SCOTUS misreading history

By Lorenzo

While I am talking about the recent Defense of Marriage Act (DOMA) case, United States v. Windsor, I am not going to presume to tell the Supreme Court of the United States (SCOTUS) how to do US constitutional law. History is another matter.

In the majority decision, written by Kennedy J, the following (pdf) appears:

It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other (Pp13-14) (emphasis added).

The phrasing is a a bit arch, but as a summary of the rich variety of human marital arrangements, accepted unions and conceptions of gender, this is not even close to correct, however widely it is believed. It is not even biblically correct, given that the Bible is quite clear that, for example, Solomon had many wives (1 Kings 11:3). This is not held to be a good thing–all those spouses apparently led him astray–but there are no doubt they were wives. So, presuming universal monogamy (“a man and a woman”) is particularly silly.

Given that polyandry, though rare, also occurs (a marriage of fraternal polyandry is at the heart of the Mahabharata, for example), claiming that marriage is “by definition, between one or more men and one or more women” lacks a certain crispness.

Draupadi and her five husbands

Draupadi and her five husbands: Yudhisthira (spearman), Bhima (mace-wielder), Arjuna (archer), Nakula (swordsman) and Sahadeva (swordsman).

It also lacks a certain truth, as anthropology is aware of many cultures which recognised same-sex unions. In Southern China, for example, there were even dowries for the boy-wife, part of the rich history of same-sex marriages. The rabbinical text Sifra, Achrei Mot 9:8, tells us that:

?? ????? ??? ?????? ??????? ??? ????????? ?????? ??????? ??? ??? ????? ???? ???? ???? ????? ????, ???? ???? ??? ???? ????? ???? ????? ??? ???? ????????? ?? ????.
I did not say this [prohibition] except for the statutes enacted by them, their fathers, and their father’s fathers. And what would they do? A man would marry a man, a woman [would marry] a woman, a man would marry a woman and her daughter, and a woman would marry two men. Therefore it says, “and in their statutes do not follow.”

Same-sex marriage is a great deal older, so more “traditional” (even if it is an interrupted tradition), than the banning of same-sex acts and unions. The anathematisation of same-sex relationships and sex is overwhelmingly a manifestation of monotheism, either directly or as the framing of “modernity”–Japan banned same-sex acts in the late C19th to show how “advanced” and “modern” they were.

The anathematisation comes from monotheism’s very strong tendency to intense sex-and-gender taboos and the utility for clerics of creating outcasts to both demonstrate and manifest their role as gatekeepers of righteousness. Since queers (meaning the same-sex attracted, the same-sex oriented, transgenders and intersex) are highly vulnerable–they grow up as isolated individuals in overwhelmingly straight families and social milieus–they make ideal outcasts. The anathematisations of sexual and gender diversity are religious taboos parading as morality; hence the talk of such laws being “grounded in the Judaeo-Christian tradition”. Thus the legal term sodomy is not only patently theological in its origins–it invokes the natural law (mis)reading of Genesis 19–it also invokes being abhorrent to God and righteously killed, the most thorough form of outcasting.

Airbrushing reality

The exclusion of the queer from the moral, the “properly human”, even the natural order, has resulted in a massive airbrushing of history, society and biology to the extent that it is easy to be completely unaware of how distorting said airbrushing has been. Works such as Evolution’s Rainbow: Diversity, Gender, and Sexuality in Nature and People (a useful review is here) and The Origins and Role of Same-Sex Relations in Human Societies both expose and provide ways to breach said airbrushing. Nowadays, one can read such informative and amusing pieces as Esquire‘s “Field Guide to Gay Animals” (though the use of “gay” is misleading in its own way, as is the conflating of homosexual orientation with same-sex relations).


It is worth noting how functional same-sex relations can be. For example, in species with fairly even male-female gender splits but where breeding is dominated by a dominant male, if the only form of sex was opposite-sex relations, every other male would always and only be a threat to the dominant male; an obviously highly unstable arrangement. Add same-sex relations in to the mix and not only does it reduce the urgency of “knocking off” the dominant male but it also provides a way for subordinate males to placate the dominant male; a much more stable arrangement. The otherwise odd capacity for human males to enjoy (often intensely) passive anal intercourse is much more explicable as a survival strategy–we are all descended from primate males who survived long enough to breed because they literally “offered their tails” to some threatening dominant male. Add in motives such as alliance-building, getting rid of “old” sperm and so on, and the functionality and naturalness of same-sex relations becomes much clearer–to the extent that, in some species, same-sex acts are more common (either in total or at given times of the year) than opposite-sex ones. The notion that the only (or even dominant) point, function or purpose of sex is conception is biological nonsense. (Female bonobos, for example, have enlarged clitorises; apparently to facilitate the female-female pairing which is a noted feature of bonobo social dynamics.)

