Arguing Equality Chapter 9: Gay Marriage by Definition

This is a nine-part installment designed to help everyone understand marriage equality. For some, it will be an education, for others, it will be helpful when discussing the subject with others. I have included links to each chapter at the end, as well as information about the author.

“I’ve just concluded that for me personally it is important for me to go ahead and affirm that I think same-sex couples should be able to get married.” President Barack Obama.



For gay marriage opponents who are a bit less intellectually developed, here are a few topical statements.


For many Americans, the very concept of same-sex marriage is puzzling and confusing: “It just can’t be!” Marriage has always been a union between one man and one woman – by its very definition, it is opposite-sex. By this line of reasoning, “gay marriage” is an oxymoron, a contradiction in terms.

Believe it or not, definitional arguments have proven persuasive in courts. Take, for example, the Kentucky Court of Appeals’ reasoning in the case of Jones v. Hallahan. The court began its decision by quoting from Webster’s Dictionary, second edition, which defines marriage as:

A state of being married, or being united to a person or persons of the opposite sex as husband or wife; also, the mutual relation of husband and wife; wedlock; abstractly, the institution whereby men and women are joined in a special kind of social and legal dependence, for the purpose of founding and maintaining a family.

After citing this definition, the court ruled against two gay men who requested a marriage license with the following conclusion:

[M]arriage has always been considered as the union of a man and a woman and we have been presented with no authority to the contrary. It appears to us that appellants are prevented from marrying, not by the statutes of Kentucky or the refusal of the County Court Clerk of Jefferson County to issue them a license, but rather by their own incapability of entering into a marriage as that term is defined.

Straight up, the argument doesn’t work. It is, simply, illogical.

A) The Logical Incoherency of the Argument

Definitional arguments against gay marriage suffer three fatal flaws of logical consistency. First, they employ circular reasoning. Follow the logic:

Marriage is a relationship between two people of different sexes, therefore a same-sex couple cannot marry. But Why? Because marriage is a relationship between two people of different sexes.

The argument employs no outside moral, legal, social, ethical or historical rationale as to why the status quo should be retained, a prime example of circular reasoning.

Second, pay attention to the primary point being put forth: “Two people of the same sex can’t get married because marriage is for two people of different sexes.” In legal terms, this is referred to as ipse dixit reasoning – “It’s so because I say its so!” It may be impossible to question such reasoning, but it is hardly persuasive.

Third, the claim is non-responsive. The statement “this is the way things have always been” fails to address the argument that things should change. As one of the greatest legal thinkers f modern times, Oliver Wendell Holmes put it: “It is revolting to have no better reason for a rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.”

Again, a little history lesson may be in order. The argument, when illuminated by the facts, doesn’t hold water.

A) Gay Love And Marriage Historically

The argument fails on a fourth ground as well: it simply is not true. Marriage is not naturally, normally, or even traditionally heterosexual in nature. Gay unions have been sanctioned in various historical eras and cultures from ancient Greece to 17th Century China to pre-colonial America. Indeed, a 1951 survey of sexual practices around the world drew the following conclusions:

In 49 (64 percent) of the 76 societies other than our own for which information is available, homosexual activities of one sort or another are considered normal and socially acceptable for certain members of the community…. In many cases this [same-sex] behavior occurs within the framework of courtship and marriage, the man who takes the part of the female being recognized as a “berdache” and treated as a woman. In other words, a genuine mateship is involved.

To illustrate the presence of gay love cross-culturally and historically, I will explore some of those civilizations which have recognized and accepted same-sex unions. Please keep in mind that this is meant solely as a cursory overview, and is by no means an exhaustive list.

Africa: “Woman-Marriages

In the 1930s, the phenomenon of “woman-marriages” in the Sudan and northern Nigeria, once dismissed as an odd curiosity, was given considerable attention when anthropologists Eileen Jensen Krige and Melville Herskovits researched and published a study of the Nuer tribe in Sudan:

What seems to us, but not at all to the Nuer, a somewhat strange union is that in which a woman marries another woman and counts as the “pater” [father] of the children born of the wife. Such marriages are by no means uncommon in Nuerland, and they must be regarded as a form of simple legal marriage, for the woman-husband marries her wife in exactly the same way as a man marries a woman…. We may perhaps refer to this kind of union as woman-marriage.

Anthropologist C.K. Meek described the institution as it currently exists in northern Nigeria:

There is a curious and ancient custom found among some of the Yoruba, Yagba, Akoko, Nupe, and Gana-Gana communities — that of a woman going through a regular form of matrimony with other women.

All the ceremonial of marriage is observed in these marriages of women to women, and a bride-price is even paid to the young girl’s father. The usual rules of divorce apply. The legal “husband” can divorce her “wife” and recover her dowry, and if the young girl runs off with a man she can claim the resultant children as her own. The marriage of women to women is not regarded with disfavour, and the chiefs will even consent to their daughters being married in this way.

Ancient Greece:

It is widely accepted that same-sex eroticism was common in ancient Greece, especially among the upper classes. In fact, a great deal of Greek art and literature represents gay love as the only form of love which can be lasting, pure, and truly spiritual – primarily because it reaches beyond procreation in purpose. For instance, the concept of “Platonic love” derived from Plato’s conviction that only love between persons of the same gender could transcend sex.

