During the Supreme Court argument session on Obergefell v. Hodges, according to the transcription, Justice Alito had the following exchange with Mary Bonauto, Esq., representing the petitioners:
JUSTICE ALITO: But there have been cultures that did not frown on homosexuality. That is not a universal opinion throughout history and across all cultures. Ancient Greece is an example. It was – it was well accepted within certain bounds. But did they have same-sex marriage in ancient Greece?
MS. BONAUTO: Yeah. They don’t – I don’t believe they had anything comparable to what we have, Your Honor. You know, and we’re talking about —
JUSTICE ALITO: Well, they had marriage, didn’t they?
MS. BONAUTO: Yeah, they had – yes. They had some sort of marriage.
[p. 14 of the official transcript]
I have some interest in ancient Greek thought, and so I’d like to stop right there for a moment. What sort of concept of marriage did the ancient Greeks have, and is it something we would look to as analogous to our present-day concept of marriage?
In The Wedding in Ancient Athens (University of Wisconsin Press, 1993), John Howard Oakley and Rebecca H. Sinos outline some of the legal aspects of ancient Greek marriage in Athens. In some ways, ancient Greek marriage was clearly analogous to marriage today, but in other ways it was radically different. One it differed radically from marriage today is that women had no say in whom they married; marriage was a contract between two men:
“The process [of marriage] began with the engye, a contract between the prospective bridegroom and the bride’s father (or legal guardian). Our first evidence for this contract at Athens appears in Herodotus’ description of the marriage of Megacles to Agariste, daughter of Cleisthenes, the tyrant of Sicyon. Herodotus reports the words of Cleisthenes to his prospective son-in-law, ‘To Megacles, son of Alcmeon, I pledge [engyo] my child Agariste in accordance with the laws of the Athenians (6.130). Engye means something placed ‘in the hand’; in the context of the wedding the engye is the promise made by the bride’s father to the groom and then sealed by a handshake. …
“The agricultural metaphor expressing the bride’s role in producing children was followed by the bride’s father’s promise of a dowry. With the dowry he would fulfill the last part of his responsibility for his daughter’s support. After the wedding, her husband would become her legal guardian. …
“The bride’s father, as her legal guardian, had the power to make this pledge without consulting his daughter, and she did not need to be present for the engye. Under ideal circumstances she could have no preferences in the choice of a groom, since the segregation of the sexes in ancient Greece would have provided her with little opportunity to come into contact with men.” [p. 9, p. 10]
Thus, legal marriage today differs radically from legal marriage in ancient Greece. Rather than a contract that was entered into by a prospective spouse on the one hand and the father of a prospective spouse on the other hand, legal marriage today is a contract that is entered into by the two prospective spouses. Furthermore, the ancient Greeks considered marriage a legal agreement between men; by contrast, our conception of marriage allows both women and men to enter into this legal agreement.
Speaking as someone with some knowledge of ancient Greek culture, and as someone trained as a philosopher, I feel Alito’s argument falls to the ground here. Alito would like to draw an analogy between ancient Greek marriage and contemporary marriage, but while there are strong similarities, women are treated so differently in Greek marriage that this becomes a false analogy. This is not a logically valid argument.
However, pointing out the differences in the ways ancient Greek marriage treated different genders seems to me to strengthen the argument that the real legal issue in same-sex marriage is that restricting marriage between opposite-sex couples is in fact discrimination on the basis of sex. And this seems to be the direction that Justice Roberts may head in, based on this question that he asked of John J. Bursch, Esq., Special Assistant Attorney, General, Lansing, Mich., who appeared on behalf of Respondents:
CHIEF JUSTICE ROBERTS: Counsel, I’m – I’m not sure it’s necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual
[pp. 61-62 of the official transcript]
An argument based for same-sex marriage based on equal rights for women and men turns out to be a good rebuttal to Alito’s attempt to draw an analogy to ancient Greek marriage — given that ancient Greek marriage systematically discriminated against women by treating women as wards of men, but with no legal rights of their own.