Joshua Malbin

[M]arriage has always been understood, with very few exceptions, as the union of a man and a woman. This is true across time, across cultures, across religious traditions, etc. Does it really seem likely that this remarkable consensus is nothing but a nasty desire of one group to flaunt its privileged position over a minority? Is it really feasible that the world’s cultures all consulted about how to put down gay people and came up with marriage as the solution?

William Duncan, director of the Marriage Law Foundation, in National Review‘s The Corner

It is a rather amazing fact that, of the very many dimensions along which the genital activity of one person can be differentiated from that of another (dimensions that include preference for certain acts, certain zones or sensations, certain physical types, a certain frequency, certain symbolic investments, certain relations of age or power, a certain species, a certain number of participants, etc. etc. etc.), precisely one, the gender of object choice, emerged from the turn of the century, and has remained, as the dimension denoted by the now ubiquitous category of “sexual orientation.” The is not a development that would have been foreseen from the viewpoint of the fin de siècle itself[...].

Eve Kosofsky Sedgwick, Epistemology of the Closet

42. Same-sex love and intimacy are well-documented in human history. The concept of an identity based on object desire; that is, whether an individual desires a relationship with someone of the opposite sex (heterosexual), same sex (homosexual) or either sex (bisexual), developed in the late nineteenth century.

a.    Tr 531:25-533:24 (Chauncey: The categories of heterosexual and homosexual emerged in the late nineteenth century, although there were people at all time periods in American history whose primary erotic and emotional attractions were to people of the same sex.);

Judge Vaughn Walker in Perry vs. Schwarzenegger

This is a court ruling, not an academic seminar at Berkeley.

Kathryn Jean Lopez at The Corner

One of the most impressive and least discussed aspect of the ruling that has overturned Proposition 8 is its sense of history. The standard right-wing dismissal of gay marriage is that marriage has for millennia been an institution that joins a man and a woman, and that same-sex marriage hasn’t even been on the agenda of gay rights groups for very long. Even sympathetic critics see the place of marriage on the gay agenda as emerging “as if out of nowhere over just the past few years”, and not without reason.

The excerpt I pulled from the ruling is slightly misleading; for all the attention Perry vs. Schwarzenegger gives to the historical contingency of homosexuality, it gives much more to the evolving qualities of marriage. Racial restrictions and divorce laws loosen over time. Historian Nancy Cott testified about the laws of coverture and the ways in which “the wife was covered, in effect, by her husband’s legal and economic identity.”

“Chauncey” cited above refers to George Chauncey, who authored the amicus Historian’s Brief in Lawrence vs. Texas. There’s been much discussion about how the legal framework of Walker’s decision is aimed directly at Justice Kennedy, seen as the swing Supreme Court vote. Less has been made about the importance of the historical grounding to Kennedy; as Rick Perlstein wrote in an article about Chauncey, “the heart of Justice Anthony Kennedy’s new legal doctrine in the 6–3 decision [of Lawrence vs. Texas], ranging over some dozen paragraphs, is a virtual recapitulation of the Historian’s Brief arguments.”

It would be hard for the Supreme Court to allow a radical challenge to an eternal truth, and right-wing rhetoric like the reductio ad absurdum in the William Duncan quote depends on this. But the case has been carefully made that a century-long shift has led to an incontrovertible conclusion. The challenge no longer looks like a radical upset, but as a mostly typical (and slightly queer) American pattern of expansion of justice and liberty.

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