The Greek notion that homosexuality was an integral part of the spectrum of human sexuality is perhaps best exemplified in Plato’s Symposium, where Plato puts forth a theory on the origins of human love. According to this theory, all humans were originally giants who had four arms, four legs, two heads, and two sexual organs — either two male genitalia (male giants), two female genitalia (female giants), or one of each (androgynous giants). At some point, Zeus became angry with the giants and cut them all in half, yielding gay, lesbian and heterosexual humans respectively, all in search of their other halves.

Additionally, many of the Gods of ancient Greece, including Zeus and Achilles, had both same-sex and opposite-sex lovers. Indeed, according to Greek mythology, when Zeus returns up to the heavens, it is Ganymede, his male lover, whom he chooses to accompany him for all eternity.

Ancient China:

Gay male love was also fully integrated and accepted in the Fukien Province of ancient China. Indeed, among the ancient Chinese, same-sex love was commonly spoken of as “the love of the cut sleeve.” The phrase referred to the last emperor of the Han dynasty, Ai-Ti, who cut the sleeve from his shirt when called to give a speech rather than wake his lover, Tung Hsien, who had fallen asleep on it.

Ancient Mesopotamia:

Finally, the Epic of Gilgamesh, the most celebrated of Near Eastern myths, illustrates the celebration of same-sex love in Ancient Mesopotamia. The epic describes the relationship between Gilgamesh — the powerful ruler of Uruk — and Enkidu, a beautiful male created by the Gods to divert Gilgamesh’s attention and keep him from wreaking havoc on the world.

As the story goes, Gilgamesh and Enkidu become lovers before Enkidu is killed by “the fates.” When Enkidu dies, Gilgamesh mourns for him as a widow (literally translated from the epic as “a wailing woman”) would and veils his corpse as if he were a bride.

Pre-Colonial America:

Accounts by Spanish explorers and missionaries provide evidence of same-sex marriages in North and South America. For instance, in 1542 explorer Cabeza de Vaca recounted the five years he spent among the Timucua Indians of Florida: “During the time I was thus among these people I saw a devilish thing, and it is that I saw one man married to another.”  Similarly, Pedro de Magalhaes’s The Histories of Brazil, published in 1576, described women in northeastern Brazil who “give up all the duties of women and imitate men, and follow men’s pursuits as if they were not women…. [E]ach has a woman to serve her, to whom she says she is married, and they treat each other and speak with each other as man and wife.”

As may be gleaned from the tone of these accounts, same-sex unions were hardly looked upon favorably by the colonists. Indeed, gay marriages among the Native Americans were seen as evidence of the “barbarism” of these foreign cultures, and were denounced in the most vociferous of tones. As the engraving below illustrates, when the colonists ultimately conquered the Native-American tribes their denunciations took a more savage turn – countless gay, lesbian, bisexual and transgender people were brutally massacred.

1594 Theodor de Bry engraving of Balboa using dogs to massacre Native-American berdache.

Modern American History:

While gay marriages have yet to be formally recognized in the United States outside of Massachusetts, same-sex love and lifelong monogamous commitments have been documented for quite some time. One means by which two people of the same sex could live together without provoking suspicion was by having one partner cross-dress. Indeed, records kept by the Dutch East India Company reveal hundreds of women caught “passing” as men, and as many as four hundred women are known to have passed as men while serving in the Union Army during the Civil War.

Franklin Thompson (Sarah Emma Edmonds) fought for the Union Army in the Civil War.

Among female cross-dressers, a substantial number sought female companionship, and hundreds legally married other women. For example, Mary Anderson, who died in 1901, “passed” as a man in New York City for thirty years. Hall ran a lucrative business, was active in Tammany Hall politics, gained a reputation as a “man about town,” and married twice — the first marriage ending in separation and the second by her wife’s death.

The industrial revolution brought great change to American culture, foremost among them being the advent of economic independence. For the first time in history, the family unit was no longer necessary for individual economic survival – men and women could work in factories, earn wages, and survive on their own. As a result, same-sex relationships blossomed as individuals could decide whether to marry (or not), or raise children (or not).

For women, these long-term monogamous relationships became known as “Boston marriages,” named after a female couple in Henry James’ 1885 novel The Bostonians. Boston marriages were popular among well-educated, professional women in particular.  For men, emotional and sexual needs were similarly gratified in “buddy” relationships during the eighteenth and nineteenth centuries. Men in frontier communities without women tended to form personal and often sexual partnerships with other men, a phenomenon documented in countless communities of pirates, hoboes, cowboys and miners.

To put it succinctly, same-sex unions have long been recognized, sometimes formally and sometimes informally, in innumerable civilizations and eras throughout time. Any argument that marriage is, always has been, and therefore must be heterosexual in nature is normatively and historically fallacious.

via Gay Marriage by Definition.


Seth Persily is a member of the Georgia Bar and a cum laude graduate of Harvard Law School. While at Harvard, Mr. Persily served as Publisher of the Harvard Law Record and co-President of the Lambda Law Association. Mr. Persily obtained his undergraduate degree from Duke University, where he served as President of the Duke Gay, Bisexual & Lesbian Association. He graduated Phi Beta Kappa, with a B.A. in Religion and a minor in Gay & Lesbian Studies.

Mr. Persily worked at the Atlanta law firm of Sutherland, Asbill & Brennan before opening his own practice, Persily & Associates, which concentrates on employment discrimination and real estate law. He serves on the Board of Directors for Georgia Equality as well as YouthPride.

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