On Millennia and Marriage: Memo to SCOTUS

United States Supreme Court Building, Washington, DC

On Tuesday, the Supreme Court of the United States (SCOTUS) began hearing arguments on the constitutionality of same-sex marriage. One of the concerns raised on the issue by the justices themselves (as reported in today’s New York Times) is the sheer amount of time over which marriage has been defined solely in terms of the union of a man and a woman. As the Times reported in another article today:

“The word that keeps coming back to me in this case is millennia,” said Justice Anthony M. Kennedy….
            “You’re asking us to decide it for this society when no other society until 2001 ever had it,” added Justice Antonin Scalia.

Justices Kennedy and Scalia are indisputably correct: same-sex marriage has never been recognized as legal in any culture at any time, throughout human history, until legalized by Massachusetts, effective 2004. Some would build upon this fact to argue that same-sex marriage is unconstitutional, and should never be legalized, because such legalization would break with millennia of precedent. To many people, this would be a compelling argument. However, there are problems with this line of thought:

This argument is totally illogical—it is, in fact, a classic error of logic. It also runs completely against the most basic of American values. It is contrary to the Enlightenment values that have advanced Western civilization over the last four centuries. As such, it is one of the worst arguments that it is possible to make against same-sex marriage.

The “it’s been done this way for millennia” argument is another way of saying that “it is this way, and so it ought to be this way,” a type of argument that was identified as deeply illogical by the Scottish philosopher David Hume over 300 years ago. (The basic issue is simple: there just is no logical connection between the descriptive statement that something is a certain way, and the prescriptive statement that it ought to be that way.)

But let’s get beyond logic, to values. As I’ve pointed out, the “millennia” approach says, “everyone’s always done it this way, so we should keep on doing it this way.”

How American is that?

Not very.

Let’s look at four important areas in which the U.S., and Western civilization generally, have rejected the “everyone’s always done it that way” argument.

Government

The very founding of the United States was a literally violent break with the past. Before the establishment of the U.S., there had not been a real democracy as the basis of a major national government since the days the ancient Athenian Council of the Areopagus and the Roman Republic—each of which was eradicated before the days of Jesus of Nazareth. That would be two millennia ago. Aside from those two examples of democracy, governance by an absolute ruler was the practice throughout all of human history—for over fifty-five centuries, or over five millennia—until the founding of the U.S.

Rule by king, emperor, or pharaoh, throughout almost all human cultures, over almost the entire prior history of humankind, was the ultimate historical precedent. The ratification of the Constitution of the United States changed all of that, fifty-five centuries of human tradition, by establishing a representative democracy. Somehow, the founders of the nation found it possible to toss over five thousand years of precedent, to forklift over five millennia of all-but-universal practice. As a country, we’ve never looked back.

Religious Freedom

Much has been made about the implications of same-sex marriage for religious freedom. Although that topic must be addressed separately, we should consider how precedent-shattering the American notion of religious freedom was when the 1^st Amendment to the Constitution was ratified effective 1791. From at least as far back as the days of ancient Egypt, states had sponsored some religion or religions, and often forbidden or strictly regulated the exercise of others. This was the nigh-universal practice of the major civilizations of the West from the days of Alexander the Great and the glory days of Greece, right through the days of the Roman Empire, continuing on through the middle ages and the Renaissance. Only during the European Enlightenment did this begin to be questioned. It was only with the ratification of the U.S. Constitution that the right to believe and worship as one pleases become established in a major Western nation.

Here again, somehow, the founders of the nation found it possible to toss over five millennia of all-but-universal practice—without regrets.

Slavery

The institution of slavery has existed since the earliest days of recorded human history, at least since the empires of ancient Egypt, Babylon, Sumer, and the Indus. The Bible—both the Jewish Tanakh and the Christian New Testament—describe slavery without giving any indication that the basic institution should be abolished. Slavery was common throughout the ancient Greek city states, and the entire Roman Empire, as well as through many countries of medieval Europe. Slavery was certainly the rule in many European colonies, including many that later became the United States.

When Abraham Lincoln issued the Emancipation Proclamation, and when the U.S. ratified the 13^th Amendment to the Constitution in 1865, America was breaking with over five millennia of tradition and accepted practice. Somehow Lincoln wasn’t swayed much by the “I think of millennia” argument.

Women

Until quite recently, women throughout Western civilization were completely subservient to men, virtually as controlled as slaves, and had been so for many millennia. Just considering the Roman Empire, women could not own property or make contracts in their own names; they could not vote or hold public office; and, they were totally subject to the rule of their fathers until marriage, and their husbands thereafter. The Roman practice was itself built on millennia of precedent in most nations of the ancient world, and the Roman way continued to be practiced throughout many of the nations of Europe into the 19^th century and even beyond.

In the United States, the right of women to vote was not secured until the ratification of the 19^th Amendment in 1920. Women’s legal rights in other areas—such as access to credit—were not established for many years after the right to vote, based on the millennia-old practice that I described above.

Giving women the right to vote, own their own property, and make their own financial decisions, broke with five millennia and more of tradition and precedent. Last time I looked, the sky had not fallen. 

Conclusion

America was built upon a willingness to abandon millennia-old practices on the basis of moral principles. The “it’s been done this way for millennia!” line of thought has been rejected time and again as America progressed from being a set of colonies oppressed by Great Britain, colonies where slavery was widespread, women were all but men’s property, and certain religions were ‘official,’ to being an independent and democratic nation where slavery has been abolished, women have equal rights to men, and the right to choose one's own religion is unimpeded.

The Supreme Court now has an historic opportunity to give full rights to another portion of our population. May it not be swayed by the idea that they are changing the practice of millennia.

That’s just being American.

And it is certainly On The Mark.

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[The photo of the Supreme Court of the United States building was created on October 28, 2010 by Wikipedia user 350z33 and cropped by Wikipedia user Pine. It appears here under the terms of the Creative Commons Attribution-ShareAlike 3.0 License and the GNU Free Documentation License, Version 1.2.]

(Copyright 2015 Mark E. Koltko-Rivera. All Rights Reserved.)