuality at the very least deserve some narrative that answers the question; Why did strong and ambitious post-agricultural societies so consistently oppose homosexuality?
One notion; since homosexual sex wasn't needed for reproduction and the male sex drive can be voracious and promiscuous, discouraging it may have prevented the spread of disease. If this is one reason homosexuality was opposed, same sex marriage may (or may not) cut down on the spread of disease.
There does seem to be some evidence that views of married women were somewhat shabbier in places where pedaresty was common. Is it surprising? Women so often exert influence thorugh men, and competing with other men would detract from that influence.
Scott - they had no idea that there is an innate trait known as sexual orientation.
This is an interesting comment. Presumably people haven't changed genetically in a few millenia. So why wouldn't people have had the concept of sexual orientation? Perhaps a large number of bisexuals obscured the fact? Or pedarests who only liked pre-pubescent boys (Romans seemed to view sex through the lens of power relationships instead of sexual orientation). There's a fair argument to be made that many pedarests were heterosexually oriented, as such relationships almost universally ended when the boys took on male features at puberty.) Or perhaps if such a basic thing could be obscured to them Romans then human sexuality may, for some people at least, be more maleable than the "homosexuality can't be taught" crowd tends to admit.
Rev. Robert Mills - As Floyd mentioned, of COURSE laws regulate behavior. That's what laws are. A person who says otherwise doesn't want law at all. Care to cite any bonafide "right winger " (religious conservatives) who says that behavior can't be legislated? Legislation has costs and consequences, certainly. Taxes on corporations, for instance, can decrease investment and encourage wasteful tax-avoidance behavior. But that people respond to incentives and punishments is a very conservative notion.
Also, I've looked into claims that digit ratio, which is indicitave of relative androgen exposure in the womb, is a predictor of sexual orientation. It doesn't seem to yeild consistent results. More importantly, studies still use surveys rather than digit ratio to determine sexual orientation. If digit ratio really indicated sexual orientation why don't studies at least include digit ratio among their measurements?! It would be worth asking how many happily married heterosexual couples have 'homosexual' digit ratios.But nooone is asking that question.
Finally the argument "I was born wanting x" or "I was made this way" is simply not going to be a persuasive argument, by itself, to any religious conservative. Religion is predicated on the belief that people naturally want to do quite a few bad things that harm themselves and others in the long run. The bloody history of the world, whose violence is even greater in non-JudeoChristian post-agricultural societies, seems to support the fact that human instincts can't be entirely trusted but need to be shaped, somehow, by culture. Desire for a behavior, however intrinsic, is simply not in the same class as skin color. A person is either legally responsible for their actions, or they are literally insane. So it's morally dangerous to make the arguement that a thing is good solely because people are born wanting it.
Posted By: karen parker-galvin
Date: 2009-02-02 12:54:08
I would like Floyd W. Whitely to contact me if his middle name is Wiley. This is about a Bachmann genealogy issue and unrelated to the discussion on this forum. Thank you.
karen parker galvin
Posted By: Brian Miller
Date: 2009-09-07 11:20:26
Clearly he's studied the matter a great deal more than the others on this board and makes a solid, as yet unrefuted case for the lack of historical precedent to gay marriage in American or Brittish common law
The same "problem" existed for women owning property and voting as of the 19th century.
Of course, the "common law" is subservient, in this country, to the Constitution, whose 14th and 4th amendments are pretty clear on the whole matter. The government cannot create "institutions" that exclude subclasses of individuals and make them strangers to the law. Nor can the "common law" be invoked as a defense against government (at any level) violating one's right to due process, equal protection of the law, etc.