Follow the Footnote or the Advocate as Historian of Same-Sex Marriage

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Arguments exist that might be made on behalf of same-sex marriage that do not rely on an appeal to history. Many practices condoned in the past, such as cannibalism or slavery, now offend our moral sense. Advocates of same-sex marriage could denounce the historic practice of narrow-mindedly confining a certain legal and moral status, marriage, to a couple made up of one man and one woman, and in so doing exhibit that relaxed, easygoing, sophisticated tolerance that bien pensants believe they must continuously strive to achieve. But that is not the argument Professor Eskridge wishes to make. Like Boswell, he is keenly interested not in claiming a new understanding, and approval, of same-sex unions, but rather in appealing to history and to the claim that such unions have, in many societies, received the official recognition and approval that Western civilization willfully continues to withhold.


Originally published in 1998 by Catholic University Law Review.