In his dissent from the Supreme Court's ruling acknowledging rights of marriage equality throughout the Union, Chief Justice John Roberts protested that the decision was an overreach on the part of the Court. He complained that the ruling “orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?” As many have noted, this passage expresses an understanding of social history that is simplistic at best. Rosemary Joyce has explained the absurdity of invoking Aztec marriage as a foundational precedent (hat tip to my friend and colleague Susan Tratner).
As a historian of China I was likewise shocked to see the Han (206 B.C.E.-220 C.E.) Chinese on Roberts's list. A document that I have frequently used in class to discuss gender history with my students well exemplifies the problem with Roberts's reasoning. It is a letter from a Han dynasty official, Feng Yan, to his brother-in-law, explaining why he is forced to seek a divorce from his wife. In its opening lines, Feng declared:
"According to the rules of society that have been set down by the sages, a gentleman should have a primary wife and a concubine as well (translated in Ebrey, Chinese Civilization: A Soucebook)."
Feng goes on to explain that since his wife (the addressee's sister) has sought to change the age-old definition of marriage by denying him a concubine, Feng has no choice but to jettison the mother of his four children in search of someone more reasonable. It is interesting to note that this is precisely the same logic deployed by Chief Justice Roberts two millenia later.
As has been frequently stated, what opponents of marriage equality fail to understand is the high degree to which the institution of marriage has changed and evolved over the course of human history. The reality of same-sex love was understood by the Han Chinese as it was by the ancient Greeks and other early peoples. The reason that an acknowledgment of same-sex love did not translate into an embrace of same-sex marriage is that, as Feng Yan's letter demonstrates, marriage was (in theory, at least) understood to be a hierarchical relationship between master (husband) and servant (wife). This marital hierarchy was assumed to grow spontaneously from the natural gender order written into the framework of the cosmos. Two persons of the same gender thus could not marry, as it would be impossible to determine who was superior and who subordinate.
Marriage has evolved (much more recently than most people imagine) to become a relationship between equals, thus there is no justification to exclude same-gender couples from the marital bond. In this respect, Chief Justice Roberts is utterly wrong- in upholding
marriage equality the court did not legislate from the bench, it merely
enforced the natural imperative of the 14th amendment's guarantee to all
citizens of "the equal protection of the law." Federal law grants 1,138 rights and benefits to married couples. Anyone arbitrarily disallowed
from marrying the individual that they love thus can not possibly be
said to enjoy "the equal protection of the law." This ruling is not a
thunderbolt from the blue. It is a consummation that has been due since
the passage of the 14th amendment in 1868.