The queer roots of human culture

But same-sex orientation and transgender identification can also be highly functional. Human culture is wildly disproportionately a creation of queer folk. Bruce Bawer provides a nicely ironic statement of that:

“Do you want to protect your children from gay influence?” I imagine [Allan Bloom] writing. “Very well. Destroy the Mona Lisa and The Last Supper, silence Messiah and Swan Lake, and burn Moby Dick and The Portrait of a Lady. Gay culture is all around you — and it belongs to everybody.”

Without buying into all Bawer’s ascriptions of queerness, the point is eminently sound. Take out the queer contribution and you not only gut Western culture, you gut every human culture. This goes right back to the origins of human culture and the role of queers in foraging bands and early herding and farming societies.

The claim is regularly made that, because queers do not have children, they have no commitment to the future or the wider society. This is exactly the wrong way round. In societies without old age pensions, queers had more interest than anyone else in making sure that other people’s children had the interest and capacity to support them.

So they provided cultural services–art, rituals of binding and transition, mediation, healing, social memory, wisdom. Having a (small) proportion of queer people who performed such shamanistic roles improved the cohesion and capacity of foraging bands, and then herding and early farming societies; which is to say, their survival prospects. (The intergenerational same-sex unions that occurred in various societies clearly also had a transmission-of-knowledge-and-culture role.) The disproportionate role of queers (particularly gay men) in the arts, literature, caring professions and so on in modern societies is very traditional and very functional.

It also meant that when the monotheist revolution hit a traditional society, targeting queers and queerness also disproportionately targeted the bearers of traditional culture, aiding the process of cultural disintegration and the imposition of new perspectives. Which makes American posturings about how traditional repression of sexual and gender diversity particularly ironic, since the monotheist destruction of such traditions occurred in the Americas a millennium later than it did in the Mediterranean world. Given how widespread same-sex marriages were among Amerindian cultures, writing same-sex unions out of the history of civilisation also means writing the history of Amerindian cultures out of American history. Court decisions which invoke the Judaeo-Christian tradition are particularly blatant instances of writing Amerindian culture and history out of American history.

Balboa establishing traditional gender relations by throwing 40 cross-dressing Amerindian homosexuals to the dogs to be eaten alive

Balboa establishing traditional sexual relations and gender identity by throwing 40 cross-dressing Amerindian homosexuals to the dogs to be eaten alive.

Sanctifying brutality

Because the vulnerability of queers make them such ideal outcasts, when monotheism hits a society, it is both easy to repress them and to keep them repressed. Because it is an imposed repression, citing tradition in this case is no more than claiming that their very vulnerability is a basis to continue to deny them standing, to continue to deny them equal protection of the law.

It is a repression that involved, and required, considerable brutality. It had to, since it was a war against human nature, against the enduring reality of human sexual and gender diversity. The discounting of their nature, experience and aspirations both justified the brutality and required it to maintain the repression. Take the enforced official (and unofficial) brutality away, and the repression falls apart as people assert their nature(s). Which is why we go from same-sex acts as capital crime to same-sex marriage in less than two centuries.

So, by invoking “traditional” morality and “understandings” of marriage, one is sanctifying past brutality, insisting that current citizens continue to bear the burden born in, and maintained with, such brutality. Denying the history denies all that experience and suffering. It turns queer people, and their aspirations, into discountable and dispensable innovations rather than an inherent, even central, part of the human story and human societies. Hence the importance of writing them out of history to support denial of equal protection of the law. And the importance of putting them back in so as to deny that basic prop to the arguments for repression of fellow citizens.

Montaigne mentions in his journals same-sex marriages being performed in a Church in Rome in the 1570s. The participants were, apparently, later publicly burnt alive as heretics; a sequence that points to both the enduring nature of the impetus to form acknowledged same-sex unions and the brutality (and clerical outcasting) which repressed them.

Missing the sequence

If the original sin of the monotheist tradition is the exclusion sequence (stripping away, or severely attenuating, moral standing and legal protection for queers, pagans, women, other monotheists), then one of the glories of post-Enlightenment Western civilisation has been the emancipation sequence (emancipation of slaves, Catholic emancipation–i.e. abolishing confessional restrictions–Jewish emancipation, female emancipation, civil rights, queer emancipation). Which has also been a process of the de-Christianisation of law, since God-the-all-purpose-excluder–God being a trump-anyone-or-anything-else authority on behalf of whom almost any claim can, and has, been made–was the ultimate authority for the exclusion sequence in the first place. (It is also why the emancipation sequence has been much weaker in Islam.) It is a conspicuous feature of contemporary law that the God-exception applies to limit the ambit of anti-discrimination laws–that is, the law substantially protects the right of religions to create outcasts.

A striking feature of the emancipation sequence has been the role of conservatives in opposing each stage in the emancipation sequence while, after a suitable time, embracing–indeed, identifying with–previous emancipation(s). Which, of course, means not identifying with previous conservative positions. A refusal of identification which blocks self-understanding, so they end up playing exactly the same role in the new stage in the emancipation sequence as those whose position(s) they refuse to identify with did in the previous stage(s). Which is to say, they spectacularly fail to learn from history and make the same mistakes over and over again; ending up on the losing side of the argument, over and over again. The side future conservatives themselves will reject.

There is no finer example of this than Scalia J. In his dissenting judgement in Stenberg v. Carhart, he wrote as his first sentence:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. 

Korematsu v. the United States (1944) was the decision which said FDR’s interning of all Japanese-Americans was legally fine. Scott v Sanford (1857) was the decision which stated that people of African descent could not be US citizens and constitutionally protected slavery. Scalia is identifying with the opponents of slavery, racial exclusion and internment by ethnic/racial category. Fair enough, a perfectly normal thing for any contemporary person (conservative or otherwise) to do. Except that Scalia is notoriously an opponent of queer emancipation. Here is Taney CJ in Scott v. Sandford:

4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.

5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit. …

9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted (Pp393-4). …

The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted (Pp404-5).

Here is Scalia J dissenting in Lawrence v. Texas (2003), which overturned Bowers v. Hardwick (1986):

It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation (p589). …

Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized—which suffices to establish that homosexual sodomy is not a right “deeply rooted in our Nation’s history and tradition.” The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied (p.596). …

The objection is made, however, that the anti-miscegenation laws invalidated in Loving v. Virginia, 388 U. S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U. S. 229, 241–242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies (p.600). …

Even if the Texas law does deny equal protection to “homosexuals as a class,” that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality (p.601). …

Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.

One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 575. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter. So imbued is the Court with the law profession’s anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that culture are not obviously “mainstream”; that in most States what the Court calls “discrimination” against those who engage in homosexual acts is perfectly legal (Pp602-3).


Clearly Scalia J is performing exactly the same role against queer emancipation as the supporters of past moral exclusions did in their time. The notion that he, Scalia J, would have done other at the time than agree with the Supreme Court decision of the day in Dred Scott (a 7-2 decision) or Korematsu (a 6-3 decision) is self-delusion of the highest order, albeit a completely representative self-delusion among conservatives. We can tell that it is self-delusion because he is invoking the same rhetoric, the same justification for moral, and thus legal, exclusion that the opponents of past emancipations did then as he now does against queer emancipation. Homosexuals are no more entitled to equal protection of the law than persons of African descent in Dred Scott or of Japanese descent in Korematsu.  Scalia’s constant reference to “homosexual conduct” is just arch evasion; if you criminalise homosexual conduct you criminalise acting on being homosexual and the point of the Texan law in particular was clearly to target homosexuals–as philosophy Richard Mohr has observed:

unenforced sodomy laws are the chief systematic way that society as whole tells gays they are scum.

For so much of the power of outcasting the vulnerable comes from selling effortless virtue and authorised malice. If one has no same-sex attraction, avoiding acting upon non-existent desire has no direct cost. If one’s gender identity is unproblematic, then avoiding acting differently has no direct cost. If one is white, outcasting blacks has no direct cost. It is all effortless virtue. Even better, one gets the pleasure of feeling righteously superior with no effort, of engaging in authorised malice–whether the gentle malice of merely feeling superior or more complete versions. The opprobrium towards homosexuals acting on being homosexuals Scalia J cites as a legitimate form of cultural politics and legislative motive is, in fact, precisely what is wrong with such moral exclusion in all its forms. Nor is the massive sense of entitlement on which it is based–the notion that homosexuals can be deemed not a proper version of the human (otherwise there would be no question of criminalising fundamental aspects of their lives nor denying their relationships legal recognition)–either healthy or attractive. (After all, who does Scalia J think entitled to decree him not a proper manifestation of the human?) That it is a very traditional form of entitlement does not make it any less such.

To set Dred Scott and Korematsu up as jurisdictional low points but then engage in legal exclusion of the same form against the next group in the emancipation sequence is a spectacular failure to learn from history, a form that is endemic to conservatives and conservatism. Precisely because they do not identify with past conservative failures, they repeat them.

Credence to the past

History matters. But to learn from the past one has to give it full credence, not simply count only those bits of the past that allow one to valorise a certain conception of it. The essence of moral, and legal, exclusion is to selectively discount human experience and human aspirations. Which is why writing human experience, and human suffering, selectively out of the historical record is so important to moral and legal exclusion. When we write it in, when we pay attention to human experience and aspirations, we are making it and them count, and so massively undermining the cause of moral and legal exclusion of our fellow humans. Indeed, our fellow citizens.

Queers are not dispensable elements of human history or society, they are central to understanding it. Including exactly what is wrong with moral and legal exclusions–not only does such, by its nature, involve suffering and brutality but, once we have agreed that one group can be discounted, can be denied moral, and so legal, standing, then so can other groups. It was Jewish thinkers, after all, who introduced the notion to the Abrahamic tradition that sexual, gender and religious divergence were God-given reasons to repress, indeed to kill, folk. How did that work out for future generations of their people?

Conservatives are constantly prone to buying into the notion that repression of some group or groups is necessary for social order and harmony.  They believe that they are learning the lessons of history in doing so. That is, in fact, precisely what they are not learning. Particularly not the lesson of recurring conservative failures.

If courts, including the Supreme Court of the United States, are going to cite history, then they need to understand what that history actually is; not highly selective versions thereof which both manifest the techniques of repression and hide the reality thereof.


  1. kvd
    Posted July 3, 2013 at 4:13 pm | Permalink

    And here was me thinking that SCOTUS had ‘simply’ decided that there was no useful or indeed legitimate, let alone pressing, purpose for the US government to impose upon its constituent states a law (DOMA) which neither served nor addressed any pressing or useful etc. etc. need affecting such Union – apart from the doubtful outcome of significantly disadvantaging (that must be a word?) a small selection of the citizens of said US of A.

    Aside: I read somewhere the other day that both Presidential candidates of 2012 were the grandsons of polygamists; nttawwt.

    Lorenzo, although I agree with your broader analysis, and applaud the decision as only ‘just and proper’ I think you should at least allow that when SCOTUS speaks of ‘history’ it is most probably referring to that small part of history which it is bound to have regard to – i.e. that of the USA.

  2. conrad
    Posted July 5, 2013 at 7:50 am | Permalink

    I don’t believe the alpha-male argument — as far as I’m aware, there are no species of animals with no known gay members. More importantly, there are any numbers of species with known gay members, including birds that pair once for life (or close to it). The argument doesn’t even explain your picture, where two female bonobos are at it unless you think that the cause of being gay and female and being gay and male is the same, despite the distribution of gay members being different — at least in humans, there are more females that are bisexual than males.

  3. John H.
    Posted July 5, 2013 at 6:34 pm | Permalink

    Do you want to protect your children from gay influence?” I imagine [Allan Bloom] writing. “Very well. Destroy the Mona Lisa and The Last Supper, silence Messiah and Swan Lake, and burn Moby Dick and The Portrait of a Lady. Gay culture is all around you — and it belongs to everybody.”

    Nah, my standard response which is much more applicable to this age is: You don’t want gay influence, stop using computers, which means stop using just about every modern appliance today. Why? Alan Turing.

    Gays have a tendency to shoot themselves in the foot. One thing that is causing outrage in France is Gays insisting the state pay for IVF and other technologies so they can have children.

    Of particular disgust was a gay pride march with the usual excessive emphasis on sexuality and the dumber gays had their children involved in the march. Gays need to stop presenting their culture as being so sexually oriented.

Post a Comment

Your email is never published nor shared. Required fields are marked *